BILL NUMBER: SB 600 CHAPTERED
BILL TEXT
CHAPTER 62
FILED WITH SECRETARY OF STATE JULY 14, 2003
APPROVED BY GOVERNOR JULY 14, 2003
PASSED THE SENATE JUNE 30, 2003
PASSED THE ASSEMBLY JUNE 19, 2003
AMENDED IN ASSEMBLY MAY 20, 2003
INTRODUCED BY Committee on Judiciary (Senators Escutia (Chair),
Ackerman, Cedillo, Ducheny, Kuehl, Morrow, and Sher)
FEBRUARY 20, 2003
An act to amend Sections 853, 855, 1766, 1971, 2154.2, 4409, 4848,
19613, and 19617.5 of, and to add a heading to Article 7.5
(commencing with Section 17582) of Chapter 1 of Part 3 of Division 7
of, the Business and Professions Code, to amend Sections 48, 941,
1102.6, 1102.6b, 1714, 1936, 1946.1, 1954, 2924j, and 2941 of the
Civil Code, to amend Sections 17, 170.6, 179, 437c, 1208.5, 1420, and
1607 of the Code of Civil Procedure, to amend Sections 2117 and
25118 of the Corporations Code, to amend Sections 430, 446, 8483,
8499.5, 8813, 17073.25, 20091, 22138.5, 25103, 35401, 35534, 35738,
37220.8, 37252.1, 41329.3, 41344, 42127, 42238.46, 42238.53, 44775.4,
44775.6, 44775.7, 44775.8, 44830.3, 47605.3, 47614.5, 47632, 48927,
51122, 51226.1, 51226.3, 51700, 52053, 52056, 52071, 52073, 53082,
54201, 56021.1, 56046, 56341.5, 56383, 59008, 59104, 59205, 60246,
60900, 66025.3, 67385.3, 70010, 94140, 94154, 94771, and 99235 of the
Education Code, to amend Sections 13102, 13107, and 19227 of the
Elections Code, to amend Sections 3048, 3118, 8802, 9210, 9212, and
17506 of the Family Code, to amend Section 1226 of, and to amend the
heading of Article 1 (commencing with Section 3100) of Chapter 17 of
Division 1 of, the Financial Code, to amend Sections 1019, 2081.7,
2086, 2118, 3508, and 6954 of the Fish and Game Code, to amend
Sections 9221, 12999.5, and 79008 of the Food and Agricultural Code,
to amend Sections 3309.5, 3517.61, 3562, 3593, 6527, 7579.5, 8314,
8592.4, 8670.40, 10201, 10202, 10203, 10204, 10206, 11121, 12965,
14838.5, 14838.7, 14981, 19142, 19775.17, 19775.18, 19827, 19867,
19997.3, 20057, 20501, 20610, 20611, 20677, 20677.4, 20752, 20902.5,
21220, 21362.3, 21465, 22009.03, 22009.1, 22018, 22156, 22502, 22754,
22810, 22840.2, 23119, 26608.3, 30061, 30063, 31520.1, 31629.5,
31787.6, 45310.7, 53216.8, 53601.7, 53635, 57116, 68085, 68095,
68115, 68620, 69587, 69588, 70367, 70391, 70392, 71601, 71615,
71632.5, 71636, 71636.3, 73665, 73757, and 82011 of, and to amend and
renumber Section 26638.5 of, the Government Code, to amend Sections
1339.63, 1368.015, 1368.02, 1797.115, 1797.196, 11571, 11581, 18943,
25249.7, 42801.1, 44299.80, 50199.74, 52075.1, 100870, 102247,
113995, 115000.1, 115928, 122137, 123418, 123464, and 125116 of, and
to amend and renumber Section 121140 of, the Health and Safety Code,
to amend Sections 1211 and 10235.52 of the Insurance Code, to amend
Sections 98.2, 176, 230.1, 1776, and 3099.3 of the Labor Code, to
amend Sections 179, 395.3, 406, and 1035.6 of, and to amend and
renumber Sections 411, 412, 413, 414, 415, 416, 417, 418, 419, and
420 of, the Military and Veterans Code, to amend Sections 132.5,
171.5, 337u, 383c, 424, 597l, 808, 1089, 1203.3, 1240.1, 1463,
1524.1, 11171, 11199, 11226, 11230, 12087.5, and 13823.9 of, and to
repeal Article 4.5 (commencing with Section 12087) of Chapter 1 of
Title 2 of Part 4 of, the Penal Code, to amend Section 1513.1 of the
Probate Code, to amend Sections 10524 and 20103.8 of the Public
Contract Code, to amend Sections 4114.5, 4123, 5090.37, 5631, 6307.1,
21098, 25534, 30812, 31119, and 40507 of, and to amend and renumber
Sections 21061.0.5 and 30950 of, the Public Resources Code, to amend
Sections 334, 345, 346, 350, 360, 362, 394.25, 398.4, 5411.5, 7000,
15704, 132353.2, 132370.5, 132370.6 of, and to amend and renumber
Sections 132632 and 132634 of, the Public Utilities Code, to amend
Sections 96.1, 408, 426, 998, 2921.5, 7280, 7286.24, 17041, 17052.2,
17052.6, 17062, 17952.5, 18713, 18716, 18831, 19006, 20503, 20563,
23701t, 60361.5, and 60401 of, and to amend and renumber the heading
of Chapter 2.98 (commencing with Section 7286.75) of Part 1.7 of
Division 2 of, the Revenue and Taxation Code, to amend Sections
216.5, 390, and 27322 of the Streets and Highways Code, to amend
Sections 411 and 15051 of the Unemployment Insurance Code, to amend
Sections 5068, 9250.19, 9554, 11614.1, 11701, 11711.3, 12509, 21228,
21655.3, 23109.2, and 42011 of the Vehicle Code, to amend Sections
1013, 12949.6, 12994, 13307.1, 22762, 75480, 79420, and 79460 of, and
to amend the heading of Article 1 (commencing with Section 71660) of
Chapter 3 of Part 5 of Division 20 of, the Water Code, to amend
Sections 225.05, 366.4, 1719, 4015, 4094, 4503, 5205, 5346, 5405,
11450, 11451.5, 11462, 14105.95, 14105.96, 14172, 15610.37, and 18969
of the Welfare and Institutions Code, and to amend Sections 12.5,
13, 13.5, and 14 of Chapter 1449 of the Statutes of 1951, Section 1
of Chapter 483 of, Section 1 of Chapter 575 of, Section 1 of Chapter
583 of, Section 1 of Chapter 697 of, Section 5 of Chapter 1020 of,
and Section 1 of Chapter 1060 of the Statutes of 2002, relating to
maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
SB 600, Committee on Judiciary. Maintenance of the codes.
Existing law directs the Legislative Counsel to advise the
Legislature from time to time as to legislation necessary to maintain
the codes.
This bill would make technical, nonsubstantive changes in various
provisions of law to effectuate the recommendations made by the
Legislative Counsel to the Legislature.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 853 of the Business and Professions Code is
amended to read:
853. (a) The Licensed Physicians and Dentists from Mexico Pilot
Program is hereby created. This program shall allow up to 30
licensed physicians specializing in family practice, internal
medicine, pediatrics, and obstetrics and gynecology, and up to 30
licensed dentists from Mexico to practice medicine or dentistry in
California for a period not to exceed three years. The program shall
also maintain an alternate list of program participants.
(b) The Medical Board of California shall issue three-year
nonrenewable licenses to practice medicine to licensed Mexican
physicians and the Dental Board of California shall issue three-year
nonrenewable permits to practice dentistry to licensed Mexican
dentists.
(c) Physicians from Mexico eligible to participate in this program
shall comply with the following:
(1) Be licensed, certified or recertified, and in good standing in
their medical specialty in Mexico. This certification or
recertification shall be performed, as appropriate, by the Consejo
Mexicano de Ginecologia y Obstetricia, A.C., the Consejo Mexicano de
Certificacion en Medicina Familiar, A.C., the Consejo Mexicano de
Medicina Interna, A.C., or the Consejo Mexicano de Certificacion en
Pediatria, A.C.
(2) Prior to leaving Mexico, each physician shall have completed
the following requirements:
(A) Passed the board review course with a score equivalent to that
registered by United States applicants when passing a board review
course for the United States certification examination in each of his
or her specialty areas and passed an interview examination developed
by the National Autonomous University of Mexico (UNAM) for each
specialty area. Family practitioners who shall include obstetrics
and gynecology in their practice, shall also be required to have
appropriately documented, as specified by United States standards, 50
live births. Mexican obstetricians and gynecologists shall be
fellows in good standing of the American College of Obstetricians and
Gynecologists.
(B) (i) Satisfactorily completed a six-month orientation program
that addressed medical protocol, community clinic history and
operations, medical administration, hospital operations and protocol,
medical ethics, the California medical delivery system, health
maintenance organizations and managed care practices, and
pharmacology differences. This orientation program shall be approved
by the Medical Board of California to ensure that it contains the
requisite subject matter and meets appropriate California law and
medical standards where applicable.
(ii) Additionally, Mexican physicians participating in the program
shall be required to be enrolled in adult English as a Second
Language (ESL) classes that focus on both verbal and written subject
matter. Each physician participating in the program shall have
transcripts sent to the Medical Board of California from the
appropriate Mexican university showing enrollment and satisfactory
completion of these classes.
(C) Representatives from the National Autonomous University of
Mexico (UNAM) in Mexico and a medical school in good standing or a
facility conducting an approved medical residency training program in
California shall confer to develop a mutually agreed upon distant
learning program for the six-month orientation program required
pursuant to subparagraph (B).
(3) Upon satisfactory completion of the requirements in paragraphs
(1) and (2), and after having received their three-year nonrenewable
medical license, the Mexican physicians shall be required to obtain
continuing education pursuant to Section 2190. Each physician shall
obtain an average of 25 continuing education units per year for a
total of 75 units for a full three years of program participation.
(4) Upon satisfactory completion of the requirements in paragraphs
(1) and (2), the applicant shall receive a three-year nonrenewable
license to work in nonprofit community health centers and shall also
be required to participate in a six-month externship at his or her
place of employment. This externship shall be undertaken after the
participant has received a license and is able to practice medicine.
The externship shall ensure that the participant is complying with
the established standards for quality assurance of nonprofit
community health centers and medical practices. The externship shall
be affiliated with a medical school in good standing in California.
Complaints against program participants shall follow the same
procedures contained in the Medical Practice Act (Chapter 5
(commencing with Section 2000)).
(5) After arriving in California, Mexican physicians participating
in the program shall be required to be enrolled in adult English as
a Second Language (ESL) classes at institutions approved by the
Bureau of Private Post Secondary and Vocational Education or
accredited by the Western Association of Schools and Colleges. These
classes shall focus on verbal and written subject matter to assist a
physician in obtaining a level of proficiency in English that is
commensurate with the level of English spoken at community clinics
where he or she will practice. The community clinic employing a
physician shall submit documentation confirming approval of an ESL
program to the Medical Board of California for verification.
Transcripts of satisfactory completion of the ESL classes shall be
submitted to the Medical Board of California as proof of compliance
with this provision.
(6) (A) Nonprofit community health centers employing Mexican
physicians in the program shall be required to have medical quality
assurance protocols and either be accredited by the Joint Commission
on Accreditation of Health Care Organizations or have protocols
similar to those required by the Joint Commission on Accreditation of
Health Care Organizations. These protocols shall be submitted to
the Medical Board of California prior to the hiring of Mexican
physicians.
(B) In addition, after the program participant successfully
completes the six-month externship program, a free standing health
care organization that has authority to provide medical quality
certification, including, but not limited to, health plans,
hospitals, and the Integrated Physician Association, is responsible
for ensuring and overseeing the compliance of nonprofit community
health centers medical quality assurance protocols, conducting site
visits when necessary, and developing any additional protocols,
surveys, or assessment tools to ensure that quality of care standards
through quality assurance protocols are being appropriately followed
by physicians participating in the program.
(7) Participating hospitals shall have the authority to establish
criteria necessary to allow individuals participating in this
three-year pilot program to be granted hospital privileges in their
facilities.
(8) The Medical Board of California shall provide oversight review
of both the implementation of this program and the evaluation
required pursuant to subdivision (j). The board shall consult with
the medical schools applying for funding to implement and evaluate
this program, executive and medical directors of nonprofit community
health centers wanting to employ program participants, and hospital
administrators who will have these participants practicing in their
hospital, as it conducts its oversight responsibilities of this
program and evaluation. Any funding necessary for the implementation
of this program, including the evaluation and oversight functions,
shall be secured from nonprofit philanthropic entities.
Implementation of this program may not proceed unless appropriate
funding is secured from nonprofit philanthropic entities. The board
shall report to the Legislature every January during which the
program is operational regarding the status of the program and the
ability of the program to secure the funding necessary to carry out
its required provisions. Notwithstanding Section 11005 of the
Government Code, the board may accept funds from nonprofit
philanthropic entities. The board shall, upon appropriation in the
annual Budget Act, expend funds received from nonprofit philanthropic
entities for this program.
(d) (1) Dentists from Mexico eligible to participate in this
program shall comply with the following:
(A) Be graduates from the National Autonomous University of Mexico
School of Faculty Dentistry (Facultad de Odontologia).
(B) Meet all criteria required for licensure in Mexico that is
required and being applied by the National Autonomous University of
Mexico School of Faculty Dentistry (Facultad de Odontologia),
including, but not limited to:
(i) A minimum grade point average.
(ii) A specified English language comprehension and conversational
level.
(iii) Passage of a general examination.
(iv) Passage of an oral interview.
(C) Enroll and complete an orientation program that focuses on the
following:
(i) Practical issues in pharmacology which shall be taught by an
instructor who is affiliated with a California dental school approved
by the Dental Board of California.
(ii) Practical issues and diagnosis in oral pathology which shall
be taught by an instructor who is affiliated with a California dental
school approved by the Dental Board of California.
(iii) Clinical applications which shall be taught by an instructor
who is affiliated with a California dental school approved by the
Dental Board of California.
(iv) Biomedical sciences which shall be taught by an instructor
who is affiliated with a California dental school approved by the
Dental Board of California.
(v) Clinical history management which shall be taught by an
instructor who is affiliated with a California dental school approved
by the Dental Board of California.
(vi) Special patient care which shall be taught by an instructor
who is affiliated with a California dental school approved by the
Dental Board of California.
(vii) Sedation techniques which shall be taught by an instructor
who is affiliated with a California dental school approved by the
Dental Board of California.
(viii) Infection control guidelines which shall be taught by an
instructor who is affiliated with a California dental school approved
by the Dental Board of California.
(ix) Introduction to health care systems in California.
(x) Introduction to community clinic operations.
(2) Upon satisfactory completion to a competency level of the
requirements in paragraph (1), dentists participating in the program
shall be eligible to obtain employment in a nonprofit community
health center pursuant to subdivision (f) within the structure of an
extramural dental program for a period not to exceed three years.
(3) Dentists participating in the program shall be required to
complete the necessary continuing education units required by the
Dental Practice Act (Chapter 4 (commencing with Section 1600)).
(4) The program shall accept 30 participating dentists. The
program shall also maintain an alternate list of program applicants.
If an active program participant leaves the program for any reason,
a participating dentist from the alternate list shall be chosen to
fill the vacancy. Only active program participants shall be required
to complete the orientation program specified in subparagraph (C) of
paragraph (1).
(5) (A) Additionally, an extramural dental facility may be
identified, qualified, and approved by the board as an adjunct to,
and an extension of, the clinical and laboratory departments of an
approved dental school.
(B) As used in this subdivision, "extramural dental facility"
includes, but is not limited to, any clinical facility linked to an
approved dental school for the purposes of monitoring or overseeing
the work of a dentist licensed in Mexico participating in this
program and that is employed by an approved dental school for
instruction in dentistry which exists outside or beyond the walls,
boundaries, or precincts of the primary campus of the approved dental
school, and in which dental services are rendered. These facilities
shall include nonprofit community heath centers.
(C) Dental services provided to the public in these facilities
shall constitute a part of the dental education program.
(D) Approved dental schools shall register extramural dental
facilities with the board. This registration shall be accompanied by
information supplied by the dental school pertaining to faculty
supervision, scope of treatment to be rendered, arrangements for
postoperative care, the name and location of the facility, the date
operations shall commence at the facility, and a description of the
equipment and facilities available. This information shall be
supplemented with a copy of the agreement between the approved dental
school and the affiliated institution establishing the contractual
relationship. Any change in the information initially provided to
the board shall be communicated to the board.
(6) The program shall also include issues dealing with program
operations, and shall be developed in consultation by representatives
of community clinics, approved dental schools, and the National
Autonomous University of Mexico School of Faculty Dentistry (Facultad
de Odontologia).
(7) The Dental Board of California shall provide oversight review
of the implementation of this program and the evaluation required
pursuant to subdivision (j). The dental board shall consult with
dental schools in California that have applied for funding to
implement and evaluate this program and executive and dental
directors of nonprofit community health centers wanting to employ
program participants, as it conducts its oversight responsibilities
of this program and evaluation. Implementation of this program may
not proceed unless appropriate funding is secured from nonprofit
philanthropic entities. The Dental Board of California shall report
to the Legislature every January during which the program is
operational regarding the status of the program and the ability of
the program to secure the funding necessary to carry out its required
provisions. Notwithstanding Section 11005 of the Government Code,
the board may accept funds from nonprofit philanthropic entities.
(e) Nonprofit community health centers that employ participants
shall be responsible for ensuring that participants are enrolled in
local English language instruction programs and that the participants
attain English language fluency at a level that would allow the
participants to serve the English-speaking patient population when
necessary and have the literacy level to communicate with appropriate
hospital staff when necessary.
(f) Physicians and dentists from Mexico having met the applicable
requirements set forth in subdivisions (c) and (d) shall be placed in
a pool of candidates who are eligible to be recruited for employment
by nonprofit community health centers in California, including, but
not limited to, those located in the Counties of Ventura, Los
Angeles, San Bernardino, Imperial, Monterey, San Benito, Sacramento,
San Joaquin, Santa Cruz, Yuba, Orange, Colusa, Glenn, Sutter, Kern,
Tulare, Fresno, Stanislaus, San Luis Obispo, and San Diego. The
Medical Board of California shall ensure that all Mexican physicians
participating in this program have satisfactorily met the
requirements set forth in subdivision (c) prior to placement at a
nonprofit community health center.
(g) Nonprofit community health centers in the counties listed in
subdivision (f) shall apply to the Medical Board of California and
the Dental Board of California to hire eligible applicants who shall
then be required to complete a six-month externship that includes
working in the nonprofit community health center and a corresponding
hospital. Once enrolled in this externship, and upon payment of the
required fees, the Medical Board of California shall issue a
three-year nonrenewable license to practice medicine and the Dental
Board of California shall issue a three-year nonrenewable dental
special permit to practice dentistry. For purposes of this program,
the fee for a three-year nonrenewable license to practice medicine
shall be nine hundred dollars ($900) and the fee for a three-year
nonrenewable dental permit shall be five hundred forty-eight dollars
($548). A licensee or permitholder shall practice only in the
nonprofit community health center that offered him or her employment
and the corresponding hospital. This three-year nonrenewable license
or permit shall be deemed to be a license or permit in good standing
pursuant to the provisions of this chapter for the purpose of
participation and reimbursement in all federal, state, and local
health programs, including managed care organizations and health
maintenance organizations.
(h) The three-year nonrenewable license or permit shall terminate
upon notice by certified mail, return receipt requested, to the
licensee's or permitholder's address of record, if, in the Medical
Board of California or Dental Board of California's sole discretion,
it has determined that either:
(1) The license or permit was issued by mistake.
(2) A complaint has been received by either board against the
licensee or permitholder that warrants terminating the license or
permit pending an investigation and resolution of the complaint.
(i) All applicable employment benefits, salary, and policies
provided by nonprofit community health centers to their current
employees shall be provided to medical and dental practitioners from
Mexico participating in this pilot program. This shall include
nonprofit community health centers providing malpractice insurance
coverage.
(j) Beginning 12 months after this pilot program has commenced, an
evaluation of the program shall be undertaken with funds provided
from philanthropic foundations. The evaluation shall be conducted
jointly by one medical school and one dental school in California and
the National Autonomous University of Mexico (UNAM) in consultation
with the Medical Board of California and the Dental Board of
California. If the evaluation required pursuant to this section does
not begin within 15 months after the pilot project has commenced,
the evaluation may be performed by an independent consultant selected
by the Director of the Department of Consumer Affairs. This
evaluation shall include, but not be limited to, the following issues
and concerns:
(1) Quality of care provided by doctors and dentists licensed
under this pilot program.
(2) Adaptability of these licensed practitioners to California
medical and dental standards.
(3) Impact on working and administrative environment in nonprofit
community health centers and impact on interpersonal relations with
medical licensed counterparts in health centers.
(4) Response and approval by patients.
(5) Impact on cultural and linguistic services.
(6) Increases in medical encounters provided by participating
practitioners to limited-English-speaking patient populations and
increases in the number of limited-English-speaking patients seeking
health care services from nonprofit community health centers.
(7) Recommendations on whether the program should be continued,
expanded, altered, or terminated.
(8) Progress reports on available data listed shall be provided to
the Legislature on achievable time intervals beginning the second
year of implementation of this pilot program. An interim final
report shall be issued three months before termination of this pilot
program. A final report shall be submitted to the Legislature at the
time of termination of this pilot program on all of the above data.
The final report shall reflect and include how other initiatives
concerning the development of culturally and linguistically competent
medical and dental providers within California and the United States
are impacting communities in need of these health care providers.
(k) Costs for administering this pilot program shall be secured
from philanthropic entities.
(l) Program applicants shall be responsible for working with the
governments of Mexico and the United States in order to obtain the
necessary three-year visa required for program participation.
SEC. 2. Section 855 of the Business and Professions Code is
amended to read:
855. (a) Up to 70 international medical graduates who have passed
their United States medical license examination on the first attempt
and who have been working in the medical field in the capacity of a
medical assistant, a nurse practitioner, a nurse-midwife, a physician
assistant, a dental hygienist, or a quality assurance and peer
review specialist for not less than three years, shall be selected to
participate in a pilot program. Preference shall be given to
international medical graduates who are residents of California, have
experience working in communities whose language is other than
English and whose culture is not from the dominant society, and have
a proven level of literacy in the foreign language of a medically
underserved community.
(b) If there are not 70 international medical graduates who meet
the criteria of subdivision (a), the remaining openings may be filled
by participants who have passed the United States medical license
examination on two or more attempts, have been working in the medical
field in the capacity of a medical assistant, a nurse practitioner,
a nurse-midwife, a physician assistant, a dental hygienist, or a
quality assurance and peer review specialist for not less than three
years, and who pass an additional test to be determined by the
medical facility and the medical school participating in the pilot
program. Preference shall be given to international medical
graduates who are residents of California, have experience working in
communities whose language is other than English and whose culture
is not from the dominant society, and have a proven level of literacy
in the foreign language of a medically underserved community.
(c) An international medical graduate shall not be eligible for
this program if he or she has not graduated from a school in good
standing that is recognized by the Medical Board of California.
(d) Upon selection for the pilot program, participants may submit
an application to the International Medical Graduate Liaison of the
Medical Board of California's Division of Licensing, with the
appropriate fee, to initiate the medical licensing review process,
providing the participant time to remediate any deficiency during the
three-year international medical graduates pilot program.
(e) All program participants shall be required to have the foreign
language fluency and the cultural knowledge necessary to serve the
non-English-speaking community at the nonprofit community health
center where they practice.
(f) The Medical Board of California shall issue an applicant
status letter to participating and qualifying international medical
graduates.
(g) International medical graduates shall be required to
participate and satisfactorily complete a six-month orientation
program that will address medical protocol, community clinic history
and operations, medical administration, hospital operations and
protocol, medical ethics, the California medical delivery system,
health maintenance organizations and managed care practices, and
pharmacology differences. International medical graduates who have
passed the Educational Commission for Foreign Medical Graduates
(ECFMG) language exam shall not be required to be enrolled in English
language classes. However, if a participating international medical
graduate has not passed the ECFMG language exam, he or she shall be
enrolled in English language acquisition classes until he or she
obtains a level of English language proficiency equivalent to the
ECFMG language exam.
(h) (1) Upon satisfactorily completing the orientation program and
the one-year residency training program, international medical
graduates shall be selected by nonprofit community health centers to
work in nonprofit community health centers and disproportionate share
hospitals whose service areas include federally designated Health
Professional Shortage Areas, Dental Professional Shortage Areas,
Medically Underserved Areas, and Medically Underserved Populations
for a period not to exceed three years.
(2) There shall be two residency programs operated under the
auspices of a medical school in good standing, with one in southern
California and one in northern California. These residency programs
shall be in family practice, internal medicine, or obstetrics and
gynecology.
(3) After successfully completing the one-year residency program,
the training institution for the one-year residency program for
international medical graduates may transfer the program participant
into an approved residency program.
(i) (1) All program participants shall be required to satisfy the
medical curriculum requirements of Section 2089, the clinical
instruction requirements of Section 2089.5, and the examination
requirements of Section 2170 prior to being admitted into an approved
residency program.
(2) Those international medical graduates who are transferred into
an approved residency program shall be required to work in nonprofit
community health centers or disproportionate share hospitals whose
service areas include federally designated Health Professional
Shortage Areas, Dental Professional Shortage Areas, Medically
Underserved Areas, and Medically Underserved Populations for not less
than three years after being fully licensed.
(j) For individuals in this program as specified in this section,
the applicant status letter shall be deemed a license in good
standing pursuant to the provisions of this article for the purpose
of participation and reimbursement in all federal, state, and local
health programs, including managed care organizations and health
maintenance organizations.
(k) (1) The Director of General Medical Education or an equivalent
position in the training institution of the one-year residency
program for international medical graduates shall have the authority
to make a recommendation to the Medical Board of California for the
full medical licensure of an international medical graduate who has
successfully completed the one-year residency program if the director
believes, based on the performance and competency of the
international medical graduate, that the international medical
graduate should be fully licensed.
(2) After reviewing the recommendation for full licensure from the
director, the Medical Board of California shall have the authority
to issue a permanent
license to practice medicine in this state to the international
medical graduate.
(l) If an international medical graduate desires to secure a
permanent license to practice medicine from the board, he or she
shall, among other things, be required to be admitted into an
approved residency program.
(m) The Medical Board of California, in consultation with medical
schools located in California, executive and medical directors of
nonprofit community health centers, and with hospital administrators,
shall provide oversight review of the implementation of this
program. The Medical Board of California shall ensure that funding
proposals by appropriate institutions to implement these provisions
meet the necessary funding thresholds to fulfill the intent of this
program. Implementation of this program may not proceed unless
appropriate funding is secured. The Medical Board of California
shall report to the Legislature every January the program is
operational regarding the status of the program and the ability of
the program to secure the funding necessary to carry out its required
provisions.
SEC. 3. Section 1766 of the Business and Professions Code is
amended to read:
1766. (a) The board shall license as a registered dental
hygienist a person who satisfies all of the following requirements:
(1) Completion of an educational program for registered dental
hygienists approved by the board, accredited by the Commission on
Dental Accreditation, and conducted by a degree-granting,
postsecondary institution.
(2) Satisfactory performance on an examination required by the
board.
(3) Satisfactory completion of a national written dental hygiene
examination approved by the board.
(b) The board may grant a license as a registered dental hygienist
to an applicant who has not taken an examination before the board,
if the applicant submits all of the following to the board:
(1) A completed application form and all fees required by the
board.
(2) Proof of a current license as a registered dental hygienist
issued by another state that is not revoked, suspended, or otherwise
restricted.
(3) Proof that the applicant has been in clinical practice as a
registered dental hygienist or has been a full-time faculty member in
an accredited dental hygiene education program for a minimum of 750
hours per year for at least five years preceding the date of his or
her application under this section. The clinical practice
requirement shall be deemed met if the applicant provides proof of at
least three years of clinical practice and commits to completing the
remaining two years of clinical practice by filing with the board a
copy of a pending contract to practice dental hygiene in any of the
following facilities:
(A) A primary care clinic licensed under subdivision (a) of
Section 1204 of the Health and Safety Code.
(B) A primary care clinic exempt from licensure pursuant to
subdivision (c) of Section 1206 of the Health and Safety Code.
(C) A clinic owned or operated by a public hospital or health
system.
(D) A clinic owned and operated by a hospital that maintains the
primary contract with a county government to fill the county's role
under Section 17000 of the Welfare and Institutions Code.
(4) Proof that the applicant has not been subject to disciplinary
action by any state in which he or she is or has been previously
licensed as a registered dental hygienist or dentist. If the
applicant has been subject to disciplinary action, the board shall
review that action to determine if it warrants refusal to issue a
license to the applicant.
(5) Proof of graduation from a school of dental hygiene accredited
by the Commission on Dental Accreditation.
(6) Proof of satisfactory completion of the Dental Hygiene
National Board Examination and of a state or regional clinical
licensure examination.
(7) Proof that the applicant has not failed the examination for
licensure to practice dental hygiene under this chapter more than
once or once within five years prior to the date of his or her
application for a license under this section.
(8) Documentation of completion of a minimum of 25 units of
continuing education earned in the two years preceding application,
including completion of any continuing education requirements imposed
by the board on registered dental hygienists licensed in this state
at the time of application.
(9) Any other information as specified by the board to the extent
that it is required of applicants for licensure by examination under
this article.
(c) The board may periodically request verification of compliance
with the requirements of paragraph (3) of subdivision (b), and may
revoke the license upon a finding that the employment requirement or
any other requirement of paragraph (3) has not been met.
(d) The board shall provide in the application packet to each
out-of-state dental hygienist pursuant to this section the following
information:
(1) The location of dental manpower shortage areas in the state.
(2) Any not-for-profit clinics, public hospitals, and accredited
dental hygiene education programs seeking to contract with licensees
for dental hygiene service delivery or training purposes.
(e) The board shall review the impact of this section on the
availability of actively practicing dental hygienists in California
and report to the appropriate policy and fiscal committees of the
Legislature by January 1, 2006. The report shall include a separate
section providing data specific to dental hygienists who intend to
fulfill the alternative clinical practice requirements of subdivision
(b). The report shall include, but not be limited to, the
following:
(1) The number of applicants from other states who have sought
licensure.
(2) The number of dental hygienists from other states licensed
pursuant to this section, the number of licenses not granted under
this section, and the reason why the license was not granted.
(3) The practice location of dental hygienists licensed pursuant
to this section.
(4) The number of dental hygienists licensed pursuant to this
section who establish a practice in a rural area or in an area
designated as having a shortage of practicing dental hygienists or no
dental hygienists or in a safety net facility identified in
paragraph (3) of subdivision (b).
(5) The length of time dental hygienists licensed pursuant to this
section practiced in the reported location.
(f) In identifying a dental hygienist's location of practice, the
board shall use medical service study areas or other appropriate
geographic descriptions for regions of the state.
SEC. 4. Section 1971 of the Business and Professions Code is
amended to read:
1971. For the purposes of this article, the following terms have
the following meanings:
(a) "Board" means the Dental Board of California.
(b) "Office" means the Office of Statewide Health Planning and
Development.
(c) "Program" means the California Dental Corps Loan Repayment
Program.
(d) "Dentally underserved area" means a geographic area eligible
to be designated as having a shortage of dental professionals
pursuant to Part I of Appendix B to Part 5 of Chapter 1 of Title 42
of the Code of Federal Regulations or an area of the state where
unmet priority needs for dentists exist as determined by the Health
Manpower Policy Commission pursuant to Section 128224 of the Health
and Safety Code.
(e) "Dentally underserved population" means persons without dental
insurance and persons eligible for the Denti-Cal and Healthy
Families Programs who are population groups described as having a
shortage of dental care professionals in Part I of Appendix B to Part
5 of Chapter 1 of Title 42 of the Code of Federal Regulations.
(f) "Practice setting" means either of the following:
(1) A community clinic, as defined in subdivision (a) of Section
1204 and subdivision (c) of Section 1206 of the Health and Safety
Code, a clinic owned or operated by a public hospital and health
system, or a clinic owned and operated by a hospital that maintains
the primary contract with a county government to fulfill the county's
role pursuant to Section 17000 of the Welfare and Institutions Code,
which is located in a dentally underserved area and at least 50
percent of whose patients are from a dentally underserved population.
(2) A dental practice or dental corporation, as defined in Section
1800 of this code, located in a dentally underserved area and at
least 50 percent of whose patients are from a dentally underserved
population.
(g) "Medi-Cal threshold languages" means primary languages spoken
by limited-English-proficient (LEP) population groups meeting a
numeric threshold of 3,000, eligible LEP Medi-Cal beneficiaries
residing in a county, 1,000 Medi-Cal eligible LEP beneficiaries
residing in a single ZIP Code, or 1,500 LEP Medi-Cal beneficiaries
residing in two contiguous ZIP Codes.
(h) "Fund" means the State Dentistry Fund.
(i) "Account" means the Dentally Underserved Account which is
contained within the fund.
SEC. 5. Section 2154.2 of the Business and Professions Code is
amended to read:
2154.2. For the purposes of this article, the following terms
have the following meanings:
(a) "Division" means the Division of Licensing.
(b) "Office" means the Office of Statewide Health Planning and
Development (OSHPD).
(c) "Program" means the California Physician Corps Loan Repayment
Program.
(d) "Medically underserved area" means an area as defined in Part
5 of Chapter 1 of Title 42 of the Code of Federal Regulations or an
area of the state where unmet priority needs for physicians exist as
determined by the Health Manpower Policy Commission pursuant to
Section 128225 of the Health and Safety Code.
(e) "Medically underserved population" means the Medi-Cal, Healthy
Families, and uninsured populations.
(f) "Practice setting" means either of the following:
(1) A community clinic as defined in subdivision (a) of Section
1204 and subdivision (c) of Section 1206 of the Health and Safety
Code, a clinic owned or operated by a public hospital and health
system, or a clinic owned and operated by a hospital that maintains
the primary contract with a county government to fulfill the county's
role pursuant to Section 17000 of the Welfare and Institutions Code,
which is located in a medically underserved area and at least 50
percent of whose patients are from a medically underserved
population.
(2) A medical practice located in a medically underserved area and
at least 50 percent of whose patients are from a medically
underserved population.
(g) "Primary specialty" means family practice, internal medicine,
pediatrics, or obstetrics/gynecology.
(h) "Medi-Cal threshold languages" means primary languages spoken
by limited-English-proficient (LEP) population groups meeting a
numeric threshold of 3,000, eligible LEP Medi-Cal beneficiaries
residing in a county, 1,000 Medi-Cal eligible LEP beneficiaries
residing in a single ZIP Code, or 1,500 LEP Medi-Cal beneficiaries
residing in two contiguous ZIP Codes.
(i) "Fund" means the Contingent Fund of the Medical Board of
California.
(j) "Account" means the Medically Underserved Account which is
contained within the fund.
SEC. 6. Section 4409 of the Business and Professions Code is
amended to read:
4409. At the time a pharmacy license is renewed pursuant to
subdivision (a) of Section 4110 or a pharmacist license is renewed
pursuant to Section 4401, the pharmacy or pharmacist may make a
twenty-five-dollar ($25) contribution, to be submitted to the board,
for the sole purpose of funding the California Pharmacist Scholarship
and Loan Repayment Program established pursuant to Article 2
(commencing with Section 129198) of Chapter 3 of Part 3 of Division
107 of the Health and Safety Code. The contribution submitted
pursuant to this section shall be paid into the State Treasury and
credited to the California Pharmacist Scholarship and Loan Repayment
Program Fund established pursuant to Section 129198.5 of the Health
and Safety Code.
SEC. 7. Section 4848 of the Business and Professions Code is
amended to read:
4848. (a) (1) The board shall, by means of examination, ascertain
the professional qualifications of all applicants for licenses to
practice veterinary medicine in this state and shall issue a license
to every person whom it finds to be qualified. No license shall be
issued to anyone who has not demonstrated his or her competency by
examination.
(2) The examination shall consist of each of the following:
(A) A licensing examination that is administered on a national
basis.
(B) A California state board examination.
(C) An examination concerning those statutes and regulations of
the Veterinary Medicine Practice Act administered by the board. The
examination shall be administered by mail and provided to applicants
within 10 to 20 days of eligibility determination. The board shall
have 10 to 20 days from the date of receipt to process the
examination and provide candidates with the results of the
examination. The applicant shall certify that he or she personally
completed the examination. Any false statement is a violation
subject to Section 4831. University of California and Western
University of Health Sciences veterinary medical students who have
successfully completed a board approved course on veterinary law and
ethics covering the Veterinary Medicine Practice Act shall be exempt
from this provision.
(3) The examinations may be given at the same time or at different
times as determined by the board. For examination purposes, the
board may make contractual arrangements on a sole source basis with
organizations furnishing examination material as it may deem
desirable and shall be exempt from Section 10115 of the Public
Contract Code.
(4) The licensing examination may be waived by the board in any
case in which it determines that the applicant has taken and passed
an examination for licensure in another state substantially
equivalent in scope and subject matter to the licensing examination
last given in California before the determination is made, and has
achieved a score on the out-of-state examination at least equal to
the score required to pass the licensing examination administered in
California.
(5) Nothing in this chapter shall preclude the board from
permitting a person who has completed a portion of his or her
educational program, as determined by the board, in a veterinary
college recognized by the board under Section 4846 to take any
examination or any part thereof prior to satisfying the requirements
for application for a license established by Section 4846.
(b) The board shall waive the examination requirements of
subdivision (a), and issue a temporary license valid for one year to
an applicant to practice veterinary medicine under the supervision of
another licensed California veterinarian in good standing if the
applicant meets all of the following requirements and would not be
denied issuance of a license by any other provision of this code:
(1) The applicant holds a current valid license in good standing
in another state, Canadian province, or United States territory and
has practiced clinical veterinary medicine for a minimum of four
years full time within the five years immediately preceding filing an
application for licensure in this state. Experience obtained while
participating in an American Veterinary Medical Association (AVMA)
accredited institution's internship, residency, or specialty board
training program shall be valid for meeting the minimum experience
requirement.
The term "in good standing" means that an applicant under this
section:
(A) Is not currently under investigation nor has been charged with
an offense for any act substantially related to the practice of
veterinary medicine by any public agency, nor entered into any
consent agreement or subject to an administrative decision that
contains conditions placed by an agency upon an applicant's
professional conduct or practice, including any voluntary surrender
of license, nor been the subject of an adverse judgment resulting
from the practice of veterinary medicine that the board determines
constitutes evidence of a pattern of incompetence or negligence.
(B) Has no physical or mental impairment related to drugs or
alcohol, and has not been found mentally incompetent by a physician
so that the applicant is unable to undertake the practice of
veterinary medicine in a manner consistent with the safety of a
patient or the public.
(2) At the time of original licensure, the applicant passed the
national licensing requirement in veterinary science with a passing
score or scores on the examination or examinations equal to or
greater than the passing score required to pass the national
licensing examination or examinations administered in this state.
(3) The applicant has either graduated from a veterinary college
recognized by the board under Section 4846 or possesses a certificate
issued by the Educational Commission for Foreign Veterinary
Graduates (ECFVG).
(4) The applicant passes an examination concerning the statutes
and regulations of the Veterinary Medicine Practice Act, administered
by the board, pursuant to subparagraph (C) of paragraph (2) of
subdivision (a).
(5) The applicant agrees to complete an approved educational
curriculum on regionally specific and important diseases and
conditions during the period of temporary licensure. The board, in
consultation with the California Veterinary Medical Association
(CVMA), shall approve educational curricula that cover appropriate
regionally specific and important diseases and conditions that are
common in California. The curricula shall focus on small and large
animal diseases consistent with the current proportion of small and
large animal veterinarians practicing in the state. The approved
curriculum shall not exceed 30 hours of educational time. The board
shall approve a curriculum as soon as practical, but not later than
June 1, 1999. The approved curriculum may be offered by multiple
providers so that it is widely accessible to candidates licensed
under this subdivision.
(c) Upon receipt of acknowledgment of successful completion of the
requirements set forth in subdivision (b), the board shall issue a
license to the applicant. Any applicant who does not meet the
requirements of subdivision (b) shall take a California state board
examination as specified in subparagraph (B) of paragraph (2) of
subdivision (a).
SEC. 8. A heading is added as Article 7.5 (commencing with Section
17582) of Chapter 1 of Part 3 of Division 7 of the Business and
Professions Code, to read:
Article 7.5. Automotive Products
SEC. 9. Section 19613 of the Business and Professions Code, as
amended by Section 4 of Chapter 922 of the Statutes of 2002, is
amended to read:
19613. (a) Except as provided in subdivisions (b), (c), (d), (e),
and (f), the portion deducted for purses pursuant to this chapter
shall be paid to or for the benefit of the horsemen at the racing
meeting, and may include obtaining, providing, or defraying the cost
of workers' compensation coverage for stable employees and jockeys of
licensed trainers.
(b) Any association other than a fair that conducts a thoroughbred
racing meeting shall pay to the owners' organization contracting
with the association with respect to the conduct of racing meetings
for administrative expenses and services rendered to owners, an
amount not to exceed two-thirds of 11/2 percent of the portion, and
to a trainers' organization for administrative expenses and services
rendered to trainers and backstretch employees an amount equivalent
to one-third of 11/2 percent of the portion. That association shall
also pay an amount for a pension plan for backstretch personnel to be
administered by the trainers' organization equivalent to an
additional 1 percent of the portion. The remainder of the portion
shall be distributed as purses.
(c) Any other association may pay to the horsemen's organization
contracting with the association with respect to the conduct of
racing meetings for administrative expenses and services rendered to
horsemen an amount out of the portion as may be determined by the
association by agreement or otherwise, but, in all events, shall
include, relative to a thoroughbred horsemen's organization racing, 1
percent of the portion for a pension plan for the trainers'
organization. The remainder of the portion shall be distributed as
purses.
(d) Notwithstanding subdivisions (b) and (c), any association
conducting a fair racing meeting shall pay to the horsemen's
organizations contracting with the association with respect to the
conduct of races for their respective breeds of horses at the
meetings for administrative expenses and services rendered to their
respective horsemen those amounts out of the portion as determined by
the horsemen's organization for the respective breeds with the
approval of the board. Pursuant to this subdivision, amounts not to
exceed 3 percent of the portion for the owners' and trainers'
organizations shall be distributed to any thoroughbred owners' and
trainers' organizations contracting with an association for a fair
racing meeting or participating in mixed breed racing meetings as
follows: two-thirds of 1 percent to the owners' organization and
one-third of 1 percent to the trainers' organization for
administrative expenses and services rendered to both owners and
trainers, 1 percent for welfare funds, and 1 percent for a pension
program for backstretch personnel, to be administered by the
thoroughbred trainers' organization.
(e) Any association other than a fair that conducts a quarter
horse racing meeting shall pay to the horsemen's organization
contracting with the association with respect to the conduct of
racing meetings for administrative expenses and services rendered to
horsemen, an amount not to exceed 3 percent of the portion. The
remainder of the portion shall be distributed as purses.
(f) For racing meetings other than thoroughbred meetings, if no
contract has been signed between the association conducting the
racing meeting and the organization representing the horsemen by the
time the racing meeting commences, the distribution of purses shall
be governed by the following:
(1) If the association conducted a racing meeting within the past
15 months and a contract was in existence, for that meeting with the
horsemen's organization and the association is conducting a
subsequent meeting for the same breed or mixed breeds, the amounts
payable to the horsemen's organization under subdivision (c) shall be
computed under the provisions of the last signed contract between
the parties.
(2) This subdivision applies regardless of the cause of the
failure to execute a contract, whether that failure is a result of
inadvertence or otherwise.
(3) For racing meetings that do not come within paragraph (1), the
board shall, within 15 days after the commencement of the racing
meeting, determine the amounts payable to the horsemen's organization
for administrative expenses and services, and provide for the direct
payment of those amounts.
(g) Amounts distributed pursuant to this section are derived from
owners' purses.
(h) For the purposes of this section, the following definitions
shall apply:
(1) "Owner" means a person currently licensed by the board as an
owner of a thoroughbred racehorse.
(2) "Trainer" means a person currently licensed by the board as an
owner and trainer or as a trainer of a thoroughbred racehorse.
(i) This section shall become operative on January 1, 2008.
SEC. 10. Section 19617.5 of the Business and Professions Code is
amended to read:
19617.5. (a) Any association conducting a quarter horse or
harness racing meeting shall pay the sums required to be paid by
Section 19567 out of the amounts deducted from the parimutuel pool
for license fees, commissions, and purses in the same proportion as
the distribution of the license fees, commissions, and purses.
Those sums deducted for quarter horse meetings shall be deposited
with the official registering agency pursuant to subdivision (b) of
Section 19617.7 and shall thereafter be distributed in accordance
with subdivisions (c), (d), and (e) of Section 19617.7.
(b) Notwithstanding subdivision (a), any association conducting a
fair racing meeting other than a harness meeting or conducting a
mixed breed meeting shall deduct an additional 0.34 of 1 percent of
the total amount handled in its daily conventional and exotic
parimutuel pools for all races for payment of breeder and stallion
awards provided for in this chapter. Following the close of the
meeting, the respective official registering agency or officially
recognized horsemen's organization shall distribute the amounts so
deducted as follows:
(1) With respect to thoroughbred races, the amounts deducted shall
be paid as breeder awards, owners' premiums, and stallion awards as
provided in Section 19617.2.
(2) With respect to quarter horse races, the amounts deducted
shall be paid as breeder premiums, and owners' and stallion awards,
as provided in Section 19617.7.
(3) With respect to Arabian races, the amounts deducted shall be
paid as breeder premiums, and owners' and stallion awards as provided
in Section 19617.8.
(4) With respect to Appaloosa races, the amounts deducted shall be
paid as breeder premiums, and owners' and stallion awards, as
provided in Section 19617.9.
(5) With respect to paint horse races, the amounts deducted shall
be paid as breeder and owners' premiums, and stallion awards, as
provided in Section 19617.3.
SEC. 11. Section 48 of the Civil Code is amended to read:
48. In the case provided for in subdivision (c) of Section 47,
malice is not inferred from the communication.
SEC. 12. Section 941 of the Civil Code is amended to read:
941. (a) Except as specifically set forth in this title, no
action may be brought to recover under this title more than 10 years
after substantial completion of the improvement but not later than
the date of recordation of a valid notice of completion.
(b) As used in this section, "action" includes an action for
indemnity brought against a person arising out of that person's
performance or furnishing of services or materials referred to in
this title, except that a cross-complaint for indemnity may be filed
pursuant to subdivision (b) of Section 428.10 of the Code of Civil
Procedure in an action which has been brought within the
time period set forth in
subdivision (a).
(c) The limitation prescribed by this section shall not be
asserted by way of defense by any person in actual possession or the
control, as owner, tenant, or otherwise, of such an improvement, at
the time any deficiency in the improvement constitutes the proximate
cause for which it is proposed to make a claim or bring an action.
(d) Sections 337.1 and 337.15 of the Code of Civil Procedure shall
not apply to actions under this title.
(e) Existing statutory and decisional law regarding tolling of the
statute of limitations shall apply to the time periods for filing an
action or making a claim under this title, except that repairs made
pursuant to Chapter 4 (commencing with Section 910), with the
exception of the tolling provision contained in Section 927, do not
extend the period for filing an action, or restart the time
limitations contained in subdivision (a) or (b) of Section 7091 of
the Business and Professions Code. If a builder arranges for a
contractor to perform a repair pursuant to Chapter 4 (commencing with
Section 910), as to the builder the time period for calculating the
statute of limitation in subdivision (a) or (b) of Section 7091 of
the Business and Professions Code shall pertain to the substantial
completion of the original construction and not to the date of
repairs under this title. The time limitations established by this
title do not apply to any action by a claimant for a contract or
express contractual provision. Causes of action and damages to which
this chapter does not apply are not limited by this section. In
order to make a claim for violation of the standards set forth in
Chapter 2 (commencing with Section 896), a homeowner need only
demonstrate, in accordance with the applicable evidentiary standard,
that the home does not meet the applicable standard, subject to the
affirmative defenses set forth in Section 945.5. No further showing
of causation or damages is required to meet the burden of proof
regarding a violation of a standard set forth in Chapter 2
(commencing with Section 896), provided that the violation arises out
of, pertains to, or is related to, the original construction.
SEC. 13. Section 1102.6 of the Civil Code is amended to read:
1102.6. The disclosures required by this article pertaining to
the property proposed to be transferred are set forth in, and shall
be made on a copy of, the following disclosure form:
SEC. 14. Section 1102.6b of the Civil Code is amended to read:
1102.6b. (a) This section applies to all transfers of real
property for which all of the following apply:
(1) The transfer is subject to this article.
(2) The property being transferred is subject to a continuing lien
securing the levy of special taxes pursuant to the Mello-Roos
Community Facilities Act (Chapter 2.5 (commencing with Section 53311)
of Part 1 of Division 2 of Title 5 of the Government Code) or to a
fixed lien assessment collected in installments to secure bonds
issued pursuant to the Improvement Bond Act of 1915 (Division 10
(commencing with Section 8500) of the Streets and Highways Code).
(3) A notice is not required pursuant to Section 53341.5 of the
Government Code.
(b) In addition to any other disclosure required pursuant to this
article, the seller of any real property subject to this section
shall make a good faith effort to obtain a disclosure notice
concerning the special tax as provided for in Section 53340.2 of the
Government Code, or a disclosure notice concerning an assessment
installment as provided in Section 53754 of the Government Code, from
each local agency that levies a special tax pursuant to the
Mello-Roos Community Facilities Act, or that collects assessment
installments to secure bonds issued pursuant to the Improvement Bond
Act of 1915 (Division 10 (commencing with Section 8500) of the
Streets and Highways Code), on the property being transferred, and
shall deliver that notice or those notices to the prospective
purchaser, as long as the notices are made available by the local
agency.
(c) The seller of real property subject to this section may
satisfy the disclosure notice requirements in regard to the bonds
issued pursuant to the Improvement Bond Act of 1915 (Division 10
(commencing with Section 8500) of the Streets and Highways Code) by
delivering a disclosure notice that is substantially equivalent and
obtained from another source, until December 31, 2004. For the
purposes of this section, a substantially equivalent disclosure
notice includes, but is not limited to, a copy of the most recent
year's property tax bill or an itemization of current assessment
amounts applicable to the property.
(d) (1) Notwithstanding subdivision (c), at any time after the
effective date of this section, the seller of real property subject
to this section may satisfy the disclosure notice requirements of
this section by delivering a disclosure notice obtained from a
nongovernmental source that satisfies the requirements of paragraph
(2).
(2) A notice provided by a private entity other than a designated
office, department, or bureau of the levying entity may be modified
as needed to clearly and accurately describe a special tax pursuant
to the Mello-Roos Community Facilities Act levied against the
property or to clearly and accurately consolidate information about
two or more districts that levy or are authorized to levy a special
tax pursuant to the Mello-Roos Community Facilities Act against the
property, and shall include the name of the Mello-Roos entity levying
taxes against the property, the annual tax due for the Mello-Roos
entity for the current tax year, the maximum tax that may be levied
against the property in any year, the percentage by which the maximum
tax for the Mello-Roos entity may increase per year, and the date
until the tax may be levied against the property for the Mello-Roos
entity and a contact telephone number, if available, for further
information about the Mello-Roos entity. A notice provided by a
private entity other than a designated office, department, or bureau
of the levying entity may be modified as needed to clearly and
accurately describe special assessments and bonds pursuant to the
Improvement Bond Act of 1915 levied against the property, or to
clearly and accurately consolidate information about two or more
districts that levy or are authorized to levy special assessments and
bonds pursuant to the Improvement Bond Act of 1915 against the
property, and shall include the name of the special assessments and
bonds issued pursuant to the Improvement Bond Act of 1915, the
current annual tax on the property for the special assessments and
bonds issued pursuant to the Improvement Bond Act of 1915 and a
contact telephone number, if available, for further information about
the special assessments and bonds issued pursuant to the Improvement
Bond Act of 1915.
(3) This section does not change the ability to make disclosures
pursuant to Section 1102.4 of the Civil Code.
(e) If a disclosure received pursuant to subdivision (b), (c), or
(d) has been delivered to the transferee, a seller or his or her
agent is not required to provide additional information concerning,
and information in the disclosure shall be deemed to satisfy the
responsibility of the seller or his or her agent to inform the
transferee regarding the special tax or assessment installments and
the district. Notwithstanding subdivision (b), (c), or (d), nothing
in this section imposes a duty to discover a special tax or
assessment installments or the existence of any levying district not
actually known to the agents.
SEC. 15. Section 1714 of the Civil Code is amended to read:
1714. (a) Everyone is responsible, not only for the result of his
or her willful acts, but also for an injury occasioned to another by
his or her want of ordinary care or skill in the management of his
or her property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself or
herself. The design, distribution, or marketing of firearms and
ammunition is not exempt from the duty to use ordinary care and skill
that is required by this section. The extent of liability in these
cases is defined by the Title on Compensatory Relief.
(b) It is the intent of the Legislature to abrogate the holdings
in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v.
Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court
(1978) 21 Cal.3d 144 and to reinstate the prior judicial
interpretation of this section as it relates to proximate cause for
injuries incurred as a result of furnishing alcoholic beverages to an
intoxicated person, namely that the furnishing of alcoholic
beverages is not the proximate cause of injuries resulting from
intoxication, but rather the consumption of alcoholic beverages is
the proximate cause of injuries inflicted upon another by an
intoxicated person.
(c) No social host who furnishes alcoholic beverages to any person
may be held legally accountable for damages suffered by that person,
or for injury to the person or property of, or death of, any third
person, resulting from the consumption of those beverages.
SEC. 16. Section 1936 of the Civil Code, as added by Section 3 of
Chapter 948 of the Statutes of 2002, is amended to read:
1936. (a) For the purpose of this section, the following
definitions shall apply:
(1) "Rental company" means any person or entity in the business of
renting passenger vehicles to the public.
(2) "Renter" means any person in any manner obligated under a
contract for the lease or hire of a passenger vehicle from a rental
company for a period of less than 30 days.
(3) "Authorized driver" means (A) the renter, (B) the renter's
spouse if that person is a licensed driver and satisfies the rental
company's minimum age requirement, (C) the renter's employer or
coworker if they are engaged in business activity with the renter,
are licensed drivers, and satisfy the rental company's minimum age
requirement, and (D) any person expressly listed by the rental
company on the renter's contract as an authorized driver.
(A) "Customer facility charge" means a fee required by an airport
to be collected by a rental company from a renter for any of the
following purposes:
(i) The fee shall be used to finance, design, and construct
consolidated airport car rental facilities.
(ii) The fee shall be used to finance, design, construct, and
provide common use transportation systems that move passengers
between airport terminals and those consolidated car rental
facilities.
(B) The aggregate amount to be collected shall not exceed the
reasonable costs, as determined by an independent audit paid for by
the airport, to finance, design, and construct those facilities.
Copies of the audit shall be provided to the Assembly and Senate
Committees on Judiciary and Committees on Transportation. In the
case of a transportation system, the audit shall also consider the
reasonable costs of providing the transit system or busing network.
At the Burbank Airport, and at all other airports, the fees
designated as a Customer Facility Charge may not be used to pay for
terminal expansion, gate expansion, runway expansion, changes in
hours of operation, or changes in the number of flights arriving or
departing from the airport.
(C) The authorization given pursuant to this section for an
airport to impose a customer facility charge shall become inoperative
when the bonds used for financing are paid.
(4) "Damage waiver" means a rental company's agreement not to hold
a renter liable for all or any portion of any damage or loss related
to the rented vehicle, any loss of use of the rented vehicle, or any
storage, impound, towing, or administrative charges.
(5) "Estimated time for replacement" means the number of hours of
labor, or fraction thereof, needed to replace damaged vehicle parts
as set forth in collision damage estimating guides generally used in
the vehicle repair business and commonly known as "crash books."
(6) "Estimated time for repair" means a good faith estimate of the
reasonable number of hours of labor, or fraction thereof, needed to
repair damaged vehicle parts.
(7) "Passenger vehicle" means a passenger vehicle as defined in
Section 465 of the Vehicle Code.
(b) Except as limited by subdivision (c), a rental company and a
renter may agree that the renter will be responsible for no more than
all of the following:
(1) Physical or mechanical damage to the rented vehicle up to its
fair market value, as determined in the customary market for the sale
of that vehicle, resulting from collision regardless of the cause of
the damage.
(2) Loss due to theft of the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, provided that the rental company establishes by clear and
convincing evidence that the renter or the authorized driver failed
to exercise ordinary care while in possession of the vehicle. In
addition, the renter shall be presumed to have no liability for any
loss due to theft if (A) an authorized driver has possession of the
ignition key furnished by the rental company or an authorized driver
establishes that the ignition key furnished by the rental company was
not in the vehicle at the time of the theft, and (B) an authorized
driver files an official report of the theft with the police or other
law enforcement agency within 24 hours of learning of the theft and
reasonably cooperates with the rental company and the police or other
law enforcement agency in providing information concerning the
theft. The presumption set forth in this paragraph is a presumption
affecting the burden of proof which the rental company may rebut by
establishing that an authorized driver committed, or aided and
abetted the commission of, the theft.
(3) Physical damage to the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, resulting from vandalism occurring after, or in connection
with, the theft of the rented vehicle; however, the renter shall have
no liability for any damage due to vandalism if the renter would
have no liability for theft pursuant to paragraph (2).
(4) Physical damage to the rented vehicle up to a total of five
hundred dollars ($500) resulting from vandalism unrelated to the
theft of the rented vehicle.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company if the renter is liable for damage or loss.
(6) An administrative charge which shall include the cost of
appraisal and all other costs and expenses incident to the damage,
loss, repair, or replacement of the rented vehicle.
(c) The total amount of the renter's liability to the rental
company resulting from damage to the rented vehicle shall not exceed
the sum of the following:
(1) The estimated cost of parts which the rental company would
have to pay to replace damaged vehicle parts. All discounts and
price reductions or adjustments that are or will be received by the
rental company shall be subtracted from the estimate to the extent
not already incorporated in the estimate or otherwise promptly
credited or refunded to the renter.
(2) The estimated cost of labor to replace damaged vehicle parts
which shall not exceed the product of (A) the rate for labor usually
paid by the rental company to replace vehicle parts of the type that
were damaged and (B) the estimated time for replacement. All
discounts and price reductions or adjustments that are or will be
received by the rental company shall be subtracted from the estimate
to the extent not already incorporated in the estimate or otherwise
promptly credited or refunded to the renter.
(3) (A) The estimated cost of labor to repair damaged vehicle
parts which shall not exceed the lesser of the following:
(i) The product of the rate for labor usually paid by the rental
company to repair vehicle parts of the type that were damaged and the
estimated time for repair.
(ii) The sum of the estimated labor and parts costs determined
under paragraphs (1) and (2) to replace the same vehicle parts.
(B) All discounts and price reductions or adjustments that are or
will be received by the rental company shall be subtracted from the
estimate to the extent not already incorporated in the estimate or
otherwise promptly credited or refunded to the renter.
(4) For the purpose of converting the estimated time for repair
into the same units of time in which the rental rate is expressed, a
day shall be deemed to consist of eight hours.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company.
(6) The administrative charge described in paragraph (6) of
subdivision (b) may not exceed (A) fifty dollars ($50) if the total
estimated cost for parts and labor is more than one hundred dollars
($100) up to and including five hundred dollars ($500), (B) one
hundred dollars ($100) if the total estimated cost for parts and
labor exceeds five hundred dollars ($500) up to and including one
thousand five hundred dollars ($1,500), and (C) one hundred fifty
dollars ($150) if the total estimated cost for parts and labor
exceeds one thousand five hundred dollars ($1,500). No
administrative charge may be imposed if the total estimated cost of
parts and labor is one hundred dollars ($100) or less.
(d) (1) The total amount of an authorized driver's liability to
the rental company, if any, for damage occurring during the
authorized driver's operation of the rented vehicle may not exceed
the amount of the renter's liability under subdivision (c).
(2) A rental company may not recover from the renter or other
authorized driver an amount exceeding the renter's liability under
subdivision (c).
(3) A claim against a renter resulting from damage or loss,
excluding loss of use, to a rental vehicle shall be reasonably and
rationally related to the actual loss incurred. A rental company
shall mitigate damages where possible and may not assert or collect
any claim for physical damage which exceeds the actual costs of the
repairs performed or the estimated cost of repairs, if the rental
company chooses not to repair the vehicle, including all discounts
and price reductions. However, if the vehicle is a total loss
vehicle, the claim may not exceed the total loss vehicle value
established in accordance with procedures that are customarily used
by insurance companies when paying claims on total loss vehicles,
less the proceeds from salvaging the vehicle, if those proceeds are
retained by the rental company.
(4) If insurance coverage exists under the renter's applicable
personal or business insurance policy and the coverage is confirmed
during regular business hours, the renter may require that the rental
company submit any claims to the renter's applicable personal or
business insurance carrier. The rental company may not make any
written or oral representations that it will not present claims or
negotiate with the renter's insurance carrier. For purposes of this
paragraph, confirmation of coverage includes telephone confirmation
from insurance company representatives during regular business hours.
Upon request of the renter and after confirmation of coverage, the
amount of claim shall be resolved between the insurance carrier and
the rental company. The renter shall remain responsible for payment
to the rental car company for any loss sustained that the renter's
applicable personal or business insurance policy does not cover.
(5) A rental company may not recover from the renter or other
authorized driver for any item described in subdivision (b) to the
extent the rental company obtains recovery from any other person.
(6) This section applies only to the maximum liability of a renter
or other authorized driver to the rental company resulting from
damage to the rented vehicle and not to the liability of any other
person.
(e) (1) Except as provided in subdivision (f), every damage waiver
shall provide or, if not expressly stated in writing, shall be
deemed to provide that the renter has no liability for any damage,
loss, loss of use, or any cost or expense incident thereto.
(2) Except as provided in subdivision (f), every limitation,
exception, or exclusion to any damage waiver is void and
unenforceable.
(f) A rental company may provide in the rental contract that a
damage waiver does not apply under any of the following
circumstances:
(1) Damage or loss results from an authorized driver's (A)
intentional, willful, wanton, or reckless conduct, (B) operation of
the vehicle under the influence of drugs or alcohol in violation of
Section 23152 of the Vehicle Code, (C) towing or pushing anything, or
(D) operation of the vehicle on an unpaved road if the damage or
loss is a direct result of the road or driving conditions.
(2) Damage or loss occurs while the vehicle is (A) used for
commercial hire, (B) used in connection with conduct that could be
properly charged as a felony, (C) involved in a speed test or contest
or in driver training activity, (D) operated by a person other than
an authorized driver, or (E) operated outside of the United States.
(3) Any authorized driver who has (A) provided fraudulent
information to the rental company, or (B) provided false information
and the rental company would not have rented the vehicle if it had
instead received true information.
(g) (1) A rental company which offers or provides a damage waiver
for any consideration in addition to the rental rate shall clearly
and conspicuously disclose the following information in the rental
contract or holder in which the contract is placed and, also, in
signs posted at the place, such as the counter, where the renter
signs the rental contract: (A) the nature of the renter's liability,
e.g., liability for all collision damage regardless of cause, (B)
the extent of the renter's liability, e.g., liability for damage or
loss up to a specified amount, (C) the renter's personal insurance
policy or the credit card used to pay for the car rental transaction
may provide coverage for all or a portion of the renter's potential
liability, (D) the renter should consult with his or her insurer to
determine the scope of insurance coverage, including the amount of
the deductible, if any, for which the renter is obligated, (E) the
renter may purchase an optional damage waiver to cover all liability,
subject to whatever exceptions the rental company expressly lists
that are permitted under subdivision (f), and (F) the range of
charges for the damage waiver.
(2) In addition to the requirements of paragraph (1), a rental
company that offers or provides damage waiver shall, on that part of
the contract where the renter indicates his or her acceptance or
declination of the damage waiver, indicate that the purchase of the
damage waiver is optional.
(3) The following is an example, for purposes of illustration and
not limitation, of a notice fulfilling the requirements of paragraph
(1) for a rental company that imposes liability on the renter for
collision damage to the full value of the vehicle:
"NOTICE ABOUT YOUR FINANCIAL RESPONSIBILITY AND OPTIONAL DAMAGE
WAIVER
You are responsible for all collision damage to the rented vehicle
even if someone else caused it or the cause is unknown. You are
responsible for the cost of repair up to the value of the vehicle,
and towing, storage, and impound fees.
Your own insurance, or the issuer of the credit card you use to
pay for the car rental transaction, may cover all or part of your
financial responsibility for the rented vehicle. You should check
with your insurance company, or credit card issuer, to find out about
your coverage and the amount of the deductible, if any, for which
you may be liable.
Further, if you use a credit card that provides coverage for your
potential liability, you should check with the issuer to determine if
you must first exhaust the coverage limits of your own insurance
before the credit card coverage applies.
The rental company will not hold you responsible if you buy a
damage waiver. But a damage waiver will not protect you if (list
exceptions)."
(A) When the above notice is printed in the contract or
contractholder, the following shall be printed immediately following
the notice:
"The cost of an optional damage waiver is $____ for every (day or
week)."
(B) When the above notice appears on a sign, the following shall
appear immediately adjacent to the notice:
"The cost of an optional damage waiver is $____ to $____ for every
(day or week), depending upon the vehicle rented."
(h) Notwithstanding any other provision of law, a rental company
may sell a damage waiver subject to the following rate limitations
for each full or partial 24-hour rental day for the damage waiver:
(1) For rental vehicles that the rental company designates as an
"economy car," "subcompact car," "compact car," or any other term
having similar meaning when offered for rental, or any other vehicle
having a manufacturer's suggested retail price of nineteen thousand
dollars ($19,000) or less, the rate may not exceed nine dollars ($9).
(2) For rental vehicles that have a manufacturer's suggested
retail price from nineteen thousand one dollars ($19,001) to
thirty-four thousand nine hundred ninety-nine dollars ($34,999),
inclusive, and that is also either a vehicle of the next year's model
year or not older than the previous year's model year, the rate may
not exceed fifteen dollars ($15). For those rental vehicles older
than the previous year's model year, the rate may not exceed nine
dollars ($9).
(i) On or after January 1, 2003, the manufacturer's suggested
retail prices described in subdivision (h) shall be adjusted annually
to reflect changes from the previous year in the Consumer Price
Index. For the purposes of this section, "Consumer Price Index"
means the United States Consumer Price Index for All Urban Consumers,
for all items.
(j) A rental company which disseminates in this state an
advertisement containing a rental rate shall include in that
advertisement a clearly readable statement of the charge for damage
waiver and a statement that damage waiver is optional.
(k) (1) A rental company may not require the purchase of a damage
waiver, optional insurance, or any other optional good or service.
(2) A rental company may not engage in any unfair, deceptive, or
coercive conduct to induce a renter to purchase damage waiver,
optional insurance, or any other optional good or service, including
conduct such as, but
not limited to, refusing to honor the renter's reservation, limiting
the availability of vehicles, requiring a deposit, or debiting or
blocking the renter's credit card account for a sum equivalent to a
deposit if the renter declines to purchase damage waiver, optional
insurance, or any other optional good or service.
(l) (1) In the absence of express permission granted by the renter
subsequent to damage to, or loss of, the vehicle, a rental company
may not seek to recover any portion of any claim arising out of
damage to, or loss of, the rented vehicle by processing a credit card
charge or causing any debit or block to be placed on the renter's
credit card account.
(2) A rental company may not engage in any unfair, deceptive, or
coercive tactics in attempting to recover or in recovering on any
claim arising out of damage to, or loss of, the rented vehicle.
(m) (1) A customer facility charge may be collected by a rental
company under the following circumstances:
(A) Collection of the fee by the rental company is required by an
airport operated by a city, a county, a city and county, a joint
powers authority, or a special district.
(B) The fee is calculated on a per-contract basis.
(C) The fee is a user fee, not a tax imposed upon real property or
an incidence of property ownership under Article XIII D of the
California Constitution.
(D) Except as otherwise provided in subparagraph (E), the fee
shall be ten dollars ($10) per contract.
(E) If the fee imposed by the airport is for both a consolidated
rental car facility and a common use transportation system, the fee
collected from customers of on-airport rental car companies shall be
ten dollars ($10), but the fee imposed on customers of off-airport
rental car companies who are transported on the common use
transportation system is proportionate to the costs of the common use
transportation system only. The fee is uniformly applied to each
class of on-airport or off-airport customers, provided the airport
requires off-airport customers to use the common use transportation
system.
(F) Revenues collected from the fee do not exceed the reasonable
costs of financing, designing, constructing, or operating the
facility or services and may not be used for any other purpose.
(G) The fee is separately identified on the rental agreement.
(H) This paragraph does not apply to airports whose fees are
governed by Section 1936.5 of the Civil Code, Section 50474.1 of the
Government Code, or Section 57.5 of the San Diego Unified Port
District Act.
(2) Notwithstanding any other provision of law, including, but not
limited to, Part 1 (commencing with Section 6001) to Part 1.7
(commencing with Section 7280), inclusive, of Division 2 of the
Revenue and Taxation Code, the fees collected pursuant to this
section, or any other law whereby a local agency operating an airport
requires a rental car company to collect a facility financing fee
from its customers, shall not be subject to sales, use, or
transaction taxes.
(n) (1) A rental company shall only advertise, quote, and charge a
rental rate that includes the entire amount except taxes, a customer
facility charge, if any, and a mileage charge, if any, which a
renter must pay to hire or lease the vehicle for the period of time
to which the rental rate applies. A rental company may not charge in
addition to the rental rate, taxes, a customer facility charge, if
any, and a mileage charge, if any, any fee which must be paid by the
renter as a condition of hiring or leasing the vehicle, such as, but
not limited to, required fuel or airport surcharges other than
customer facility charges, nor any fee for transporting the renter to
the location where the rented vehicle will be delivered to the
renter.
(2) In addition to the rental rate, taxes, customer facility
charges, if any, and mileage charges, if any, a rental company may
charge for an item or service provided in connection with a
particular rental transaction if the renter could have avoided
incurring the charge by choosing not to obtain or utilize the
optional item or service. Items and services for which the rental
company may impose an additional charge include, but are not limited
to, optional insurance and accessories requested by the renter,
service charges incident to the renter's optional return of the
vehicle to a location other than the location where the vehicle was
hired or leased, and charges for refueling the vehicle at the
conclusion of the rental transaction in the event the renter did not
return the vehicle with as much fuel as was in the fuel tank at the
beginning of the rental. A rental company also may impose an
additional charge based on reasonable age criteria established by the
rental company.
(3) A rental company may not charge any fee for authorized drivers
in addition to the rental charge for an individual renter.
(4) If a rental company states a rental rate in print
advertisement or in a telephonic, in-person, or computer-transmitted
quotation, the rental company shall clearly disclose in that
advertisement or quotation the terms of any mileage conditions
relating to the advertised or quoted rental rate, including, but not
limited to, to the extent applicable, the amount of mileage and gas
charges, the number of miles for which no charges will be imposed,
and a description of geographic driving limitations within the United
States and Canada.
(5) (A) When a rental rate is stated in an advertisement,
quotation, or reservation in connection with a car rental at an
airport where a customer facility charge is imposed, the rental
company shall clearly disclose the existence and amount of the
customer facility charge. For the purposes of this subparagraph,
advertisements include radio, television, other electronic media, and
print advertisements. For purposes of this subparagraph, quotations
and reservations include those that are telephonic, in-person, and
computer-transmitted. If the rate advertisement is intended to
include transactions at more than one airport imposing a customer
facility charge, a range of fees may be stated in the advertisement.
However, all rate advertisements that include car rentals at airport
destinations shall clearly and conspicuously include a toll-free
telephone number whereby a customer can be told the specific amount
of the customer facility charge to which the customer will be
obligated.
(B) If any person or entity other than a rental car company,
including a passenger carrier or a seller of travel services,
advertises or quotes a rate for a car rental at an airport where a
customer facility charge is imposed, that person or entity shall,
provided they are provided with information about the existence and
amount of the fee, to the extent not specifically prohibited by
federal law, clearly disclose the existence and amount of the fee in
any telephonic, in-person, or computer-transmitted quotation at the
time of making an initial quotation of a rental rate and at the time
of making a reservation of a rental car. If a rental car company
provides the person or entity with rate and customer facility charge
information, the rental car company shall not be responsible for the
failure of that person or entity to comply with this subparagraph
when quoting or confirming a rate to a third person or entity.
(6) If a rental company delivers a vehicle to a renter at a
location other than the location where the rental company normally
carries on its business, the rental company shall not charge the
renter any amount for the rental for the period before the delivery
of the vehicle. If a rental company picks up a rented vehicle from a
renter at a location other than the location where the rental
company normally carries on its business, the rental company may not
charge the renter any amount for the rental for the period after the
renter notifies the rental company to pick up the vehicle.
(o) A renter may bring an action against a rental company for the
recovery of damages and appropriate equitable relief for a violation
of this section. The prevailing party shall be entitled to recover
reasonable attorney's fees and costs.
(p) A rental company that brings an action against a renter for
loss due to theft of the vehicle shall bring the action in the county
in which the renter resides or if the renter is not a resident of
this state in the jurisdiction in which the renter resides.
(q) Any waiver of any of the provisions of this section is void
and unenforceable as contrary to public policy.
SEC. 17. Section 1946.1 of the Civil Code is amended to read:
1946.1. (a) Notwithstanding Section 1946, a hiring of residential
real property for a term not specified by the parties, is deemed to
be renewed as stated in Section 1945, at the end of the term implied
by law unless one of the parties gives written notice to the other of
his or her intention to terminate the tenancy, as provided in this
section.
(b) An owner of a residential dwelling giving notice pursuant to
this section shall give notice at least 60 days prior to the proposed
date of termination. A tenant giving notice pursuant to this
section shall give notice for a period at least as long as the term
of the periodic tenancy prior to the proposed date of termination.
(c) Notwithstanding subdivision (b), an owner of a residential
dwelling giving notice pursuant to this section shall give notice at
least 30 days prior to the proposed date of termination if the tenant
has resided in the dwelling for less than one year.
(d) Notwithstanding subdivision (b), an owner of a residential
dwelling giving notice pursuant to this section shall give notice at
least 30 days prior to the proposed date of termination if all of the
following apply:
(1) The dwelling or unit is alienable separate from the title to
any other dwelling unit.
(2) The owner has contracted to sell the dwelling or unit to a
bona fide purchaser for value, and has established an escrow with a
licensed escrow agent, as defined in Sections 17004 and 17200 of the
Financial Code, or a licensed real estate broker, as defined in
Section 10131 of the Business and Professions Code.
(3) The purchaser is a natural person or persons.
(4) The notice is given no more than 120 days after the escrow has
been established.
(5) Notice was not previously given to the tenant pursuant to this
section.
(6) The purchaser in good faith intends to reside in the property
for at least one full year after the termination of the tenancy.
(e) The notices required by this section shall be given in the
manner prescribed in Section 1162 of the Code of Civil Procedure or
by sending a copy by certified or registered mail.
(f) This section may not be construed to affect the authority of a
public entity that otherwise exists to regulate or monitor the basis
for eviction.
(g) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 18. Section 1954 of the Civil Code is amended to read:
1954. A landlord may enter the dwelling unit only in the
following cases:
(a) In case of emergency.
(b) To make necessary or agreed repairs, decorations, alterations
or improvements, supply necessary or agreed services, or exhibit the
dwelling unit to prospective or actual purchasers, mortgagees,
tenants, workers or contractors or to make an inspection pursuant to
subdivision (f) of Section 1950.5.
(c) When the tenant has abandoned or surrendered the premises.
(d) Pursuant to court order.
Except in cases of emergency or when the tenant has abandoned or
surrendered the premises, entry may not be made during other than
normal business hours unless the tenant consents at the time of
entry.
The landlord may not abuse the right of access or use it to harass
the tenant. Except in cases of emergency or when the tenant has
abandoned or surrendered the premises, the landlord shall give the
tenant reasonable notice in writing of his or her intent to enter and
enter only during normal business hours. The notice may be
personally delivered to the tenant, left with someone of a suitable
age and discretion at the premises, or, left on, near, or under the
usual entry door of the premises in a manner in which a reasonable
person would discover the notice. Twenty-four hours shall be
presumed to be reasonable notice in absence of evidence to the
contrary. The notice may be mailed to the tenant. Mailing of the
notice at least six days prior to an intended entry is presumed
reasonable notice in the absence of evidence to the contrary.
If the purpose of the entry is to exhibit the dwelling unit to
prospective or actual purchasers, the notice may be given orally, in
person or by telephone, if the landlord or his or her agent has
notified the tenant in writing within 120 days of the oral notice
that the property is for sale and that the landlord or agent may
contact the tenant orally for the purpose described above.
Twenty-four hours is presumed reasonable notice in the absence of
evidence to the contrary. At the time of entry, the landlord or
agent shall leave written evidence of the entry inside the unit.
SEC. 19. Section 2924j of the Civil Code is amended to read:
2924j. (a) Unless an interpleader action has been filed, within
30 days of the execution of the trustee's deed resulting from a sale
in which there are proceeds remaining after payment of the amounts
required by paragraphs (1) and (2) of subdivision (a) of Section
2924k, the trustee shall send written notice to all persons with
recorded interests in the real property as of the date immediately
prior to the trustee's sale who would be entitled to notice pursuant
to subdivisions (b) and (c) of Section 2924b. The notice shall be
sent by first-class mail in the manner provided in paragraph (1) of
subdivision (c) of Section 2924b and inform each entitled person of
each of the following:
(1) That there has been a trustee's sale of the described real
property.
(2) That the noticed person may have a claim to all or a portion
of the sale proceeds remaining after payment of the amounts required
by paragraphs (1) and (2) of subdivision (a) of Section 2924k.
(3) The noticed person may contact the trustee at the address
provided in the notice to pursue any potential claim.
(4) That before the trustee can act, the noticed person may be
required to present proof that the person holds the beneficial
interest in the obligation and the security interest therefor. In
the case of a promissory note secured by a deed of trust, proof that
the person holds the beneficial interest may include the original
promissory note and assignment of beneficial interests related
thereto. The noticed person shall also submit a written claim to the
trustee, executed under penalty of perjury, stating the following:
(A) The amount of the claim to the date of trustee's sale.
(B) An itemized statement of the principal, interest, and other
charges.
(C) That claims must be received by the trustee at the address
stated in the notice no later than 30 days after the date the trustee
sends notice to the potential claimant.
(b) The trustee shall exercise due diligence to determine the
priority of the written claims received by the trustee to the trustee'
s sale surplus proceeds from those persons to whom notice was sent
pursuant to subdivision (a). In the event there is no dispute as to
the priority of the written claims submitted to the trustee, proceeds
shall be paid within 30 days after the conclusion of the notice
period. If the trustee has failed to determine the priority of
written claims within 90 days following the 30-day notice period,
then within 10 days thereafter the trustee shall deposit the funds
with the clerk of the court pursuant to subdivision (c) or file an
interpleader action pursuant to subdivision (e). Nothing in this
section shall preclude any person from pursuing other remedies or
claims as to surplus proceeds.
(c) If, after due diligence, the trustee is unable to determine
the priority of the written claims received by the trustee to the
trustee's sale surplus of multiple persons or if the trustee
determines there is a conflict between potential claimants, the
trustee may file a declaration of the unresolved claims and deposit
with the clerk of the superior court of the county in which the sale
occurred, that portion of the sales proceeds that cannot be
distributed, less any fees charged by the clerk pursuant to this
subdivision. The declaration shall specify the date of the trustee's
sale, a description of the property, the names and addresses of all
persons sent notice pursuant to subdivision (a), a statement that the
trustee exercised due diligence pursuant to subdivision (b), that
the trustee provided written notice as required by subdivisions (a)
and (d) and the amount of the sales proceeds deposited by the trustee
with the court. Further, the trustee shall submit a copy of the
trustee's sales guarantee and any information relevant to the
identity, location, and priority of the potential claimants with the
court and shall file proof of service of the notice required by
subdivision (d) on all persons described in subdivision (a).
The clerk shall deposit the amount with the county treasurer
subject to order of the court upon the application of any interested
party. The clerk may charge a reasonable fee for the performance of
activities pursuant to this subdivision equal to the fee for filing
an interpleader action pursuant to Article 2 (commencing with Section
26820) of Division 2 of Title 3 of the Government Code. Upon
deposit of that portion of the sale proceeds that cannot be
distributed by due diligence, the trustee shall be discharged of
further responsibility for the disbursement of sale proceeds. A
deposit with the clerk of the court pursuant to this subdivision may
be either for the total proceeds of the trustee's sale, less any fees
charged by the clerk, if a conflict or conflicts exist with respect
to the total proceeds, or that portion that cannot be distributed
after due diligence, less any fees charged by the clerk.
(d) Before the trustee deposits the funds with the clerk of the
court pursuant to subdivision (c), the trustee shall send written
notice by first-class mail, postage prepaid, to all persons described
in subdivision (a) informing them that the trustee intends to
deposit the funds with the clerk of the court and that a claim for
the funds must be filed with the court within 30 days from the date
of the notice, providing the address of the court in which the funds
were deposited, and a telephone number for obtaining further
information.
Within 90 days after deposit with the clerk, the court shall
consider all claims filed at least 15 days before the date on which
the hearing is scheduled by the court, the clerk shall serve written
notice of the hearing by first-class mail on all claimants identified
in the trustee's declaration at the addresses specified therein.
Where the amount of the deposit is twenty-five thousand dollars
($25,000) or less, a proceeding pursuant to this section is a limited
civil case. The court shall distribute the deposited funds to any
and all claimants entitled thereto.
(e) Nothing in this section restricts the ability of a trustee to
file an interpleader action in order to resolve a dispute about the
proceeds of a trustee's sale. Once an interpleader action has been
filed, thereafter the provisions of this section do not apply.
(f) "Due diligence," for the purposes of this section means that
the trustee researched the written claims submitted or other evidence
of conflicts and determined that a conflict of priorities exists
between two or more claimants which the trustee is unable to resolve.
(g) To the extent required by the Unclaimed Property Law, a
trustee in possession of surplus proceeds not required to be
deposited with the court pursuant to subdivision (b) shall comply
with the Unclaimed Property Law (Chapter 7 (commencing with Section
1500) of Title 10 of Part 3 of the Code of Civil Procedure).
(h) Prior to July 1, 2000, the Judicial Council shall adopt a form
to accomplish the filing authorized by this section.
SEC. 20. Section 2941 of the Civil Code is amended to read:
2941. (a) Within 30 days after any mortgage has been satisfied,
the mortgagee or the assignee of the mortgagee shall execute a
certificate of the discharge thereof, as provided in Section 2939,
and shall record or cause to be recorded in the office of the county
recorder in which the mortgage is recorded. The mortgagee shall then
deliver, upon the written request of the mortgagor or the mortgagor'
s heirs, successors, or assignees, as the case may be, the original
note and mortgage to the person making the request.
(b) (1) Within 30 calendar days after the obligation secured by
any deed of trust has been satisfied, the beneficiary or the assignee
of the beneficiary shall execute and deliver to the trustee the
original note, deed of trust, request for a full reconveyance, and
other documents as may be necessary to reconvey, or cause to be
reconveyed, the deed of trust.
(A) The trustee shall execute the full reconveyance and shall
record or cause it to be recorded in the office of the county
recorder in which the deed of trust is recorded within 21 calendar
days after receipt by the trustee of the original note, deed of
trust, request for a full reconveyance, the fee that may be charged
pursuant to subdivision (e), recorder's fees, and other documents as
may be necessary to reconvey, or cause to be reconveyed, the deed of
trust.
(B) The trustee shall deliver a copy of the reconveyance to the
beneficiary, its successor in interest, or its servicing agent, if
known. The reconveyance instrument shall specify one of the
following options for delivery of the instrument, the addresses of
which the recorder has no duty to validate:
(i) The trustor or successor in interest, and that person's last
known address, as the person to whom the recorder will deliver the
recorded instrument pursuant to Section 27321 of the Government Code.
(ii) That the recorder shall deliver the recorded instrument to
the trustee's address. If the trustee's address is specified for
delivery, the trustee shall mail the recorded instrument to the
trustor or the successor in interest to the last known address for
that party.
(C) Following execution and recordation of the full reconveyance,
upon receipt of a written request by the trustor or the trustor's
heirs, successors, or assignees, the trustee shall then deliver, or
caused to be delivered, the original note and deed of trust to the
person making that request.
(D) If the note or deed of trust, or any copy of the note or deed
of trust, is electronic, upon satisfaction of an obligation secured
by a deed of trust, any electronic original, or electronic copy which
has not been previously marked solely for use as a copy, of the note
and deed of trust, shall be altered to indicate that the obligation
is paid in full.
(2) If the trustee has failed to execute and record, or cause to
be recorded, the full reconveyance within 60 calendar days of
satisfaction of the obligation, the beneficiary, upon receipt of a
written request by the trustor or trustor's heirs, successor in
interest, agent, or assignee, shall execute and acknowledge a
document pursuant to Section 2934a substituting itself or another as
trustee and issue a full reconveyance.
(3) If a full reconveyance has not been executed and recorded
pursuant to either paragraph (1) or paragraph (2) within 75 calendar
days of satisfaction of the obligation, then a title insurance
company may prepare and record a release of the obligation. However,
at least 10 days prior to the issuance and recording of a full
release pursuant to this paragraph, the title insurance company shall
mail by first-class mail with postage prepaid, the intention to
release the obligation to the trustee, trustor, and beneficiary of
record, or their successor in interest of record, at the last known
address.
(A) The release shall set forth:
(i) The name of the beneficiary.
(ii) The name of the trustor.
(iii) The recording reference to the deed of trust.
(iv) A recital that the obligation secured by the deed of trust
has been paid in full.
(v) The date and amount of payment.
(B) The release issued pursuant to this subdivision shall be
entitled to recordation and, when recorded, shall be deemed to be the
equivalent of a reconveyance of a deed of trust.
(4) Where an obligation secured by a deed of trust was paid in
full prior to July 1, 1989, and no reconveyance has been issued and
recorded by October 1, 1989, then a release of obligation as provided
for in paragraph (3) may be issued.
(5) Paragraphs (2) and (3) do not excuse the beneficiary or the
trustee from compliance with paragraph (1). Paragraph (3) does not
excuse the beneficiary from compliance with paragraph (2).
(6) In addition to any other remedy provided by law, a title
insurance company preparing or recording the release of the
obligation shall be liable to any party for damages, including
attorney's fees, which any person may sustain by reason of the
issuance and recording of the release, pursuant to paragraphs (3) and
(4).
(7) A beneficiary may, at its discretion, in accordance with the
requirements and procedures of Section 2934a, substitute the title
company conducting the escrow through which the obligation is
satisfied for the trustee of record, in which case the title company
assumes the obligation of a trustee under this subdivision, and may
collect the fee authorized by subdivision (e).
(8) In lieu of delivering the original note and deed of trust to
the trustee within 30 days of loan satisfaction, as required by
paragraph (1) of subdivision (b), a beneficiary who executes and
delivers to the trustee a request for a full reconveyance within 30
days of loan satisfaction may, within 120 days of loan satisfaction,
deliver the original note and deed of trust to either the trustee or
trustor. If the note and deed of trust are delivered as provided in
this paragraph, upon satisfaction of the note and deed of trust, the
note and deed of trust shall be altered to indicate that the
obligation is paid in full. Nothing in this paragraph alters the
requirements and obligations set forth in paragraphs (2) and (3).
(c) For the purposes of this section, the phrases "cause to be
recorded" and "cause it to be recorded" include, but are not limited
to, sending by certified mail with the United States Postal Service
or by an independent courier service using its tracking service that
provides documentation of receipt and delivery, including the
signature of the recipient, the full reconveyance or certificate of
discharge in a recordable form, together with payment for all
required fees, in an envelope addressed to the county recorder's
office of the county in which the deed of trust or mortgage is
recorded. Within two business days from the day of receipt, if
received in recordable form together with all required fees, the
county recorder shall stamp and record the full reconveyance or
certificate of discharge. Compliance with this subdivision shall
entitle the trustee to the benefit of the presumption found in
Section 641 of the Evidence Code.
(d) The violation of this section shall make the violator liable
to the person affected by the violation for all damages which that
person may sustain by reason of the violation, and shall require that
the violator forfeit to that person the sum of five hundred dollars
($500).
(e) (1) The trustee, beneficiary, or mortgagee may charge a
reasonable fee to the trustor or mortgagor, or the owner of the land,
as the case may be, for all services involved in the preparation,
execution, and recordation of the full reconveyance, including, but
not limited to, document preparation and forwarding services rendered
to effect the full reconveyance, and, in addition, may collect
official fees. This fee may be made payable no earlier than the
opening of a bona fide escrow or no more than 60 days prior to the
full satisfaction of the obligation secured by the deed of trust or
mortgage.
(2) If the fee charged pursuant to this subdivision does not
exceed forty-five dollars ($45), the fee is conclusively presumed to
be reasonable.
(3) The fee described in paragraph (1) may not be charged unless
demand for the fee was included in the payoff demand statement
described in Section 2943.
(f) For purposes of this section, "original" may include an
optically imaged reproduction when the following requirements are
met:
(1) The trustee receiving the request for reconveyance and
executing the reconveyance as provided in subdivision (b) is an
affiliate or subsidiary of the beneficiary or an affiliate or
subsidiary of the assignee of the beneficiary, respectively.
(2) The optical image storage media used to store the document
shall be nonerasable write once, read many (WORM) optical image media
that does not allow changes to the stored document.
(3) The optical image reproduction shall be made consistent with
the minimum standards of quality approved by either the National
Institute of Standards and Technology or the Association for
Information and Image Management.
(4) Written authentication identifying the optical image
reproduction as an unaltered copy of the note, deed of trust, or
mortgage shall be stamped or printed on the optical image
reproduction.
(g) No fee or charge may be imposed on the trustor in connection
with, or relating to, any act described in this section except as
expressly authorized by this section.
(h) The amendments to this section enacted at the 1999-2000
Regular Session shall apply only to a mortgage or an obligation
secured by a deed of trust that is satisfied on or after January 1,
2001.
(i) (1) In any action filed before January 1, 2002, that is
dismissed as a result of the amendments to this section enacted at
the 2001-02 Regular Session, the plaintiff shall not be required to
pay the defendant's costs.
(2) Any claimant, including a claimant in a class action lawsuit,
whose claim is dismissed or barred as a result of the amendments to
this section enacted at the 2001-02 Regular Session, may, within 6
months of the dismissal or barring of the action or claim, file or
refile a claim for actual damages occurring before January 1, 2002,
that were proximately caused by a time lapse between loan
satisfaction and the completion of the beneficiary's obligations as
required under paragraph (1) of subdivision (b). In any action
brought under this section, the defendant may be found liable for
actual damages, but may not be found liable for any civil penalty
authorized by Section 2941.
(j) Notwithstanding any other penalties, if a beneficiary collects
a fee for reconveyance and thereafter has knowledge, or should have
knowledge, that no reconveyance has been recorded, the beneficiary
shall cause to be recorded the reconveyance, or in the event a
release of obligation is earlier and timely recorded, the beneficiary
shall refund to the trustor the fee charged to perform the
reconveyance. Evidence of knowledge includes, but is not limited to,
notice of a release of obligation pursuant to paragraph (3) of
subdivision (b).
SEC. 21. Section 17 of the Code of Civil Procedure is amended to
read:
17. (a) Words used in this code in the present tense include the
future as well as the present; words used in the masculine gender
include the feminine and neuter; the singular number includes the
plural and the plural the singular; the word "person" includes a
corporation as well as a natural person; the word "county" includes
"city and county"; writing includes printing and typewriting; oath
includes affirmation or declaration; and every mode of oral
statement, under oath or affirmation, is embraced by the term
"testify," and every written one in the term "depose"; signature or
subscription includes mark, when the person cannot write, his or her
name being written near it by a person who writes his or her own name
as a witness; provided, that when a signature is by mark it must, in
order that the same may be acknowledged or may serve as the
signature to any sworn statement, be witnessed by two persons who
must subscribe their own names as witness thereto.
(b) The following words have in this code the signification
attached to them in this section, unless otherwise apparent from the
context:
(1) The word "property" includes both real and personal property.
(2) The words "real property" are coextensive with lands,
tenements, and hereditaments.
(3) The words "personal property" include money, goods, chattels,
things in action, and evidences of debt.
(4) The word "month" means a calendar month, unless otherwise
expressed.
(5) The word "will" includes codicil.
(6) The word "writ" signifies an order or precept in writing,
issued in the name of the people, or of a court or judicial officer,
and the word "process" signifies a writ or summons issued in the
course of judicial proceedings.
(7) The word "state," when applied to the different parts of the
United States, includes the District of Columbia and the territories,
and the words "United States" may include the district and
territories.
(8) The word "section," whenever hereinafter employed, refers to a
section of this code, unless some other code or statute is expressly
mentioned.
(9) The word "affinity," when applied to the marriage relation,
signifies the connection existing in consequence of marriage, between
each of the married persons and the blood relatives of the other.
(10) The word "sheriff" shall include "marshal."
SEC. 22. Section 170.6 of the Code of Civil Procedure is amended
to read:
170.6. (a) (1) No judge, court commissioner, or referee of any
superior court of the State of California shall try any civil or
criminal action or special proceeding of any kind or character nor
hear any matter therein that involves a contested issue of law or
fact when it shall be established as hereinafter provided that the
judge or court commissioner is prejudiced against any party or
attorney or the interest of any party or attorney appearing in the
action or proceeding.
(2) Any party to or any attorney appearing in any action or
proceeding may establish this prejudice by an oral or written motion
without notice supported by affidavit or declaration under penalty of
perjury or an oral statement under oath that the judge, court
commissioner, or referee before whom the action or proceeding is
pending or to whom it is assigned is prejudiced against any party or
attorney or the interest of the party or attorney so that the party
or attorney cannot or believes that he or she cannot have a fair and
impartial trial or hearing before the judge, court commissioner, or
referee. Where the judge, other than a judge assigned to the case
for all purposes, court commissioner, or referee assigned to or who
is scheduled to try the cause or hear the matter is known at least 10
days before the date set for trial or hearing, the motion shall be
made at least 5 days before that date. If directed to the trial of a
cause where there is a master calendar, the motion shall be made to
the judge supervising the master calendar not later than the time the
cause is assigned for trial. If directed to the trial of a cause
that has been assigned to a judge for all purposes, the motion shall
be made to the assigned judge or to the presiding judge by a party
within 10 days after notice of the all purpose assignment, or if the
party has not yet appeared in the action, then within 10 days after
the appearance. If the court in which the action is pending is
authorized to have no more than one judge and the motion claims that
the duly elected or appointed judge of that court is prejudiced, the
motion shall be made before the expiration of 30 days from the date
of the first appearance in the action of the party who is making the
motion or whose attorney is making the motion. In no event shall any
judge, court commissioner, or referee entertain the motion if it be
made after the drawing of the name of the first juror, or if there be
no jury, after the making of an opening statement by counsel for
plaintiff, or if there is no opening statement by counsel for
plaintiff, then after swearing in the first witness or the giving of
any evidence or after trial of the cause has otherwise commenced. If
the motion is directed to a hearing (other than the trial of a
cause), the motion shall be made not later than the commencement of
the hearing. In the case of trials or hearings not herein
specifically provided for, the procedure herein specified shall be
followed as nearly as may be. The fact that a judge, court
commissioner, or referee has presided at or acted in connection with
a pretrial conference or other hearing, proceeding, or motion prior
to trial and not involving a determination of contested fact issues
relating to the merits shall not preclude the later making of the
motion provided for herein at the time and in the manner hereinbefore
provided.
A motion under this paragraph may be made following reversal on
appeal of a trial court's decision, or following reversal on appeal
of a trial court's final judgment, if the trial judge in the prior
proceeding is assigned to conduct a new trial on the matter.
Notwithstanding paragraph (3), the party who filed the appeal that
resulted in the reversal of a final judgment of a trial court may
make a motion under this section regardless of whether that party or
side has previously done so. The motion shall be made within 60 days
after the party or the party's attorney has been notified of the
assignment.
(3) If the motion is duly presented and the affidavit or
declaration under penalty of perjury is duly filed or an oral
statement under oath is duly made, thereupon and without any further
act or proof, the judge supervising the master calendar, if any,
shall assign some other judge, court commissioner, or referee to try
the cause or hear the matter. In other cases, the trial of the cause
or the hearing of the matter shall be assigned or transferred to
another judge, court commissioner, or referee of the court in which
the trial or matter is pending or, if there is no other judge, court
commissioner, or referee of the court in which the trial or matter is
pending, the Chair of the Judicial Council shall assign some other
judge, court commissioner, or referee to try the cause or hear the
matter as promptly as possible. Except as provided in this section,
no party or attorney shall be permitted to make more than one such
motion in any one action or special proceeding pursuant to this
section; and in actions or special proceedings where there may be
more than one plaintiff or similar party or more than one defendant
or similar party appearing in the action or special proceeding, only
one motion for each side may be made in any one action or special
proceeding.
(4) Unless required for the convenience of the court or unless
good cause is shown, a continuance of the trial or hearing shall not
be granted by reason of the making of a motion under this section.
If a continuance is granted, the cause or matter shall be continued
from day to day or for other limited periods upon the trial or other
calendar and shall be reassigned or transferred for trial or hearing
as promptly as possible.
(5) Any affidavit filed pursuant to this section shall be in
substantially the following form:
(Here set forth court and cause)
State of California, ) PEREMPTORY CHALLENGE
County of __________ ) ss.
_______, being duly sworn, deposes and says: That he or she
is a party (or attorney for a party) to the within action (or
special proceeding). That _____ the judge, court commissioner,
or referee before whom the trial of the (or a hearing in the)
aforesaid action (or special proceeding) is pending (or to whom
it is assigned) is prejudiced against the party (or his or her
attorney) or the interest of the party (or his or her attorney)
so that affiant cannot or believes that he or she cannot have a
fair and impartial trial or hearing before the judge, court
commissioner, or referee.
Subscribed and sworn to before me this
____ day of ____, 20__.
(Clerk or notary public or other
officer administering oath)
(6) Any oral statement under oath or declaration under penalty of
perjury made pursuant to this section shall include substantially the
same contents as the affidavit above.
(b) Nothing in this section shall affect or limit Section 170 or
Title 4 (commencing with Section 392) of Part 2, and this section
shall be construed as cumulative thereto.
(c) If any provision of this section or the application to any
person or circumstance is held invalid, that invalidity shall not
affect other provisions or applications of the section that can be
given effect without the invalid provision or application and to this
end the provisions of this section are declared to be severable.
SEC. 23. Section 179 of the Code of Civil Procedure is amended to
read:
179. Each of the justices of the Supreme Court and of any court
of appeal and the judges of the superior courts, shall have power in
any part of the state to take and certify:
(a) The proof and acknowledgment of a conveyance of real property,
or of any other written instrument.
(b) The acknowledgment of satisfaction of a judgment of any court.
(c) An affidavit or deposition to be used in this state.
SEC. 24. Section 437c of the Code of Civil Procedure is amended to
read:
437c. (a) Any party may move for summary judgment in any action
or proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceeding. The motion may be
made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the
motion is directed or at any earlier time after the general
appearance that the court, with or without notice and upon good cause
shown, may direct. Notice of the motion and supporting papers shall
be served on all other parties to the action at least 75 days before
the time appointed for hearing. However, if the notice is served by
mail, the required 75-day period of notice shall be increased by
five days if the place of address is within the State of California,
10 days if the place of address is outside the State of California
but within the United States, and 20 days if the place of address is
outside the United States, and if the notice is served by facsimile
transmission, Express Mail, or another method of delivery providing
for overnight delivery, the required 75-day period of notice shall be
increased by two court days. The motion shall be heard no later
than 30 days before the date of trial, unless the court for good
cause orders otherwise. The filing of the motion shall not extend
the time within which a party must otherwise file a responsive
pleading.
(b) (1) The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken. The supporting papers
shall include a separate statement setting forth plainly and
concisely all material facts which the moving party contends are
undisputed. Each of the material facts stated shall be followed by a
reference to the supporting evidence. The failure to comply with
this requirement of a separate statement may in the court's
discretion constitute a sufficient ground for denial of the motion.
(2) Any opposition to the motion shall be served and filed not
less than 14 days preceding the noticed or continued date of hearing,
unless the court for good cause orders otherwise. The opposition,
where appropriate, shall consist of affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of
which judicial notice shall or may be taken.
(3) The opposition papers shall include a separate statement that
responds to each of the material facts contended by the moving party
to be undisputed, indicating whether the opposing party agrees or
disagrees that those facts are undisputed. The statement also shall
set forth plainly and concisely any other material facts that the
opposing party contends are disputed. Each material fact contended
by the opposing party to be disputed shall be followed by a reference
to the supporting evidence. Failure to comply with this requirement
of a separate statement may constitute a sufficient ground, in the
court's discretion, for granting the motion.
(4) Any reply to the opposition shall be served and filed by the
moving party not less than five days preceding the noticed or
continued date of hearing, unless the court for good cause orders
otherwise.
(5) Evidentiary objections not made at the hearing shall be deemed
waived.
(6) Except for subdivision (c) of Section 1005 relating to the
method of service of opposition and reply papers, Sections 1005 and
1013, extending the time within which a right may be exercised or an
act may be done, do not apply to this section.
(7) Any incorporation by reference of matter in the court's file
shall set forth with specificity the exact matter to which reference
is being made and shall not incorporate the entire file.
(c) The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law. In determining whether the papers show that there
is no triable issue as to any material fact the court shall consider
all of the evidence set forth in the papers, except that to which
objections have been made and sustained by the court, and all
inferences reasonably deducible from the evidence, except summary
judgment may not be granted by the court based on inferences
reasonably deducible from the evidence, if contradicted by other
inferences or evidence, which raise a triable issue as to any
material fact.
(d) Supporting and opposing affidavits or declarations shall be
made by any person on personal knowledge, shall set forth admissible
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated in the affidavits or declarations.
Any objections based on the failure to comply with the requirements
of this subdivision shall be made at the hearing or shall be deemed
waived.
(e) If a party is otherwise entitled to a summary judgment
pursuant to this section, summary judgment may not be denied on
grounds of credibility or for want of cross-examination of witnesses
furnishing affidavits or declarations in support of the summary
judgment, except that summary judgment may be denied in the
discretion of the court, where the only proof of a material fact
offered in support of the summary judgment is an affidavit or
declaration made by an individual who was the sole witness to that
fact; or where a material fact is an individual's state of mind, or
lack thereof, and that fact is sought to be established solely by the
individual's affirmation thereof.
(f) (1) A party may move for summary adjudication as to one or
more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of
duty, if that party contends that the cause of action has no merit or
that there is no affirmative defense thereto, or that there is no
merit to an affirmative defense as to any cause of action, or both,
or that there is no merit to a claim for damages, as specified in
Section 3294 of the Civil Code, or that one or more defendants either
owed or did not owe a duty to the plaintiff or plaintiffs. A motion
for summary adjudication shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.
(2) A motion for summary adjudication may be made by itself or as
an alternative to a motion for summary judgment and shall proceed in
all procedural respects as a motion for summary judgment. However, a
party may not move for summary judgment based on issues asserted in
a prior motion for summary adjudication and denied by the court,
unless that party establishes to the satisfaction of the court, newly
discovered facts or circumstances or a change of law supporting the
issues reasserted in the summary judgment motion.
(g) Upon the denial of a motion for summary judgment, on the
ground that there is a triable issue as to one or more material
facts, the court shall, by written or oral order, specify one or more
material facts raised by the motion as to which the court has
determined there exists a triable controversy. This determination
shall specifically refer to the evidence proffered in support of and
in opposition to the motion which indicates that a triable
controversy exists. Upon the grant of a motion for summary judgment,
on the ground that there is no triable issue of material fact, the
court shall, by written or oral order, specify the reasons for its
determination. The order shall specifically refer to the evidence
proffered in support of, and if applicable in opposition to, the
motion which indicates that no triable issue exists. The court shall
also state its reasons for any other determination. The court shall
record its determination by court reporter or written order.
(h) If it appears from the affidavits submitted in opposition to a
motion for summary judgment or summary adjudication or both that
facts essential to justify opposition may exist but cannot, for
reasons stated, then be presented, the court shall deny the motion,
or order a continuance to permit affidavits to be obtained or
discovery to be had or may make any other order as may be just. The
application to continue the motion to obtain necessary discovery may
also be made by ex parte motion at any time on or before the date the
opposition response to the motion is due.
(i) If, after granting a continuance to allow specified additional
discovery, the court determines that the party seeking summary
judgment has unreasonably failed to allow the discovery to be
conducted, the court shall grant a continuance to permit the
discovery to go forward or deny the motion for summary judgment or
summary adjudication. This section does not affect or limit the
ability of any party to compel discovery under the Civil Discovery
Act (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3
of Part 4).
(j) If the court determines at any time that any of the affidavits
are presented in bad faith or solely for purposes of delay, the
court shall order the party presenting the affidavits to pay the
other party the amount of the reasonable expenses which the filing of
the affidavits caused the other party to incur. Sanctions may not
be imposed pursuant to this subdivision, except on notice contained
in a party's papers, or on the court's own noticed motion, and after
an opportunity to be heard.
(k) Except when a separate judgment may properly be awarded in the
action, no final judgment may be entered on a motion for summary
judgment prior to the termination of the action, but the final
judgment shall, in addition to any matters determined in the action,
award judgment as established by the summary proceeding herein
provided for.
(l) In actions which arise out of an injury to the person or to
property, if a motion for summary judgment was granted on the basis
that the defendant was without fault, no other defendant during
trial, over plaintiff's objection, may attempt to attribute fault to
or comment on the absence or involvement of the defendant who was
granted the motion.
(m) (1) A summary judgment entered under this section is an
appealable judgment as in other cases. Upon entry of any order
pursuant to this section, except the entry of summary judgment, a
party may, within 20 days after service upon him or her of a written
notice of entry of the order, petition an appropriate reviewing court
for a peremptory writ. If the notice is served by mail, the initial
period within which to file the petition shall be increased by five
days if the place of address is within the State of California, 10
days if the place of address is outside the State of California but
within the United States, and 20 days if the place of address is
outside the United States. If the notice is served by facsimile
transmission, Express Mail, or another method of delivery providing
for overnight delivery, the initial period within which to file the
petition shall be increased by two court days. The superior court
may, for good cause, and prior to the expiration of the initial
period, extend the time for one additional period not to exceed 10
days.
(2) Before a reviewing court affirms an order granting
summary judgment or summary adjudication on a ground not relied upon
by the trial court, the reviewing court shall afford the parties an
opportunity to present their views on the issue by submitting
supplemental briefs. The supplemental briefing may include an
argument that additional evidence relating to that ground exists, but
that the party has not had an adequate opportunity to present the
evidence or to conduct discovery on the issue. The court may reverse
or remand based upon the supplemental briefing to allow the parties
to present additional evidence or to conduct discovery on the issue.
If the court fails to allow supplemental briefing, a rehearing shall
be ordered upon timely petition of any party.
(n) (1) If a motion for summary adjudication is granted, at the
trial of the action, the cause or causes of action within the action,
affirmative defense or defenses, claim for damages, or issue or
issues of duty as to the motion which has been granted shall be
deemed to be established and the action shall proceed as to the cause
or causes of action, affirmative defense or defenses, claim for
damages, or issue or issues of duty remaining.
(2) In the trial of the action, the fact that a motion for summary
adjudication is granted as to one or more causes of action,
affirmative defenses, claims for damages, or issues of duty within
the action shall not operate to bar any cause of action, affirmative
defense, claim for damages, or issue of duty as to which summary
adjudication was either not sought or denied.
(3) In the trial of an action, neither a party, nor a witness, nor
the court shall comment upon the grant or denial of a motion for
summary adjudication to a jury.
(o) A cause of action has no merit if either of the following
exists:
(1) One or more of the elements of the cause of action cannot be
separately established, even if that element is separately pleaded.
(2) A defendant establishes an affirmative defense to that cause
of action.
(p) For purposes of motions for summary judgment and summary
adjudication:
(1) A plaintiff or cross-complainant has met his or her burden of
showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party to
judgment on that cause of action. Once the plaintiff or
cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. The defendant or cross-defendant may not rely upon the mere
allegations or denials of its pleadings to show that a triable issue
of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to that
cause of action or a defense thereto.
(2) A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if that party has shown
that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a
complete defense to that cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the
plaintiff or cross-complainant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense
thereto. The plaintiff or cross-complainant may not rely upon the
mere allegations or denials of its pleadings to show that a triable
issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists
as to that cause of action or a defense thereto.
(q) This section does not extend the period for trial provided by
Section 1170.5.
(r) Subdivisions (a) and (b) do not apply to actions brought
pursuant to Chapter 4 (commencing with Section 1159) of Title 3 of
Part 3.
(s) For the purposes of this section, a change in law does not
include a later enacted statute without retroactive application.
SEC. 25. Section 1208.5 of the Code of Civil Procedure is amended
to read:
1208.5. Any person having a lien upon any animal or animals under
the provisions of Section 597a or 597f of the Penal Code may satisfy
the lien as follows: If the lien is not discharged and satisfied,
by the person responsible, within three days after the obligation
becomes due, then the person holding the lien may resort to the
proper court to satisfy the claim; or may, three days after the
charges against the property become due, sell the property, or an
undivided fraction thereof as may become necessary, to defray the
amount due and costs of sale, by giving three days' notice of the
sale by advertising in some newspaper published in the county, or
city and county, in which the lien has attached to the property; or,
if there is no newspaper published in the county, then by posting
notices of the sale in three of the most public places in the town or
county for three days previous to the sale. The notices shall
contain an accurate description of the property to be sold, together
with the terms of sale, which must be for cash, payable on the
consummation of the sale. The proceeds of the sale shall be applied
to the discharge of the lien and the costs of sale; the remainder, if
any, shall be paid over to the owner, if known, and if not known
shall be paid into the treasury of the humane society of the county,
or city and county, wherein the sale takes place; if no humane
society exists in the county, then the remainder shall be paid into
the county treasury.
SEC. 26. Section 1420 of the Code of Civil Procedure is amended to
read:
1420. (a) At any time after two years after the death of any
decedent who leaves property to which the state is entitled by reason
of it having escheated to the state, the Attorney General shall
commence a proceeding on behalf of the state in the Superior Court
for the County of Sacramento to have it adjudged that the state is so
entitled. The action shall be commenced by filing a petition, which
shall be treated as the information elsewhere referred to in this
title.
(b) The petition shall set forth a description of the property,
the name of the person last in possession thereof, the name of the
person, if any, claiming the property, or portion thereof, and the
facts and circumstances by virtue of which it is claimed the property
has escheated.
(c) Upon the filing of the petition, the court shall make an order
requiring all persons interested in the estate to appear and show
cause, if any, within 60 days from the date of the order, why the
estate should not vest in the state. The order must be published at
least once a week for four consecutive weeks in a newspaper published
in the County of Sacramento, the last publication to be at least 10
days prior to the date set for the hearing. Upon the completion of
the publication of the order, the court shall have full and complete
jurisdiction over the estate, the property, and the person of
everyone having or claiming any interest in the property, and shall
have full and complete jurisdiction to hear and determine the issues
therein, and render the appropriate judgment thereon.
(d) If proceedings for the administration of the estate have been
instituted, a copy of the order must be filed with the papers in the
estate. If proceedings for the administration of any estate of the
decedent have been instituted and none of the persons entitled to
succeed thereto have appeared and made claim to the property, or any
portion thereof, before the decree of final distribution therein is
made, or before the commencement of a proceeding by the Attorney
General, or if the court shall find that the persons as have appeared
are not entitled to the property of the estate, or any portion
thereof, the court shall, upon final settlement of the proceedings
for the administration of the estate, after the payment of all debts
and expenses of administration, distribute all moneys and other
property remaining to the State of California.
In any proceeding brought by the Attorney General under this
chapter, any two or more parties and any two or more causes of action
may be joined in the same proceedings and in the same petition
without being separately stated, and it shall be sufficient to allege
in the petition that the decedent left no heirs to take the estate
and the failure of heirs to appear and set up their claims in any
proceeding, or in any proceedings for the administration of the
estate, shall be sufficient proof upon which to base the judgment in
any proceeding or decree of distribution.
(e) If proceedings for the administration of any estate have not
been commenced within six months from the death of any decedent the
Attorney General may direct the public administrator to commence the
same forthwith.
SEC. 27. Section 1607 of the Code of Civil Procedure is amended to
read:
1607. When a report is received from the Comptroller General or
other proper officer of the United States, the Controller shall
prepare and forward a copy thereof to the clerk of the superior court
of each county within this state and the clerk shall post a copy at
the courthouse for a period of 60 days. Any person asserting an
interest in property mentioned in the report may elect to claim
against the United States under the laws of the United States, in
which event and within 90 days following the date of initial posting
by the clerk the person shall notify the Controller of the asserted
interest and intention to so claim. The Controller shall omit the
property from any claim by the state until such time as the asserted
interest may be finally determined against the claimant. The
interest may not thereafter be asserted against the state.
SEC. 28. Section 2117 of the Corporations Code is amended to read:
2117. (a) (1) Every foreign corporation (other than a foreign
association) qualified to transact intrastate business shall file,
annually during the applicable filing period, on a form prescribed by
the Secretary of State, a statement containing:
(A) The names and complete business or residence addresses of its
chief executive officer, secretary, and chief financial officer.
(B) The street address of its principal executive office.
(C) The street address of its principal business office in this
state, if any.
(D) A statement of the general type of business that constitutes
the principal business activity of the corporation (for example,
manufacturer of aircraft; wholesale liquor distributor; or retail
department store).
(2) In addition to all of the information required by paragraph
(1) every publicly traded company shall also include the following
information in the statement:
(A) The name of the independent auditor used by the corporation
and a description of any other services, if any, performed for the
corporation during the previous 24 months by the independent auditor,
by its parent corporation, or by an agent, subsidiary, corporate
partner, or corporate affiliate of the independent auditor or its
parent corporation.
(B) The date of the last report prepared for the corporation by
the independent auditor. The corporation shall attach a copy of the
report to the statement.
(C) The annual compensation paid to each member of the board of
directors and each executive officer, including the number of any
shares or options for shares that were not available to other
employees of the corporation.
(D) A description of any loans made to a member of the board of
directors by the corporation at a preferential loan rate during the
previous 24 months, including the amount and terms of the loans.
(E) A statement indicating whether any bankruptcy was filed by the
corporation, its executive officers, or members of the board of
directors within the previous 10 years.
(F) A statement indicating whether any member of the board of
directors or executive officer of the corporation was convicted of
fraud during the previous 10 years.
(G) A statement indicating whether the corporation violated any
federal security laws or any banking or security provision of
California law during the previous 10 years for which the corporation
was found liable in an action before a federal or state court or
regulatory agency or a self-regulatory agency in which a judgment
over ten thousand dollars ($10,000) was entered.
If the executive officers of the corporation use other titles, the
statement shall include the officers performing comparable duties
under other titles. If the corporation has no executive officers, or
has no executive officers who are natural persons, the statement
shall include the names of natural persons performing comparable
duties for the corporation pursuant to a management contract or other
arrangement.
(3) For purposes of this section, the following definitions apply:
(A) "Publicly traded company" means a company with securities that
are either listed or admitted to trading on a national or foreign
exchange, or is the subject of two-way quotations, such as both bid
and asked prices, that is regularly published by one or more
broker-dealers in the National Daily Quotation Service or a similar
service.
(B) "Executive officer" means the five most highly compensated
officers of the company, excluding any officer who is also a member
of the board of directors.
(b) The statement required by subdivision (a) shall also
designate, as the agent of the corporation for the purpose of service
of process, a natural person residing in this state or a corporation
that has complied with Section 1505 and whose capacity to act as the
agent has not terminated. If a natural person is designated, the
statement shall set forth the person's complete business or residence
address. If a corporate agent is designated, no address for it
shall be set forth.
(c) The statement and designation required by subdivision (a)
shall be available and open to the public for inspection. The
Secretary of State, no later than December 31, 2004, shall provide
access to all information contained in the statement and designation
by means of an online database.
(d) In addition to any other fees required, a foreign corporation
shall pay a five-dollar ($5) disclosure fee upon filing the statement
and designation required by subdivision (a). One-half of the fee
shall be utilized to further the provisions of this section,
including the development and maintenance of the online database
required by subdivision (d), and one-half shall be deposited into the
Victims of Corporate Fraud Compensation Fund established in Section
1502.5.
(e) Whenever any of the information required by subdivision (a) is
changed, the corporation may file a current statement containing all
the information required by subdivisions (a) and (b). In order to
change its agent for service of process or the address of the agent,
the corporation shall file a current statement containing all the
information required by subdivisions (a) and (b). Whenever any
statement is filed pursuant to this section, it supersedes any
previously filed statement and the statement in the filing pursuant
to Section 2105.
(f) Subdivisions (c), (d), (f), and (g) of Section 1502 apply to
statements filed pursuant to this section except that "articles"
shall mean the filing pursuant to Section 2105.
SEC. 29. Section 25118 of the Corporations Code is amended to
read:
25118. (a) An evidence of indebtedness issued by an entity or
guaranteed by an entity that is an affiliate (as defined in Section
150) of the borrower that, on the day the evidence of indebtedness
issued or guaranty is first issued or entered into, has total assets
of at least two million dollars ($2,000,000) according to its then
most recent financial statements, and the purchasers or holders
thereof, shall be exempt from the usury provisions of the California
Constitution. The financial statements referred to in the preceding
sentence shall meet both of the following requirements:
(1) Be as of a date not more than 90 days prior to the date the
evidence of indebtedness or guaranty is first issued or entered into.
(2) Be prepared in accordance with either of the following:
(A) In accordance with generally accepted accounting principles
and, if the entity has consolidated subsidiaries, on a consolidated
basis.
(B) In accordance with the rules and requirements of the
Securities and Exchange Commission, whether or not required by law to
be prepared in accordance with those rules and requirements.
(b) Any one or more evidences of indebtedness, and the purchasers
or holders thereof, shall be exempt from the usury provisions of the
California Constitution if either of the following applies:
(1) The evidences of indebtedness aggregate at the time of
issuance at least three hundred thousand dollars ($300,000) in
original face amount, or, if the evidences of indebtedness are
purchased with original issue discount, they are purchased for an
aggregate purchase price at the time of issuance of at least three
hundred thousand dollars ($300,000).
(2) The evidences of indebtedness are issued pursuant to a bona
fide written commitment for the lending to the issuer of at least
three hundred thousand dollars ($300,000), or the provision of a line
of credit to the issuer in a principal amount of at least three
hundred thousand dollars ($300,000). The exemption provided by this
paragraph shall not be affected by a subsequent event of default or
other event not in the lender's control that has relieved or may
relieve the lender from its commitment.
(c) Any evidence of indebtedness described in subdivision (a) or
(b), and the purchasers or holders thereof, shall be entitled to the
benefits of the usury exemption contained in this section regardless
of whether, at any time after the evidence of indebtedness or
guaranty upon which the exemption is based is first issued or entered
into, the evidence of indebtedness or guaranty is determined by a
court of competent jurisdiction not to be a "security."
(d) This section creates and authorizes a class of transactions
and persons pursuant to Section 1 of Article XV of the California
Constitution.
(e) This section does not apply to:
(1) Any evidence of indebtedness issued or guaranteed (if the
guaranty is part of the consideration for the indebtedness) by an
individual, a revocable trust having one or more individuals as
trustors, or a partnership in which, at the time of issuance, one or
more individuals are general partners.
(2) Any transaction subject to the limitation on permissible rates
of interest set forth in paragraph (1) of the first sentence of
Section 1 of Article XV of the California Constitution.
(f) The exemptions created by this section shall only be available
in a transaction that meets either of the following criteria:
(1) The lender and either the issuer of the indebtedness or the
guarantor, as the case may be, or any of their respective officers,
directors, or controlling persons, or, if any party is a limited
liability company, the managers as appointed or elected by the
members, have a preexisting personal or business relationship.
(2) The lender and the issuer, or the lender and the guarantor, by
reason of their own business and financial experience or that of
their professional advisers, could reasonably be assumed to have the
capacity to protect their own interests in connection with the
transaction.
(g) For purposes of this section, "preexisting personal or
business relationship" and "capacity to protect their own interests
in connection with the transaction" as used in subdivision (f) shall
have the same meaning as, and be determined according to the same
standards as, specified in paragraph (2) of subdivision (f) of
Section 25102 and its implementing regulations provided that, solely
with respect to this section, a lender or purchaser who is
represented by counsel may designate that person as its professional
adviser whether or not that person is compensated by the issuer or
guarantor, as long as that person has a bona fide attorney-client
relationship with the lender or purchaser.
(h) This section shall not exempt any person from the application
of the California Finance Lenders Law (Division 9 (commencing with
Section 22000) of the Financial Code).
SEC. 30. Section 430 of the Education Code is amended to read:
430. (a) This chapter shall be known, and may be cited, as the
English Learner and Immigrant Pupil Federal Conformity Act.
(b) The purpose of this chapter is to ensure that instructional
services are provided to pupils with limited English proficiency in
conformity with federal requirements that are designed to ensure that
all pupils have reasonable access to educational opportunities that
are necessary in order for the pupils to achieve at high levels in
English and in the other core curriculum areas of instruction.
(c) This chapter is intended to be declaratory of Title III of the
federal No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et
seq.) and is intended to assist local educational agencies in
understanding the requirements and funding formulas to provide
allowable services. It is the intent of the Legislature that, to the
extent federal law is amended, this chapter will be amended to
conform to those changes.
(d) The requirements of this chapter apply only to local
educational agencies that receive federal funds pursuant to Title III
of the federal No Child Left Behind Act of 2001.
SEC. 31. Section 446 of the Education Code is amended to read:
446. In compliance with Section 6824 of Title 20 of the United
States Code, the Superintendent of Public Instruction may not award a
subgrant in an amount that is less than ten thousand dollars
($10,000). A local educational agency may form a consortium with one
or more other local educational agencies to apply for Title III
funds as a consortium, if the grant to the consortium is ten thousand
dollars ($10,000) or more. A consortium shall include only those
entities specified by Section 6871 of Title 20 of the United States
Code. If a consortium applies for a subgrant, it shall be awarded to
the local lead educational agency on behalf of all of the members of
the consortium. The members of the consortium shall collectively
develop and approve a memorandum of understanding for the
implementation of the programs and services they will provide with
these funds.
SEC. 32. Section 8483 of the Education Code is amended to read:
8483. (a) (1) Every after school component of a program
established pursuant to this article shall operate a minimum of three
hours a day and shall operate at least until 6 p.m. on every regular
schoolday. Every after school component of the program shall
establish a policy regarding reasonable early daily release of pupils
from the program. For those programs or schoolsites operating in a
community where the early release policy does not meet the unique
needs of that community or school, or both, documented evidence may
be submitted to the State Department of Education for an exception
and a request for approval of an alternative plan.
(2) It is the intent of the Legislature that elementary school
pupils participate in the full day of the program every day during
which pupils participate and that pupils in middle school or junior
high school attend a minimum of nine hours a week and three days a
week to accomplish program goals.
(3) In order to develop an age-appropriate after school program
for pupils in middle school or junior high school, programs
established pursuant to this article may implement a flexible
attendance schedule for those pupils. Priority for enrollment of
pupils in middle school or junior high school shall be given to
pupils who attend daily.
(b) The administrators of a program established pursuant to this
article have the option of operating during any combination of
summer, intersession, or vacation periods for a minimum of three
hours per day at the approved rate for the regular school year
pursuant to Section 8483.7.
SEC. 33. Section 8499.5 of the Education Code is amended to read:
8499.5. (a) The department shall allocate child care funding
pursuant to Chapter 2 (commencing with Section 8200) based on the
amount of state and federal funding that is available.
(b) By May 30 of each year, upon approval by the county board of
supervisors and the county superintendent of schools, each local
planning council shall submit to the department the local priorities
it has identified that reflect all child care needs in the county.
To accomplish this, each local planning council shall do all of the
following:
(1) Conduct an assessment of child care needs in the county no
less than once every five years. The department shall define and
prescribe data elements to be included in the needs assessment and
shall specify the format for the data reporting. The needs
assessment shall also include all factors deemed appropriate by the
local planning council in order to obtain an accurate picture of the
comprehensive child care needs in the county. The factors include,
but are not limited to, all of the following:
(A) The needs of families eligible for subsidized child care.
(B) The needs of families not eligible for subsidized child care.
(C) The waiting lists for programs funded by the department and
the State Department of Social Services.
(D) The need for child care for children determined by the child
protective services agency to be neglected, abused, or exploited, or
at risk of being neglected, abused, or exploited.
(E) The number of children in families receiving public
assistance, including food stamps, housing support, and Medi-Cal, and
assistance from the Healthy Families Program and the Temporary
Assistance to Needy Families (TANF) program.
(F) Family income among families with preschool or schoolage
children.
(G) The number of children in migrant agricultural families who
move from place to place for work or who are currently dependent for
their income on agricultural employment in accordance with
subdivision (a) of, and paragraphs (1) and (2) of subdivision (b) of,
Section 8231.
(H) The number of children who have been determined by a regional
center to require services pursuant to an individualized family
service plan, or by a local educational agency to require services
pursuant to an individualized education program or an individualized
family service plan.
(I) The number of children in the county by primary language
spoken pursuant to the department's language survey.
(J) Special needs based on geographic considerations, including
rural areas.
(K) The number of children needing child care services by age
cohort.
(2) Document information gathered during the needs assessment
which shall include, but need not be limited to, data on supply,
demand, cost, and market rates for each category of child care in the
county.
(3) Encourage public input in the development of the priorities.
Opportunities for public input shall include at least one public
hearing during which members of the public can comment on the
proposed priorities.
(4) Prepare a comprehensive countywide child care plan designed to
mobilize public and private resources to address identified needs.
(5) Conduct a periodic review of child care programs funded by the
department and the Department of Social Services to determine if
identified priorities are being met.
(6) Collaborate with subsidized and nonsubsidized child care
providers, county welfare departments, human service agencies,
regional centers, job training programs, employers, integrated child
and family service councils, local and state children and families
commissions, parent organizations, early start family resource
centers, family empowerment centers on disability, local child care
resource and referral programs, and other interested parties to
foster partnerships designed to meet local child care needs.
(7) Design a system to consolidate local child care waiting lists,
if a centralized eligibility list is not already in existence.
(8) Coordinate part-day programs, including state preschool and
Head Start, with other child care and development services to provide
full-day child care.
(9) Submit the results of the needs assessment and the local
priorities identified by the local planning council to the board of
supervisors and the county superintendent of schools for approval
before submitting them to the department.
(10) Identify at least one, but not more than two, members to
serve as part of the department team that reviews and scores
proposals for the provision of services funded through contracts with
the department. Local planning council representatives may not
review and score proposals from the geographic area covered by their
own local planning council. The department shall notify each local
planning council whenever this opportunity is available.
(c) The department shall, in conjunction with the Department of
Social Services and all appropriate statewide agencies and
associations, develop guidelines for use by local planning councils
to assist them in conducting needs assessments that are reliable and
accurate. The guidelines shall include acceptable sources of
demographic and child care data, and methodologies for assessing
child care supply and demand.
(d) The department shall allocate funding within each county in
accordance with the priorities identified by the local planning
council of that county and submitted to the department pursuant to
this section, unless the priorities do not meet the requirements of
state or federal law.
SEC. 34. Section 8813 of the Education Code is amended to read:
8813. (a) Each eligible local arts agency may apply for a grant
of up to one hundred thousand dollars ($100,000) per year for the
development, implementation, and review of an arts education program.
Each grant application shall be preceded by a letter of intent to
file that application submitted by the local arts agency on or before
the January 1 immediately preceding the fiscal year for which grant
funding is requested. Each eligible local arts agency shall include
in its letter of intent an authorization to make application to this
program from the county board of supervisors if the agency is a
county agency or designated by the county board of supervisors, or
from the city council if the agency is an agency of the city or is
designated by the city. If the local arts agency is neither
designated by, nor a department of, either city or county government,
it shall include authorization by its board of trustees authorizing
the agency to make application under this program.
(b) Each grant application shall include, but not be limited to,
all of the following:
(1) A plan for the proposed arts education program that meets all
of the following criteria:
(A) The plan has been approved by resolution of the governing
board of each participating school district or by the county board of
education.
(B) The plan includes an assessment of the needs of public schools
included in the partnership located within the jurisdiction of the
local arts agency that is consistent with the guidelines for those
assessments developed by the State Department of Education in
consultation with the California Arts Council. The plan shall
evidence appropriate participation by local citizens who are
representative of the ethnic and cultural composition of the county.
(C) The plan shall describe a comprehensive arts education program
that conforms to the tenets of the state's adopted curriculum
framework for visual and performing arts as published by the State
Department of Education in Visual and Performing Arts Framework for
California Public Schools: Kindergarten through Grade 12, and shall
include instruction in the four disciplines of dance, drama and
theatre, music, and the visual arts for all pupils. The plan may
also include other arts disciplines, including folk arts, film,
video, and the writing of plays, scripts, and poetry.
(D) The plan proposes the use of community arts resources,
including, but not limited to, professional artists, arts
specialists, performing artists and companies, museums, nonprofit art
galleries, institutions of higher education, resident artists
organizations, and any program of the local arts agency or general
community resources that provide arts education services,
instruction, workshops, performances, or demonstrations.
(E) The plan provides for a local steering committee comprised of
not less than 10, nor more than 13, members selected from
professional artists, arts educators, administrators, teachers, arts
organizations, school board members, and other citizens, to include
the following members reflecting a balance between the education and
the arts communities:
(i) One representative of the local arts agency.
(ii) Two professional artists.
(iii) One representative of a local educational agency.
(iv) Two teachers, including one from the local educational
agency.
(v) Two arts specialists.
(vi) One community representative at large.
(vii) One representative of an institution of higher education,
who shall be either a faculty member in the visual and performing
arts or arts education or have had prior experience in these two
areas.
(F) The plan describes school needs, program goals, and a process
for screening community arts resources. The fiscal procedures and
pay rates shall be in accordance with standards established by the
California Arts Council. Any of the community arts resources
described in subparagraph (D) is eligible for a program grant if it
demonstrates high-quality arts performance, production, or
instruction.
(G) The plan shall include an appropriate orientation for artists
and teachers in participating schools.
(H) The plan shall include a staff development program which
accounts for at least 10 percent of the overall budget for the plan,
but not more than 20 percent of the overall budget for all public
school teachers participating in the program pursuant to Article 1
(commencing with Section 44670.1) and Article 2 (commencing with
Section 44680) of Chapter 3.1 of Part 25 and under the California
Arts Project, as established pursuant to Chapter 5 (commencing with
Section 99200) of Part 65. For the purposes of this paragraph, a
teacher is participating in the program if he or she instructs a
class that will have more than 10 hours of direct contact with a
community arts representative.
(I) The plan shall include a description of the manner in which
funding for the staff development programs described in subparagraph
(H) shall be used in providing services to teachers. The local
educational agency shall use the services of the California Arts
Project established pursuant to Chapter 5 (commencing with Section
99200) of Part 65 and shall consult with at least one of the
following entities in developing the staff development plans: a
county office of education, an arts agency, an arts provider, a
professional arts association, or an institution of higher education.
(J) The plan shall assess the arts education of homeless children,
children with special needs, children at risk, school dropouts, and
the children of migrant workers who may not be attending class
regularly. It is the intent of the Legislature that special
supplementary funds, not to exceed 10 percent of the total state
dollars, shall be appropriated for purposes of this subparagraph.
Arts education delivered pursuant to this paragraph is exempt from
the local matching funds requirement described in Section 8814.
(2) A proposed budget for expenditure of the grant, which shall be
submitted on a form developed by the California Arts Council for
that purpose.
(3) A section demonstrating the manner in which the proposal
furthers the implementation of the model curriculum standards set
forth in Section 51226, the Visual and Performing Arts Framework for
California Public Schools: Kindergarten through Grade Twelve
published by the State Department of Education, or the implementation
or operation of specialized secondary programs pursuant to Chapter 6
(commencing with Section 58800) of Part 31.
(4) A section designating the source of all local matching funds,
as described in Section 8814.
SEC. 35. Section 17073.25 of the Education Code is amended to
read:
17073.25. (a) Notwithstanding any provision of law to the
contrary, the State Department of Education is eligible for
modernization grants pursuant to this article for facilities of the
California School for the Deaf (Chapter 1 (commencing with Section
59000) of Part 32) and the California School for the Blind (Chapter 2
(commencing with Section 59100) of Part 32).
(b) The department is eligible for per-pupil funding under this
article to the same extent and in the same manner as a school
district, except that the hardship provisions do not apply. However,
notwithstanding the 60 percent maximum funding for modernization
projects, as set forth in Section 17074.16, the project shall be
funded at 100 percent of the project costs, subject to per-pupil
eligibility.
(c) The board shall establish a process specifically tailored to
consideration of the unique aspects of applications presented by the
department pursuant to this section.
(d) This section applies only to projects for expenditure of the
proceeds of state bonds approved by the voters after January 1, 2002.
SEC. 36. Section 20091 of the Education Code is amended to read:
20091. To the extent that funding is available for such purposes,
the endowment shall establish a program to assist and enhance the
services of California's museums and of other groups and institutions
that undertake cultural projects that are deeply rooted in and
reflective of previously underserved communities. This program shall
give priority to:
(a) Enhancing opportunities for superior museum and cultural
program services.
(b) Encouraging museums and cultural programs to provide services
to school pupils, including any of the following:
(1) Curriculum development.
(2) Schoolsite presentations or workshops.
(3) Teacher training.
(4) Reduced price or free admission of pupils to museums.
(c) Collaborative projects and technical assistance to coordinate
the work of eligible museums and cultural programs and to enhance the
ability of museums and cultural programs to serve the public.
Priority shall be given to any project that does any of the
following:
(1) Assists an eligible museum or cultural program in serving an
historically underserved population.
(2) Aids a museum or cultural program in diversifying or expanding
its audience.
(3) Aids a museum or cultural program in raising its professional
standards in order to better serve the public.
(d) Projects that increase accessibility to museums' and cultural
programs' collections and services.
SEC. 37. Section 22138.5 of the Education Code is amended to read:
22138.5. (a) "Full time" means the days or hours of creditable
service the employer requires to be performed by a class of employees
in a school year in order to earn the compensation earnable as
defined in Section 22115 and specified under the terms of a
collective bargaining agreement or employment agreement. For the
purpose of crediting service under this part, "full time" may not be
less than the minimum standard specified in this section. Each
collective bargaining agreement or employment agreement that applies
to a member subject to the minimum standard specified in paragraph
(5) of subdivision (c) shall specify the number of hours of
creditable service that equal "full time" pursuant to this section,
and shall make specific reference to this section.
(b) The minimum standard for full time in kindergarten through
grade 12 is as follows:
(1) One hundred seventy-five days per year or 1,050 hours per
year, except as provided in paragraphs (2) and (3).
(2) (A) One hundred ninety days per year or 1,520 hours per year
for all principals and program managers, including advisers,
coordinators, consultants, and developers or planners of curricula,
instructional materials, or programs, and for administrators, except
as provided in subparagraph (B).
(B) Two hundred fifteen days per year or 1,720 hours per year
including school and legal holidays pursuant to the policy adopted by
the employer's governing board for administrators at a county office
of education.
(3) One thousand fifty hours per year for teachers in adult
education programs.
(c) The minimum standard for full time in community colleges is as
follows:
(1) One hundred seventy-five days per year or 1,050 hours per
year, except as provided in paragraphs (2), (3), (4), (5), and (6).
Full time includes time for duties the employer requires to be
performed as part of the full-time assignment for a particular class
of employees.
(2) One hundred ninety days per year or 1,520 hours per year for
all program managers and for administrators, except as provided in
paragraph (3).
(3) Two hundred fifteen days per year or 1,720 hours per year
including school and legal holidays pursuant to the policy adopted by
the employer's governing board for administrators at a district
office.
(4) One hundred seventy-five days per year or 1,050 hours per year
for all counselors and librarians.
(5) Five hundred twenty-five instructional hours per school year
for all instructors employed on a part-time basis, except instructors
specified in paragraph (6). If an instructor receives compensation
for office hours pursuant to Article 10 (commencing with Section
87880) of Chapter 3 of Part 51, the minimum standard shall be
increased appropriately by the number of office hours required
annually for the class of employees.
(6) Eight hundred seventy-five instructional hours per school year
for all instructors employed in adult education programs. If an
instructor receives compensation for office hours pursuant to Article
10 (commencing with Section 87880) of Chapter 3 of Part 51, the
minimum standard shall be increased appropriately by the number of
office hours required annually for the class of employees.
(d) The board has final authority to determine full time for
purposes of crediting service under this part if full time is not
otherwise specified in this section.
SEC. 38. Section 25103 of the Education Code is amended to read:
25103. (a) The board may remove a vendor from the registry if the
vendor submits materially inaccurate information to the board, does
not remit assessed fees within 60 days, or fails to submit notice of
material changes to its registered investment products, pursuant to
Section 25102. Vendors found to have submitted materially inaccurate
information to the board shall be allowed 60 days to correct the
information. The board may refer vendors that submit information
required under Section 25102 that is materially inaccurate and may
constitute conduct prohibited by the National Association of
Securities Dealers and the California Department of Insurance to
those entities.
(b) The board shall remove a vendor from the registry if the
vendor is not licensed or has had its license revoked by the National
Association of Securities Dealers or the California Department of
Insurance for engaging in conduct prohibited by those entities.
(c) The board shall establish an appeals process pursuant to
Section 22219 for vendors that are denied registration or removed
from the registry.
SEC. 39. Section 35401 of the Education Code is amended to read:
35401. (a) If the inspector general determines that there is
reasonable cause to believe that an employee or outside agency has
engaged in any illegal activity, he or she shall report the nature
and details of the activity on a timely basis to the local district
attorney or the Attorney General.
(b) The inspector general does not have any enforcement power.
(c) Every investigation, including, but not limited to, all
investigative files and work-product, shall be kept confidential,
except that the inspector general may issue any report of an
investigation that has been substantiated, keeping confidential the
identity of the individual or individuals involved, or release any
findings resulting from an investigation conducted pursuant to this
article that is deemed necessary to serve the interests of the
district.
(d) This section does not limit any authority conferred upon the
Attorney General or any other department or agency of government to
investigate any matter.
(e) Except as authorized in this section, or if called upon to
testify in any court or proceeding at law, any disclosure of
information by the inspector general or that office that was acquired
pursuant to a subpoena of the private books, documents, or papers of
the person subpoenaed, is punishable as a misdemeanor.
SEC. 40. Section 35534 of the Education Code is amended to read:
35534. Except as provided in Sections 35535 and 35536 and subject
to compliance with Section 54900 of the Government Code, any action
to reorganize a school district shall be effective for all purposes
on July 1 of the calendar year following the calendar year in which
the action is completed.
SEC. 41. Section 35738 of the Education Code is amended to read:
35738. Plans and recommendations may include a method of dividing
the bonded indebtedness other than the method specified in
paragraphs (1) and (2) of subdivision (b) of Section 35576 for the
purpose of providing greater equity in the division. Consideration
may be given to the assessed valuation, number of pupils, property
values, and other matters which the petitioners or county committee
deems pertinent.
SEC. 42. Section 37220.8 of the Education Code is amended to read:
37220.8. (a) On and after July 1, 2002, the Governor's Office on
Service and Volunteerism may make grants pursuant to subdivision (b)
of Section 37220.6 based on proposals selected through a competitive
process from community-based organizations with strong capacity to
design and implement programs that provide high quality service and
learning opportunities to pupils in kindergarten and in grades 1 to
12, inclusive. The proposals shall provide all of the following:
(1) Evidence of tax-exempt status pursuant to Section 501(c)(3) of
the Internal Revenue Code for all nongovernmental proposals.
(2) Evidence of strong financial management systems as determined
by the Governor's Office on Service and Volunteerism.
(3) Experience designing and implementing youth service and
learning programs.
(b) Eligible organizations need not have experience administering
government funds; however, those organizations that have received
government funds shall have a history of effectively administering
those funds.
(c) Funding for these community-based organizations is limited to
one million dollars ($1,000,000) per year, with single grants not to
exceed one hundred thousand dollars ($100,000).
(d) Community-based organizations that do not apply directly to
the Governor's Office on Service and Volunteerism for funding
pursuant to subdivision (b) of Section 37220.6 remain eligible to
receive funds through partnerships with other eligible programs
including the programs listed in that subdivision.
(e) This section shall become inoperative on July 1, 2004, and, as
of January 1, 2005, is repealed, unless a later enacted statute,
which becomes effective on or before January 1, 2005, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 43. Section 37252.1 of the Education Code is amended to read:
37252.1. (a) (1) (A) Notwithstanding subdivision (g) of Section
37252, the State Board of Education may grant a request from the
Fresno Unified School District that Section 37252 be waived to allow
that district to receive and use funds made available pursuant to
Section 37252 to offer to pupils enrolled at the Cooper Middle School
whose performance on the English language arts and mathematics parts
of the California Standards Tests is at the below basic or far below
basic levels, as those terms are defined by the State Board of
Education, an instructional day that is 60 minutes longer than at
other middle schools in the district instead of offering at the
Cooper Middle School the supplemental instructional programs required
pursuant to Section 37252. If the State Board of Education grants
the waiver request, the longer instructional day shall be used to
provide more instruction in language arts and mathematics.
(B) The additional 60 minutes of instruction shall supplement and
not supplant regularly scheduled courses in reading and mathematics.
(C) The Fresno Unified School District shall separately account
for, and maintain separate records of, pupil attendance at the
additional 60 minutes of instruction.
(2) The Fresno Unified School District may also offer pupils
enrolled at the Cooper Middle School whose performance on the English
language arts and mathematics parts of the California Standards
Tests is at a level better than the below basic or far below basic
levels, as those terms are defined by the State Board of Education,
an instructional day that is 60 minutes longer than at other middle
schools in the district. The district may not use funds made
available pursuant to Section 37252 to offer these pupils a longer
instructional day.
(3) Before implementing a longer instructional day pursuant to
this section, the Fresno Unified School District shall notify the
parents and guardians of pupils enrolled in the Cooper Middle School
that they may elect not to include their child in the instructional
program offered at the Cooper Middle School and have their child
placed in a regular program at another middle school maintained by
the district.
(b) The Superintendent of Public Instruction shall conduct an
evaluation of this alternative use of supplemental instruction funds
and submit an evaluative report to the Legislature by December 31,
2004.
(c) This section shall become inoperative on July 1, 2004, and, as
of January 1, 2005, is repealed, unless a later enacted statute,
that becomes effective on or before January 1, 2005, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 44. Section 41329.3 of the Education Code is amended to read:
41329.3. (a) The County Office Fiscal Crisis and Management
Assistance Team shall conduct comprehensive assessments and shall
complete, by July 1, 2003, the following improvement plans for the
Berkeley Unified School District:
(1) An instructional improvement plan that includes special
education and programs for English language learners and is
consistent with the financial improvement plan required by paragraph
(2). The plan shall specify pupil outcomes that reflect significant
improvement in pupil achievement, particularly in the areas of
reading, writing, and mathematics. Among the areas addressed by the
plan shall be the alignment between the written, taught, and tested
curriculum consistent with the state's adopted instructional
standards, and the use of assessment data to make appropriate pupil
placements and allocate district resources. Included in the plan
shall be a clear link between professional development for all
instructional staff and pupil achievement objectives, including the
need for ongoing analysis and use of assessment results to tailor
instruction to meet the needs of all pupils.
(2) A financial improvement plan that is consistent with the
instructional improvement plan required by paragraph (1) and that
includes the current and future projected solvency and fiscal
integrity of the school district. The financial improvement plan
shall also include, but not be limited to, specific strategies to
fund the full implementation of the improvement plans specified in
this section and for improving the following:
(A) Management information systems.
(B) Accounting and internal control procedures.
(C) Attendance accounting procedures.
(3) A facilities improvement plan that shall be consistent with
the financial improvement plan required by paragraph (2), and that
includes, but is not limited to, specific strategies for improving
the following:
(A) Protection and safety for pupils, employees, and district
property.
(B) Ongoing maintenance of district property.
(C) Management control and procedures for managing all
construction and modernization projects.
(4) A personnel management improvement plan that is consistent
with the financial improvement plan required by paragraph (2), and
that includes, but is not limited to, specific strategies for
improving the following:
(A) The recruitment, retention, screening, assessment, and hiring
procedures for all district staff.
(B) The training of members of the governing board of the school
district in the subjects about which members of the governing board
must have knowledge in
order to discharge their duties as board members effectively.
(C) The assessment of the administrative practices of the school
district and staff development to ensure that staff have the
knowledge and skills required to manage effectively the educational
programs, finances, safety, and facilities maintenance of the school
district.
(D) The calculation and maintenance of appropriate and efficient
full-time equivalent staffing ratios for all school district staff.
(E) The governance structure of the school district in relation to
board policy development, operational effectiveness, and
responsiveness to the community.
(F) In addition, the personnel management improvement plan shall
provide data and analysis on the number of district certificated
personnel who are serving on credential waivers or emergency permits.
The plan shall provide for monitoring and support for personnel in
their daily instructional duties and in completing subject matter and
professional preparation requirements through a traditional,
university-based program, alternative certification program, or
training to pass the CBEST exam.
(5) A community relations improvement plan that is consistent with
the financial improvement plan required by paragraph (2), and that
includes, but is not limited to, specific strategies for improving
the communication among the governing board, personnel of the school
district, pupils, and parents.
(b) Commencing in December 2003, and each six months thereafter
until June 2005, the County Office Fiscal Crisis and Management
Assistance Team shall file a written status report with the
appropriate fiscal and policy committees of the Legislature,
including any special committees created for the purpose of reviewing
the reports, and with the legislators representing the Berkeley
Unified School District, the governing board of the school district,
the Alameda County Office of Education, the Superintendent of Public
Instruction, the Director of Finance, and the Secretary for
Education. The reports shall include the progress that the Berkeley
Unified School District is making in meeting the recommendations of
the improvement plans developed pursuant to subdivision (a).
(c) The County Office Fiscal Crisis and Management Assistance Team
shall provide an accounting of expenditures made by it pursuant to
the requirements of this act to the Controller and the Alameda County
Office of Education. The Controller shall certify unexpended
balances for purposes of subdivision (c) of Section 3 of Chapter 1069
of the Statutes of 2002.
(d) This section shall remain in effect only until June 1, 2006,
and as of that date is repealed, unless a later enacted statute that
is enacted before June 1, 2006, deletes or extends that date.
SEC. 45. Section 41344 of the Education Code is amended to read:
41344. (a) If, as the result of an audit or review, a local
educational agency is required to repay an apportionment significant
audit exception, the Superintendent of Public Instruction and the
Director of Finance, or their designees shall jointly establish a
plan for repayment of state school funds that the local educational
agency received on the basis of average daily attendance, or other
data, that did not comply with statutory or regulatory requirements
that were conditions of the apportionments. A local educational
agency shall request a repayment plan within 90 days of receiving the
final audit report or review, within 30 days of receiving a final
determination regarding an appeal pursuant to subdivision (d), or, in
the absence of an appeal pursuant to subdivision (d), within 30 days
of receiving a determination of a summary review pursuant to
subdivision (d) of Section 41344.1. At the time the local
educational agency is notified, the Controller shall also be notified
of the repayment plan. The repayment plan shall be established in
accordance with the following:
(1) The Controller shall withhold the disallowed amount at the
next principal apportionment or pursuant to paragraph (2), unless
subdivision (d) of this section or subdivision (d) of Section 41344.1
applies, in which case the disallowed amount shall be withheld, at
the next principal apportionment or pursuant to paragraph (2)
following the determination regarding the appeal or summary appeal.
In calculating the disallowed amount, the Controller shall determine
the total amount of overpayment received by the local educational
agency on the basis of average daily attendance, or other data,
reported by the local educational agency that did not comply with one
or more statutory or regulatory requirements that are conditions of
apportionment.
(2) If the Superintendent of Public Instruction and the Director
of the Department of Finance concur that repayment of the full
liability in the current fiscal year would constitute a severe
financial hardship for the local educational agency, they may approve
a repayment plan of equal annual payments over a period of up to
eight years. The repayment plan shall include interest on each year'
s outstanding balance at the rate earned on the state's short-term
pooled investment fund during that year. The Superintendent of
Public Instruction and the Director of the Department of Finance
shall jointly establish this repayment plan. The Controller shall
withhold amounts pursuant to the repayment plan.
(3) If the Superintendent of Public Instruction and the Director
of the Department of Finance do not jointly establish a repayment
plan, the State Controller shall withhold the entire disallowed
amount determined pursuant to paragraph (1) at the next principal
apportionment.
(b) For purposes of computing average daily attendance pursuant to
Section 42238.5, a local educational agency's prior fiscal year
average daily attendance shall be reduced by an amount equal to any
average daily attendance disallowed in the current year, by an audit
or review, as defined in subdivision (e).
(c) Notwithstanding any other provision of law, this section may
not be waived under any authority set forth in this code except as
provided in this section or Section 41344.1.
(d) Within 60 days of the date on which a local educational agency
receives a final audit report resulting from an audit or review or
within 30 days of receiving a determination of a summary review
pursuant to subdivision (d) of Section 41344.1, a local educational
agency may appeal a finding contained in the final report, pursuant
to Section 41344.1. Within 90 days of the date on which the appeal
is received by the panel, a hearing shall be held at which the local
educational agency may present evidence or arguments if the local
educational agency believes that the final report contains any
finding that was based on errors of fact or interpretation of law. A
repayment schedule may not commence until the panel reaches a
determination regarding the appeal. If the panel determines that the
local educational agency is correct in its assertion, in whole or in
part, the allowable portion of any apportionment payment that was
withheld shall be paid at the next principal apportionment.
(e) As used in this section, "audit or review" means an audit
conducted by the Controller's office, an annual audit conducted by a
certified public accountant or a public accountant firm pursuant to
Section 41020, and an audit or review conducted by a governmental
agency that provided the local educational agency with an opportunity
to provide a written response.
SEC. 46. Section 42127 of the Education Code is amended to read:
42127. (a) On or before July 1 of each year, the governing board
of each school district shall accomplish the following:
(1) Hold a public hearing on the budget to be adopted for the
subsequent fiscal year. The budget to be adopted shall be prepared
in accordance with Section 42126. The agenda for that hearing shall
be posted at least 72 hours prior to the public hearing and shall
include the location where the budget will be available for public
inspection.
(2) Adopt a budget. Not later than five days after that adoption
or by July 1, whichever occurs first, the governing board shall file
that budget with the county superintendent of schools. That budget
and supporting data shall be maintained and made available for public
review. If the governing board of the district does not want all or
a portion of the property tax requirement levied for the purpose of
making payments for the interest and redemption charges on
indebtedness as described in paragraph (1) or (2) of subdivision (b)
of Section 1 of Article XIII A of the California Constitution, the
budget shall include a statement of the amount or portion for which a
levy shall not be made.
(b) The county superintendent of schools may accept changes in any
statement included in the budget, pursuant to subdivision (a), of
the amount or portion for which a property tax levy shall not be
made. The county superintendent or the county auditor shall compute
the actual amounts to be levied on the property tax rolls of the
district for purposes that exceed apportionments to the district
pursuant to Chapter 6 (commencing with Section 95) of Part 0.5 of
Division 1 of the Revenue and Taxation Code. Each school district
shall provide all data needed by the county superintendent or the
county auditor to compute the amounts. On or before August 15, the
county superintendent shall transmit the amounts computed to the
county auditor who shall compute the tax rates necessary to produce
the amounts. On or before September 1, the county auditor shall
submit the rate computed to the board of supervisors for adoption.
(c) The county superintendent of schools shall do all of the
following:
(1) Examine the adopted budget to determine whether it complies
with the standards and criteria adopted by the State Board of
Education pursuant to Section 33127 for application to final local
educational agency budgets. The superintendent shall identify, if
necessary, any technical corrections that are required to be made to
bring the budget into compliance with those standards and criteria.
(2) Determine whether the adopted budget will allow the district
to meet its financial obligations during the fiscal year and is
consistent with a financial plan that will enable the district to
satisfy its multiyear financial commitments.
(d) On or before August 15, the county superintendent of schools
shall approve or disapprove the adopted budget for each school
district. If, pursuant to the review conducted pursuant to
subdivision (c), the county superintendent of schools determines that
the adopted budget for a school district does not satisfy paragraph
(1) or (2) of that subdivision, he or she shall disapprove the budget
and, not later than August 15, transmit to the governing board of
the school district, in writing, his or her recommendations regarding
revision of the budget and the reasons for those recommendations.
The county superintendent of schools may assign a fiscal adviser to
assist the district to develop a budget in compliance with those
revisions. In addition, the county superintendent of schools may
appoint a committee to examine and comment on the superintendent's
review and recommendations, subject to the requirement that the
committee report its findings to the superintendent no later than
August 20.
(e) On or before September 8, the governing board of the school
district shall revise the adopted budget to reflect changes in
projected income or expenditures subsequent to July 1, and to include
any response to the recommendations of the county superintendent of
schools, shall adopt the revised budget, and shall file the revised
budget with the county superintendent of schools. Prior to revising
the budget, the governing board shall hold a public hearing regarding
the proposed revisions, to be conducted in accordance with Section
42103. The revised budget and supporting data shall be maintained
and made available for public review.
(f) On or before September 22, the county superintendent of
schools shall provide a list to the Superintendent of Public
Instruction identifying all school districts for which budgets may be
disapproved.
(g) The county superintendent of schools shall examine the revised
budget to determine whether it (1) complies with the standards and
criteria adopted by the State Board of Education pursuant to Section
33127 for application to final local educational agency budgets, (2)
allows the district to meet its financial obligations during the
fiscal year, and (3) is consistent with a financial plan that will
enable the district to satisfy its multiyear financial commitments,
and, not later than October 8, shall approve or disapprove the
revised budget. If the county superintendent of schools disapproves
the budget, he or she shall call for the formation of a budget review
committee pursuant to Section 42127.1, unless the governing board of
the school district and the county superintendent of schools agree
to waive the requirement that a budget review committee be formed and
the State Department of Education approves the waiver after
determining that a budget review committee is not necessary. Based
on the waiver, the county superintendent immediately has the
authority and responsibility provided in Section 42127.3.
(h) Not later than October 8, the county superintendent of schools
shall submit a report to the Superintendent of Public Instruction
identifying all school districts for which budgets have been
disapproved or budget review committees waived. The report shall
include a copy of the written response transmitted to each of those
districts pursuant to subdivision (d).
(i) Notwithstanding any other provision of this section, the
budget review for a school district shall be governed by paragraphs
(1), (2), and (3) of this subdivision, rather than by subdivisions
(e) and (g), if the governing board of the school district so elects
and notifies the county superintendent in writing of that decision,
not later than October 31 of the immediately preceding calendar year.
On or before July 1, the governing board of a school district for
which the budget review is governed by this subdivision, rather than
by subdivisions (e) and (g), shall conduct a public hearing regarding
its proposed budget in accordance with Section 42103.
(1) If the adopted budget of a school district is disapproved
pursuant to subdivision (d), on or before September 8, the governing
board of the school district, in conjunction with the county
superintendent of schools, shall review the superintendent's
recommendations at a regular meeting of the governing board and
respond to those recommendations. The response shall include any
revisions to the adopted budget and other proposed actions to be
taken, if any, as a result of those recommendations.
(2) On or before September 22, the county superintendent of
schools will provide a list to the Superintendent of Public
Instruction identifying all school districts for which a budget may
be tentatively disapproved.
(3) Not later than October 8, after receiving the response
required under paragraph (1), the county superintendent of schools
shall review that response and either approve or disapprove the
budget. If the county superintendent of schools disapproves the
budget, he or she shall call for the formation of a budget review
committee pursuant to Section 42127.1, unless the governing board of
the school district and the county superintendent of schools agree to
waive the requirement that a budget review committee be formed and
the State Department of Education approves the waiver after
determining that a budget review committee is not necessary. Based
on the waiver, the county superintendent immediately has the
authority and responsibility provided in Section 42127.3.
(4) Not later than 45 days after the Governor signs the annual
Budget Act, the school district shall make available for public
review any revisions in revenues and expenditures that it has made to
its budget to reflect the funding made available by that Budget Act.
(j) Any school district for which the county board of education
serves as the governing board is not subject to subdivisions (c) to
(h), inclusive, but is governed instead by the budget procedures set
forth in Section 1622.
SEC. 47. Section 42238.46 of the Education Code is amended to
read:
42238.46. (a) For the 2003-04 fiscal year, the Superintendent of
Public Instruction shall compute an equalization adjustment for each
school district so that no district's 2002-03 adjusted base revenue
limit per unit of average daily attendance is less than the 2002-03
fiscal year adjusted base revenue limit above which fall not more
that 8.25 percent of the total statewide units of average daily
attendance for the appropriate size and type of district listed in
subdivision (b).
For purposes of this section, the district adjusted base revenue
limit and the statewide average adjusted base revenue limit may not
include any amounts attributable to Section 45023.4, 46200, or 46201.
(b) Subdivision (a) applies to the following school districts,
which shall be grouped according to size and type as follows:
District ADA
Elementary .............. less than 101
Elementary .............. more than 100
High School ............. less than 301
High School ............. more than 300
Unified ................. less than 1,501
Unified ................. more than 1,500
(c) The Superintendent of Public Instruction shall compute a
revenue limit equalization adjustment for each school district's
adjusted base revenue limit per unit of average daily attendance as
follows:
(1) Add the products of the amount computed for each school
district by the county superintendent pursuant to subdivision (a) and
the average daily attendance used to calculate the district's
revenue limit for the current fiscal year.
(2) Divide the amount appropriated for purposes of this section
for the current fiscal year by the amount computed pursuant to
paragraph (1).
(3) Multiply the amount computed for the school district pursuant
to subdivision (a) by the amount computed pursuant to paragraph (2).
(d) (1) For purposes of this section only, prior to computing the
equalization adjustment pursuant to this section, the Superintendent
of Public Instruction shall calculate an adjusted base revenue limit
for each district by revising the 2002-03 base revenue limit of the
district to eliminate that portion of the one-time adjustment to its
base revenue limit related to excused absences made pursuant to
Section 42238.8.
(2) For the purposes of this section, the 2002-03 statewide
average adjusted base revenue limits determined for the purposes of
subdivision (a) and the fraction computed pursuant to paragraph (2)
of subdivision (c) by the Superintendent of Public Instruction for
the 2002-03 second principal apportionment shall be final, and shall
not be recalculated at subsequent apportionments. In no event shall
the fraction computed pursuant to paragraph (2) of subdivision (c)
exceed 1.00. For the purposes of determining the size of a district
used in subdivision (b), county superintendents of schools, in
conjunction with the Superintendent of Public Instruction, shall use
a school district's revenue limit average daily attendance for the
2002-03 fiscal year as determined pursuant to Section 42238.5 and
Article 4 (commencing with Section 42280).
(3) For the purposes of calculating the size of a school district
pursuant to subdivision (b), the Superintendent of Public Instruction
shall include units of average daily attendance of any charter
school for which the school district is the chartering agency.
(4) For the purposes of computing the target amounts pursuant to
subdivision (a), the Superintendent of Public Instruction shall count
all charter school average daily attendance towards the average
daily attendance of the school district that is the chartering
agency.
SEC. 48. Section 42238.53 of the Education Code is amended to
read:
42238.53. (a) Sections 42238.51 and 42238.52 do not apply to
resident pupils in charter schools operating under the districtwide
charter of a district that has converted all of its schools to
charter status pursuant to Section 47606 and has elected not to be
funded pursuant to Article 2 (commencing with Section 47633) of
Chapter 6 of Part 26.
(b) For the purposes of this section, "resident pupils" means
pupils who reside in, and are otherwise eligible to attend, a school
in the specified district.
SEC. 49. Section 44775.4 of the Education Code is amended to read:
44775.4. The duties of the taskforce shall include, but are not
limited to, all of the following:
(a) Advise the Governor and Legislature on strategies to improve
Holocaust, genocide, human rights, and tolerance education in the
state.
(b) Identify, to the extent possible, all programs in the state
that train teachers in Holocaust or genocide studies, or both.
(c) Identify any state Web sites that include information on how
teachers can access information on the Holocaust or genocide
coursework and resources.
(d) Identify strategies for improving access to Holocaust,
genocide, and tolerance education materials and information.
(e) Promote the implementation of Holocaust, genocide, human
rights, and tolerance education.
(f) Coordinate activities that will appropriately memorialize the
Holocaust and genocide education throughout the state.
(g) Secure private ongoing funding for the taskforce.
(h) Carry out any other tasks that are deemed by the State Board
of Education to be necessary to support the ability of the state to
meet its goals in providing Holocaust, genocide, human rights, and
tolerance education.
(i) Submit an annual report to the Legislature on the progress and
status of the taskforce.
SEC. 50. Section 44775.6 of the Education Code is amended to read:
44775.6. The taskforce may apply for and accept grants and
receive gifts, donations, and other financial support from public or
private sources, subject to Sections 11005 and 11005.1 of the
Government Code, for the purpose of carrying out its duties pursuant
to this chapter.
SEC. 51. Section 44775.7 of the Education Code is amended to read:
44775.7. (a) The Center for Excellence on the Study of the
Holocaust, Genocide, Human Rights, and Tolerance shall be established
as a pilot program at California State University, Chico, pursuant
to this chapter. The purpose of the pilot program is to accomplish
all of the following:
(1) Create a center to coordinate and act as a clearinghouse of
information on programs that provide teachers with the knowledge,
training, and curricular materials to effectively teach pupils in the
public schools about the Holocaust, genocide, human rights, and
tolerance as established in the History-Social Science Framework and
Content Standards for California Public Schools.
(2) Expand upon the work of existing Holocaust and genocide
institutions, programs, and organizations, including the Museum of
Tolerance, to provide teacher training, curricular materials, and
other instructional resources that complement and integrate, rather
than duplicate, those efforts.
(b) The goals of the center shall be to accomplish all of the
following:
(1) Expand upon the framework established by the Model Curriculum
for Human Rights and Genocide offered by the State Department of
Education.
(2) Develop and facilitate teacher access to instructional
materials on the Holocaust, genocide, human rights, and tolerance.
(3) Expand delivery of training, materials, and resources on the
Holocaust, genocide, human rights, and tolerance through the
provision of online as well as face-to-face resources and classes.
(4) Create an integrated statewide clearinghouse of information on
teacher training, instructional materials, and resources available
through existing Holocaust and genocide institutions, programs,
organizations, and the center.
(5) Support the integration of survivor testimony into instruction
on the Holocaust, genocide, human rights, and tolerance.
(c) The director of the center shall prepare a master plan for the
implementation of the pilot program that outlines the manner in
which the goals of the program will be accomplished and measured.
(d) The center shall work cooperatively with designated California
State University campuses, including, but not limited to, Fresno,
San Diego, San Francisco, Sacramento, Stanislaus, Sonoma, Northridge,
and Long Beach, to offer training, curricular materials, and
resources for teachers to effectively instruct on the Holocaust,
genocide, human rights, and tolerance.
SEC. 52. Section 44775.8 of the Education Code is amended to read:
44775.8. The center shall engage in the following activities:
(a) Support and facilitate teachers' use of certificate programs
in Holocaust and genocide studies developed through the California
State University.
(b) Act as a clearinghouse for teacher training materials.
(c) Provide specialized training for teachers and school
districts.
(d) Assess and monitor the effectiveness of teacher training
programs provided by the center.
(e) Promote Holocaust and genocide awareness.
(f) Compile a roster of volunteers who are willing to share their
survivor testimony in classrooms, seminars, and workshops on the
subject of the Holocaust or genocide and make the roster available on
the center's Web site.
(g) Solicit financial support from both the public and private
sectors.
(h) Promote activities to memorialize the Holocaust and genocide
events.
(i) Prepare and submit a report to the Secretary for Education,
the Governor, and the Legislature no later than January 31, 2004,
outlining the activities of the center and reporting on the progress
made in achieving the goals outlined in subdivision (b) of Section
44775.7. In addition, the report shall include information on the
amount of nonstate funds secured for the purposes of the center and
the number of teachers who have participated in training provided by
the center.
SEC. 53. Section 44830.3 of the Education Code is amended to read:
44830.3. (a) The governing board of any school district that
maintains kindergarten or grades 1 to 12, inclusive, or that
maintains classes in bilingual education or special education
programs for pupils with mild and moderate disabilities, may
in consultation with an
accredited institution of higher education offering an approved
program of pedagogical teacher preparation employ persons authorized
by the Commission on Teacher Credentialing to provide service as
district interns to provide instruction to pupils in those grades or
classes as a classroom teacher. The governing board shall require
that each district intern be assisted and guided by a certificated
employee of the school district who has been designated by the
governing board as a mentor teacher pursuant to Article 4 (commencing
with Section 44490) of Chapter 3 or by certificated employees
selected through a competitive process adopted by the governing board
after consultation with the exclusive teacher representative unit or
by personnel employed by institutions of higher education to
supervise student teachers. Mentor teachers or other certificated
employees shall possess valid certification at the same level, or of
the same type, of credential as the district interns they serve.
(b) The governing board of each school district employing district
interns shall develop and implement a professional development plan
for district interns in consultation with an accredited institution
of higher education offering an approved program of pedagogical
preparation. The professional development plan shall include all of
the following:
(1) Provisions for an annual evaluation of the district intern.
(2) As the governing board determines necessary, a description of
courses to be completed by the district intern, if any, and a plan
for the completion of preservice or other clinical training, if any,
including student teaching.
(3) Mandatory preservice training for district interns tailored to
the grade level or class to be taught, through either of the
following options:
(A) One hundred twenty clock hours of preservice training and
orientation in the aspects of child development, classroom
organization and management, pedagogy, and methods of teaching the
subject field or fields in which the district intern will be
assigned, which training and orientation period shall be under the
direct supervision of an experienced permanent teacher. In addition,
persons holding district intern certificates issued by the
commission pursuant to Section 44325 shall receive orientation in
methods of teaching pupils with mild and moderate disabilities. At
the conclusion of the preservice training period, the permanent
teacher shall provide the district with information regarding the
area that should be emphasized in the future training of the district
intern.
(B) The successful completion, prior to service by the intern in
any classroom, of six semester units of coursework from a regionally
accredited college or university, designed in cooperation with the
school district, to provide instruction and orientation in the
aspects of child development and the methods of teaching the subject
field or fields in which the district intern will be assigned.
(4) Instruction in child development and the methods of teaching
during the first semester of service for district interns teaching in
kindergarten or grades 1 to 6, inclusive, including bilingual
classes and, for persons holding district intern certificates issued
by the commission pursuant to Section 44325, special education
programs for pupils with mild and moderate disabilities at those
levels.
(5) Instruction in the culture and methods of teaching bilingual
pupils during the first year of service for district interns teaching
pupils in bilingual classes and, for persons holding district intern
certificates issued by the commission pursuant to Section 44325,
instruction in the etiology and methods of teaching pupils with mild
and moderate disabilities.
(6) Any other criteria that may be required by the governing
board.
(7) In addition to the requirements set forth in paragraphs (1) to
(6), inclusive, the professional development plan for district
interns teaching in special education programs for pupils with mild
and moderate disabilities also shall include 120 clock hours of
mandatory training and supervised fieldwork that shall include, but
not be limited to, instructional practices, and the procedures and
pedagogy of both general education programs and special education
programs that teach pupils with disabilities.
(8) In addition to the requirements set forth in paragraphs (1) to
(6), inclusive, the professional development plan for district
interns teaching bilingual classes shall also include 120 clock hours
of mandatory training and orientation, which shall include, but not
be limited to, instruction in subject matter relating to
bilingual-crosscultural language and academic development.
(9) The professional development plan for district interns
teaching in special education programs for pupils with mild and
moderate disabilities shall be based on the standards adopted by the
commission as provided in subdivision (a) of Section 44327.
(c) Each district intern and each district teacher assigned to
supervise the district intern during the preservice period shall be
compensated for the preservice period pursuant to subparagraph (A) or
(B) of paragraph (3). The compensation shall be that which is
normally provided by each district for staff development or
in-service activity.
(d) Upon completion of two years of service, or three years of
service for interns participating in a program that leads to the
attainment of a specialist credential to teach pupils with mild and
moderate disabilities, or four years if the intern is participating
in a program that leads to the attainment of both a multiple subject
or single subject teaching credential and a specialist credential to
teach pupils with mild and moderate disabilities, the governing board
may recommend to the Commission on Teacher Credentialing that the
district intern be credentialed in the manner prescribed by Section
44328.
SEC. 54. Section 47605.3 of the Education Code is amended to read:
47605.3. Notwithstanding subdivision (d) of Section 47605, a
charter school with a schoolsite physically located in the attendance
area of a public elementary school in which 50 percent or more of
the pupil enrollment is eligible for free or reduced price meals may
give a preference in admissions to pupils who are currently enrolled
in that public elementary school and to pupils who reside in the
elementary school attendance area where the charter schoolsite is
located. This section is not intended to affect the requirement
contained in subdivision (d) of Section 47605 that a public school
converting partially or entirely to a charter school adopt and
maintain a policy that gives an admission preference to pupils who
reside within the former attendance area of that public school.
SEC. 55. Section 47614.5 of the Education Code is amended to read:
47614.5. (a) The Charter School Facility Grant Program is hereby
established and shall be administered by the State Department of
Education. This grant program is intended to provide assistance with
facilities rent and lease costs for pupils in charter schools.
(b) Subject to the annual Budget Act, eligible schools shall
receive an amount of up to, but no more than, seven hundred fifty
dollars ($750) per unit of average daily attendance, as certified at
the second principal apportionment, to reimburse an amount of up to,
but no more than, 75 percent of the annual facilities rent and lease
costs for the charter school. In any fiscal year, if the funds
appropriated for the purposes of this section by the annual Budget
Act are insufficient to fund the approved amounts fully, the
Superintendent of Public Instruction shall apportion the available
funds on a pro rata basis.
(c) The State Department of Education shall do all of the
following:
(1) Inform charter schools of this program.
(2) Upon application by a charter school, determine eligibility,
based on the geographic location of the charter schoolsite, pupil
eligibility for free or reduced price meals, and a preference in
admissions, as appropriate. Eligibility for funding may not be
limited to the grade level or levels served by the school whose
attendance area is used to determine eligibility. Charter
schoolsites are eligible for funding pursuant to this section if the
charter schoolsite meets either of the following conditions:
(A) The charter schoolsite is physically located in the attendance
area of a public elementary school in which 70 percent or more of
the pupil enrollment is eligible for free or reduced priced meals and
the schoolsite gives a preference in admissions to pupils who are
currently enrolled in that public elementary school and to pupils who
reside in the elementary school attendance area where the charter
schoolsite is located.
(B) Seventy percent or more of the pupil enrollment at the charter
schoolsite is eligible for free or reduced price meals.
(3) Inform charter schools of their grant eligibility.
(4) Reimburse charter schools for eligible expenditures in a
timely manner.
(5) No later than June 30, 2005, report to the Legislature on the
number of charter schools that have participated in this grant
program under the expanded eligibility prescribed in paragraph (2).
In addition, the report shall provide recommendations and suggestions
on improving the program.
(d) Funding pursuant to this section may not be apportioned for
the following:
(1) Units of average daily attendance generated through
nonclassroom-based instruction as defined by paragraph (2) of
subdivision (d) of Section 47612.5 or that does not comply with
conditions or limitations set forth in regulations adopted by the
State Board of Education pursuant to this section.
(2) Charter schools occupying existing school district or county
office of education facilities.
(3) Charter schools receiving reasonably equivalent facilities
from their chartering authority pursuant to Section 47614.
(e) Funds made available pursuant to this section shall be used
for costs associated with facilities rents and leases, consistent
with the definitions used in the California School Accounting Manual.
These funds may also be used for costs, including, but not limited
to, costs associated with remodeling buildings, deferred maintenance,
initially installing or extending service systems and other built-in
equipment, and improving sites.
(f) If an existing charter school located in an elementary
attendance area in which less than 50 percent of pupil enrollment is
eligible for free or reduced price meals relocates to an attendance
area identified in paragraph (2) of subdivision (c), admissions
preference shall be given to pupils who reside in the elementary
school attendance area into which the charter school is relocating.
(g) For each fiscal year, the Superintendent of Public Instruction
shall annually report to the State Board of Education regarding the
use of any funds that have been made available to each charter school
from the grant program established pursuant to this section.
(h) It is the intent of the Legislature that ten million dollars
($10,000,000) be appropriated for the Charter School Facility Grant
Program for the grants authorized under this section for the 2001-02,
2002-03, and 2003-04 fiscal years.
SEC. 56. Section 47632 of the Education Code is amended to read:
47632. For purposes of this chapter, the following terms shall be
defined as follows:
(a) "General-purpose entitlement" means an amount computed by the
formula set forth in Section 47633 beginning in the 1999-2000 fiscal
year, which is based on the statewide average amounts of
general-purpose funding from those state and local sources identified
in Section 47633 received by school districts of similar type and
serving similar pupil populations.
(b) "Categorical block grant" means an amount computed by the
formula set forth in Section 47634 beginning in the 1999-2000 fiscal
year, which is based on the statewide average amounts of categorical
aid from those sources identified in Section 47634 received by school
districts of similar type and serving similar pupil populations.
(c) "General-purpose funding" means those funds that consist of
state aid, local property taxes, and other revenues applied toward a
school district's revenue limit, pursuant to Section 42238.
(d) "Categorical aid" means aid that consists of state or
federally funded programs, or both, which are apportioned for
specific purposes set forth in statute or regulation.
(e) "Educationally disadvantaged pupils" means those pupils who
are eligible for subsidized meals pursuant to Section 49552 or are
identified as English learners pursuant to subdivision (a) of Section
306, or both.
(f) "Operational funding" means all funding except funding for
capital outlay.
(g) "School district of a similar type" means a school district
that is serving similar grade levels.
(h) "Similar pupil population" means similar numbers of pupils by
grade level, with a similar proportion of educationally disadvantaged
pupils.
(i) "Sponsoring local educational agency" means the following:
(1) In the cases where a charter school is granted by a school
district, the sponsoring local educational agency is the school
district.
(2) In cases where a charter is granted by a county office of
education after having been previously denied by a school district,
the sponsoring local educational agency means the school district
that initially denied the charter petition.
(3) In cases where a charter is granted by the State Board of
Education after having been previously denied by a local educational
agency, the sponsoring local educational agency means the local
educational agency designated by the State Board of Education
pursuant to paragraph (1) of subdivision (k) of Section 47605 or if a
local educational agency is not designated, the local educational
agency that initially denied the charter petition.
(4) For pupils attending county-sponsored charter schools who are
eligible to attend those schools solely as a result of parental
request pursuant to subdivision (b) of Section 1981, the sponsoring
local educational agency means the pupils' school district of
residence.
SEC. 56.5. Section 48927 of the Education Code is amended to read:
48927. (a) This chapter shall also apply to pupils attending the
California School for the Blind and the two California Schools for
the Deaf, which shall be referred to as the "state special schools."
(b) Because the state special schools have a governance structure
different from that of school districts, for the purposes of this
section the following definitions shall apply:
(1) "Superintendent" means the appropriate principal of the state
special school in which the pupil is enrolled, or the principal's
designee, for purposes of Sections 48900, 48900.2, 48900.3, 48900.4,
48900.5, 48900.7, and 48911, and subdivisions (a) and (j) of Section
48918.
(2) "Governing board of each school district," "governing board of
any school district," or "each governing board of a school district"
means the Superintendent of Public Instruction or his or her
designee for purposes of subdivision (a) of Section 48900.1,
subdivision (b) of Section 48901, subdivision (b) of Section 48901.5,
Section 48907, Section 48910, the first paragraph of Section 48918,
and the first paragraph of Section 48918.5.
(3) "Governing board" means the Superintendent of the State
Special School in which the pupil is enrolled for purposes of Section
48912, subdivision (d) of Section 48915, Section 48915.5, Section
48916, Section 48917, subdivisions (a), (c), (d), (f), (h), (i), (j),
and (k) of Section 48918, and Sections 48921, 48922, 48923, and
48924.
(4) "Governing board" means the governing board of the district of
residence of the expelled pupil for purposes of subdivision (f) of
Section 48915 and Section 48916.1. In the case of an adult pupil
expelled from a state special school, "governing board" means the
governing board of the school district that referred the pupil to the
state special school for purposes of the code section cited in this
paragraph.
(5) "Superintendent of schools or the governing board" means the
appropriate principal of the state special school in which the pupil
is enrolled, or the principal's designee, for the purposes of Section
48900.6.
(6) "School district" or "district" means the state special school
in which the pupil is enrolled for purposes of Section 48900.8,
subdivision (b) of Section 48903, Section 48905, Section 48909,
Section 48914, paragraph (1) of subdivision (e) of Section 48916.1,
subdivision (c) of Section 48918.5, Section 48919, Section 48920, and
Section 48921.
(7) "County board of education" or "county board" means the
Superintendent of Public Instruction or his or her designee for
purposes of Sections 48920, 48921, 48922, 48923, and 48924.
(8) "Local educational agency" includes a state special school for
purposes of Section 48902 and Section 48915.5.
(9) "A change in placement" for purposes of paragraph (2) of
subdivision (a) of Section 48915.5 means a referral by the state
special school to the pupil's school district of residence for
placement in an appropriate interim alternative educational setting.
(10) "Individualized education program team" means the
individualized education program team of the pupil's school district
of residence with appropriate representation from the state special
school in which the pupil is enrolled for purposes of subdivision (a)
of Section 48915.5.2.
(11) "Individualized education program team" means the
individualized education program team of the state special school in
which the pupil is enrolled with appropriate representation from the
pupil's school district of residence for purposes of subdivisions
(b), (c), and (d) of Section 48915.5.3.
(c) Subdivision (b) of this section shall be deemed to provide the
same due process procedural protections to pupils in the state
special schools as afforded to pupils in the public school districts
of the state.
SEC. 57. Section 51122 of the Education Code is amended to read:
51122. (a) The Superintendent of Public Instruction shall
allocate funds to school districts and charter schools that have
certified to the superintendent that they satisfy the conditions of
subdivision (c) of Section 51121. A qualifying school with a pupil
enrollment of fewer than 500 pupils shall receive a grant of up to
fifteen thousand dollars ($15,000). A qualifying school with a pupil
enrollment of 500 to 799 pupils, inclusive, shall receive a grant of
twenty thousand dollars ($20,000). A qualifying school with a pupil
enrollment of 800 to 1,499 pupils, inclusive, shall receive a grant
of thirty thousand dollars ($30,000). A qualifying school with a
pupil enrollment of 1,500 or more pupils shall receive a grant of
thirty-five thousand dollars ($35,000).
(b) The funds received pursuant to this article may be used to
compensate teachers and teaching paraprofessionals, to provide
training to teachers and teaching paraprofessionals, and to defray
other costs associated with the implementation of the Nell Soto
Parent/Teacher Involvement Program. A qualifying school shall be
funded in the order of receipt of an approval certification until all
funds available for the program have been apportioned.
(c) The total amount of the grants allocated pursuant to this
section may not exceed the total amount appropriated for the purposes
of this section.
(d) The Superintendent of Public Instruction shall allocate
funding appropriated for this program to the California School for
the Deaf, the California School for the Blind, and schools ranked in
the bottom five deciles on the Academic Performance Index and shall
give funding priority to the California School for the Deaf, the
California School for the Blind, and schools ranked in the lowest two
deciles.
(1) For the first year of participation in the program, a school
is eligible to receive a full grant award as listed in subdivision
(a).
(2) For the second year of participation in the program, a school
is eligible to receive a grant award not greater than three-fourths
of the appropriate amount listed in subdivision (a) and shall
provide, from local funds, one-fourth of the appropriate amount
listed in subdivision (a).
(3) For the third year of participation in the program, a school
is eligible to receive a grant award not greater than one-half of the
appropriate amount listed in subdivision (a) and shall match state
funding with the same amount of local funds.
(4) A school is eligible for no more than three grant awards. A
school that received a grant during the 2000-01 school year shall be
considered to have completed a first year of participation in the
program and is eligible to apply as a second year school.
(e) Priority for home visits shall be given to low-performing
pupils.
(f) Schools may be eligible for funding pursuant to this article
for each year from funds appropriated therefor in the annual Budget
Act or in another enactment.
(g) The Superintendent of Public Instruction may use up to
seventy-five thousand dollars ($75,000), to the extent funds are
appropriated in the annual Budget Act or other enactment for purposes
of the Nell Soto Parent/Teacher Involvement Program, to administer
the program.
SEC. 58. Section 51226.1 of the Education Code is amended to read:
51226.1. (a) Upon adoption of the model curriculum standards
developed pursuant to Section 51226, the Superintendent of Public
Instruction shall develop a curriculum framework consistent with
criteria set forth in subdivision (a) of Section 60005 that offers a
blueprint for implementation of career and technical education. The
framework shall be adopted no later than June 1, 2006.
(b) In developing the framework, the superintendent shall work in
consultation and coordination with an advisory group, including, but
not limited to, representatives from all of the following:
(1) Business and industry.
(2) Labor.
(3) The California Community Colleges.
(4) The University of California.
(5) The California State University.
(6) Classroom teachers.
(7) School administrators.
(8) Pupils.
(9) Parents and guardians.
(10) Representatives of the Legislature.
(11) The State Department of Education.
(12) The Labor and Workforce Development Agency.
(c) In convening the membership of the advisory group set forth in
subdivision (b), the Superintendent of Public Instruction is
encouraged to seek representation broadly reflective of the state
population.
(d) Costs incurred by the Superintendent of Public Instruction in
complying with this section shall be covered, to the extent permitted
by federal law, by the state administrative and leadership funds
available pursuant to the Carl D. Perkins Vocational and Technical
Education Act of 1998 (20 U.S.C. Sec. 2301 et seq.).
(e) In developing the framework, the Superintendent of Public
Instruction shall consider developing frameworks for various career
pathways that will prepare pupils for both career entry and
matriculation into postsecondary education.
(f) The adoption of the framework developed and adopted pursuant
to this section by a local educational agency shall be voluntary.
SEC. 59. Section 51226.3 of the Education Code is amended to read:
51226.3. (a) The State Department of Education shall incorporate,
into publications that provide examples of curriculum resources for
teacher use, those materials developed by publishers of nonfiction,
trade books, and primary sources, or other public or private
organizations, that are age-appropriate and consistent with the
subject frameworks on history and social science that deal with civil
rights, human rights violations, genocide, slavery, and the
Holocaust.
(b) The Legislature encourages the incorporation of survivor,
rescuer, liberator, and witness testimony into the teaching of human
rights, genocide, and the Holocaust.
(c) The Legislature encourages all state and local professional
development activities to provide teachers with content background
and resources to assist in teaching about civil rights, human rights
violations, genocide, slavery, and the Holocaust.
(d) The Legislature encourages all state and local professional
development activities to provide teachers with content background
and resources to assist in teaching about the Great Irish Famine of
1845-50.
(e) The Great Irish Famine of 1845-50 shall be considered in the
next cycle in which the history/social science curriculum framework
and its accompanying instructional materials are adopted.
(f) The Model Curriculum for Human Rights and Genocide adopted by
the State Board of Education, pursuant to Section 51226, shall be
made available to schools in grades 7 to 12, inclusive, as soon as
funding is available for this purpose. In addition, the State
Department of Education shall make the curriculum available on its
Web site.
SEC. 60. Section 51700 of the Education Code is amended to read:
51700. (a) There is hereby established the Reading First Plan to
provide reading instruction to pupils in kindergarten and grades 1 to
3, inclusive, and to special education pupils in kindergarten and
grades 1 to 12, inclusive.
(b) The plan shall be administered by the State Department of
Education and shall be funded from moneys allocated pursuant to Title
I of the federal No Child Left Behind Act of 2001 (20 U.S.C. Sec.
6301 et seq.).
(c) The Reading First Plan submitted to the Secretary for
Education pursuant to Title I of the federal No Child Left Behind Act
of 2001 (20 U.S.C. Sec. 6301 et seq.) shall do all of the
following:
(1) Authorize a local educational agency that meets all the
requirements of Section 6362(c)(6) of Title 20 of the United States
Code to be eligible for Reading First funding if pupils enrolled in
kindergarten or any of grades 1 to 3, inclusive, and special
education pupils enrolled in kindergarten or any of grades 1 to 12,
inclusive, are provided with standards-aligned textbooks or basic
instructional materials aligned with the reading/language arts
content standards pursuant to Section 60605 by the beginning of the
first school term that commences no later than 24 months after those
materials are adopted by the State Board of Education.
(2) Authorize a local educational agency to use scientifically
based reading research supplemental instructional materials for
pupils enrolled in kindergarten or any of grades 1 to 3,
inclusive, and special education
pupils enrolled in kindergarten or any of grades 1 to 12, inclusive,
that are aligned with the reading/language arts content standards
adopted pursuant to Section 60605. The local educational agency
shall provide an explanation in its application of how its use of
these supplemental instructional materials supports the
reading/language arts instructional materials adopted by the State
Board of Education for pupils enrolled in kindergarten or any of
grades 1 to 3, inclusive, and special education pupils enrolled in
kindergarten or any of grades 1 to 12, inclusive.
(3) Authorize an eligible local educational agency to receive a
grant in the amount of up to six thousand five hundred dollars
($6,500) per teacher in kindergarten or in any of grades 1 to 3,
inclusive, unless otherwise required pursuant to Section 6362(c)(2)
(A) of Title 20 of the United States Code. In addition, to the
extent that a local educational agency needs additional funding
consistent with the maximum amount allowable under the federal No
Child Left Behind Act (20 U.S.C. Sec. 6301 et. seq.), authorize the
local educational agency to submit a plan justifying that need to the
State Department of Education and the Department of Finance for
their joint approval. A grant awarded pursuant to this paragraph
shall be used to enhance reading instruction, including, but not
limited to, the following purposes:
(A) Purchasing and implementing scientifically based reading
research instructional and supplemental materials in reading language
arts, pursuant to requirements specified in the Reading First Plan
and paragraph (2).
(B) Participating in professional development in reading and
language arts, pursuant to requirements specified in the Reading
First Plan. A Reading First funded agency may not claim funding for
teachers of kindergarten or any of grades 1 to 3, inclusive, or
teachers of special education pupils for the Mathematics and Reading
Professional Development Program established pursuant to Article 3
(commencing with Section 99230) of Chapter 5 of Part 65.
(C) Hiring reading coaches or reading content experts, or both.
(D) Purchasing reading and language arts assessments.
(E) Other purposes, as specified in Section 6362(c)(7) of Title 20
of the United States Code.
(d) A local educational agency shall submit an expenditure plan as
part of its Reading First application that includes details about
the manner in which it is going to use its funding.
SEC. 61. Section 52053 of the Education Code is amended to read:
52053. (a) The Immediate Intervention/Underperforming Schools
Program is hereby established. By August 15, 1999, the
Superintendent of Public Instruction, with the approval of the State
Board of Education, shall invite schools that scored below the 50th
percentile on the achievement tests administered pursuant to Section
60640 both in the spring of 1998 and in the spring of 1999 to
participate in the Immediate Intervention/Underperforming Schools
Program. A school invited to participate may take any action not
otherwise prohibited under state or federal law and that would not
require reimbursement by the Commission on State Mandates to improve
pupil performance.
(b) The total number of schools participating in the program in
1999 shall be 430. Unless subdivision (d) applies, schools that
apply will be selected based on the order in which they apply within
ranks of deciles, not to exceed 86 per decile, within the following
grade level categories:
(1) No more than 301 elementary schools.
(2) No more than 78 middle schools.
(3) No more than 52 high schools.
(c) The 86 schools selected within each decile range pursuant to
subdivision (b) shall proportionately represent elementary, middle,
and high schools and shall provide statewide proportionate geographic
representation of urban and rural schools.
(d) If fewer than the number of schools in any grade level
category apply, schools that scored below the 50th percentile in
those grade level categories that did not apply for the program shall
randomly be selected by the Superintendent of Public Instruction,
with the approval of the State Board of Education, to participate
based on their proportional representation in the state until the
number of schools in each grade level category set forth in
subdivision (b) is achieved.
(e) If more than the requisite number of schools apply for any
grade level category, the Superintendent of Public Instruction shall
select an array of schools that reflect a broad range of academic
performance of schools that scored below the 50th percentile, until
the number of schools in each grade level category set forth in
subdivision (b) is achieved.
(f) A school selected to participate on or before September 1,
1999, shall be awarded a planning grant from funds appropriated
pursuant to paragraph (1) of subdivision (a) of Section 2 of Chapter
3 of the Statutes of 1999, First Extraordinary Session, in the amount
of fifty thousand dollars ($50,000). A school selected to receive
federal funds pursuant to paragraph (2) of subdivision (a) of Section
2 of Chapter 3 of the Statutes of 1999, First Extraordinary Session,
shall be awarded an implementation grant in an amount of at least
fifty thousand dollars ($50,000) pursuant to Public Law 105-78.
(g) Schools receiving funding under paragraph (2) of subdivision
(a) of Section 2 of Chapter 3 of the Statutes of 1999, First
Extraordinary Session, shall comply with Public Law 105-78.
(h) By September 15, 2000, and each year thereafter, the
Superintendent of Public Instruction, with the approval of the State
Board of Education, shall identify schools that failed to meet their
Academic Performance Index (API) growth targets and that have an API
score below the 50th percentile in the previous school year relative
to all other public elementary, middle, or high schools. The
Superintendent of Public Instruction shall invite these schools to
participate in the Immediate Intervention/Underperforming Schools
Program. A school invited to participate may take any action to
improve pupil performance not otherwise prohibited under state or
federal law and that would not require reimbursement by the
Commission on State Mandates.
(i) The total number of schools selected for participation in the
program shall be no more than the number that can be funded through
the total appropriation for the planning grants referenced in
subdivision (l) below.
(j) If fewer schools apply for participation than can be funded,
the Superintendent of Public Instruction, with the approval of the
State Board of Education, shall randomly select the balance of
schools from schools eligible to participate that did not apply.
Insofar as possible, the schools randomly selected should reflect a
representative proportion of elementary, middle, and high schools, as
well as a broad range of academic achievement.
(k) If more schools apply for participation than can be funded,
the schools shall be selected in the order in which they apply.
Insofar as possible, the schools selected should reflect a
representative proportion of elementary, middle, and high schools, as
well as a broad range of academic achievement.
(l) A school selected to participate on or before October 15,
2000, and each year thereafter, shall be awarded a planning grant
from funds appropriated pursuant to Section 2 of Chapter 3 of the
Statutes of 1999, First Extraordinary Session, of fifty thousand
dollars ($50,000).
(m) Schools selected for participation in the program shall be
notified by the Superintendent of Public Instruction no later than
October 15 of each year.
SEC. 62. Section 52056 of the Education Code is amended to read:
52056. (a) The High Achieving/Improving Schools Program is hereby
established. Commencing in June 2000, and every June thereafter,
the Superintendent of Public Instruction, with approval of the State
Board of Education, shall rank all public schools based on the
Academic Performance Index established pursuant to Section 52052.
The schools shall be ranked by the value of the API in decile
categories by the grade level of instruction provided and shall
include three categories: elementary, middle, and high school. The
schools shall also be ranked by the value of the API when compared to
schools with similar characteristics. Commencing in June 2001, the
Superintendent of Public Instruction shall also report the target
annual growth rates of schools and the actual growth rates attained
by the schools. For purposes of this section, similar
characteristics include, but are not limited to, the following
characteristics, insofar as data is available from the State
Department of Education's data: pupil mobility, pupil ethnicity,
pupil socioeconomic status, percentage of teachers who are fully
credentialed, percentage of teachers who hold emergency credentials,
percentage of pupils who are English language learners, average class
size per grade level, and whether the schools operate multitrack
year-round educational programs. The Superintendent of Public
Instruction shall annually publish these rankings on the Internet.
(b) All schools shall report their ranking, including a
description of the components of the API, in their annual school
accountability report card pursuant to Sections 33126 and 35256.
(c) Following the annual publication of the API and school
rankings by the Superintendent of Public Instruction, the governing
board of each school district shall discuss the results of the annual
ranking at the next regularly scheduled meeting.
SEC. 63. Section 52071 of the Education Code is amended to read:
52071. (a) Phase I grant proposals shall include the following
components:
(1) Proposal summary that describes the five-year reform and
redesign plan to be developed.
(2) Problem analysis and goals, that shall include, but are not
limited to, the following:
(A) How the pupils in the district have performed on the high
school exit examination.
(B) How this proposal will link reform efforts being implemented
in the elementary and middle schools of that district to ensure
progress toward pupil success on the high school exit examination.
(C) How this proposal will link reform efforts being implemented
in the district to ensure progress toward all of the following:
(i) High schools meeting Academic Performance Index growth
targets.
(ii) Improved high school pupil assessment scores pursuant to
Section 60640.
(iii) Improved high school graduation rates.
(iv) Decreased high school pupil suspension and expulsion rates.
(3) Proposed membership in the district-community partnership.
(4) Description of the proposed work-funding needs and the ability
of the district-community partnership to leverage existing funds and
to seek new funds to implement the reform and redesign plan that is
developed in Phase I.
(5) Administration and governance of the district-community
partnership.
(6) Budget summary delineating proposed expenditures of the
planning grant funds received.
(b) The criteria to be used by the Superintendent of Public
Instruction and the Secretary for Education in consultation with the
advisory committee to evaluate all grant proposals and to select
eight participating school districts shall include, but not be
limited to, the following:
(1) Quality of ideas, vision, and goals for effective high schools
for all pupils.
(2) Clarity of problem definition and analysis of structural and
capacity barriers.
(3) Strength of leadership within the district administration and
the proposed community partnership for building effective high
schools for all pupils.
(4) Demonstrated willingness to engage constituencies at the
schools including principals, teachers, pupils, and parents, and to
engage constituencies in the communities in planning high school
reform.
(5) Capacity of the district-community partnership members
individually and collectively to overcome system barriers and
building public will.
(6) Prior district progress in elementary and middle school change
including pupil performance.
(7) Capacity of the school district to manage the
district-community partnership and the planning process.
(8) Ability of the district-community partnership to work
effectively with each other.
(9) Alignment of the proposal with California state educational
standards and preparation for the high school exit examination.
(c) Priority for selection shall be given to those district
proposals that contain all of the following:
(1) Districts with one or more high schools ranked in the first or
second decile on the Academic Performance Index.
(2) Proposals that have one or more high schools participating in
the Immediate Intervention/Underperforming School Program established
by Article 3 (commencing with Section 52053) of Chapter 6.1 or the
High Priority Schools Grant Program contained in Article 3.5
(commencing with Section 52055.600) of Chapter 6.1, and have
identified in their proposal strategies to integrate these reform
efforts into the reform and redesign plan required pursuant to this
chapter.
(d) In consultation with the advisory committee, the
Superintendent of Public Instruction and the Secretary for Education
shall select, based on the criteria pursuant to subdivision (b), from
those school districts that submit proposals, eight school districts
to each receive a planning grant to develop in Phase I of this
chapter. The eight school districts selected to participate, when
considered as a group, shall be representative of the various
geographic regions and the demographics of the state.
SEC. 64. Section 52073 of the Education Code is amended to read:
52073. (a) Proposals for Phase I grants shall be submitted to the
Superintendent of Public Instruction on or before April 30, 2003.
The Superintendent of Public Instruction shall announce Phase I
planning grant awards by June 30, 2003, and the grants shall be
awarded by August 1, 2003. The high school reform and redesign plans
developed in Phase I of this program shall be submitted to the
Superintendent of Public Instruction by June 30, 2004.
(b) Reform and redesign plans submitted by June 30, 2004, shall be
evaluated by the Superintendent of Public Instruction and the
Secretary for Education, in consultation with the advisory committee,
using the criteria pursuant to subdivision (b) of Section 52071, as
well as all of the following criteria:
(1) Clear delineation of a five-year reform and redesign plan
that, at minimum, contains all of the following:
(A) The specific actions necessary for the implementation of the
reform and redesign plan.
(B) Specified benchmarks that demonstrate successful
implementation of the reform and redesign plan over the five-year
period.
(C) A five-year implementation timeline or schedule.
(D) A clear demonstration of linking existing reform efforts being
implemented in the school district to ensure progress toward all of
the following:
(i) Pupils being successful in the high school exit examination
pursuant to Section 60850.
(ii) High schools meeting API growth targets pursuant to Section
52052.
(iii) High school pupils improving assessment scores pursuant to
Section 60640.
(iv) Improved high school graduation rates.
(v) Decreasing high school pupil suspension and expulsion rates.
(2) A five-year expenditure and revenue budget for the
implementation of the reform and redesign plan that includes, but is
not limited to, the following:
(A) A one dollar ($1) match for every one dollar ($1) of grant
funding received from the state.
(B) Projected annual cost for implementing of the five-year plan.
(C) Use of existing state and federal funds including, but not
limited to, funds received under the Immediate
Intervention/Underperforming Schools Program established by Article 3
(commencing with Section 52053) of Chapter 6.1, the High Priority
Schools Grant Program contained in Article 3.5 (commencing with
Section 52055.600) of Chapter 6.1, and Title I and the Comprehensive
School Reform Program of the federal No Child Left Behind Act of 2001
(20 U.S.C. Sec. 6301 et seq.).
(3) A listing of indicators that measure annual progress linked to
those elements of the plan described in subdivision (e) of Section
52070. These indicators shall include, but are not limited, to the
following:
(A) Participating high schools meeting annual API growth targets.
(B) Pupils being successful in the high school exit examination.
(C) Improved high school pupil test scores as indicated on the
annual assessments pursuant to Section 60640.
(D) Improved high school graduation rates.
(E) Decrease in high school pupil suspension and expulsion rates.
(c) The Superintendent of Public Instruction and Secretary for
Education, in consultation with the advisory committee, may develop
additional criteria for evaluating Phase I reform and redesign plans
prior to Phase II implementation.
(d) School districts shall be notified no later than August 1,
2004, as to the acceptance of their reform and redesign plan for
Phase II implementation.
SEC. 65. Section 53082 of the Education Code is amended to read:
53082. (a) (1) For purposes of this chapter, "local partnership"
means a defined system designed to deliver the school-to-career
programs funded pursuant to this chapter. A local partnership may
include, but is not limited to, a collaborative effort between
educators, employers, local government entities, and the public.
(2) For purposes of this chapter, "local partnership geographic
area" means the geographic area that an established local partnership
is designed to serve.
(b) To be eligible for a grant pursuant to this chapter, a local
entity shall, in the grant application, submit a detailed plan
demonstrating the following:
(1) All pupils shall be eligible and have access to the activities
developed in the geographic region. "All pupils" means every pupil,
including, but not limited to, pupils who are college bound, at high
risk, disabled pupils, special education pupils, male and female
pupils pursuing nontraditional careers, gifted pupils, pupils with
limited English proficiency, and economically disadvantaged pupils.
(2) The ability to leverage funds and contributions from public
and private entities, including, but not limited to, the Improving
America's Schools Act of 1994 (20 U.S.C. Sec. 6301), Carl Perkins
Vocational and Technical Education Act of 1998 (20 U.S.C. Sec. 2301),
and the Workforce Investment Act of 1998 (29 U.S.C. Sec. 2801).
(3) The ability to build on and integrate other beneficial
workforce development and educational programs currently operating in
the state, including, but not limited to, tech prep programs as
provided through the Carl D. Perkins Vocational and Applied
Technology Education Amendments of 1998 (P.L. 105-332), Partnership
Academies established pursuant to Article 5 (commencing with Section
54690) of Chapter 9 of Part 29, Regional Occupational Centers and
programs established pursuant to Article 1 (commencing with Section
52300) of Chapter 9, Project WorkAbility conducted pursuant to
Article 3 (commencing with Section 56470) of Chapter 4.7 of Part 30,
youth apprenticeship programs, and adult education programs.
(4) The ability to provide school-based learning, work-based
learning, and service-based learning at an appropriate level for that
local partnership geographic area.
(5) A significant level of participation and contributions from
business and organized labor, including, but not limited to, internal
school-to-career coordinator salaries, pupil wages in paid
work-based learning, supplies, and equipment necessary for relevant
school-to-career activities.
(6) The ability to be as inclusive as possible and engage all
interested, appropriate, and relevant parties in the activities of
the local partnership. The local partnership shall demonstrate
participation from representatives of local educational agencies,
representatives of local postsecondary educational institutions,
representatives of local vocational education schools, local
educators, parent organizations, employers, employer organizations,
and organized labor. The Interagency Partnership for
School-to-Career Programs may, as it deems necessary, require
additional participation from other parties, including, but not
limited to, community-based organizations, national trade
associations, industrial extension centers, rehabilitation agencies
and organizations, proprietary institutions of higher education,
local government agencies, parent organizations, teacher
organizations, private industry councils, and federally recognized
Native American tribes and Native American organizations.
(7) An instructional program advising pupils of an employee's and
employer's rights and obligations in the workplace.
(8) Accountability measurements shall demonstrate increased
academic performance, postsecondary enrollment, decreased dropout
rates, transition to appropriate employment, apprenticeship, or any
other job training school when applicable, and measurements of pupil,
parent, and employer satisfaction.
SEC. 66. Section 54201 of the Education Code is amended to read:
54201. (a) The State Department of Education shall calculate the
per pupil amount that was received by each school district pursuant
to the court-ordered desegregation claims filed pursuant to Sections
42243.6 and 42247, and the per pupil amount that was received based
on voluntary integration claims filed pursuant to Sections 42247 and
42249 for the 2000-01 fiscal year. This amount shall be determined
by dividing the total funds by the actual average daily attendance as
reported on the second principal apportionment for the 2000-01
fiscal year.
(b) The amount determined pursuant to subdivision (a) for each
school district, adjusted by the percentage increase calculated
pursuant to Section 42238.1, multiplied by the districts' total
average daily attendance for each fiscal year shall be the total per
pupil funding received for the Targeted Instructional Improvement
Grant Program. This amount shall be adjusted annually thereafter by
the percentage increase calculated pursuant to Section 42238.1. For
the 2001-02 fiscal year, and each fiscal year thereafter, the total
amount a school district shall receive in any fiscal year is at a
minimum the same total amount it received in the 2000-01 fiscal year
adjusted annually pursuant to Section 42238.1.
SEC. 67. Section 56021.1 of the Education Code is amended to read:
56021.1. "Consent," as provided in subsection (b) of Section
300.500 of Title 34 of the Code of Federal Regulations, means all of
the following:
(a) The parent or guardian has been fully informed of all
information relevant to the activity for which consent is sought, in
his or her native language, or other mode of communication.
(b) The parent or guardian understands and agrees in writing to
the carrying out of the activity for which his or her consent is
sought; and the consent describes that activity and lists the
records, if any, that will be released and to whom.
(c) The parent or guardian understands that the granting of
consent is voluntary on the part of the parent or guardian and may be
revoked at any time. If a parent or guardian revokes consent, that
revocation is not retroactive to negate an action that has occurred
after the consent was given and before the consent was revoked.
SEC. 68. Section 56046 of the Education Code is amended to read:
56046. (a) An employee of a school district, county office of
education, or a special education local planning area may not
directly or indirectly use or attempt to use the official authority
or influence of the employee for the purpose of intimidating,
threatening, coercing, or attempting to intimidate, threaten, or
coerce, any person, including, but not limited to, a teacher, a
provider of designated instruction and services, a paraprofessional,
an instructional aide, a behavioral aide, a health aide, other
educators or staff of the local educational agency, a private
individual or entity under contract with the local educational
agency, or a subordinate of the employee, for the purpose of
interfering with the action of that person at any time, to assist a
parent or guardian of a pupil with exceptional needs to obtain
services or accommodations for that pupil.
(b) If a person described in subdivision (a), believes an employee
or agent of a local educational agency is in violation of
subdivision (a) because of using or attempting to use official
authority or influence, that person may file a complaint under the
Uniform Complaint Procedures as set forth in Title 5 of the
California Code of Regulations. If a person files a complaint
pursuant to this subdivision, the state shall intervene directly and
the conditions for intervention in Section 4650 of Title 5 of the
California Code of Regulations are not applicable.
(c) This section does not limit or alter any right a person
described in subdivision (a) may have to file a complaint pursuant to
either a governing board-adopted grievance process or a collectively
bargained grievance process.
(d) This section does not do any of the following:
(1) Limit or alter the right or duty of a public school official
to direct or discipline an employee or contractor.
(2) Prevent a local educational agency from enforcing a law or
regulation regarding conflicts of interest, incompatible activities,
or the confidentiality of pupil records.
(e) (1) For the purposes of this section, "services or
accommodations" includes information that would assist a parent or
guardian to obtain a free appropriate public education for his or her
child as guaranteed by the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1400 et seq.), or other services or
accommodations guaranteed under Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. Sec. 794) and the federal Americans with
Disabilities Act (42 U.S.C. Sec. 12101 et seq.), as well as state
laws regarding individuals with exceptional needs.
(2) For the purpose of this section, "use of official authority or
influence" includes promising to confer or conferring any benefit,
affecting or threatening to affect any reprisal, or taking, directing
others to take, recommending, processing, or approving any personnel
action, including, but not limited to, appointment, promotion,
transfer, assignment, performance evaluation,
suspension, or other disciplinary action.
"Use of official authority or influence" does not include good faith
advocacy by an employee of a public school agency, to any person
including another agency employee or contractor, regarding the
services, if any, to be provided to a pupil under the laws referred
to in paragraph (1).
(f) This section does not diminish the rights, privileges, or
remedies of a public school employee under any other federal or state
law or under an employment contract or collective bargaining
agreement.
(g) A school employee's or contractor's assistance offered to a
parent or guardian of a pupil with exceptional needs to obtain
services or accommodations for that pupil may not interfere with the
school employee's or contractor's regular duties for the local
educational agency.
SEC. 69. Section 56341.5 of the Education Code is amended to read:
56341.5. (a) Each district, special education local plan area, or
county office convening a meeting of the individualized education
program team shall take steps to ensure that no less than one of the
parents or guardians of the individual with exceptional needs are
present at each individualized education program meeting or are
afforded the opportunity to participate.
(b) Parents or guardians shall be notified of the individualized
education program meeting early enough to ensure an opportunity to
attend.
(c) The individualized education program meeting shall be
scheduled at a mutually agreed upon time and place. The notice of
the meeting under subdivision (b) shall indicate the purpose, time,
and location of the meeting and who shall be in attendance. Parents
or guardians may also be informed in the notice of the right to bring
other people to the meeting who have knowledge or special expertise
regarding the individual with exceptional needs.
(d) For an individual with exceptional needs beginning at age 14,
or younger, if appropriate, the meeting notice shall also indicate
that a purpose of the meeting will be the development of a statement
of the transition services needs of the individual required by
subdivision (a) of Section 56345.1 and indicate that the individual
with exceptional needs is also invited to attend. In accordance with
paragraph (3) of subsection (b) of Section 300.345 of the Code of
Federal Regulations, for an individual with exceptional needs
beginning at 16 years of age or younger, if appropriate, the meeting
notice shall also indicate that a purpose of the meeting is the
consideration of needed transition services for the individual
required by subdivision (b) of Section 56345.1 and indicate that the
individual with exceptional needs is invited to attend. If the pupil
does not attend the individualized education program meeting, the
district, special education local plan area, or county office shall
take steps to ensure that the pupil's preferences and interests are
considered in accordance with paragraph (2) of subsection (b) of
Section 300.344 of Title 34 of the Code of Federal Regulations.
(e) The meeting notice shall also identify any other local agency
in accordance with paragraph (3) of subsection (b) of Section 300.344
of Title 34 of the Code of Federal Regulations.
(f) If no parent or guardian can attend the meeting, the district,
special education local plan area, or county office shall use other
methods to ensure parent or guardian participation, including
individual or conference telephone calls.
(g) A meeting may be conducted without a parent or guardian in
attendance if the district, special education local plan area, or
county office is unable to convince the parent or guardian that he or
she should attend. In this event, the district, special education
local plan area, or county office shall maintain a record of its
attempts to arrange a mutually agreed-upon time and place, as
follows:
(1) Detailed records of telephone calls made or attempted and the
results of those calls.
(2) Copies of correspondence sent to the parents or guardians and
any responses received.
(3) Detailed records of visits made to the home or place of
employment of the parent or guardian and the results of those visits.
(h) The district, special education local plan area, or county
office shall take whatever action is necessary to ensure that the
parent or guardian understands the proceedings at a meeting,
including arranging for an interpreter for parents or guardians with
deafness or whose native language is a language other than English.
(i) The district, special education local plan area, or county
office shall give the parent or guardian a copy of the individualized
education program, at no cost to the parent or guardian.
SEC. 70. Section 56383 of the Education Code is amended to read:
56383. Pursuant to subsection (b) of Section 300.349 of Title 34
of the Code of Federal Regulations, after an individual with
exceptional needs is placed in a nonpublic, nonsectarian school under
Section 56366, any meetings to review and revise the pupil's
individualized education program may be conducted by the nonpublic,
nonsectarian school at the discretion of the district, special
education local plan area, or county office of education. However,
even if a nonpublic, nonsectarian school implements a child's
individualized education program, responsibility for compliance with
this part and with the Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1400 et seq.) and implementing regulations remains
with the district, special education local plan area, or county
office of education pursuant to subsection (c) of Section 300.349 of
Title 34 of the Code of Federal Regulations.
SEC. 71. Section 59008 of the Education Code is amended to read:
59008. (a) The Department of Personnel Administration shall
consider making salaries for teachers, specialists, and
administrators of the California School for the Deaf competitive with
the salaries of similarly qualified school teachers, specialists,
and administrators who are employed by the encompassing school
districts.
(b) For purposes of this section, "teachers," "teacher
specialists," and "administrators" mean those individuals who hold
the appropriate teaching, service, or teaching and administrative
credential, as appropriate, as issued by the Commission on Teacher
Credentialing, as determined by the employing state agency.
SEC. 72. Section 59104 of the Education Code is amended to read:
59104. (a) The Department of Personnel Administration shall
consider making salaries for teachers, specialists, and
administrators of the California School for the Blind competitive
with the salaries of similarly qualified school teachers,
specialists, and administrators who are employed by the encompassing
school districts.
(b) For purposes of this section, "teachers," "teacher
specialists," and "administrators" mean those individuals who hold
the appropriate teaching, service, or teaching and administrative
credential, as appropriate, as issued by the Commission on Teacher
Credentialing, as determined by the employing state agency.
SEC. 73. Section 59205 of the Education Code is amended to read:
59205. (a) The Department of Personnel Administration shall
consider making salaries for teachers, specialists, and
administrators of the Diagnostic Center, Southern California, the
Diagnostic Center, Central California, and the Diagnostic Center,
Northern California, competitive with the salaries of similarly
qualified school teachers, specialists, and administrators who are
employed by the encompassing school districts.
(b) For purposes of this section, "teachers," "teacher
specialists," and "administrators" mean those individuals who hold
the appropriate teaching, service, or teaching and administrative
credential, as appropriate, as issued by the Commission on Teacher
Credentialing, as determined by the employing state agency.
SEC. 74. Section 60246 of the Education Code is amended to read:
60246. (a) The Controller shall, during each fiscal year,
commencing with the 1983-84 fiscal year, transfer from the General
Fund to the State Instructional Materials Fund, an amount of
twenty-one dollars and eighteen cents ($21.18) per pupil average
daily attendance in the public elementary schools during the
preceding fiscal year, as certified by the Superintendent of Public
Instruction, except that this amount shall be adjusted annually,
through and including fiscal year 1987-88, in conformance with the
Consumer Price Index, all items, of the Bureau of Labor Statistics of
the United States Department of Labor, measured for the calendar
year next preceding the fiscal year to which it applies. Commencing
with the 1990-91 fiscal year, the amount shall be adjusted annually
by an amount equal to the percentage change determined pursuant to
subdivision (b) of Section 42238.1.
(b) The amount transferred pursuant to subdivision (a) includes
the designated percentage of the cash entitlements to be used to pay
for unadopted state materials, tests, and in-service training.
(c) This section shall become inoperative on January 1, 2003, and,
as of January 1, 2007, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2007, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 75. Section 60900 of the Education Code is amended to read:
60900. (a) The State Department of Education shall contract for
the development of proposals which will provide for the retention and
analysis of longitudinal pupil achievement data on the tests
administered pursuant to Chapter 5 (commencing with Section 60600),
Chapter 7 (commencing with Section 60810), and Chapter 9 (commencing
with Section 60850). The longitudinal data shall be known as the
California longitudinal pupil achievement data system.
(b) The proposals developed pursuant to subdivision (a) shall
evaluate and determine whether it would be most effective, from both
a fiscal and a technological perspective, for the state to own the
California longitudinal pupil achievement data system. The proposals
shall additionally evaluate and determine the most effective means
of housing the California longitudinal pupil achievement data system.
(c) The California longitudinal pupil achievement data system
shall be developed and implemented in accordance with all state rules
and regulations governing information technology projects.
(d) The system or systems developed pursuant to this section shall
be used to accomplish all of the following goals:
(1) To provide school districts and the State Department of
Education access to data necessary to comply with federal reporting
requirements delineated in the No Child Left Behind Act of 2001 (20
U.S.C. Sec. 6301 et seq.).
(2) To provide a better means of evaluating educational progress
and investments over time.
(3) To provide local educational agencies information that can be
used to improve pupil achievement.
(4) To provide an efficient, flexible, and secure means of
maintaining longitudinal statewide pupil level data.
(e) In order to comply with federal law as delineated in the No
Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.), the
local educational agency shall retain individual pupil records for
each test taker, including all of the following:
(1) All demographic data collected from the STAR test, high school
exit examination, and English language development test.
(2) Pupil achievement data from assessments administered pursuant
to the STAR, high school exit examination, and English language
development testing programs. To the extent feasible, data should
include subscore data within each content area.
(3) A unique pupil identification number to be identical to the
pupil identifier developed pursuant to the California School
Information Services, which shall be retained by each local
educational agency and used to ensure the accuracy of information on
the header sheets of the STAR tests, high school exit examination,
and the English language development test.
(4) All data necessary to compile reports required by the federal
No Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.),
including, but not limited to, dropout and graduation rates.
(5) Other data elements deemed necessary by the Superintendent of
Public Instruction, with approval of the State Board of Education, to
comply with the federal reporting requirements delineated in the No
Child Left Behind Act of 2001 (20 U.S.C. Sec. 6301 et seq.), after
review and comment by the advisory board convened pursuant to
subdivision (h).
(f) The California longitudinal pupil achievement data system or
systems shall have all of the following characteristics:
(1) The ability to sort by demographic element collected from the
STAR tests, high school exit examination, and English language
development test.
(2) The capability to be expanded to include pupil achievement
data from multiple years.
(3) The capability to monitor pupil achievement on the STAR tests,
high school exit examination, and English language development test
from year to year and school to school.
(4) The capacity to provide data to the state and local
educational agencies upon their request.
(g) Data elements and codes included in the system shall comply
with Sections 49061 to 49079, inclusive, and Sections 49602 and
56347, with Sections 430 to 438, inclusive, of Title 5 of the
California Code of Regulations, with the Information Practices Act of
1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of Part
4 of Division 3 of the Civil Code), and with the Family Education
Rights and Privacy Act statute (20 U.S.C. Secs. 1232g and 1232h) and
related federal regulations.
(h) The State Department of Education shall convene an advisory
board consisting of representatives from the State Board of
Education, the Secretary for Education, the Department of Finance,
the State Privacy Ombudsman, the Legislative Analyst's office,
representatives of parent groups, school districts, and local
educational agencies, and education researchers to establish privacy
and access protocols, provide general guidance, and make
recommendations relative to data elements. The department is
encouraged to seek representation broadly reflective of the general
public of California.
(i) Subject to funding being provided in the annual Budget Act,
the State Department of Education shall contract with a consultant
for independent project oversight. The Director of Finance shall
review the request for proposals for the contract. The consultant
hired to conduct the independent project oversight shall twice
annually submit a written report to the Superintendent of Public
Instruction, the State Board of Education, the advisory board, the
Director of Finance, the Legislative Analyst, and the appropriate
policy and fiscal committees of the Legislature. The report shall
include an evaluation of the extent to which the California
longitudinal pupil achievement data system is meeting the goals
described in subdivision (b) and recommendations to improve the data
system in ensuring the privacy of individual pupil information and
providing the data needed by the state and school districts.
(j) This section shall be implemented using federal funds received
pursuant to the federal No Child Left Behind Act of 2001 (20 U.S.C.
Sec. 6301 et seq.), which are appropriated for purposes of this
section in Item 6110-113-0890 of Section 2.00 of the Budget Act of
2002 (Chapter 379 of the Statutes of 2002). The release of these
funds is contingent on approval of an expenditure plan by the
Department of Finance.
(k) For purposes of this chapter, a local educational agency shall
include a county office of education, a school district, or charter
school.
SEC. 76. Section 66025.3 of the Education Code is amended to read:
66025.3. (a) No campus of the University of California, the
California State University, or the California Community Colleges
shall charge any mandatory systemwide tuition or fees, including
enrollment fees, registration fees, differential fees, or incidental
fees, to any of the following:
(1) Any dependent eligible to receive assistance under Article 2
(commencing with Section 890) of Chapter 4 of Division 4 of the
Military and Veterans Code.
(2) (A) Any child of any veteran of the United States military who
has a service-connected disability, has been killed in service, or
has died of a service-connected disability, where the annual income
of the child, including the value of any support received from a
parent, does not exceed the national poverty level as defined in
subdivision (c).
(B) Notwithstanding Section 893 of the Military and Veterans Code,
the Department of Veterans Affairs may determine the eligibility for
fee waivers for a child described in subparagraph (A).
(3) Any dependent, or surviving spouse who has not remarried, of
any member of the California National Guard who, in the line of duty,
and while in the active service of the state, was killed, died of a
disability resulting from an event that occurred while in the active
service of the state, or is permanently disabled as a result of an
event that occurred while in the active service of the state. For
the purposes of this paragraph, "active service of the state" refers
to a member of the California National Guard activated pursuant to
Section 146 of the Military and Veterans Code.
(4) (A) Any undergraduate student who is a recipient of a Medal of
Honor, commonly known as a Congressional Medal of Honor, or any
undergraduate student who is a child of a recipient of a Medal of
Honor and who is no more than 27 years old, if both of the following
requirements are met:
(i) His or her annual income, including the value of any support
received from a parent, does not exceed the national poverty level as
defined in subdivision (c).
(ii) The recipient of the Medal of Honor who is or was the parent
of the undergraduate student is, or at the time of his or her death
was, a California resident as determined pursuant to Chapter 1
(commencing with Section 68000) of Part 41.
(B) The Department of Veterans Affairs shall determine the
eligibility of any applicant for a fee waiver under this paragraph.
(b) A person who is eligible for a waiver of tuition or fees under
this section may receive a waiver for each academic year during
which he or she applies for that waiver, but an eligible person may
not receive a waiver of tuition or fees for a prior academic year.
(c) As used in this section, the "national poverty level" is the
poverty threshold for one person, as most recently calculated by the
Bureau of the Census of the United States Department of Commerce.
(d) The waiver of tuition or fees under this section shall apply
only to a person who is determined to be a resident of California
pursuant to Chapter 1 (commencing with Section 68000) of Part 41.
(e) This section shall not apply to a dependent of a veteran
within the meaning of paragraph (4) of subdivision (a) of Section 890
of the Military and Veterans Code.
(f) No provision of this section shall apply to the University of
California except to the extent that the Regents of the University of
California, by appropriate resolution, make that provision
applicable.
SEC. 77. Section 67385.3 of the Education Code is amended to read:
67385.3. (a) (1) The California Campus Sexual Assault Task Force
is hereby established to assess the status of California's college
and university campuses with respect to the incidence of sexual
assault. The task force shall have the mission and responsibility to
accomplish both of the following:
(A) Develop a uniform system for the gathering of information
pertaining to sexual assault required by paragraph (1) of subdivision
(c) from California institutions of higher education.
(B) Create a set of model guidelines for addressing sexual assault
issues in institutions of higher education in the State of
California.
(2) The task force shall consider the data collected pursuant to
its responsibilities, and create a "Campus Blueprint to Address
Sexual Assault," and present that report in writing to the
Legislature on or before April 1, 2004.
(b) The task force shall have 15 members.
(1) The following 14 members of the task force shall be appointed
by the Governor:
(A) A representative of the University of California.
(B) A representative of the California State University.
(C) Two representatives of the California Community Colleges.
(D) A representative of the Sexual Assault Branch of the Office of
Criminal Justice Planning.
(E) Two representatives of private institutions of higher
education.
(F) Two at-large representatives of the public.
(G) Two representatives of rape crisis centers in the state.
(H) Two representatives of campus-based sexual assault programs in
the state.
(I) A representative of the State Department of Health Services.
(2) One member of the task force shall be a representative of the
Attorney General's office, appointed by the Attorney General.
(c) (1) The task force shall be staffed by the entity selected and
contracted with pursuant to subdivision (e), and shall gather
information pertinent to the report referenced in subdivision (a)
from the various campuses of the University of California, the
California State University, and the California Community Colleges,
and from a sample of private institutions of higher education in the
state. This information shall include, but not be limited to,
information related to all of the following:
(A) Campus law enforcement policies that address sexual assault.
(B) Campus law enforcement preparation regarding sexual assault
issues.
(C) Campus health policies that address sexual assault.
(D) Faculty and employee education on sexual assault issues.
(E) Sexual assault prevention education programs for students.
(F) Victim-sensitive campus judicial policies addressing sexual
assault.
(G) Compliance with, and policies regarding, the federal Jeanne
Clery Disclosure of Campus Security Policy and Campus Crime
Statistics Act (20 U.S.C. Sec. 1092(f)).
(2) The information gathered pursuant to this subdivision shall
not include information the disclosure of which is exempted or
prohibited pursuant to federal or state law, including, but not
limited to, the provisions of the Evidence Code relating to
privilege.
(3) The task force shall conduct public hearings, which shall
provide opportunities for receiving input, regarding the proposed
guidelines, from concerned stakeholders.
(d) The Office of Criminal Justice Planning shall administer the
task force, and shall support the task force in producing the report
referenced in subdivision (a).
(e) The Office of Criminal Justice Planning shall administer a
competitive bidding process for the selection of an entity to perform
research, for the report referenced in subdivision (a). The Office
of Criminal Justice Planning is hereby authorized to enter into an
agreement with the entity that is selected under this subdivision for
the provision of these services.
(f) This section shall remain in effect only until January 1,
2005, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2005, deletes or extends
that date.
SEC. 78. Section 70010 of the Education Code is amended to read:
70010. (a) The California Memorial Scholarship Program is hereby
established. The program shall be administered by the Scholarshare
Investment Board established pursuant to Section 69984. The program
shall be funded by the California Memorial Scholarship Fund
established pursuant to Section 5066 of the Vehicle Code.
(b) The purpose of the program is to provide scholarships for
surviving dependents of California residents killed as a result of
injuries sustained during the terrorist attacks of September 11,
2001. These scholarships shall be used to defray the costs incurred
by participants in the program at institutions of higher education.
The Legislature finds and declares that the scholarships provided by
this act are funded by voluntary donations provided by California
vehicle owners.
SEC. 79. Section 94140 of the Education Code is amended to read:
94140. The authority shall have power to do all of the following:
(a) Adopt bylaws for the regulation of its affairs and the conduct
of its business.
(b) Adopt and have an official common seal and alter it at
pleasure.
(c) Sue and be sued in its own name, and plead and be impleaded.
(d) Borrow money, issue bonds and notes and other obligations of
the authority, and provide for the rights of the holders thereof as
provided in this chapter.
(e) Acquire, lease as lessee, hold, and dispose of real and
personal property or any interest therein, in the exercise of its
powers and the performance of its duties under this chapter.
(f) Acquire, in the name of the authority by purchase or
otherwise, on the terms and conditions and in the manner as it deems
proper, any land or interest therein and other property that it
determines is reasonably necessary for any project, including any
lands held by any county, municipality, or other governmental
subdivision of the state; and to hold and use the same and to sell,
convey, lease, or otherwise dispose of property so acquired, no
longer necessary for the authority's purposes.
(g) Receive and accept, from any federal or other public agency or
governmental entity, grants or loans for or in aid of the
acquisition or construction of any project, and to receive and accept
aid or contributions from any other source, of either money,
property, labor, or other things of value, to be held, used, and
applied only for the purposes for which the grants, loans, and
contributions may be made.
(h) Prepare, or cause to be prepared, plans, specifications,
designs, and estimates of costs for the construction and equipment of
projects for participating colleges and participating nonprofit
entities under this chapter, and from time to time to modify those
plans, specifications, designs, or estimates.
(i) By contract or contracts or by its own employees to construct,
acquire, reconstruct, rehabilitate and improve, and furnish and
equip, projects for participating colleges and participating
nonprofit entities.
(j) Employ consulting engineers, architects, accountants,
construction and financial experts, superintendents, and other
employees and agents that may be
necessary in its judgment and to fix their compensation.
(k) Determine the location and character of any project to be
undertaken pursuant to this chapter, and construct, reconstruct,
repair, lease, as lessee or lessor, the same; enter into contracts
for any or all of those purposes; and designate a participating
private college or participating nonprofit entity as its agent to
determine the location and character of a project undertaken by the
participating private college or participating nonprofit entity under
this chapter and, as the agent of the authority, construct,
reconstruct, maintain, repair, operate, lease, as lessee or lessor,
and regulate the same, and, as agent of the authority, to enter into
contracts for any and all of those purposes including contracts for
the management and operation of the project.
(l) Establish rules and regulations for the use of a project or
any portion thereof and to designate a participating private college
or participating nonprofit entity as its agent to establish rules and
regulations for the use of a project undertaken by the participating
private college or participating nonprofit entity.
(m) Generally establish, revise from time to time, and charge and
collect, rates, rents, fees, and other charges for the use of and for
the services furnished or to be furnished by a project or any
portion thereof and contract with holders of its bonds and with any
other person, party, association, corporation, or other body, public
or private, in respect thereof.
(n) Enter into any and all agreements or contracts, execute any
and all instruments, and do and perform any and all acts or things
necessary, convenient, or desirable for the purposes of the authority
or to carry out any power expressly given in this chapter.
(o) Invest any moneys held in reserve or sinking funds, or any
moneys not required for immediate use or disbursement, at the
discretion of the authority, in obligations that are authorized by
law for the investment of trust funds in the custody of the
Treasurer.
(p) Charge, and equitably apportion among participating private
colleges and participating nonprofit entities, its administrative
costs and expenses incurred in the exercise of the powers and duties
conferred by this chapter.
(q) Finance, directly or through an intermediary, or purchase or
take assignments of, or make commitments to finance, directly or
through an intermediary, or purchase or to take assignments of,
student loans, to contract in advance for those student loans, and to
contract in advance for that financing, purchase, or assignment, and
to pay any amounts payable in respect thereto. A student loan shall
be eligible for financing or purchase by the authority or for
assignment hereunder regardless of the repayment status of the loan.
Any pledge made to secure authority financing for student loan
project purposes shall be valid and binding from the time the pledge
is made. The revenues and receipts of property or interest in the
property pledged and thereafter received by the authority, a
participating college or public institution of higher education, a
servicer, a trustee, or a custodian shall immediately be subject to
the lien of the pledge without any physical delivery thereof or
further act, and the lien of any pledge shall be valid and binding
against all parties having claims of any kind in tort, contract, or
otherwise against the authority, participating college or public
institution of higher education, servicer, trustee, or custodian
irrespective of whether the parties have notice thereof. Neither the
resolution nor any other instrument by which a pledge is created
need be recorded.
(r) Hold or invest in student loans, create pools of student
loans, and sell bonds bearing interest on a taxable or tax-exempt
basis or other interests backed by the pools of student loans.
(s) Contract or otherwise provide for the distribution,
processing, origination, purchase, sale, servicing, securing, and
collection of student loans, the payment of fees, charges, and
administrative expenses in connection therewith, and the funding of
reserves required or provided for in any resolution authorizing, or
trust agreement securing, authority financing for student loan
purposes.
(t) Assist in providing support to participating colleges or
participating nonprofit entities to enhance the market acceptance of
potential bond issues by the authority, including securing probable
or actual credit ratings from nationally recognized bond rating
agencies, providing or obtaining liquidity or credit enhancement,
providing or securing bond reserve funds, performing any other action
deemed necessary by the authority, and incurring necessary expenses,
payable from available authority funds, for any of these purposes.
SEC. 80. Section 94154 of the Education Code is amended to read:
94154. The State of California pledges and agrees with the
holders of the bonds, notes, and other obligations issued pursuant to
authority contained in this chapter, and with those parties who may
enter into contracts with the authority pursuant to this chapter,
that the state will not limit, alter, or restrict the rights hereby
vested in the authority and the participating private colleges and
participating nonprofit entities to maintain, construct, reconstruct,
and operate any project as defined in this chapter or to establish
and collect the rents, fees, receipts, or other charges as may be
convenient or necessary to produce sufficient revenues to meet the
expenses of maintenance and operation thereof and to fulfill the
terms of any agreements made with the holders of bonds authorized by
this chapter, and with the parties who may enter into contracts with
the authority pursuant to this chapter, or in any way impair the
rights or remedies of the holders of those bonds or those parties
until the bonds, together with interest thereon, are fully paid and
discharged and the contracts are fully performed on the part of the
authority. The authority as a public body corporate and politic may
include the pledge herein made in its bonds and contracts.
SEC. 81. Section 94771 of the Education Code is amended to read:
94771. (a) The duty of administering and enforcing this chapter
is vested in the Director of Consumer Affairs, who may assign and
delegate those duties to a bureau chief, subject to the other
provisions of this section.
(b) Every power granted to, or duty imposed upon, the bureau under
this chapter may be exercised or performed in the name of the
bureau, subject to any conditions and limitations the director may
prescribe. The bureau chief may redelegate any of those powers or
duties to his or her designee. The bureau chief shall be appointed
by the Governor and confirmed by the Senate, and is exempt from the
State Civil Service Act (Part 2 (commencing with Section 18500) of
Division 5 of Title 2 of the Government Code).
(c) The director, in accordance with the State Civil Service Act,
may appoint and fix the compensation of clerical, inspection,
investigation, evaluation, and auditing personnel, as may be
necessary to carry out this chapter.
(d) The proceedings under this chapter shall be conducted by the
bureau in accordance with Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code. To the
extent of any conflict between any of the provisions of this chapter
and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3
of Title 2 of the Government Code, that Chapter 5 shall prevail.
(e) The director shall appoint an advisory committee that shall
consist of representatives of institutions, student advocates, and
employers who hire students, among other parties. The advisory
committee shall be balanced to ensure that institutions and student
advocates have approximate equal representation. Institutional
representatives on the committee shall be in general proportion to
the types of institutions approved or registered pursuant to this
chapter and to the number of students served by each type of
institution. The advisory committee shall advise the bureau
concerning the bureau's administration, licensing, and enforcement
functions under this chapter.
SEC. 82. Section 99235 of the Education Code is amended to read:
99235. (a) The Superintendent of Public Instruction shall notify
local educational agencies that they are eligible to receive funding
to provide instructional aides and paraprofessionals who directly
assist with classroom instruction in mathematics and reading with
professional development training in mathematics and reading, in an
amount equal to one thousand dollars ($1,000) per qualifying
instructional aide. Funding will be provided to local educational
agencies on a first-come, first-served basis. A local educational
agency that chooses to participate in the program is eligible to
receive funding for no greater than 29 percent of its instructional
aides and paraprofessionals who directly assist with classroom
instruction in mathematics and reading in the 2004-05 fiscal year and
up to 14.5 percent in the 2005-06 fiscal year. However, the
statewide total number of instructional aides and paraprofessionals
who directly assist with classroom instruction in mathematics and
reading served under this program may not exceed 9,600 over the two
fiscal years.
(b) Of the incentive provided pursuant to subdivision (a), a local
educational agency may use not more than five hundred dollars ($500)
of the per instructional aide and paraprofessionals who directly
assist with classroom instruction in mathematics and reading amount
to provide an individual instructional aide stipend.
SEC. 83. Section 13102 of the Elections Code is amended to read:
13102. (a) All voting shall be by ballot. There shall be
provided, at each polling place, at each election at which public
officers are to be voted for, but one form of ballot for all
candidates for public office, except that, for partisan primary
elections, one form of ballot shall be provided for each qualified
political party as well as one form of nonpartisan ballot, in
accordance with subdivision (b).
(b) At partisan primary elections, each voter not registered as
intending to affiliate with any one of the political parties
participating in the election shall be furnished only a nonpartisan
ballot, unless he or she requests a ballot of a political party and
that political party, by party rule duly noticed to the Secretary of
State, authorizes a person who has declined to state a party
affiliation to vote the ballot of that political party. The
nonpartisan ballot shall contain only the names of all candidates for
nonpartisan offices and measures to be voted for at the primary
election. Each voter registered as intending to affiliate with a
political party participating in the election shall be furnished only
a ballot of the political party with which he or she is registered
and the nonpartisan ballot, both of which shall be printed together
as one ballot in the form prescribed by Section 13207.
(c) A political party may adopt a party rule in accordance with
subdivision (b) that authorizes a person who has declined to state a
party affiliation to vote the ballot of that political party at the
next ensuing partisan primary election. The political party shall
notify the party chair immediately upon adoption of that party rule.
The party chair shall provide written notice of the adoption of that
rule to the Secretary of State not later than the 135th day prior to
the partisan primary election at which the vote is authorized.
(d) The county elections official shall maintain a record of which
political party's ballot was requested pursuant to subdivision (b),
or whether a nonpartisan ballot was requested, by each person who
declined to state a party affiliation. The record shall be made
available to any person or committee who is authorized to receive
copies of the printed indexes of registration for primary and general
elections pursuant to Section 2184.
(e) This section shall become operative on March 6, 2002.
SEC. 84. Section 13107 of the Elections Code is amended to read:
13107. (a) With the exception of candidates for Justice of the
State Supreme Court or court of appeal, immediately under the name of
each candidate, and not separated from the name by any line, may
appear at the option of the candidate only one of the following
designations:
(1) Words designating the elective city, county, district, state,
or federal office which the candidate holds at the time of filing the
nomination documents to which he or she was elected by vote of the
people, or to which he or she was appointed, in the case of a
superior court judge.
(2) The word "incumbent" if the candidate is a candidate for the
same office which he or she holds at the time of filing the
nomination papers, and was elected to that office by a vote of the
people, or, in the case of a superior court judge, was appointed to
that office.
(3) No more than three words designating either the current
principal professions, vocations, or occupations of the candidate, or
the principal professions, vocations, or occupations of the
candidate during the calendar year immediately preceding the filing
of nomination documents. For purposes of this section, all
California geographical names shall be considered to be one word.
Hyphenated words that appear in any generally available standard
reference dictionary, published in the United States at any time
within the 10 calendar years immediately preceding the election for
which the words are counted, shall be considered as one word. Each
part of all other hyphenated words shall be counted as a separate
word.
(4) The phrase "appointed incumbent" if the candidate holds an
office other than a judicial office by virtue of appointment, and the
candidate is a candidate for election to the same office, or, if the
candidate is a candidate for election to the same office or to some
other office, the word "appointed" and the title of the office. In
either instance, the candidate may not use the unmodified word
"incumbent" or any words designating the office unmodified by the
word "appointed." However, the phrase "appointed incumbent" shall
not be required of a candidate who seeks reelection to an office
which he or she holds and to which he or she was appointed, as a
nominated candidate, in lieu of an election, pursuant to Sections
5326 and 5328 of the Education Code or Section 7228, 7423, 7673,
10229, or 10515 of this code.
(b) Neither the Secretary of State nor any other elections
official shall accept a designation of which any of the following
would be true:
(1) It would mislead the voter.
(2) It would suggest an evaluation of a candidate, such as
outstanding, leading, expert, virtuous, or eminent.
(3) It abbreviates the word "retired" or places it following any
word or words which it modifies.
(4) It uses a word or prefix, such as "former" or "ex-," which
means a prior status. The only exception is the use of the word
"retired."
(5) It uses the name of any political party, whether or not it has
qualified for the ballot.
(6) It uses a word or words referring to a racial, religious, or
ethnic group.
(7) It refers to any activity prohibited by law.
(c) If, upon checking the nomination documents, the elections
official finds the designation to be in violation of any of the
restrictions set forth in this section, the elections official shall
notify the candidate by registered or certified mail return receipt
requested, addressed to the mailing address appearing on the
candidate's nomination documents.
(1) The candidate shall, within three days from the date of
receipt of the notice, appear before the elections official or, in
the case of the Secretary of State, notify the Secretary of State by
telephone, and provide an alternate designation.
(2) In the event the candidate fails to provide an alternate
designation, no designation shall appear after the candidate's name.
(d) No designation given by a candidate shall be changed by the
candidate after the final date for filing nomination documents,
except as specifically requested by the elections official as
specified in subdivision (c) or as provided in subdivision (e).
(e) The designation shall remain the same for all purposes of both
primary and general elections, unless the candidate, at least 98
days prior to the general election, requests in writing a different
designation which the candidate is entitled to use at the time of the
request.
(f) In all cases, words so used shall be printed in 8-point roman
uppercase and lowercase type except that, if the designation selected
is so long that it would conflict with the space requirements of
Sections 13207 and 13211, the elections official shall use a type
size for the designation for each candidate for that office
sufficiently smaller to meet these requirements.
(g) Whenever a foreign language translation of a candidate's
designation is required under the Voting Rights Act of 1965 (42
U.S.C. Sec. 1971), as amended, to appear on the ballot in addition
to the English language version, it shall be as short as possible, as
consistent as is practicable with this section, and shall employ
abbreviations and initials wherever possible in order to avoid undue
length.
SEC. 85. Section 19227 of the Elections Code is amended to read:
19227. (a) The Secretary of State shall adopt rules and
regulations governing any voting technology and systems used by the
state or any political subdivision that provide blind and visually
impaired individuals with access that is equivalent to that provided
to individuals who are not blind or visually impaired, including the
ability for the voter to cast and verify all selections made by both
visual and nonvisual means.
(b) At each polling place, at least one voting unit approved
pursuant to subdivision (a) by the Secretary of State shall provide
access to individuals who are blind or visually impaired.
(c) A local agency is not required to comply with subdivision (b)
unless sufficient funds are available to implement that provision.
Funds received from the proceeds of the Voting Modernization Bond Act
of 2002 (Article 3 (commencing with Section 19230)), from federal
funds made available to purchase new voting systems, or from any
other source except the General Fund, shall be used for that purpose.
SEC. 86. Section 3048 of the Family Code is amended to read:
3048. (a) Notwithstanding any other provision of law, in any
proceeding to determine child custody or visitation with a child,
every custody or visitation order shall contain all of the following:
(1) The basis for the court's exercise of jurisdiction.
(2) The manner in which notice and opportunity to be heard were
given.
(3) A clear description of the custody and visitation rights of
each party.
(4) A provision stating that a violation of the order may subject
the party in violation to civil or criminal penalties, or both.
(5) Identification of the country of habitual residence of the
child or children.
(b) (1) In cases in which the court becomes aware of facts which
may indicate that there is a risk of abduction of a child, the court
shall, either on its own motion or at the request of a party,
determine whether measures are needed to prevent the abduction of the
child by one parent. To make that determination, the court shall
consider the risk of abduction of the child, obstacles to location,
recovery, and return if the child is abducted, and potential harm to
the child if he or she is abducted. To determine whether there is a
risk of abduction, the court shall consider the following factors:
(A) Whether a party has previously taken, enticed away, kept,
withheld, or concealed a child in violation of the right of custody
or of visitation of a person, regardless of whether the party acted
in compliance with Section 278.7 of the Penal Code or not.
(B) Whether a party has previously threatened to take, entice
away, keep, withhold, or conceal a child in violation of the right of
custody or of visitation of a person.
(C) Whether a party lacks strong ties to this state.
(D) Whether a party has strong familial, emotional, or cultural
ties to another state or country, including foreign citizenship.
This factor shall be considered only if evidence exists in support of
another factor specified in this section.
(E) Whether a party has no financial reason to stay in this state,
including whether the party is unemployed, is able to work anywhere,
or is financially independent.
(F) Whether a party has engaged in planning activities that would
facilitate the removal of a child from the state, including quitting
a job, selling his or her primary residence, terminating a lease,
closing a bank account, liquidating other assets, hiding or
destroying documents, applying for a passport, or applying to obtain
a birth certificate or school or medical records.
(G) Whether a party has a history of domestic violence, lack of
parental cooperation, or child abuse.
(H) Whether a party has a criminal record.
(2) If the court makes a finding that there is a need for
preventative measures after considering the factors listed in
paragraph (1), the court shall consider taking one or more of the
following measures to prevent the abduction of the child:
(A) Ordering supervised visitation.
(B) Requiring a parent to post a bond in an amount sufficient to
serve as a financial deterrent to abduction, the proceeds of which
may be used to offset the cost of recovery of the child in the event
there is an abduction.
(C) Restricting the right of the custodial or noncustodial parent
to remove the child from the county, the state, or the country.
(D) Restricting the right of the custodial parent to relocate with
the child, unless the custodial parent provides advance notice to,
and obtains the written agreement of, the noncustodial parent, or
obtains the approval of the court, before relocating with the child.
(E) Requiring the surrender of passports and other travel
documents.
(F) Prohibiting a parent from applying for a new or replacement
passport for the child.
(G) Requiring a parent to notify a relevant foreign consulate or
embassy of passport restrictions and to provide the court with proof
of that notification.
(H) Requiring a party to register a California order in another
state as a prerequisite to allowing a child to travel to that state
for visits, or to obtain an order from another country containing
terms identical to the custody and visitation order issued in the
United States (recognizing that these orders may be modified or
enforced pursuant to the laws of the other country), as a
prerequisite to allowing a child to travel to that country for
visits.
(I) Obtaining assurances that a party will return from foreign
visits by requiring the traveling parent to provide the court or the
other parent or guardian with any of the following:
(i) The travel itinerary of the child.
(ii) Copies of round trip airline tickets.
(iii) A list of addresses and telephone numbers where the child
can be reached at all times.
(iv) An open airline ticket for the left-behind parent in case the
child is not returned.
(J) Including provisions in the custody order to facilitate use of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)) and the Hague Convention on the Civil
Aspects of International Child Abduction (implemented pursuant to 42
U.S.C. Sec. 11601 et seq.), such as identifying California as the
home state of the child or otherwise defining the basis for the
California court's exercise of jurisdiction under Part 3 (commencing
with Section 3400), identifying the United States as the country of
habitual residence of the child pursuant to the Hague Convention,
defining custody rights pursuant to the Hague Convention, obtaining
the express agreement of the parents that the United States is the
country of habitual residence of the child, or that California or the
United States is the most appropriate forum for addressing custody
and visitation orders.
(K) Authorizing the assistance of law enforcement.
(3) If the court imposes any or all of the conditions listed in
paragraph (2), those conditions shall be specifically noted on the
minute order of the court proceedings.
(4) If the court determines there is a risk of abduction that is
sufficient to warrant the application of one or more of the
prevention measures authorized by this section, the court shall
inform the parties of the telephone number and address of the Child
Abduction Unit in the office of the district attorney in the county
where the custody or visitation order is being entered.
(c) The Judicial Council shall make the changes to its child
custody order forms that are necessary for the implementation of
subdivision (b). This subdivision shall become operative on July 1,
2003.
SEC. 87. Section 3118 of the Family Code is amended to read:
3118. (a) In any contested proceeding involving child custody or
visitation rights, where the court has appointed a child custody
evaluator or has referred a case for a full or partial
court-connected evaluation, investigation, or assessment, and the
court determines that there is a serious allegation of child sexual
abuse, the court shall require an evaluation, investigation, or
assessment pursuant to this section. When the court has determined
that there is a serious allegation of child sexual abuse, any child
custody evaluation, investigation, or assessment conducted subsequent
to that determination shall be considered by the court only if the
evaluation, investigation, or assessment is conducted in accordance
with the minimum requirements set forth in this section in
determining custody or visitation rights, except as specified in
paragraph (1). For purposes of this section, a serious allegation of
child sexual abuse means an allegation of child sexual abuse, as
defined in Section 11165.1 of the Penal Code, that is based in whole
or in part on statements made by the child to law enforcement, a
child welfare services agency investigator, any person required by
statute to report suspected child abuse, or any other court-appointed
personnel, or that is supported by substantial independent
corroboration as provided for in subdivision (b) of Section 3011.
When an allegation of child abuse arises in any other circumstances
in any proceeding involving child custody or visitation rights,
the court may require an
evaluator or investigator to conduct an evaluation, investigation, or
assessment pursuant to this section. The order appointing a child
custody evaluator or investigator pursuant to this section shall
provide that the evaluator or investigator have access to all
juvenile court records pertaining to the child who is the subject of
the evaluation, investigation, or assessment. The order shall also
provide that any juvenile court records or information gained from
those records remain confidential and shall only be released as
specified in Section 3111.
(1) This section does not apply to any emergency court-ordered
partial investigation that is conducted for the purpose of assisting
the court in determining what immediate temporary orders may be
necessary to protect and meet the immediate needs of a child. This
section does apply when the emergency is resolved and the court is
considering permanent child custody or visitation orders.
(2) This section does not prohibit a court from considering
evidence relevant to determining the safety and protection needs of
the child.
(3) Any evaluation, investigation, or assessment conducted
pursuant to this section shall be conducted by an evaluator or
investigator who meets the qualifications set forth in Section
3110.5.
(b) The evaluator or investigator shall, at a minimum, do all of
the following:
(1) Consult with the agency providing child welfare services and
law enforcement regarding the allegations of child sexual abuse, and
obtain recommendations from these professionals regarding the child's
safety and the child's need for protection.
(2) Review and summarize the child welfare services agency file.
No document contained in the child welfare services agency file may
be photocopied, but a summary of the information in the file,
including statements made by the children and the parents, and the
recommendations made or anticipated to be made by the child welfare
services agency to the juvenile court, may be recorded by the
evaluator or investigator, except for the identity of the reporting
party. The evaluator's or investigator's notes summarizing the child
welfare services agency information shall be stored in a file
separate from the evaluator's or investigator's file and may only be
released to either party under order of the court.
(3) Obtain from a law enforcement investigator all available
information obtained from criminal background checks of the parents
and any suspected perpetrator that is not a parent, including
information regarding child abuse, domestic violence, or substance
abuse.
(4) Review the results of a multidisciplinary child interview team
(hereafter MDIT) interview if available, or if not, or if the
evaluator or investigator believes the MDIT interview is inadequate
for purposes of the evaluation, investigation, or assessment,
interview the child or request an MDIT interview, and shall wherever
possible avoid repeated interviews of the child.
(5) Request a forensic medical examination of the child from the
appropriate agency, or include in the report required by paragraph
(6) a written statement explaining why the examination is not needed.
(6) File a confidential written report with the clerk of the court
in which the custody hearing will be conducted and which shall be
served on the parties or their attorneys at least 10 days prior to
the hearing. This report may not be made available other than as
provided in this subdivision. This report shall include, but is not
limited to, the following:
(A) Documentation of material interviews, including any MDIT
interview of the child or the evaluator or investigator, written
documentation of interviews with both parents by the evaluator or
investigator, and interviews with other witnesses who provided
relevant information.
(B) A summary of any law enforcement investigator's investigation,
including information obtained from the criminal background check of
the parents and any suspected perpetrator that is not a parent,
including information regarding child abuse, domestic violence, or
substance abuse.
(C) Relevant background material, including, but not limited to, a
summary of a written report from any therapist treating the child
for suspected child sexual abuse, excluding any communication subject
to Section 1014 of the Evidence Code, reports from other
professionals, and the results of any forensic medical examination
and any other medical examination or treatment that could help
establish or disprove whether the child has been the victim of sexual
abuse.
(D) The written recommendations of the evaluator or investigator
regarding the therapeutic needs of the child and how to ensure the
safety of the child.
(E) A summary of the following information: whether the child and
his or her parents are or have been the subject of a child abuse
investigation and the disposition of that investigation; the name,
location, and telephone number of the children's services worker; the
status of the investigation and the recommendations made or
anticipated to be made regarding the child's safety; and any
dependency court orders or findings that might have a bearing on the
custody dispute.
(F) Any information regarding the presence of domestic violence or
substance abuse in the family that has been obtained from a child
protective agency in accordance with paragraphs (1) and (2), a law
enforcement agency, medical personnel or records, prior or currently
treating therapists, excluding any communication subject to Section
1014 of the Evidence Code, or from interviews conducted or reviewed
for this evaluation, investigation, or assessment.
(G) Which, if any, family members are known to have been deemed
eligible for assistance from the Victims of Crime Program due to
child abuse or domestic violence.
(H) Any other information the evaluator or investigator believes
would be helpful to the court in determining what is in the best
interests of the child.
(c) If the evaluator or investigator obtains information as part
of a family court mediation, that information shall be maintained in
the family court file, which is not subject to subpoena by either
party. If, however, the members of the family are the subject of an
ongoing child welfare services investigation, or the evaluator or
investigator has made a child welfare services referral, the
evaluator or investigator shall so inform the family law judicial
officer in writing and this information shall become part of the
family law file. This subdivision may not be construed to authorize
or require a mediator to disclose any information not otherwise
authorized or required by law to be disclosed.
(d) In accordance with subdivision (d) of Section 11167 of the
Penal Code, the evaluator or investigator may not disclose any
information regarding the identity of any person making a report of
suspected child abuse. Nothing in this section is intended to limit
any disclosure of information by any agency that is otherwise
required by law or court order.
(e) The evaluation, investigation, or assessment standards set
forth in this section represent minimum requirements of evaluation
and the court shall order further evaluation beyond these minimum
requirements when necessary to determine the safety needs of the
child.
(f) If the court orders an evaluation, investigation, or
assessment pursuant to this section, the court shall consider whether
the best interests of the child require that a temporary order be
issued that limits visitation with the parent against whom the
allegations have been made to situations in which a third person
specified by the court is present or whether visitation will be
suspended or denied in accordance with Section 3011.
(g) An evaluation, investigation, or assessment pursuant to this
section shall be suspended if a petition is filed to declare the
child a dependent child of the juvenile court pursuant to Section 300
of the Welfare and Institutions Code, and all information gathered
by the evaluator or investigator shall be made available to the
juvenile court.
(h) This section may not be construed to authorize a court to
issue any orders in a proceeding pursuant to this division regarding
custody or visitation with respect to a minor child who is the
subject of a dependency hearing in juvenile court or to otherwise
supersede Section 302 of the Welfare and Institutions Code.
SEC. 88. Section 8802 of the Family Code is amended to read:
8802. (a) (1) Any of the following persons who desire to adopt a
child may, for that purpose, file a petition in the county in which
the petitioner resides or, if the petitioner is not a resident of
this state, in the county in which the placing birth parent or birth
parents resided when the adoption placement agreement was signed, or
the county in which the placing birth parent or birth parents resided
when the petition was filed:
(A) An adult who is related to the child or the child's half
sibling by blood or affinity, including all relatives whose status is
preceded by the words "step," "great," "great-great," or "grand," or
the spouse of any of these persons, even if the marriage was
terminated by death or dissolution.
(B) A person named in the will of a deceased parent as an intended
adoptive parent where the child has no other parent.
(C) A person with whom a child has been placed for adoption.
(D) A legal guardian who has been the child's legal guardian for
more than one year. However, if the parent nominated the guardian
for a purpose other than adoption for a specified time period, or if
the guardianship was established pursuant to Section 360 of the
Welfare and Institutions Code, the guardianship shall have been in
existence for not less than three years.
(2) If the child has been placed for adoption, a copy of the
adoptive placement agreement shall be attached to the petition. The
court clerk shall immediately notify the department at Sacramento in
writing of the pendency of the proceeding and of any subsequent
action taken.
(b) The petition shall contain an allegation that the petitioners
will file promptly with the department or delegated county adoption
agency information required by the department in the investigation of
the proposed adoption. The omission of the allegation from a
petition does not affect the jurisdiction of the court to proceed or
the validity of an adoption order or other order based on the
petition.
(c) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth and the name the child had
before adoption.
(d) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding
shall be consolidated with the adoption proceeding.
(e) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
SEC. 89. Section 9210 of the Family Code is amended to read:
9210. (a) Except as otherwise provided in subdivisions (b) and
(c), a court of this state has jurisdiction over a proceeding for the
adoption of a minor commenced under this part if any of the
following applies:
(1) Immediately before commencement of the proceeding, the minor
lived in this state with a parent, a guardian, a prospective adoptive
parent, or another person acting as parent, for at least six
consecutive months, excluding periods of temporary absence, or, in
the case of a minor under six months of age, lived in this state with
any of those individuals from soon after birth and there is
available in this state substantial evidence concerning the minor's
present or future care.
(2) Immediately before commencement of the proceeding, the
prospective adoptive parent lived in this state for at least six
consecutive months, excluding periods of temporary absence, and there
is available in this state substantial evidence concerning the minor'
s present or future care.
(3) The agency that placed the minor for adoption is located in
this state and both of the following apply:
(A) The minor and the minor's parents, or the minor and the
prospective adoptive parent, have a significant connection with this
state.
(B) There is available in this state substantial evidence
concerning the minor's present or future care.
(4) The minor and the prospective adoptive parent are physically
present in this state and the minor has been abandoned or it is
necessary in an emergency to protect the minor because the minor has
been subjected to or threatened with mistreatment or abuse or is
otherwise neglected.
(5) It appears that no other state would have jurisdiction under
requirements substantially in accordance with paragraphs (1) to (4),
inclusive, or another state has declined to exercise jurisdiction on
the ground that this state is the more appropriate forum to hear a
petition for adoption of the minor, and there is available in this
state substantial evidence concerning the minor's present or future
care.
(b) A court of this state may not exercise jurisdiction over a
proceeding for adoption of a minor if at the time the petition for
adoption is filed a proceeding concerning the custody or adoption of
the minor is pending in a court of another state exercising
jurisdiction substantially in conformity with this part, unless the
proceeding is stayed by the court of the other state because this
state is a more appropriate forum or for another reason.
(c) If a court of another state has issued a decree or order
concerning the custody of a minor who may be the subject of a
proceeding for adoption in this state, a court of this state may not
exercise jurisdiction over a proceeding for adoption of the minor,
unless both of the following apply:
(1) The requirements for modifying an order of a court of another
state under this part are met, the court of another state does not
have jurisdiction over a proceeding for adoption substantially in
conformity with paragraphs (1) to (4), inclusive, of subdivision (a),
or the court of another state has declined to assume jurisdiction
over a proceeding for adoption.
(2) The court of this state has jurisdiction under this section
over the proceeding for adoption.
SEC. 90. Section 9212 of the Family Code is amended to read:
9212. (a) Sections 9210 and 9211 apply to interstate adoptions if
the prospective adoptive parents reside outside of the state.
(b) This section shall become operative only if Assembly Bill 746
of the 2001-02 Regular Session is enacted. If Assembly Bill 746 is
not enacted, the application of Sections 9210 and 9211 is not
intended to expand jurisdiction to apply to interstate adoptions if
the prospective adoptive parents reside outside of the state.
SEC. 91. Section 17506 of the Family Code is amended to read:
17506. (a) There is in the Department of Justice the California
Parent Locator Service and Central Registry that shall collect and
disseminate all of the following, with respect to any parent,
putative parent, spouse, or former spouse:
(1) The full and true name of the parent together with any known
aliases.
(2) Date and place of birth.
(3) Physical description.
(4) Social security number.
(5) Employment history and earnings.
(6) Military status and Veterans Administration or military
service serial number.
(7) Last known address, telephone number, and date thereof.
(8) Driver's license number, driving record, and vehicle
registration information.
(9) Criminal, licensing, and applicant records and information.
(10) (A) Any additional location, asset, and income information,
including income tax return information obtained pursuant to Section
19285.1 of the Revenue and Taxation Code, and to the extent permitted
by federal law, the address, telephone number, and social security
number obtained from a public utility, cable television corporation,
a provider of electronic digital pager communication, or a provider
of cellular telephone services that may be of assistance in locating
the parent, putative parent, abducting, concealing, or detaining
parent, spouse, or former spouse, in establishing a parent and child
relationship, in enforcing the child support liability of the absent
parent, or enforcing the spousal support liability of the spouse or
former spouse to the extent required by the state plan pursuant to
Section 17604.
(B) For purposes of this subdivision, "income tax return
information" means all of the following regarding the taxpayer:
(i) Assets.
(ii) Credits.
(iii) Deductions.
(iv) Exemptions.
(v) Identity.
(vi) Liabilities.
(vii) Nature, source, and amount of income.
(viii) Net worth.
(ix) Payments.
(x) Receipts.
(xi) Address.
(xii) Social security number.
(b) Pursuant to a letter of agreement entered into between the
Department of Child Support Services and the Department of Justice,
the Department of Child Support Services shall assume responsibility
for the California Parent Locator Service and Central Registry. The
letter of agreement shall, at a minimum, set forth all of the
following:
(1) Contingent upon funding in the Budget Act, the Department of
Child Support Services shall assume responsibility for leadership and
staff of the California Parent Locator Service and Central Registry
commencing July 1, 2003.
(2) All employees and other personnel who staff or provide support
for the California Parent Locator Service and Central Registry
shall, at the time of the transition, at their option, become the
employees of the Department of Child Support Services at their
existing or equivalent classification, salaries, and benefits.
(3) Until the department's automation system for the California
Parent Locator Service and Central Registry functions is fully
operational, the department shall use the automation system operated
by the Department of Justice.
(4) Any other provisions necessary to ensure continuity of
function and meet or exceed existing levels of service.
(c) To effectuate the purposes of this section, the California
Child Support Automation System, the California Parent Locator
Service and Central Registry, and the Franchise Tax Board shall
utilize the federal Parent Locator Service to the extent necessary,
and may request and shall receive from all departments, boards,
bureaus, or other agencies of the state, or any of its political
subdivisions, and those entities shall provide, that assistance and
data that will enable the Department of Child Support Services and
other public agencies to carry out their powers and duties to locate
parents, spouses, and former spouses, and to identify their assets,
to establish parent-child relationships, and to enforce liability for
child or spousal support, and for any other obligations incurred on
behalf of children, and shall also provide that information to any
local child support agency in fulfilling the duties prescribed in
Section 270 of the Penal Code, and in Chapter 8 (commencing with
Section 3130) of Part 2 of Division 8 of this code, relating to
abducted, concealed, or detained children. The California Child
Support Automation System shall be entitled to the same cooperation
and information as the California Parent Locator Service and Central
Registry to the extent allowed by law. The California Child Support
Automation System shall be allowed access to criminal record
information only to the extent that access is allowed by state and
federal law.
(d) (1) To effectuate the purposes of this section, and
notwithstanding any other provision of California law, regulation, or
tariff, and to the extent permitted by federal law, the California
Parent Locator Service and Central Registry and the California Child
Support Automation System may request and shall receive from public
utilities, as defined in Section 216 of the Public Utilities Code,
customer service information, including the full name, address,
telephone number, date of birth, employer name and address, and
social security number of customers of the public utility, to the
extent that this information is stored within the computer database
of the public utility.
(2) To effectuate the purposes of this section, and
notwithstanding any other provision of California law, regulation, or
tariff, and to the extent permitted by federal law, the California
Parent Locator Service and Central Registry and the California Child
Support Automation System shall request and shall receive from cable
television corporations, as defined in Section 215.5 of the Public
Utilities Code, the providers of electronic digital pager
communication, as defined in Section 629.51 of the Penal Code, and
the providers of cellular telephone services, as defined in Section
17538.9 of the Business and Professions Code, customer service
information, including the full name, address, telephone number, date
of birth, employer name and address, and social security number of
customers of the cable television corporation, customers of the
providers of electronic digital pager communication, and customers of
the providers of cellular telephone services.
(3) In order to protect the privacy of utility, cable television,
electronic digital pager communication, and cellular telephone
customers, a request to a public utility, cable television
corporation, provider of electronic digital pager communication, or
provider of cellular telephone services for customer service
information pursuant to this section shall meet the following
requirements:
(A) Be submitted to the public utility, cable television
corporation, provider of electronic digital pager communication, or
provider of cellular telephone services in writing, on a transmittal
document prepared by the California Parent Locator Service and
Central Registry or the California Child Support Automation System
and approved by all of the public utilities, cable television
corporations, providers of electronic digital pager communication,
and providers of cellular telephone services. The transmittal shall
be deemed to be an administrative subpoena for customer service
information.
(B) Have the signature of a representative authorized by the
California Parent Locator Service and Central Registry or the
California Child Support Automation System.
(C) Contain at least three of the following data elements
regarding the person sought:
(i) First and last name, and middle initial, if known.
(ii) Social security number.
(iii) Driver's license number.
(iv) Birth date.
(v) Last known address.
(vi) Spouse's name.
(D) The California Parent Locator Service and Central Registry and
the California Child Support Automation System shall ensure that
each public utility, cable television corporation, provider of
electronic digital pager communication services, and provider of
cellular telephone services has at all times a current list of the
names of persons authorized to request customer service information.
(E) The California Child Support Automation System and the
California Parent Locator Service and Central Registry shall ensure
that customer service information supplied by a public utility, cable
television corporation, providers of electronic digital pager
communication, or provider of cellular telephone services is
applicable to the person who is being sought before releasing the
information pursuant to subdivision (d).
(4) The public utility, cable television corporation, electronic
digital pager communication provider, or cellular telephone service
provider may charge a fee to the California Parent Locator Service
and Central Registry or the California Child Support Automation
System for each search performed pursuant to this subdivision to
cover the actual costs to the public utility, cable television
corporation, electronic digital pager communication provider, or
cellular telephone service provider for providing this information.
(5) No public utility, cable television corporation, electronic
digital pager communication provider, or cellular telephone service
provider or official or employee thereof, shall be subject to
criminal or civil liability for the release of customer service
information as authorized by this subdivision.
(e) Notwithstanding Section 14202 of the Penal Code, any records
established pursuant to this section shall be disseminated only to
the Department of Child Support Services, the California Child
Support Automation System, the California Parent Locator Service and
Central Registry, the parent locator services and central registries
of other states as defined by federal statutes and regulations, a
local child support agency of any county in this state, and the
federal Parent Locator Service. The California Child Support
Automation System shall be allowed access to criminal offender record
information only to the extent that access is allowed by law.
(f) (1) At no time shall any information received by the
California Parent Locator Service and Central Registry or by the
California Child Support Automation System be disclosed to any
person, agency, or other entity, other than those persons, agencies,
and entities specified pursuant to Section 17505, this section, or
any other provision of law.
(2) This subdivision shall not otherwise affect discovery between
parties in any action to establish, modify, or enforce child, family,
or spousal support, that relates to custody or visitation.
(g) (1) The Department of Justice, in consultation with the
Department of Child Support Services, shall promulgate rules and
regulations to facilitate maximum and efficient use of the California
Parent Locator Service and Central Registry. Upon implementation of
the California Child Support Automation System, the Department of
Child Support Services shall assume all responsibility for
promulgating rules and regulations for use of the California Parent
Locator Service and Central Registry.
(2) The Department of Child Support Services, the Public Utilities
Commission, the cable television corporations, providers of
electronic digital pager communication, and the providers of cellular
telephone services shall develop procedures for obtaining the
information described in subdivision (c) from public utilities, cable
television
corporations, providers of electronic digital pager communication,
and providers of cellular telephone services and for compensating the
public utilities, cable television corporations, providers of
electronic digital pager communication, and providers of cellular
telephone services for providing that information.
(h) The California Parent Locator Service and Central Registry may
charge a fee not to exceed eighteen dollars ($18) for any service it
provides pursuant to this section that is not performed or funded
pursuant to Section 651 and following of Title 42 of the United
States Code.
(i) This section shall be construed in a manner consistent with
the other provisions of this article.
SEC. 92. Section 1226 of the Financial Code is amended to read:
1226. The limitations of Section 1221 shall not apply to the
following and the following shall not be included among the
obligations of a person for the purpose of applying these
limitations:
(a) Loans secured by obligations of the United States or by
obligations unconditionally guaranteed both as to principal and
interest by the United States, having a market value at least 10
percent in excess of the loans secured thereby.
(b) Loans in an amount and of a type or class previously approved
in writing by the commissioner that are secured by not less than a
like amount of obligations of the United States or by obligations
unconditionally guaranteed both as to principal and interest by the
United States.
(c) Loans to the extent that they are covered by guarantees or by
commitments to take over or to purchase without recourse made by (1)
any Federal Reserve bank, (2) the United States, (3) any department,
bureau, board, commission, agency, or establishment of the United
States, including any corporation wholly owned directly or indirectly
by the United States, or (4) any small business development
corporation, urban development corporation, or rural development
corporation incorporated pursuant to the California Job Creation Law
(Part 5 (commencing with Section 14000) of Division 3 of Title 1 of
the Corporations Code).
(d) Drafts or bills of exchange drawn in good faith against actual
existing values with negotiable bills of lading attached, whether or
not accepted by the drawee.
(e) Bankers' acceptances of other banks which are eligible for
rediscount with a Federal Reserve bank.
(f) Obligations resulting from daily clearances through any
clearinghouse association.
(g) Obligations that are fully guaranteed or fully insured or
covered by a commitment to fully guarantee or fully insure by the
Federal Housing Administrator.
(h) Obligations described in Section 1336.
(i) Obligations, including portions thereof, to the extent secured
by a segregated deposit account in the lending bank, provided a
security interest in the deposit has been perfected under applicable
law, and subject to all of the following conditions:
(1) Where the deposit is eligible for withdrawal before the
secured obligation matures, the lending bank shall establish internal
procedures to prevent release of the security without the lending
bank's prior consent.
(2) A deposit that is denominated and payable in a currency other
than that of the obligation that it secures may be eligible for this
exception if the currency is freely convertible to United States
dollars.
(A) This exception applies only to that portion of the obligation
that is covered by the United States dollar value of the deposit.
(B) The lending bank shall establish procedures to periodically
revalue foreign currency deposits to ensure that the loan or
extension of credit remains fully secured at all times.
SEC. 93. The heading of Article 1 (commencing with Section 3100)
of Chapter 17 of Division 1 of the Financial Code is amended to read:
Article 1. Liquidation by the Commissioner
SEC. 94. Section 1019 of the Fish and Game Code is amended to
read:
1019. (a) Subject to an appropriation of funds by the Legislature
for that purpose, for parcels wholly within its jurisdiction
acquired on or after January 1, 2002, the department shall prepare
draft management plans for public review within 18 months of the
recordation date.
(b) (1) On or before February 1 of each year, the department shall
submit a list of lands acquired during the previous two fiscal years
and the status of the management plans for each acquisition to the
fiscal committees of each house of the Legislature.
(2) Each fiscal committee in the Legislature shall consider the
lists described in paragraph (1) in its budget decisions for the
department.
SEC. 95. Section 2081.7 of the Fish and Game Code is amended to
read:
2081.7. (a) Notwithstanding Sections 3511, 4700, 5050, and 5515,
and contingent upon the fulfillment of the conditions listed in
subdivisions (b), (c), and (d), the department may authorize, under
Chapter 1.5 (commencing with Section 2050) or Chapter 10 (commencing
with Section 2800), the take of species resulting from impacts
attributable to the implementation of the Quantification Settlement
Agreement, as defined in subdivision (a) of Section 1 of Chapter 617
of the Statutes of 2002, on all of the following:
(1) The salinity, elevation, shoreline habitat, or water quality
of the Salton Sea.
(2) The quantity and quality of water flowing in the All-American
Canal, the Coachella Canal, the Imperial Valley and Coachella Valley
drains, the New and Alamo Rivers, the Coachella Valley Stormwater
Channel, and the habitat sustained by those flows.
(3) Agricultural lands in the Imperial Valley.
(4) The quantity and quality of water flowing in the Colorado
River, the habitat sustained by those flows, and the collection of
that water for delivery to authorized users.
(b) The Quantification Settlement Agreement is executed by the
appropriate parties on or before December 31, 2002.
(c) After consultation with the Department of Water Resources and
an opportunity for public review and comment, the department
determines, based on the best available science, that the
implementation of the Quantification Settlement Agreement during the
first 15 years that the agreement is in effect (1) will not result in
a material increase in projected salinity levels at the Salton Sea,
and (2) the agreement will not foreclose alternatives for reclamation
of the Salton Sea as summarized in Section 101(b)(1)(A) of the
Salton Sea Reclamation Act of 1998 (P.L. 105-372).
(d) All of the following conditions are met:
(1) The requirements of subdivision (b) and (c) of Section 2081
are satisfied as to the species for which take is authorized.
(2) The take authorization provides for the development and
implementation, in cooperation with federal and state agencies, of an
adaptive management process for monitoring the effectiveness of, and
adjusting as necessary, the measures to minimize and fully mitigate
the impacts of the authorized take. The adjusted measures are
subject to Section 2052.1.
(3) The take authorization provides for the development and
implementation in cooperation with state and federal agencies of an
adaptive management process that substantially contributes to the
long-term conservation of the species for which take is authorized.
Preparation of the adaptive management program and implementation of
the program is the responsibility of the department. The department'
s obligation to prepare and implement the adaptive management program
is conditioned upon the availability of funds pursuant to the Water
Security, Clean Drinking Water, Coastal and Beach Protection Act of
2002, if it is approved by the voters at the statewide general
election to be held November 5, 2002 (Proposition 50), or other funds
that may be appropriated by the Legislature or approved by the
voters for that purpose. The failure to appropriate funds does not
relieve the applicant of the obligations of paragraphs (1) and (2).
However, the applicant shall not be required to fund any program
pursuant to this paragraph.
(4) The requirements of paragraph (1) may be satisfied if the take
is authorized under Chapter 10 (commencing with Section 2800).
(e) (1) The Secretary of the Resources Agency shall use all
available authority to enter into a memorandum of understanding (MOU)
between the Secretary of the Interior, the Salton Sea Authority, and
the Governor, as provided in Section 101(b)(1)(B)(i) of the Salton
Sea Reclamation Act of 1998 (P.L. 105-372) for the purpose of
developing, selecting, and implementing alternatives for projects
that realize the objectives of Section 101(b)(1)(A) of the Salton Sea
Reclamation Act of 1998 (P.L. 105-372). The memorandum of
understanding shall be consistent with the authority granted to the
Secretary of the Interior under the Salton Sea Reclamation Act of
1998 (P.L. 105-372). The memorandum of understanding, at a minimum,
shall establish all of the following:
(A) Criteria for evaluation and selection of alternatives that
will allow for consideration of a range of alternatives including,
but not limited to, an alternative designed to sustain avian
biodiversity at the Salton Sea, but not maintain elevation for the
whole sea, an alternative to maintain salinity at or below current
conditions and elevation near 230 feet below mean sea level under a
variety of inflow conditions, and a most cost-effective technical
alternative.
(B) Criteria for determining the magnitude and practicability of
costs of construction, operation, and maintenance of each alternative
evaluated.
(C) A process, with established deadlines, for release of a report
regarding the potential alternatives, the selection of a preferred
alternative, including a proposed funding plan to implement the
preferred alternative, to be analyzed pursuant to the National
Environmental Policy Act and California Environmental Quality Act,
the release of the draft environmental impact statement/environmental
impact report (EIS/EIR) analyzing the alternatives, the release of
the final EIR/EIS, and the issuance of a final alternatives report to
Congress and the Legislature on or before January 1, 2007.
(2) The Secretary of the Resources Agency shall establish an
advisory committee representing the parties interested in the future
of the Salton Sea. The Resources Agency shall consult with the
advisory committee throughout all stages of the alternative selection
process.
(f) Subsequent to the issuance of the take authorization referred
to in subdivision (a), the applicant shall be relieved of any
condition included in the take authorization to satisfy division (c),
upon fulfillment of either of the following conditions:
(1) If the department finds that increases in salinity at the
Salton Sea will no longer adversely affect piscivorous birds at the
Salton Sea, the department may enter into an agreement with the
Imperial Irrigation District that phases out the district's water or
irrigation runoff to the Salton Sea.
(2) The department makes a finding that a Salton Sea reclamation
plan has been funded and implemented that eliminates the need for the
Imperial Irrigation District to undertake measures that mitigate
impacts to piscivorous birds at the Salton Sea.
(g) This section shall not be construed to exempt from any other
provision of law the Quantification Settlement Agreement and the
Agreement for Transfer of Conserved Water by and between the Imperial
Irrigation District and the San Diego County Water Authority, dated
April 29, 1998.
SEC. 96. Section 2086 of the Fish and Game Code is amended to
read:
2086. (a) The department, in cooperation with the Department of
Food and Agriculture, agricultural commissioners, extension agents,
farmers, ranchers, and other agricultural experts, shall adopt
regulations that authorize locally designed voluntary programs for
routine and ongoing agricultural activities on farms or ranches that
encourage habitat for candidate, threatened, and endangered species,
and wildlife generally. Agricultural commissioners, extension
agents, farmers, ranchers, or other agricultural experts, in
cooperation with conservation groups, may propose such programs to
the department. The department shall propose regulations for those
programs not later than July 1, 1998.
(b) Programs authorized under subdivision (a) shall do all of the
following:
(1) Include management practices that will, to the maximum extent
practicable, avoid and minimize take of candidate, endangered, and
threatened species, while encouraging the enhancement of habitat.
(2) Be supported by the best available scientific information for
both agricultural and conservation practices.
(3) Be consistent with the policies and goals of this chapter.
(4) Be designed to provide sufficient flexibility to maximize
participation and to gain the maximum wildlife benefits without
compromising the economics of agricultural operations.
(5) Include terms and conditions to allow farmers or ranchers to
cease participation in a program without penalty. The terms and
conditions shall include reasonable measures to minimize take during
withdrawal from the program.
(c) Any taking of candidate, threatened, or endangered species
incidental to routine and ongoing agricultural activities that occurs
while the management practices specified by paragraph (1) of
subdivision (b) are followed, is not prohibited by this chapter.
(d) (1) The department shall automatically renew the authorization
for these voluntary programs every five years, unless the
Legislature amends or repeals this section in which case the program
shall be revised to conform to this section.
(2) Commencing in 2000, and every five years thereafter, the
department shall report to the appropriate policy committees of the
Legislature regarding the effect of the programs. The department
shall consult with the Department of Food and Agriculture in
evaluating the programs and preparing the report. The report shall
address factors such as the temporary and permanent acreage
benefiting from the programs, include an estimate of the amount of
land upon which routine and ongoing agricultural activities are
conducted, provide examples of farmer and rancher cooperation, and
include recommendations to improve the voluntary participation by
farmers and ranchers.
(e) If the authorization for these programs is not renewed or is
modified under subdivision (d), persons participating in the program
shall be allowed to cease participating in the program in accordance
with the terms and conditions specified in paragraph (5) of
subdivision (b), without penalty.
SEC. 97. Section 2118 of the Fish and Game Code is amended to
read:
2118. It is unlawful to import, transport, possess, or release
alive into this state, except under a revocable, nontransferable
permit as provided in this chapter and the regulations pertaining
thereto, any wild animal of the following species:
(a) Class Aves: (birds)
Family Cuculidae (cuckoos)
All species.
Family Alaudidae (larks)
Skylark, Alauda arvensis
Family Corvidae (crows, jays, magpies)
All species.
Family Turdidae (thrushes)
European blackbird, Turdus merula
Missel (or mistle), thrush, Turdus viscivorus
Family Sturnidae (starlings and mynas or mynahs)
All species of the family, except hill myna (or hill
mynah),
Gracula religiosa (sometimes referred to as Eulabes
religiosa)
Family Ploceidae (weavers)
The following species:
Spanish sparrow, Passer hispaniolensis
Italian sparrow, Passer italiae
European tree sparrow, Passer montanus
Cape sparrow, Passer capensis
Madagascar weaver, Foudia madagascariensis
Baya weaver, Ploceus baya
Hawaiian rice bird, Munia nisoria
Red-billed quelea, Quelea quelea
Red-headed quelea, Quelea erythrops
Family Fringillidae (sparrows, finches, buntings)
Yellowhammer, Emberiza citrinella
(b) Class Mammalia (mammals)
Order Primates
All species except those in family Hominidae
Order Edentata (sloths, anteaters, armadillos, etc.)
All species.
Order Marsupialia (marsupials or pouched mammals)
All species.
Order Insectivora (shrews, moles, hedgehogs, etc.)
All species.
Order Dermoptera (gliding lemurs)
All species.
Order Chiroptera (bats)
All species.
Order Monotremata (spiny anteaters, platypuses)
All species.
Order Pholidota (pangolins, scaly anteaters)
All species.
Order Lagomorpha (pikas, rabbits, hares)
All species, except domesticated races of rabbits.
Order Rodentia (rodents)
All species, except domesticated golden hamsters, also
known
as Syrian hamster, Mesocricetus auratus;
domesticated
races of rats or mice (white or albino; trained,
dancing
or spinning, laboratory-reared); and domestic
strains of
guinea pig (Cavia porcellus).
Order Carnivora (carnivores)
All species, except domestic dogs (Canis familiaris)
and domestic cats (Felis catus).
Order Tubulidentata (aardvarks)
All species.
Order Proboscidea (elephants)
All species.
Order Hyracoidea (hyraxes)
All species.
Order Sirenia (dugongs, manatees)
All species.
Order Perissodactyla (horses, zebras, tapirs,
rhinoceroses, etc.)
All species except those of the family Equidae.
Order Artiodactyla (swine, peccaries, camels, deer, elk,
except elk (genus Cervus) which are subject to
Section 2118.2, moose, antelopes, cattle, goats,
sheep, etc.)
All species except: domestic swine of the family
Suidae; American bison, and domestic cattle, sheep
and goats
of the family Bovidae; races of big-horned sheep
(Ovis
canadensis) now or formerly indigenous to this
state.
Mammals of the orders Primates, Edentata, Dermoptera,
Monotremata, Pholidota, Tubulidentata, Proboscidea,
Perissodactyla, Hyracoidea, Sirenia and Carnivora
are restricted for the welfare of the animals, except
animals of the families Viverridae and Mustelidae in
the order Carnivora are restricted because such
animals
are undesirable and a menace to native wildlife, the
agricultural interests of the state, or to the public
health or safety.
(c) Class amphibia (frogs, toads, salamanders)
Family Bufonidae (toads)
Giant toad or marine toad, Bufo marinus
(d) Class Monorhina (lampreys)
All species.
(e) Class Osteichthyes (bony fishes)
Family Serranidae (bass)
White perch, Morone or Roccus americana
Family Clupeidae (herring)
Gizzard shad, Dorosoma cepedianum
Family Sciaenidae (croakers)
Freshwater sheepshead, Aplodinotus grunniens
Family Characidae (characins)
Banded tetra, Astyanax fasciatus
All species of piranhas
Family Lepisosteidae (gars)
All species.
Family Amiidae (bowfins)
All species.
(f) Class Reptilia (snakes, lizards, turtles, alligators)
Family Crocodilidae
All species.
(g) Class Crustacea (crustaceans)
Genus Cambarus (crayfishes)
All species.
Genus Astacus (crayfishes)
All species.
Genus Astacopsis (crayfishes)
All species.
(h) Class Gastropoda (slugs, snails, clams)
All species of slugs.
All species of land snails.
(i) Other classes, orders, families, genera, and species
of wild animals which may be designated by the commission
in cooperation with the Department of Food and Agriculture,
(1) when the class, order, family, genus, or species is
proven to be undesirable and a menace to native wildlife or
the agricultural interests of the state, or (2) to provide
for the welfare of wild animals.
(j) Except as expressly authorized in this code, any live
nonindigenous Atlantic salmon or the roe thereof into the
Smith River watershed.
(k) Classes, families, genera, and species in addition to
those listed in this section may be added to or deleted from
the above lists from time to time by commission regulations
in cooperation with the Department of Food and Agriculture.
SEC. 98. Section 3508 of the Fish and Game Code is amended to
read:
3508. It is unlawful to break, train, hold field trials with, or
practice dogs on any wild game bird or domesticated game bird during
the closed season on that bird except as authorized by the
commission.
SEC. 99. Section 6954 of the Fish and Game Code is amended to
read:
6954. (a) The department, in cooperation with the council, and
using existing funds and current personnel of the department, shall
support and coordinate the development of a comprehensive plan for
dealing with aquatic invasive species in California. The plan shall
address the following aspects of prevention and containment of
aquatic invasive species:
(1) Prevention, including education of, and outreach to, the
general public and policymakers.
(2) Monitoring and detection.
(3) Control and eradication.
(4) Inspection.
(5) Enforcement.
(b) The plan prepared pursuant to subdivision (a) shall follow, to
the extent possible, the guidelines of the Aquatic Nuisance Species
Task Force set forth in Section 4722 of Title 16 of the United
States Code.
(c) The council shall submit its first working version of the plan
to the Legislature on or before January 1, 2004.
SEC. 100. Section 9221 of the Food and Agricultural Code is
amended to read:
9221. An application for a license for any establishment that
produces, or proposes to produce, biologics shall be made on forms to
be issued by the secretary. The application shall contain all of
the following:
(a) The name and address of the person who owns the place,
establishment, or institution in which it is proposed to produce
biologics.
(b) The name and address of the person who shall be in charge of
biologics production.
(c) The type of biologics that shall be produced.
(d) A full description of the building, including its location,
facilities, equipment, and apparatus to be used in biologics
production.
(e) A written protocol for a commercial blood bank for animals
that addresses all of the following:
(1) Maximum length of time for donation by animal donors, or
minimum health parameters for animal donors.
(2) Frequency and volume of blood collected from animal blood
donors.
(3) Socialization and exercise programs for animal blood donors.
(4) Method of identification of each animal, including microchip
or tattoo.
(5) Ongoing veterinary care, including an annual physical exam and
vaccination schedule for animals held in blood donor facilities.
(6) Husbandry standards for feeding, watering, sanitation,
housing, handling, and care in transit, with minimums based on the
standards set forth pursuant to the federal Animal Welfare Act in
Part 3 (commencing with Section 3.1) of Subchapter A of Chapter 1 of
Title 9 of the Code of Federal Regulations.
(7) Implementation of a permissive adoption program.
(f) An "oversight letter" identifying the oversight veterinarian
who will be responsible for oversight of the facility. The letter
shall be from the oversight veterinarian, and shall be maintained on
file by the secretary. Oversight veterinarians shall be licensed to
practice veterinary medicine in California. In the event of a change
of the oversight veterinarian, it is the oversight veterinarian's
responsibility to give notice to the secretary of the termination of
the oversight veterinarian within 30 days of the termination date of
the oversight veterinarian. An oversight letter from the incoming
oversight veterinarian shall be submitted to the secretary within 30
days of the termination date of the prior oversight veterinarian.
(g) Additional information that the secretary finds is necessary
for the proper administration and enforcement of this chapter.
SEC. 101. Section 12999.5 of the Food and Agricultural Code is
amended to read:
12999.5. (a) In lieu of civil prosecution by the director, the
commissioner may levy a civil penalty against a person violating
Division 6 (commencing with Section 11401), Article 10 (commencing
with Section 12971) or Article 10.5 (commencing with Section 12980)
of this chapter, Section 12995, Article 1 (commencing with Section
14001) of Chapter 3, Chapter 7.5 (commencing with Section 15300), or
a regulation adopted pursuant to any of these provisions, of not more
than one thousand dollars ($1,000) for each violation. Any
violation determined by the commissioner to be a serious violation as
defined in Section 6130 of Title 3 of the California Code of
Regulations is subject to a fine of not more than five thousand
dollars ($5,000) for each violation. It is unlawful and grounds for
denial of a permit under Section 14008 for any person to refuse or
neglect to pay a civil penalty levied pursuant to this section once
the order is final.
(b) If a person has received a civil penalty for pesticide drift
in a school area subject to Section 11503.5 that results in a serious
violation as defined in subdivision (a), the commissioner shall
charge a fee, not to exceed fifty dollars ($50), for processing and
monitoring each subsequent pesticide application that may pose a risk
of pesticide drift made in a school area subject to Section 11503.5.
The Agricultural Commissioner
shall continue to impose the fee for each subsequent application
that may pose a risk of drift, until the person has completed 24
months without another serious violation as defined in subdivision
(a).
(c) Before a civil penalty is levied, the person charged with the
violation shall be given a written notice of the proposed action
including the nature of the violation and the amount of the proposed
penalty, and shall have the right to request a hearing within 20 days
after receiving notice of the proposed action. A notice of the
proposed action that is sent by certified mail to the last known
address of the person charged shall be considered received even if
delivery is refused or the notice is not accepted at that address.
If a hearing is requested, notice of the time and place of the
hearing shall be given at least 10 days before the date set for the
hearing. At the hearing, the person shall be given an opportunity to
review the commissioner's evidence and to present evidence on his or
her own behalf. If a hearing is not timely requested, the
commissioner may take the action proposed without a hearing.
(d) If the person upon whom the commissioner levied a civil
penalty requested and appeared at a hearing, the person may appeal
the commissioner's decision to the director within 30 days of the
date of receiving a copy of the commissioner's decision. The
following procedures apply to the appeal:
(1) The appeal shall be in writing and signed by the appellant or
his or her authorized agent, state the grounds for the appeal, and
include a copy of the commissioner's decision. The appellant shall
file a copy of the appeal with the commissioner at the same time it
is filed with the director.
(2) The appellant and the commissioner may, at the time of filing
the appeal or within 10 days thereafter or at a later time prescribed
by the director, present the record of the hearing including written
evidence that was submitted at the hearing and a written argument to
the director stating grounds for affirming, modifying, or reversing
the commissioner's decision.
(3) The director may grant oral arguments upon application made at
the time written arguments are filed.
(4) If an application to present an oral argument is granted,
written notice of the time and place for the oral argument shall be
given at least 10 days before the date set therefor. The times may
be altered by mutual agreement of the appellant, the commissioner,
and the director.
(5) The director shall decide the appeal on the record of the
hearing, including the written evidence and the written argument
described in paragraph (2), that he or she has received. If the
director finds substantial evidence in the record to support the
commissioner's decision, the director shall affirm the decision.
(6) The director shall render a written decision within 45 days of
the date of appeal or within 15 days of the date of oral arguments
or as soon thereafter as practical.
(7) On an appeal pursuant to this section, the director may affirm
the commissioner's decision, modify the commissioner's decision by
reducing or increasing the amount of the penalty levied so that it is
within the director's guidelines for imposing civil penalties, or
reverse the commissioner's decision. Any civil penalty increased by
the director shall not be higher than that proposed in the
commissioner's notice of proposed action given pursuant to
subdivision (c). A copy of the director's decision shall be
delivered or mailed to the appellant and the commissioner.
(8) Any person who does not request a hearing pursuant to
subdivision (c) may not file an appeal pursuant to this subdivision.
(9) Review of a decision of the director may be sought by the
appellant within 30 days of the date of the decision pursuant to
Section 1094.5 of the Code of Civil Procedure.
(e) The commissioner may levy a civil penalty pursuant to
subdivisions (a), (c), and (d) against a person violating paragraph
(1), (2), or (8) of subdivision (a) of Section 1695 of the Labor
Code, which pertains to registration with the commissioner, carrying
proof of that registration, and filing changes of address with the
commissioner.
(f) After the exhaustion of the appeal and review procedures
provided in this section, the commissioner or his or her
representative may file a certified copy of a final decision of the
commissioner that directs the payment of a civil penalty and, if
applicable, a copy of any decision of the director or his or her
authorized representative rendered on an appeal from the commissioner'
s decision and a copy of any order that denies a petition for a writ
of administrative mandamus, with the clerk of the superior court of
any county. Judgment shall be entered immediately by the clerk in
conformity with the decision or order. No fees shall be charged by
the clerk of the superior court for the performance of any official
service required in connection with the entry of judgment pursuant to
this section.
SEC. 102. Section 79008 of the Food and Agricultural Code is
amended to read:
79008. Opportunity exists for increasing the stability and
reliability of the sea urchin fishery. The success of those efforts
is uniquely dependent upon effective fishery and resource management,
fishery biological research, industry engagement in management
decisions, and fishery promotion. A stable and reliable sea urchin
fishery provides an important source of jobs for many people in this
state and economic activity in many small coastal communities, and
serves to ensure the preservation of historically and culturally
significant coastal dependent industry.
SEC. 103. Section 3309.5 of the Government Code is amended to
read:
3309.5. (a) It shall be unlawful for any public safety department
to deny or refuse to any public safety officer the rights and
protections guaranteed to him or her by this chapter.
(b) The superior court shall have initial jurisdiction over any
proceeding brought by any public safety officer against any public
safety department for alleged violations of this chapter.
(c) (1) In any case where the superior court finds that a public
safety department has violated any of the provisions of this chapter,
the court shall render appropriate injunctive or other extraordinary
relief to remedy the violation and to prevent future violations of a
like or similar nature, including, but not limited to, the granting
of a temporary restraining order, preliminary, or permanent
injunction prohibiting the public safety department from taking any
punitive action against the public safety officer.
(2) If the court finds that a bad faith or frivolous action or a
filing for an improper purpose has been brought pursuant to this
chapter, the court may order sanctions against the party filing the
action, the party's attorney, or both pursuant to Sections 128.6 and
128.7 of the Code of Civil Procedure. Those sanctions may include,
but not be limited to, reasonable expenses, including attorney's
fees, incurred by a public safety department, as the court deems
appropriate. Nothing in this paragraph is intended to subject
actions or filings under this section to rules or standards that are
different from those applicable to other civil actions or filings
subject to Section 128.6 or 128.7 of the Code of Civil Procedure.
(d) In addition to the extraordinary relief afforded by this
chapter, upon a finding by a superior court that a public safety
department, its employees, agents, or assigns, with respect to acts
taken within the scope of employment, maliciously violated any
provision of this chapter with the intent to injure the public safety
officer, the public safety department shall, for each and every
violation, be liable for a civil penalty not to exceed twenty-five
thousand dollars ($25,000) to be awarded to the public safety officer
whose right or protection was denied and for reasonable attorney's
fees as may be determined by the court. If the court so finds, and
there is sufficient evidence to establish actual damages suffered by
the officer whose right or protection was denied, the public safety
department shall also be liable for the amount of the actual damages.
Notwithstanding these provisions, a public safety department may
not be required to indemnify a contractor for the contractor's
liability pursuant to this subdivision if there is, within the
contract between the public safety department and the contractor, a
"hold harmless" or similar provision that protects the public safety
department from liability for the actions of the contractor. An
individual shall not be liable for any act for which a public safety
department is liable under this section.
SEC. 104. Section 3517.61 of the Government Code is amended to
read:
3517.61. Notwithstanding Section 3517.6, for state employees in
State Bargaining Unit 6, in any case where the provisions of Section
70031 of the Education Code, subdivision (i) of Section 3513, or
Section 14876, 18714, 19080.5, 19100, 19143, 19261, 19818.16,
19819.1, 19820, 19822, 19824, 19826, 19827, 19828, 19829, 19830,
19831, 19832, 19833, 19834, 19835, 19836, 19837, 19838, 19839, 19840,
19841, 19842, 19843, 19844, 19845, 19846, 19847, 19848, 19849,
19849.1, 19849.4, 19850.1, 19850.2, 19850.3, 19850.4, 19850.5,
19850.6, 19851, 19853, 19854, 19856, 19856.1, 19858.1, 19858.2,
19859, 19860, 19861, 19862, 19862.1, 19863, 19863.1, 19864, 19866,
19869, 19870, 19871, 19871.1, 19872, 19873, 19874, 19875, 19876,
19877, 19877.1, 19878, 19879, 19880, 19880.1, 19881, 19882, 19883,
19884, 19885, 19887, 19887.1, 19887.2, 19888, 19990, 19991, 19991.1,
19991.2, 19991.3, 19991.4, 19991.5, 19991.6, 19991.7, 19992, 19992.1,
19992.2, 19992.3, 19992.4, 19993, 19994.1, 19994.2, 19994.3, 19994.4
19995, 19995.1, 19995.2, 19995.3, 19996.1, 19996.2, 19998, 19998.1,
20796, 21600, 21602, 21604, 21605, 22825, or 22825.1 are in conflict
with the provisions of a memorandum of understanding, the memorandum
of understanding shall be controlling without further legislative
action. In any case where the provisions of Section 19997.2,
19997.3, 19997.8, 19997.9, 19997.10, 19997.11, 19997.12, 19997.13, or
19997.14 are in conflict with the provisions of a memorandum of
understanding, the terms of the memorandum of understanding shall be
controlling unless the State Personnel Board finds those terms to be
inconsistent with merit employment principles as provided for by
Article VII of the California Constitution. Where this finding is
made, the provisions of the Government Code shall prevail until those
affected sections of the memorandum of understanding are
renegotiated to resolve the inconsistency. If any provision of the
memorandum of understanding requires the expenditure of funds, those
provisions of the memorandum of understanding shall not become
effective unless approved by the Legislature in the annual Budget
Act. If any provision of the memorandum of understanding requires
legislative action to permit its implementation by amendment of any
section not cited above, those provisions of the memorandum of
understanding shall not become effective unless approved by the
Legislature.
SEC. 105. Section 3562 of the Government Code is amended to read:
3562. As used in this chapter:
(a) "Arbitration" means a method of resolving a rights dispute
under which the parties to a controversy must accept the award of a
third party.
(b) "Board" means the Public Employment Relations Board
established pursuant to Section 3513.
(c) "Certified organization" means an employee organization that
has been certified by the board as the exclusive representative of
the employees in an appropriate unit after a proceeding under Article
5 (commencing with Section 3573).
(d) "Confidential employee" means any employee who is required to
develop or present management positions with respect to meeting and
conferring or whose duties normally require access to confidential
information which contributes significantly to the development of
those management positions.
(e) "Employee" or "higher education employee" means any employee
of the Regents of the University of California, the Directors of the
Hastings College of the Law, or the Trustees of the California State
University. However, managerial and confidential employees and
employees whose principal place of employment is outside the State of
California at a worksite with 100 or fewer employees shall be
excluded from coverage under this chapter. The board may find
student employees whose employment is contingent on their status as
students are employees only if the services they provide are
unrelated to their educational objectives, or that those educational
objectives are subordinate to the services they perform and that
coverage under this chapter would further the purposes of this
chapter.
(f) (1) "Employee organization" means any organization of any kind
in which higher education employees participate and that exists for
the purpose, in whole or in part, of dealing with higher education
employers concerning grievances, labor disputes, wages, hours, and
other terms and conditions of employment of employees. An
organization that represents one or more employees whose principal
worksite is located outside the State of California is an employee
organization only if it has filed with the board and with the
employer a statement agreeing, in consideration of obtaining the
benefits of status as an employee organization pursuant to this
chapter, to submit to the jurisdiction of the board. The board shall
promulgate the form of the statement.
(2) "Employee organization" shall also include any person that an
employee organization authorizes to act on its behalf. An academic
senate, or other similar academic bodies, or divisions thereof, shall
not be considered employee organizations for the purposes of this
chapter.
(g) "Employer" or "higher education employer" means the regents in
the case of the University of California, the directors in the case
of the Hastings College of the Law, and the trustees in the case of
the California State University, including any person acting as an
agent of an employer.
(h) "Employer representative" means any person or persons
authorized to act on behalf of the employer.
(i) "Exclusive representative" means any recognized or certified
employee organization or person it authorizes to act on its behalf.
(j) "Impasse" means that the parties have reached a point in
meeting and conferring at which their differences in positions are
such that further meetings would be futile.
(k) "Managerial employee" means any employee having significant
responsibilities for formulating or administering policies and
programs. No employee or group of employees shall be deemed to be
managerial employees solely because the employee or group of
employees participates in decisions with respect to courses,
curriculum, personnel, and other matters of educational policy. A
department chair or head of a similar academic unit or program who
performs the foregoing duties primarily on behalf of the members of
the academic unit or program shall not be deemed a managerial
employee solely because of those duties.
(l) "Mediation" means the efforts of a third person, or persons,
functioning as intermediaries, to assist the parties in reaching a
voluntary resolution to an impasse.
(m) "Meet and confer" means the performance of the mutual
obligation of the higher education employer and the exclusive
representative of its employees to meet at reasonable times and to
confer in good faith with respect to matters within the scope of
representation and to endeavor to reach agreement on matters within
the scope of representation. The process shall include adequate time
for the resolution of impasses. If agreement is reached between
representatives of the higher education employer and the exclusive
representative, they shall jointly prepare a written memorandum of
the understanding, which shall be presented to the higher education
employer for concurrence. However, these obligations shall not
compel either party to agree to any proposal or require the making of
a concession.
(n) "Person" means one or more individuals, organizations,
associations, corporations, boards, committees, commissions,
agencies, or their representatives.
(o) "Professional employee" means:
(1) Any employee engaged in work: (A) predominantly intellectual
and varied in character as opposed to routine mental, manual,
mechanical, or physical work; (B) involving the consistent exercise
of discretion and judgment in its performance; (C) of a character so
that the output produced or the result accomplished cannot be
standardized in relation to a given period of time; and (D) requiring
knowledge of an advanced type in a field of science or learning
customarily acquired by a prolonged course of specialized
intellectual instruction and study in an institution of higher
learning or a hospital, as distinguished from a general academic
education or from an apprenticeship or from training in the
performance of routine mental, manual, or physical processes.
(2) Any employee who: (A) has completed the courses of specialized
intellectual instruction and study described in subparagraph (D) of
paragraph (1), and (B) is performing related work under the
supervision of a professional person to qualify himself or herself to
become a professional employee as defined in paragraph (1).
(p) "Recognized organization" means an employee organization that
has been recognized by an employer as the exclusive representative of
the employees in an appropriate unit pursuant to Article 5
(commencing with Section 3573).
(q) (1) For purposes of the University of California only, "scope
of representation" means, and is limited to, wages, hours of
employment, and other terms and conditions of employment. The scope
of representation shall not include any of the following:
(A) Consideration of the merits, necessity, or organization of any
service, activity, or program established by law or resolution of
the regents or the directors, except for the terms and conditions of
employment of employees who may be affected thereby.
(B) The amount of any fees that are not a term or condition of
employment.
(C) Admission requirements for students, conditions for the award
of certificates and degrees to students, and the content and
supervision of courses, curricula, and research programs, as those
terms are intended by the standing orders of the regents or the
directors.
(D) Procedures and policies to be used for the appointment,
promotion, and tenure of members of the academic senate, the
procedures to be used for the evaluation of the members of the
academic senate, and the procedures for processing grievances of
members of the academic senate. The exclusive representative of
members of the academic senate shall have the right to consult and be
consulted on matters excluded from the scope of representation
pursuant to this subparagraph. If the academic senate determines
that any matter in this subparagraph should be within the scope of
representation, or if any matter in this subparagraph is withdrawn
from the responsibility of the academic senate, the matter shall be
within the scope of representation.
(2) All matters not within the scope of representation are
reserved to the employer and may not be subject to meeting and
conferring, provided that nothing herein may be construed to limit
the right of the employer to consult with any employees or employee
organization on any matter outside the scope of representation.
(r) (1) For purposes of the California State University only,
"scope of representation" means, and is limited to, wages, hours of
employment, and other terms and conditions of employment. The scope
of representation shall not include:
(A) Consideration of the merits, necessity, or organization of any
service, activity, or program established by statute or regulations
adopted by the trustees, except for the terms and conditions of
employment of employees who may be affected thereby.
(B) The amount of any student fees that are not a term or
condition of employment.
(C) Admission requirements for students, conditions for the award
of certificates and degrees to students, and the content and conduct
of courses, curricula, and research programs.
(D) Criteria and standards to be used for the appointment,
promotion, evaluation, and tenure of academic employees, which shall
be the joint responsibility of the academic senate and the trustees.
The exclusive representative shall have the right to consult and be
consulted on matters excluded from the scope of representation
pursuant to this subparagraph. If the trustees withdraw any matter
in this subparagraph from the responsibility of the academic senate,
the matter shall be within the scope of representation.
(E) The amount of rental rates for housing charged to California
State University employees.
(2) All matters not within the scope of representation are
reserved to the employer, and may not be subject to meeting and
conferring, provided that nothing herein may be construed to limit
the right of the employer to consult with any employees or employee
organization on any matter outside the scope of representation.
SEC. 106. Section 3593 of the Government Code is amended to read:
3593. (a) If the dispute is not settled within 30 days after the
appointment of the panel, or, upon agreement by both parties, within
a longer period, the panel shall make findings of fact and recommend
terms of settlement, which recommendations shall be advisory only.
Any findings of fact and recommended terms of settlement shall be
submitted in writing to the parties privately before they are made
public. The panel, subject to the rules and regulations of the
board, may make those findings and recommendations public 10 days
thereafter. During this 10-day period, the parties are prohibited
from making the panel's findings and recommendations public.
(b) The costs for the services of the panel chairperson, including
per diem fees, if any, and actual and necessary travel and
subsistence expenses, shall be borne by the board. Any other
mutually incurred costs shall be borne equally by the employer and
the exclusive representative. Each party shall bear the costs it
incurs for the panel member it selects.
(c) (1) This subdivision applies only to disputes relating to the
faculty and librarians of the University of California and the
Hastings College of the Law. For the purposes of this subdivision,
"faculty" means teachers employed to teach courses and authorize the
granting of credit for the successful completion of courses, and
excludes employees whose employment is contingent on their status as
students.
(2) Irrespective of whether the panel makes its findings and
recommendations public pursuant to subdivision (a), the Regents of
the University of California and the Directors of the Hastings
College of the Law, as appropriate, shall make the findings and
recommendations of the panel public after the 10-day period
prescribed by subdivision (a) has ended. These findings and
recommendations shall be posted in a prominent public place, and
copies of the findings and recommendations shall be made available to
any person attending the next regularly scheduled public meeting of
the regents or the directors, as appropriate. The publicly
distributed agenda of the next regularly scheduled meeting of the
regents or the directors, as appropriate, shall reference the
availability of these findings and recommendations.
(3) It is the intent of the Legislature that the regents or the
directors, as appropriate, shall act upon the findings and
recommendations of the panel at an open and public meeting within 90
days of their submission to the parties by the panel.
SEC. 107. Section 6527 of the Government Code is amended to read:
6527. (a) Notwithstanding any other provision of law, where two
or more health care districts have joined together to pool their
self-insurance claims or losses, a nonprofit corporation that
provides health care services that may be carried out by a health
care district may participate in the pool, provided that its
participation in an existing joint powers agreement, as authorized by
this section, shall be permitted only after the public agency
members, or public agency representatives on the governing body of
the joint powers entity make a finding, at a public meeting, that the
agreement provides both of the following:
(1) The primary activities conducted under the joint powers
agreement will be substantially related to and in furtherance of the
governmental purposes of the public agency.
(2) The public agency participants will maintain control over the
activities conducted under the joint powers agreement through public
agency control over governance, management, or ownership of the joint
powers authority.
(b) Any public agency or private entity entering into a joint
powers agreement under this section shall establish or maintain a
reserve fund to be used to pay losses incurred under the agreement.
The reserve fund shall contain sufficient moneys to maintain the fund
on an actuarially sound basis.
(c) In any risk pooling arrangement created under this section,
the aggregate payments made under each program shall not exceed the
amount available in the pool established for that program.
(d) A public meeting shall be held prior to the dissolution or
termination of any enterprise operating under this section to
consider the disposition, division, or distribution of any property
acquired as a result of exercise of the joint exercise of powers.
(e) Nothing in this section shall be construed to do any of the
following:
(1) Relieve a public benefit corporation that is a health facility
from charitable trust obligations.
(2) Exempt such a public benefit corporation from existing law
governing joint ventures, or the sale, transfer, lease, exchange,
option, conveyance, or other disposition of assets.
(3) Grant any power to any private, nonprofit hospital that
participates in an agreement authorized under this section to levy
any tax or assessment.
(4) Permit any entity, other than a private, nonprofit hospital
corporation or a public agency, to participate as a party to an
agreement authorized under this section.
(5) Permit an agency or entity created pursuant to a joint powers
agreement entered into pursuant to this section to act in a manner
inconsistent with the laws that apply to public agencies, including,
but not limited to, the
California Public Records Act (Chapter 3.5 (commencing with Section
6250)), the Ralph M. Brown Act (Chapter 9 (commencing with Section
54950) of Part 1 of Division 2 of Title 5), and the Political Reform
Act of 1974 (Title 9 (commencing with Section 81000)).
(f) Notwithstanding any other provision of law, the Self-Insurers'
Security Fund established pursuant to Article 2.5 (commencing with
Section 3740) of Chapter 4 of Part 1 of Division 4 of the Labor Code
shall owe no duties or obligations to any entity that participates as
a party to an agreement authorized pursuant to this section, or to
its employees, and shall not be required, under any circumstances, to
assume the worker's compensation liabilities of this entity if it
becomes insolvent or otherwise unable to pay those liabilities.
(g) For purposes of this section, "self-insurance claims or losses"
includes, but is not limited to, claims or losses incurred pursuant
to Chapter 4 (commencing with Section 3700) of Part 1 of Division 4
of the Labor Code.
SEC. 108. Section 7579.5 of the Government Code is amended to
read:
7579.5. (a) A local educational agency shall appoint a surrogate
parent for a child in accordance with clause (iii) of paragraph (2)
of subsection (c) of Section 300.515 of Title 34 of the Code of
Federal Regulations under one or more of the following circumstances:
(1) (A) The child is adjudicated a dependent or ward of the court
pursuant to Section 300, 601, or 602 of the Welfare and Institutions
Code upon referral of the child to the local educational agency for
special education and related services, or if the child already has a
valid individualized education program, (B) the court has
specifically limited the right of the parent or guardian to make
educational decisions for the child, and (C) the child has no
responsible adult to represent him or her pursuant to Section 361 or
726 of the Welfare and Institutions Code or Section 56055 of the
Education Code.
(2) No parent for the child can be identified.
(3) The local educational agency, after reasonable efforts, cannot
discover the location of a parent.
(b) When appointing a surrogate parent, the local educational
agency shall, as a first preference, select a relative caretaker,
foster parent, or court-appointed special advocate, if any of these
individuals exists and is willing and able to serve. If none of
these individuals is willing or able to act as a surrogate parent,
the local educational agency shall select the surrogate parent of its
choice. If the child is moved from the home of the relative
caretaker or foster parent who has been appointed as a surrogate
parent, the local educational agency shall appoint another surrogate
parent if a new appointment is necessary to ensure adequate
representation of the child.
(c) For the purposes of this section, the surrogate parent shall
serve as the child's parent and shall have the rights relative to the
child's education that a parent has under Title 20 (commencing with
Section 1400) of the United States Code and pursuant to Part 300 of
Title 34 (commencing with Section 300.1) of the Code of Federal
Regulations. The surrogate parent may represent the child in matters
relating to special education and related services, including the
identification, assessment, instructional planning and development,
educational placement, reviewing and revising the individualized
education program, and in all other matters relating to the provision
of a free appropriate public education of the child.
Notwithstanding any other provision of law, this representation shall
include the provision of written consent to the individualized
education program including nonemergency medical services, mental
health treatment services, and occupational or physical therapy
services pursuant to this chapter.
(d) The surrogate parent is required to meet with the child at
least one time. He or she may also meet with the child on additional
occasions, attend the child's individualized education program
meetings, review the child's educational records, consult with
persons involved in the child's education, and sign any consent
relating to individualized education program purposes.
(e) As far as practical, a surrogate parent should be culturally
sensitive to his or her assigned child.
(f) The surrogate parent shall comply with federal and state law
pertaining to the confidentiality of student records and information
and shall use discretion in the necessary sharing of the information
with appropriate persons for the purpose of furthering the interests
of the child.
(g) The surrogate parent may resign from his or her appointment
only after he or she gives notice to the local educational agency.
(h) The local educational agency shall terminate the appointment
of a surrogate parent if (1) the person is not properly performing
the duties of a surrogate parent or (2) the person has an interest
that conflicts with interests of the child entrusted to his or her
care.
(i) Individuals who would have a conflict of interest in
representing the child, as specified under federal regulations, may
not be appointed as a surrogate parent. "An individual who would
have a conflict of interest," for purposes of this section, means a
person having any interests that might restrict or bias his or her
ability to advocate for all of the services required to ensure that
the child has a free appropriate public education.
(j) Except for individuals who have a conflict of interest in
representing the child, and notwithstanding any other law or
regulation, individuals who may serve as surrogate parents include,
but are not limited to, foster care providers, retired teachers,
social workers, and probation officers who are not employees of the
State Department of Education, the local educational agency, or any
other agency that is involved in the education or care of the child.
(1) A public agency authorized to appoint a surrogate parent under
this section may select a person who is an employee of a nonpublic
agency that only provides noneducational care for the child and who
meets the other standards of this section.
(2) A person who otherwise qualifies to be a surrogate parent
under this section is not an employee of the local educational agency
solely because he or she is paid by the local educational agency to
serve as a surrogate parent.
(k) The surrogate parent may represent the child until (1) the
child is no longer in need of special education, (2) the minor
reaches 18 years of age, unless the child chooses not to make
educational decisions for himself or herself, or is deemed by a court
to be incompetent, (3) another responsible adult is appointed to
make educational decisions for the minor, or (4) the right of the
parent or guardian to make educational decisions for the minor is
fully restored.
(l) The surrogate parent and the local educational agency
appointing the surrogate parent shall be held harmless by the State
of California when acting in their official capacity except for acts
or omissions that are found to have been wanton, reckless, or
malicious.
(m) The State Department of Education shall develop a model
surrogate parent training module and manual that shall be made
available to local educational agencies.
(n) Nothing in this section may be interpreted to prevent a parent
or guardian of an individual with exceptional needs from designating
another adult individual to represent the interests of the child for
educational and related services.
(o) If funding for implementation of this section is provided, it
may only be provided from Item 6110-161-0890 of Section 2.00 of the
annual Budget Act.
SEC. 109. Section 8314 of the Government Code is amended to read:
8314. (a) It is unlawful for any elected state or local officer,
including any state or local appointee, employee, or consultant, to
use or permit others to use public resources for a campaign activity,
or personal or other purposes which are not authorized by law.
(b) For purposes of this section:
(1) "Personal purpose" means those activities the purpose of which
is for personal enjoyment, private gain or advantage, or an outside
endeavor not related to state business. "Personal purpose" does not
include the incidental and minimal use of public resources, such as
equipment or office space, for personal purposes, including an
occasional telephone call.
(2) "Campaign activity" means an activity constituting a
contribution as defined in Section 82015 or an expenditure as defined
in Section 82025. "Campaign activity" does not include the
incidental and minimal use of public resources, such as equipment or
office space, for campaign purposes, including the referral of
unsolicited political mail, telephone calls, and visitors to private
political entities.
(3) "Public resources" means any property or asset owned by the
state or any local agency, including, but not limited to, land,
buildings, facilities, funds, equipment, supplies, telephones,
computers, vehicles, travel, and state-compensated time.
(4) "Use" means a use of public resources which is substantial
enough to result in a gain or advantage to the user or a loss to the
state or any local agency for which a monetary value may be
estimated.
(c) (1) Any person who intentionally or negligently violates this
section is liable for a civil penalty not to exceed one thousand
dollars ($1,000) for each day on which a violation occurs, plus three
times the value of the unlawful use of public resources. The
penalty shall be assessed and recovered in a civil action brought in
the name of the people of the State of California by the Attorney
General or by any district attorney or any city attorney of a city
having a population in excess of 750,000. If two or more persons are
responsible for any violation, they shall be jointly and severally
liable for the penalty.
(2) If the action is brought by the Attorney General, the moneys
recovered shall be paid into the General Fund. If the action is
brought by a district attorney, the moneys recovered shall be paid to
the treasurer of the county in which the judgment was entered. If
the action is brought by a city attorney, the moneys recovered shall
be paid to the treasurer of that city.
(3) No civil action alleging a violation of this section may be
commenced more than four years after the date the alleged violation
occurred.
(d) Nothing in this section shall prohibit the use of public
resources for providing information to the public about the possible
effects of any bond issue or other ballot measure on state
activities, operations, or policies, provided that (1) the
informational activities are otherwise authorized by the constitution
or laws of this state, and (2) the information provided constitutes
a fair and impartial presentation of relevant facts to aid the
electorate in reaching an informed judgment regarding the bond issue
or ballot measure.
(e) The incidental and minimal use of public resources by an
elected state or local officer, including any state or local
appointee, employee, or consultant, pursuant to this section shall
not be subject to prosecution under Section 424 of the Penal Code.
SEC. 110. Section 8592.4 of the Government Code is amended to
read:
8592.4. The committee shall determine which agencies need new or
upgraded communication equipment in order to enter into an agreement
for interoperability or other shared use of public safety spectrum
and shall establish a program for equipment purchase. In
establishing this program, the board shall recommend the purchase of
equipment that will enable the migration to accepted industry
standards for interoperability consistent with the public safety
digital communications standards of the American National Standards
Institute and the Telecommunications Information Association.
SEC. 111. Section 8670.40 of the Government Code is amended to
read:
8670.40. (a) The State Board of Equalization shall collect a fee
in an amount determined by the administrator to be sufficient to
carry out the purposes set forth in subdivision (e), and a reasonable
reserve for contingencies. The annual assessment may not exceed
five cents ($0.05) per barrel of crude oil or petroleum products.
(b) (1) The oil spill prevention and administration fee shall be
imposed upon every person owning crude oil at the time that the crude
oil is received at a marine terminal from within or outside the
state, and upon every person owning petroleum products at the time
that those petroleum products are received at a marine terminal from
outside this state. The fee shall be collected by the marine
terminal operator from the owner of the crude oil or petroleum
products based on each barrel of crude oil or petroleum products so
received by means of a vessel operating in, through, or across the
marine waters of the state. In addition, every operator of a
pipeline shall pay the oil spill prevention and administration fee
for each barrel of crude oil originating from a production facility
in marine waters and transported in the state by means of a pipeline
operating across, under, or through the marine waters of the state.
The fees shall be remitted to the board by the terminal or pipeline
operator on the 25th day of the month based upon the number of
barrels of crude oil or petroleum products received at a marine
terminal or transported by pipeline during the preceding month. No
fee shall be imposed pursuant to this section with respect to any
crude oil or petroleum products if the person who would be liable for
that fee, or responsible for its collection, establishes that the
fee has been collected by a terminal operator registered under this
chapter or paid to the board with respect to the crude oil or
petroleum product.
(2) Every owner of crude oil or petroleum products is liable for
the fee until it has been paid to the board, except that payment to a
marine terminal operator registered under this chapter is sufficient
to relieve the owner from further liability for the fee.
(3) On or before January 20, the administrator shall annually
prepare a plan that projects revenues and expenses over three fiscal
years, including the current year. Based on the plan, the
administrator shall set the fee so that projected revenues, including
any interest, are equivalent to expenses as reflected in the current
Budget Act and in the proposed budget submitted by the Governor. In
setting the fee, the administrator may allow for a surplus if the
administrator finds that revenues will be exhausted during the period
covered by the plan or that the surplus is necessary to cover
possible contingencies.
(c) The moneys collected pursuant to subdivision (a) shall be
deposited into the fund.
(d) The board shall collect the fee and adopt regulations for
implementing the fee collection program.
(e) The fee described in this section shall be collected solely
for all of the following purposes:
(1) To implement oil spill prevention programs through rules,
regulations, leasing policies, guidelines, and inspections and to
implement research into prevention and control technology.
(2) To carry out studies that may lead to improved oil spill
prevention and response.
(3) To finance environmental and economic studies relating to the
effects of oil spills.
(4) To reimburse the member agencies of the State Interagency Oil
Spill Committee for costs arising from implementation of this
chapter, Article 3.5 (commencing with Section 8574.1) of Chapter 7,
and Division 7.8 (commencing with Section 8750) of the Public
Resources Code.
(5) To implement, install, and maintain emergency programs,
equipment, and facilities to respond to, contain, and clean up oil
spills and to ensure that those operations will be carried out as
intended.
(6) To respond to an imminent threat of a spill in accordance with
the provisions of Section 8670.62 pertaining to threatened
discharges. The cumulative amount of any expenditure for this
purpose shall not exceed the amount of one hundred thousand dollars
($100,000) in any fiscal year unless the administrator receives the
approval of the Director of Finance and notification is given to the
Joint Legislative Budget Committee. Commencing with the 1993-94
fiscal year, and each fiscal year thereafter, it is the intent of the
Legislature that the annual Budget Act contain an appropriation of
one hundred thousand dollars ($100,000) from the fund for the purpose
of allowing the administrator to respond to threatened oil spills.
(7) To reimburse the board for costs incurred to implement this
chapter and to carry out Part 24 (commencing with Section 46001) of
Division 2 of the Revenue and Taxation Code.
(8) To reimburse the costs incurred by the State Lands Commission
in implementing the Oil Transfer and Transportation Emission and Risk
Reduction Act of 2002 (Division 7.9 (commencing with Section 8780)
of the Public Resources Code).
(f) The moneys deposited in the fund shall not be used for
responding to an oil spill.
SEC. 112. Section 10201 of the Government Code is amended to read:
10201. The Legislative Counsel shall be selected by concurrent
resolution at the beginning of each regular session and shall serve
until his or her successor is selected and qualified.
SEC. 113. Section 10202 of the Government Code is amended to read:
10202. If a vacancy occurs while the Legislature is not in
session, a committee consisting of the Speaker of the Assembly, the
Speaker pro Tempore of the Assembly, the President pro Tempore of the
Senate and the chairperson of the Appropriations Committee of the
Senate shall select the Legislative Counsel to serve until the
Legislature in session makes a selection for the office.
SEC. 114. Section 10203 of the Government Code is amended to read:
10203. The Legislative Counsel shall be chosen without reference
to party affiliations and solely on the ground of fitness to perform
the duties of his or her office.
SEC. 115. Section 10204 of the Government Code is amended to read:
10204. The annual salary of the Legislative Counsel is
twenty-five thousand dollars ($25,000), or such greater amount as may
be prescribed by the Joint Rules Committee. The Legislative Counsel
shall be repaid all actual expenses incurred or paid by him or her
in the discharge of his or her duties.
SEC. 116. Section 10206 of the Government Code is amended to read:
10206. The permanent office of the Legislative Counsel shall be
in the State Capitol in Sacramento, where he or she shall be provided
with suitable and sufficient offices convenient to the chambers of
the Senate and Assembly. For the convenience of Members of the
Legislature, and when in his or her judgment the conduct of his or
her work requires, he or she may maintain temporary offices at other
places in the state.
SEC. 117. Section 11121 of the Government Code is amended to read:
11121. As used in this article, "state body" means each of the
following:
(a) Every state board, or commission, or similar multimember body
of the state that is created by statute or required by law to conduct
official meetings and every commission created by executive order.
(b) A board, commission, committee, or similar multimember body
that exercises any authority of a state body delegated to it by that
state body.
(c) An advisory board, advisory commission, advisory committee,
advisory subcommittee, or similar multimember advisory body of a
state body, if created by formal action of the state body or of any
member of the state body, and if the advisory body so created
consists of three or more persons.
(d) A board, commission, committee, or similar multimember body on
which a member of a body that is a state body pursuant to this
section serves in his or her official capacity as a representative of
that state body and that is supported, in whole or in part, by funds
provided by the state body, whether the multimember body is
organized and operated by the state body or by a private corporation.
SEC. 118. Section 12965 of the Government Code is amended to read:
12965. (a) In the case of failure to eliminate an unlawful
practice under this part through conference, conciliation, or
persuasion, or in advance thereof if circumstances warrant, the
director in his or her discretion may cause to be issued in the name
of the department a written accusation. The accusation shall contain
the name of the person, employer, labor organization, or employment
agency accused, which shall be known as the respondent, shall set
forth the nature of the charges, shall be served upon the respondent
together with a copy of the verified complaint, as amended, and shall
require the respondent to answer the charges at a hearing.
For any complaint treated by the director as a group or class
complaint for purposes of investigation, conciliation, and accusation
pursuant to Section 12961, an accusation shall be issued, if at all,
within two years after the filing of the complaint. For any
complaint alleging a violation of Section 51.7 of the Civil Code, an
accusation shall be issued, if at all, within two years after the
filing of the complaint. For all other complaints, an accusation
shall be issued, if at all, within one year after the filing of a
complaint. If the director determines, pursuant to Section 12961,
that a complaint investigated as a group or class complaint under
Section 12961 is to be treated as a group or class complaint for
purposes of conciliation and accusation as well, that determination
shall be made and shall be communicated in writing within one year
after the filing of the complaint to each person, employer, labor
organization, employment agency, or public entity alleged in the
complaint to have committed an unlawful practice.
(b) If an accusation is not issued within 150 days after the
filing of a complaint, or if the department earlier determines that
no accusation will issue, the department shall promptly notify, in
writing, the person claiming to be aggrieved that the department
shall issue, on his or her request, the right-to-sue notice. This
notice shall indicate that the person claiming to be aggrieved may
bring a civil action under this part against the person, employer,
labor organization, or employment agency named in the verified
complaint within one year from the date of that notice. If the
person claiming to be aggrieved does not request a right-to-sue
notice, the department shall issue the notice upon completion of its
investigation, and not later than one year after the filing of the
complaint. A city, county, or district attorney in a location having
an enforcement unit established on or before March 1, 1991, pursuant
to a local ordinance enacted for the purpose of prosecuting HIV/AIDS
discrimination claims, acting on behalf of any person claiming to be
aggrieved due to HIV/AIDS discrimination, may also bring a civil
action under this part against the person, employer, labor
organization, or employment agency named in the notice. The superior
and municipal courts of the State of California shall have
jurisdiction of those actions, and the aggrieved person may file in
any of these courts. An action may be brought in any county in the
state in which the unlawful practice is alleged to have been
committed, in the county in which the records relevant to the
practice are maintained and administered, or in the county in which
the aggrieved person would have worked or would have had access to
the public accommodation but for the alleged unlawful practice, but
if the defendant is not found within any of these counties, an action
may be brought within the county of the defendant's residence or
principal office. A copy of any complaint filed pursuant to this
part shall be served on the principal offices of the department and
of the commission. The remedy for failure to send a copy of a
complaint is an order to do so. Those actions may not be filed as
class actions or may not be maintained as class actions by the person
or persons claiming to be aggrieved where those persons have filed a
civil class action in the federal courts alleging a comparable claim
of employment discrimination against the same defendant or
defendants. In actions brought under this section, the court, in its
discretion, may award to the prevailing party reasonable attorney's
fees and costs, including expert witness fees, except where the
action is filed by a public agency or a public official, acting in an
official capacity.
(c) (1) If an accusation includes a prayer either for damages for
emotional injuries as a component of actual damages, or for
administrative fines, or for both, or if an accusation is amended for
the purpose of adding a prayer either for damages for emotional
injuries as a component of actual damages, or for administrative
fines, or both, the respondent may within 30 days after service of
the accusation or amended accusation, elect to transfer the
proceedings to a court in lieu of a hearing pursuant to subdivision
(a) by serving a written notice to that effect on the department, the
commission, and the person claiming to be aggrieved. The commission
shall prescribe the form and manner of giving written notice.
(2) No later than 30 days after the completion of service of the
notice of election pursuant to paragraph (1), the department shall
dismiss the accusation and shall, either itself or, at its election,
through the Attorney General, file in the appropriate court an action
in its own name on behalf of the person claiming to be aggrieved as
the real party in interest. In this action, the person claiming to
be aggrieved shall be the real party in interest and shall have the
right to participate as a party and be represented by his or her own
counsel. Complaints filed pursuant to this section shall be filed in
the appropriate superior court in any county in which unlawful
practices are alleged to have been committed, in the county in which
records relevant to the alleged unlawful practices are maintained and
administered, or in the county in which the person claiming to be
aggrieved would have worked or would have had access to public
accommodation, but for the alleged unlawful practices. If the
defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal
office. Those actions shall be assigned to the court's delay
reduction program, or otherwise given priority for disposition by the
court in which the action is filed.
(3) A court may grant as relief in any action filed
pursuant to this subdivision any relief a court is empowered to grant
in a civil action brought pursuant to subdivision (b), in addition
to any other relief that, in the judgment of the court, will
effectuate the purpose of this part. This relief may include a
requirement that the employer conduct training for all employees,
supervisors, and management on the requirements of this part, the
rights and remedies of those who allege a violation of this part, and
the employer's internal grievance procedures.
(4) The department may amend an accusation to pray for either
damages for emotional injury or for administrative fines, or both,
provided that the amendment is made within 30 days of the issuance of
the original accusation.
(d) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
(A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Department
of Fair Employment and Housing to the Equal Employment Opportunity
Commission.
(C) A right-to-sue notice is issued to the person claiming to be
aggrieved upon deferral of the charge by the Department of Fair
Employment and Housing to the Equal Employment Opportunity
Commission.
(2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) expires when the federal
right-to-sue period to commence a civil action expires, or one year
from the date of the right-to-sue notice by the Department of Fair
Employment and Housing, whichever is later.
(3) This subdivision is intended to codify the holding in Downs v.
Department of Water and Power of City of Los Angeles (1997) 58
Cal.App.4th 1093.
(e) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
(A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Equal
Employment Opportunity Commission to the Department of Fair
Employment and Housing.
(C) After investigation and determination by the Department of
Fair Employment and Housing, the Equal Employment Opportunity
Commission agrees to perform a substantial weight review of the
determination of the department or conducts its own investigation of
the claim filed by the aggrieved person.
(2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) shall expire when the
federal right-to-sue period to commence a civil action expires, or
one year from the date of the right-to-sue notice by the Department
of Fair Employment and Housing, whichever is later.
SEC. 119. Section 14838.5 of the Government Code is amended to
read:
14838.5. (a) Notwithstanding the advertising, bidding, and
protest provisions of Chapter 6 (commencing with Section 14825) of
this code and Chapter 2 (commencing with Section 10290) and Chapter 3
(commencing with Section 12100) of Part 2 of Division 2 of the
Public Contract Code, a state agency may award a contract for the
acquisition of goods, services, or information technology that has an
estimated value of greater than five thousand dollars ($5,000), but
less than one hundred thousand dollars ($100,000), to a certified
small business, including a microbusiness, or to a disabled veteran
business enterprise, as long as the agency obtains price quotations
from two or more certified small businesses, including
microbusinesses, or from two or more disabled veterans business
enterprises.
(b) In carrying out subdivision (a), state agencies shall consider
a responsive offer timely received from a responsible certified
small business, including a microbusiness, or from a disabled veteran
business enterprise.
(c) If the estimated cost to the state is less than five thousand
dollars ($5,000) for the acquisition of goods, services, or
information technology, or a greater amount as administratively
established by the director, a state agency shall obtain at least two
price quotations from responsible suppliers whenever there is reason
to believe a response from a single source is not a fair and
reasonable price.
SEC. 120. Section 14838.7 of the Government Code is amended to
read:
14838.7. (a) Notwithstanding the advertising and bidding
provisions of Chapter 6 (commencing with Section 14825) of this code
and Chapter 1 (commencing with Section 10100) of Part 2 of Division 2
of the Public Contract Code, a state agency may award a contract for
construction, including the erection, construction, alteration,
repair, or improvement of any state structure, building, road, or
other state improvement of any kind that has an estimated value of
greater than five thousand dollars ($5,000) but less than the cost
limit, as specified in subdivision (b) of Section 10105 of the Public
Contract Code, to a certified small business, including a
microbusiness, or to a disabled veteran business enterprise, as long
as the agency obtains written bid submittals from two or more
certified small businesses, including microbusinesses, or from two or
more disabled veteran business enterprises.
(b) In implementing subdivision (a), state agencies shall consider
a responsive offer timely received from a responsible certified
small business, including a microbusiness, or from a disabled veteran
business enterprise.
(c) If the estimated cost to the state is less than five thousand
dollars ($5,000) for the public work construction project, a state
agency shall obtain at least two written bid submittals from
responsible contractors whenever there is reason to believe a
response from a single source is not a fair and reasonable price.
SEC. 121. Section 14981 of the Government Code is amended to read:
14981. On or before February 1, 2005, the department shall submit
a report to the appropriate policy and fiscal committees of the
Legislature on activities that have been or will be undertaken
pursuant to this chapter. The report shall include, but not be
limited to, all of the following:
(a) The number and a description of contracts entered into with
manufacturers and suppliers of drugs pursuant to Section 14977.1,
including any discounts, rebates, or refunds obtained.
(b) The number and a description of entities that elect to
participate in the coordinated purchasing program pursuant to Section
14977.5.
(c) Other options and strategies that have been or will be
implemented pursuant to Sections 14978 and 14980.
(d) Estimated costs and savings attributable to activities that
have been or will be undertaken pursuant to this chapter.
SEC. 122. Section 19142 of the Government Code is amended to read:
19142. (a) Every person accepts and holds a position in the state
civil service subject to mandatory reinstatement of another person.
(b) Upon reinstatement of a person any necessary separations are
effected under the provisions of Section 19997.3 governing layoff and
demotion except that (1) an employee who is not to be separated from
state service need not receive advance notification as provided in
Section 19997.13, and (2) seniority may not be counted as provided in
Section 19997.3 when this would result in the layoff of the person
who has the reinstatement right. Under that circumstance, qualifying
service in classes at substantially the same or higher salary level
is the only state service that may be counted for purposes of
determining who is to be separated.
SEC. 123. Section 19775.17 of the Government Code is amended to
read:
19775.17. (a) In addition to the benefits provided pursuant to
Sections 19775 and 19775.1, a state employee who, as a member of the
California National Guard or a United States military reserve
organization, is ordered to active duty by Presidential determination
that it is necessary to augment the active forces for any
operational mission, or when in time of national emergency declared
by the President or otherwise authorized by law, shall have the
benefits provided for in subdivision (b).
(b) Any state employee to which subdivision (a) applies, while on
active duty, shall receive from the state, for the duration of the
event as authorized pursuant to Sections 12302 and 12304 of Title 10
of the United States Code, but not for more than 180 calendar days,
as part of his or her compensation both of the following:
(1) The difference between the amount of his or her military pay
and allowances and the amount the employee would have received as a
state employee, including any merit raises that would otherwise have
been granted during the time the individual was on active duty. The
amount an employee, as defined in Section 18526, would have received
as a state employee, including any merit raises that would otherwise
have been granted during the time the individual was on active duty,
shall be determined by the Department of Personnel Administration.
(2) All benefits that he or she would have received had he or she
not served on active duty unless the benefits are prohibited or
limited by vendor contracts.
(c) Any individual receiving compensation pursuant to subdivision
(b) who does not reinstate to state service following active duty,
shall have that compensation treated as a loan payable with interest
at the rate earned on the Pooled Money Investment Account. This
subdivision shall not apply to compensation received pursuant to
Section 19775.
(d) Benefits provided under paragraph (1) of subdivision (b) shall
only be provided to a state employee who was not eligible to
participate in a federally sponsored income protection program for
National Guard personnel or military reserve personnel, or both,
called into active duty, as determined by the Department of Personnel
Administration. For a state employee eligible to participate in a
federally sponsored income protection program, and whose monthly
salary as a state employee was higher than the sum of his or her
military pay and allowances and the maximum allowable benefit under
the federally sponsored income protection program, the state employee
shall receive the amount payable under paragraph (1) of subdivision
(b), but that amount shall be reduced by the maximum allowable
benefit under the federally sponsored income protection program. For
individuals who elected the federally sponsored income protection
program, the state shall reimburse for the cost of the insurance
premium for the period of time on active duty, not to exceed 180
calendar days.
(e) For purposes of this section, "state employee" means an
employee as defined in Section 18526 or an officer or employee of the
legislative, executive, or judicial department of the state.
(f) This section shall not apply to any state employee entitled to
additional compensation or benefits pursuant to Section 19775.16 or
19775.18 of this code, or Section 395.08 of the Military and Veterans
Code.
SEC. 124. Section 19775.18 of the Government Code is amended to
read:
19775.18. (a) In addition to the benefits provided pursuant to
Sections 19775 and 19775.1, a state employee who, as a member of the
California National Guard or a United States military reserve
organization, is ordered to active duty on and after September 11,
2001, as a result of the War on Terrorism, shall have the benefits
provided for in subdivision (b).
(b) Any state employee to which subdivision (a) applies, while on
active duty, shall receive from the state, for the duration of the
event known as the War on Terrorism, as authorized pursuant to
Sections 12302 and 12304 of Title 10 of the United States Code, but
not for more than 365 calendar days, as part of his or her
compensation both of the following:
(1) The difference between the amount of his or her military pay
and allowances and the amount the employee would have received as a
state employee, including any merit raises that would otherwise have
been granted during the time the individual was on active duty. The
amount an employee, as defined in Section 18526, would have received
as a state employee, including any merit raises that would otherwise
have been granted during the time the individual was on active duty,
shall be determined by the Department of Personnel Administration.
(2) All benefits that he or she would have received had he or she
not served on active duty unless the benefits are prohibited or
limited by vendor contracts.
(c) Any individual receiving compensation pursuant to subdivision
(b) who does not reinstate to state service following active duty,
shall have that compensation treated as a loan payable with interest
at the rate earned on the Pooled Money Investment Account. This
subdivision does not apply to compensation received pursuant to
Section 19775.
(d) Benefits provided under paragraph (1) of subdivision (b) shall
only be provided to a state employee who was not eligible to
participate in a federally sponsored income protection program for
National Guard personnel or military reserve personnel, or both,
called into active duty, as determined by the Department of Personnel
Administration. For a state employee eligible to participate in a
federally sponsored income protection program, and whose monthly
salary as a state employee was higher than the sum of his or her
military pay and allowances and the maximum allowable benefit under
the federally sponsored income protection program, the state employee
shall receive the amount payable under paragraph (1) of subdivision
(b), but that amount shall be reduced by the maximum allowable
benefit under the federally sponsored income protection program. For
individuals who elected the federally sponsored income protection
program, the state shall reimburse for the cost of the insurance
premium for the period of time on active duty, not to exceed 365
calendar days. The Governor may, by Executive order, extend this
period of time by no more than an additional 365 calendar days.
(e) For purposes of this section, "state employee" means an
employee as defined in Section 18526 or an officer or employee of the
legislative, executive, or judicial department of the state.
(f) This section does not apply to any state employee entitled to
additional compensation or benefits pursuant to Section 19775.16 or
19775.17 of this code, or Section 395.08 of the Military and Veterans
Code.
(g) This section does not apply to any active duty served after
the close of the War on Terrorism.
SEC. 125. Section 19827 of the Government Code is amended to read:
19827. (a) (1) Notwithstanding any other provision of law to the
contrary, in order to recruit and retain the highest qualified
employees, the state shall pay sworn members of the California
Highway Patrol who are rank-and-file members of State Bargaining Unit
5 the estimated average total compensation for each corresponding
rank for the Los Angeles Police Department, Los Angeles County
Sheriff's Office, San Diego Police Department, Oakland Police
Department, and San Francisco Police Department. Total compensation
shall include base salary, educational incentive pay, physical
performance pay, longevity pay, and retirement contributions made by
the employer on behalf of the employee.
(2) The state and the exclusive representative shall jointly
survey annually and calculate the estimated average total
compensation based on projected average total compensation for the
above-named departments as of July 1 of the year in which the survey
is conducted. The state and the exclusive representative shall
utilize the survey methodology outlined in the "Description of Survey
Process Pursuant to Government Code 19827 Regarding the Recruitment
and Retention of California Highway Patrol Officers" dated July 1,
2001, and maintained as a permanent agreement between the state and
the exclusive representative.
(3) Any increase in total compensation resulting from this section
shall be implemented through a memorandum of understanding
negotiated pursuant to the Ralph C. Dills Act (Chapter 10.3
(commencing with Section 3512) of Division 4 of Title 1).
Notwithstanding the foregoing, failure of the parties to reach
agreement for a memorandum of understanding pursuant to the Ralph C.
Dills Act shall not relieve the state of the duty to compensate
sworn represented members of the California Highway Patrol in
accordance with the formula set forth in this section.
(4) The total compensation for represented sworn members of the
California Highway Patrol may deviate from the survey results by
mutual agreement between the exclusive representative and the state
pursuant to the collective bargaining process.
(5) If the provisions of this subdivision are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, 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, the
provisions shall not become effective unless approved by the
Legislature in the annual Budget Act.
(b) When determining compensation for state excluded sworn
classifications of the California Highway Patrol, it is the policy of
the state to consider total compensation for corresponding ranks
within jurisdictions specified in subdivision (a), as well as other
factors, including internal comparisons.
SEC. 126. Section 19867 of the Government Code is amended to read:
19867. (a) The Legislature finds and declares that the interests
of the state would be served by the Department of Personnel
Administration meeting and conferring with the exclusive
representatives of the various bargaining units to discuss the
establishment of long-term care benefits for state employees.
(b) If long-term care insurance plans are not available to state
employees within one year following the date on which any long-term
care plan is first offered for enrollment by the Board of
Administration of the Public Employees' Retirement System, state
employees may enroll in the long-term care insurance plans offered by
the Board of Administration of the Public Employees' Retirement
System.
(c) If subdivision (b) is in conflict with a memorandum of
understanding entered into pursuant to Section 3517.5, the memorandum
of understanding shall prevail and control without further
legislative action, except that if the prevailing provisions of a
memorandum of understanding require the expenditure of funds, these
provisions may not become effective unless approved by the
Legislature in the annual Budget Act.
(d) The Department of Personnel Administration may enter into
contracts with the Board of Administration of the Public Employees'
Retirement System to allow active eligible state employees, and their
spouses and parents, to enroll in any long-term care insurance plans
offered by the Board of Administration.
SEC. 127. Section 19997.3 of the Government Code is amended to
read:
19997.3. (a) Layoff shall be made in accordance with the relative
seniority of the employees in the class of layoff. In determining
seniority scores, one point shall be allowed for each complete month
of full-time state service regardless of when the service occurred.
Department rules shall establish all of the following:
(1) The extent to which seniority credits may be granted for less
than full-time service.
(2) The seniority credit to be granted for service in a class that
has been abolished, combined, divided, or otherwise altered under
the authority of Section 18802.
(3) The basis for determining the sequence of layoff whenever the
class and subdivision of layoff includes employees whose service is
less than full time.
(4) Any other matters as are necessary or advisable to the
operation of this chapter.
(b) For professional, scientific, administrative, management, and
executive classes, the department shall prescribe standards and
methods by rule whereby employee efficiency shall be combined with
seniority in determining the order of layoffs and the order of names
on reemployment lists. These standards and methods may vary for
different classes, and shall take into consideration the needs of
state service and practice in private industry and other public
employment.
(c) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, the memorandum of understanding shall be controlling
without further legislative action, except that if the provisions of
a memorandum of understanding incur either present or future costs,
or require the expenditure of funds, the provisions shall not become
effective unless approved by the Legislature in the annual Budget
Act.
SEC. 128. Section 20057 of the Government Code is amended to read:
20057. "Public agency" also includes the following:
(a) The Commandant, Veterans' Home of California, with respect to
employees of the Veterans' Home Exchange and other post fund
activities whose compensation is paid from the post fund of the
Veterans' Home of California.
(b) Any auxiliary organization operating pursuant to Chapter 7
(commencing with Section 89900) of Part 55 of the Education Code and
in conformity with regulations adopted by the Trustees of the
California State University and any auxiliary organization operating
pursuant to Article 6 (commencing with Section 72670) of Chapter 6 of
Part 45 of the Education Code and in conformity with regulations
adopted by the Board of Governors of the California Community
Colleges.
(c) Any student body or nonprofit organization composed
exclusively of students of the California State University or
community college or of members of the faculty of the California
State University or community college, or both, and established for
the purpose of providing essential activities related to, but not
normally included as a part of, the regular instructional program of
the California State University or community college.
(d) A state organization of governing boards of school districts,
the primary purpose of which is the advancing of public education
through research and investigation.
(e) Any nonprofit corporation whose membership is confined to
public agencies as defined in Section 20056.
(f) A section of the California Interscholastic Federation.
(g) Any credit union incorporated under Division 5 (commencing
with Section 14000) of the Financial Code, or incorporated pursuant
to federal law, with 95 percent of its membership limited to
employees who are members of or retired members of this system or the
State Teachers' Retirement Plan, and their immediate families, and
employees of any credit union. For the purposes of this subdivision,
"immediate family" means those persons related by blood or marriage
who reside in the household of a member of the credit union who is a
member of or retired member of this system or the State Teachers'
Retirement Plan. The credit union shall pay any costs that are in
addition to the normal charges required to enter into a contract with
the board. All the payments made by the credit union that are in
addition to the normal charges required shall be added to the total
amount appropriated by the Budget Act for the administrative expense
of this system. For purposes of this subdivision, a credit union
shall not be deemed to be a public agency unless it has entered into
a contract with the board pursuant to Chapter 5 (commencing with
Section 20460) prior to January 1, 1988. After January 1, 1988, the
board shall not enter into a contract with any credit union as a
public agency.
(h) Any county superintendent of schools that was a contracting
agency on July 1, 1983, and any school district or community college
district that was a contracting agency with respect to local police
officers, as defined in Section 20430, on July 1, 1983.
(i) Any school district or community college district that has
established a police department, pursuant to Section 39670 or 72330
of the Education Code, and has entered into a contract with the board
on or after January 1, 1990, for school safety members, as defined
in Section 20444.
(j) A nonprofit corporation formed for the primary purpose of
assisting the development and expansion of the educational, research,
and scientific activities of a district agricultural association
formed pursuant to Part 3 (commencing with Section 3801) of Division
3 of the Food and Agricultural Code, and the nonprofit corporation
described in the California State Exposition and Fair Law (former
Article 3 (commencing with Section 3551) of Chapter 3 of Part 2 of
Division 3 of the Food and Agricultural Code, as added by Chapter 15
of the Statutes of 1967).
(k) (1) A public or private nonprofit corporation that operates a
regional center for the developmentally disabled in accordance with
Chapter 5 (commencing with Section 4620) of Division 4.5 of the
Welfare and Institutions Code.
(2) A public or private nonprofit corporation, exempt from
taxation under Section 501(c)(3) of the Internal Revenue Code, that
operates a rehabilitation facility for the developmentally disabled
and provides services under a contract with either (A) a regional
center for the developmentally disabled, pursuant to paragraph (3) of
subdivision (a) of Section 4648 of the Welfare and Institutions
Code, or (B) the Department of Rehabilitation, pursuant to Chapter
4.5 (commencing with Section 19350) of Part 2 of Division 10 of the
Welfare and Institutions Code, upon obtaining a written advisory
opinion from the United States Department of Labor as described in
Section 20057.1.
(3) A public or private nonprofit corporation described in this
subdivision shall be deemed a "public agency" only for purposes of
this part and only with respect to the employees of the regional
center or the rehabilitation facility described in this subdivision.
Notwithstanding any other provision of this part, the agency may
elect by appropriate provision or amendment of its contract not to
provide credit for
service prior to the effective date of its contract.
(l) Independent data-processing centers formed pursuant to former
Article 2 (commencing with Section 10550) of Chapter 6 of Part 7 of
the Education Code, as it read on December 31, 1990. An agency
included pursuant to this subdivision shall only provide benefits
that are identical to those provided to a school member.
(m) Any local agency formation commission.
(n) A nonprofit corporation organized for the purpose of and
engaged in conducting a citrus fruit fair as defined in Section 4603
of the Food and Agricultural Code.
(o) (1) A public or private nonprofit corporation that operates an
independent living center providing services to severely handicapped
people and established pursuant to federal Public Law 93-112, that
receives the approval of the board, and that provides at least three
of the following services:
(A) Assisting severely handicapped people to obtain personal
attendants who provide in-home supportive services.
(B) Locating and distributing information about housing in the
community usable by severely handicapped people.
(C) Providing information about financial resources available
through federal, state, and local government, and private and public
agencies to pay all or part of the cost of the in-home supportive
services and other services needed by severely handicapped people.
(D) Counseling by people with similar disabilities to aid the
adjustment of severely handicapped people to handicaps.
(E) Operation of vans or buses equipped with wheelchair lifts to
provide accessible transportation to otherwise unreachable locations
in the community where services are available to severely handicapped
people.
(2) A public or private nonprofit corporation described in this
subdivision shall be deemed a "public agency" only for purposes of
this part and only with respect to the employees of the independent
living center.
(3) Notwithstanding any other provisions of this part, the public
or private nonprofit corporation may elect by appropriate provision
or amendment of its contract not to provide credit for service prior
to the effective date of its contract.
(p) A hospital that is managed by a city legislative body in
accordance with Article 8 (commencing with Section 37650) of Chapter
5 of Part 2 of Division 3 of Title 4.
(q) (1) Except as provided in paragraph (2), "public agency" also
includes any entity formed pursuant to the Federal Job Training
Partnership Act of 1982 (29 U.S.C. Sec. 1501 et seq.) or Division 8
(commencing with Section 15000) of the Unemployment Insurance Code.
(2) "Public agency," for purposes of this part, does not include a
private industry council as set forth in the Federal Job Training
Partnership Act of 1982 (29 U.S.C. Sec. 1501 et seq.) or Division 8
(commencing with Section 15000) of the Unemployment Insurance Code.
(r) The Tahoe transportation district that is established by
Article IX of Section 66801.
(s) The California Firefighter Joint Apprenticeship Program formed
pursuant to Chapter 4 (commencing with Section 3070) of Division 3
of the Labor Code.
(t) A public health department or district that is managed by the
governing body of a county of the 15th class, as defined by Sections
28020 and 28036, as amended by Chapter 1204 of the Statutes of 1971.
(u) A nonprofit corporation or association conducting an
agricultural fair pursuant to Section 25905 may enter into a contract
with the board for the participation of its employees as members of
this system, upon obtaining a written advisory opinion from the
United States Department of Labor as described in Section 20057.1.
The nonprofit corporation or association shall be deemed a "public
agency" only for this purpose.
(v) An auxiliary organization established pursuant to Article 2.5
(commencing with Section 69522) of Chapter 2 of Part 42 of the
Education Code upon obtaining a written advisory opinion from the
United States Department of Labor as described in Section 20057.1.
The auxiliary organization is a "public agency" only for this
purpose.
(w) The Western Association of Schools and Colleges upon obtaining
a written advisory opinion from the United States Department of
Labor as described in Section 20057.1. The association shall be
deemed a "public agency" only for this purpose.
SEC. 129. Section 20501 of the Government Code is amended to read:
20501. Contracts with school employers may include school
district employees in this system only with respect to service
rendered in a status in which they are not eligible for membership in
the State Teachers' Retirement Plan.
SEC. 130. Section 20610 of the Government Code is amended to read:
20610. Every county superintendent of schools shall enter into a
contract with the board for the inclusion in this system of (a) all
of the employees of the office of county superintendent whose
compensation is paid from the county school service fund other than
employees electing pursuant to Section 1313 of the Education Code to
continue in membership in a county system; and (b) all of the
employees of school districts and community college districts
existing on July 1, 1949, or thereafter formed, within his or her
jurisdiction, other than school districts that are contracting
agencies or that maintain a district, joint district, or other local
retirement system, in respect to service rendered in a status in
which they are not eligible for membership in the State Teachers'
Retirement Plan. The effective date of each contract shall be not
later than July 1, 1949. For the purposes of this part those school
district employees shall be considered to be employees of the county
superintendent of schools having jurisdiction over the school
district by which they are employed and service to the district shall
be considered as service to the county superintendent of schools.
SEC. 131. Section 20611 of the Government Code is amended to read:
20611. A regional occupational center established pursuant to
Chapter 9 (commencing with Section 52300) of Division 4 of the
Education Code by two or more school districts by a joint powers
agreement shall be deemed a school district for purposes of this
part. The board and the county superintendent of schools, upon the
request of the governing body of any center in the county, shall
amend the contract entered into under this chapter to include the
employees of the center who are not eligible to membership in the
State Teachers' Retirement Plan. Credit shall not be granted for any
service in that employment prior to the effective date of the
amendment. However, on the request of the governing body of the
center, the amendment may provide that the membership of any person
becoming a member in that employment on the effective date of the
amendment shall be retroactive to the date of that person's entry
into that employment. If the amendment provides for the retroactive
membership, both the member and the center shall contribute to the
retirement fund for the period the amounts they would have
contributed had the amendment been in effect on the date of the entry
into employment.
SEC. 132. Section 20677 of the Government Code is amended to read:
20677. (a) (1) The normal rate of contribution for a state
miscellaneous member employed by the California State University, the
University, or the legislative or judicial branch whose service is
not included in the federal system shall be 6 percent of the
compensation in excess of three hundred seventeen dollars ($317) per
month paid that member for service rendered on and after July 1,
1976.
(2) The normal rate of contribution for a school member or a local
miscellaneous member shall be 7 percent of the compensation paid
that member for service rendered on and after June 21, 1971.
(3) Notwithstanding paragraph (2), the normal rate of contribution
for a local miscellaneous member subject to Section 21354.3,
21354.4, or 21354.5 shall be 8 percent of the compensation paid that
member for service rendered on and after the date the member's
contracting agency elects to be subject to that section.
(4) The normal rate of contribution as established under this
subdivision for a local miscellaneous or school member whose service
is included in the federal system, and whose service retirement
allowance is reduced under Section 21353, 21354, 21354.1, 21354.3,
21354.4, or 21354.5 because of that inclusion, shall be reduced by
one-third as applied to compensation not exceeding four hundred
dollars ($400) per month for service after the date of execution of
the agreement including service in the federal system and prior to
termination of the agreement with respect to the coverage group to
which he or she belongs. Notwithstanding the foregoing, effective
January 1, 2001, the normal rate of contribution for school members
whose service is included in the federal system shall not be reduced
pursuant to this paragraph as applied to compensation earned on or
after that date.
(b) (1) The normal rate of contribution for a state miscellaneous
member employed by the California State University, the University,
or the legislative or judicial branch whose service has been included
in the federal system shall be 5 percent of compensation in excess
of five hundred thirteen dollars ($513) per month paid that member
for service rendered on and after July 1, 1976.
(2) The normal rate of contribution for a state miscellaneous or
industrial member employed by the California State University, the
University, or the legislative or judicial branch, who has elected to
be subject to Section 21353.5 and whose service has been included in
the federal system, shall be 5 percent of compensation, subject to
the reduction specified in paragraph (5) of subdivision (a).
SEC. 133. Section 20677.4 of the Government Code is amended to
read:
20677.4. (a) (1) The normal rate of contribution for a state
miscellaneous or state industrial member whose service is not
included in the federal system shall be 6 percent of the compensation
in excess of three hundred seventeen dollars ($317) per month paid
to that member for service rendered on or after July 1, 1976.
(2) The normal rate of contribution for a state miscellaneous or
state industrial member, who has elected to be subject to Section
21353.5 and whose service is not included in the federal system,
shall be 6 percent of the member's compensation.
(3) The normal rate of contribution as established under this
subdivision for a member whose service is included in the federal
system, and whose service retirement allowance is reduced under
Section 21354.1, because of that inclusion, shall be reduced by
one-third as applied to compensation not exceeding four hundred
dollars ($400) per month for service after the date of execution of
the agreement including service in the federal system and prior to
termination of the agreement with respect to the coverage group to
which he or she belongs.
(b) The normal rate of contribution for a state miscellaneous or
state industrial member whose service has been included in the
federal system shall be 5 percent of compensation in excess of five
hundred thirteen dollars ($513) per month paid that member for
service rendered on or after July 1, 1976.
(c) The normal rate of contribution for a state miscellaneous or
state industrial member who is subject to Section 21076 or 21077
shall be 0 percent.
(d) A member who elected to become subject to Section 21353 solely
for service rendered on or after the effective date of the election,
as authorized by subdivision (c) of Section 21070 during the period
between November 1, 1988, and October 31, 1989, is not required to
make the contributions specified in Section 21073.
(e) A member who elects to become subject to Section 21354.1, as
applicable, shall contribute at the rate specified in paragraph (1)
of subdivision (a) or paragraph (1) of subdivision (b), as determined
by the member's status with the federal system, and the rate shall
be applied from the first of the month following the date of the
election. A member who makes the election shall also contribute for
service prior to the date the contribution rate was applied, in the
manner specified in Section 21073 or 21073.1, as applicable.
(f) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5, 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, the
provisions shall not become effective unless and until approved by
the Legislature in the annual Budget Act.
(g) The Director of the Department of Personnel Administration may
establish the normal rate of contribution for a state employee who
is excepted from the definition of "state employee" in subdivision
(c) of Section 3513, and an officer or employee of the executive
branch of state government who is not a member of the civil service.
The normal rate of contribution shall be the same for all members
identified in this subdivision. The contribution rate shall be
effective the beginning of the pay period indicated by the Director
of the Department of Personnel Administration but shall be no earlier
than the beginning of the pay period following the date the board
receives notification.
SEC. 134. Section 20752 of the Government Code is amended to read:
20752. A member of the Judges' Retirement System, the Legislators'
Retirement System, the State Teachers' Retirement Plan, the
University of California Retirement System, or a county retirement
system, who has withdrawn accumulated contributions from this system
shall have the right to redeposit those contributions, subject to the
same conditions as imposed for redeposits of accumulated
contributions by Section 20750, including the right as he or she
would have had under Section 20638 had he or she not withdrawn his or
her contributions.
Provisions of this section extending a right to redeposit
accumulated contributions withdrawn from this system shall also apply
to members of any retirement system established under Chapter 2
(commencing with Section 45300) of Division 5 of Title 4 with respect
to which an ordinance complying with Section 45310.5 has been filed
with and accepted by the board or any retirement system established
by or pursuant to the charter of a city or city and county or by any
other public agency of this state which system, in the opinion of the
board, provides a similar modification of rights and benefits
because of membership in this system and with respect to which the
governing body of the city, city and county, or public agency and the
board have entered into agreement pursuant to Section 20351.
A member who elects to redeposit under this section shall have the
same rights with respect thereto as a member who has elected
pursuant to Section 20731 to leave his or her accumulated
contributions on deposit in the fund.
SEC. 135. Section 20902.5 of the Government Code is amended to
read:
20902.5. (a) Notwithstanding any other provision of this part,
whenever the Chief Justice, by formal action, determines that because
of an impending curtailment of, or change in the manner of
performing, judicial branch services, the best interests of the state
would be served by encouraging the retirement of judicial branch
state employees from the Administrative Office of the Courts, the
Supreme Court, the Courts of Appeal, or the Habeas Corpus Resource
Center and that sufficient economies could be realized to offset any
costs to the judicial branch resulting from this action, an
additional two years of service shall be credited to the affected
members, if both of the following conditions exist:
(1) The member is credited with five or more years of service and
retires during a period not to exceed 120 days or less than 60 days
commencing no sooner than the operative date of the formal action of
the Chief Justice that shall specify the period.
(2) The Administrative Office of the Courts transmits to the
retirement fund an amount determined by the board that is equal to
the actuarial equivalent of the difference between the allowance the
member receives after the receipt of service credit under this
section and the amount the member would have received without that
service credit. The transfer to the retirement fund shall be made in
a manner and time period acceptable to the employer and the board
with respect to all eligible members who retire during the specified
period.
(b) As used in this section, "member" means a state employee who
is employed in an organizational unit of the judicial branch
designated by the Chief Justice in the formal action crediting the
additional service credit.
(c) The amount of service credit shall be two years regardless of
credited service. Any member who qualifies under this section shall,
upon subsequent reentry to this system, forfeit the service credit
acquired under this section.
(d) This section is not applicable to any member otherwise
eligible, if the member receives any unemployment insurance payments
arising out of employment with an employer subject to this part
during a period extending one year beyond the operative date of the
formal action of the Chief Justice or if the member is not eligible
to retire without the additional credit available under this section.
SEC. 136. Section 21220 of the Government Code is amended to read:
21220. (a) A person who has been retired under this system, for
service or for disability, shall not be employed in any capacity
thereafter by the state, the university, a school employer, or by a
contracting agency, unless the employment qualifies for service
credit in the University of California Retirement System or the State
Teachers' Retirement Plan, unless he or she has first been
reinstated from retirement pursuant to this chapter, or unless the
employment, without reinstatement, is authorized by this article. A
retired person whose employment without reinstatement is authorized
by this article shall acquire no service credit or retirement rights
under this part with respect to the employment.
(b) Any retired member employed in violation of this article
shall:
(1) Reimburse this system for any retirement allowance received
during the period or periods of employment that are in violation of
law.
(2) Pay to this system an amount of money equal to the employee
contributions that would otherwise have been paid during the period
or periods of unlawful employment, plus interest thereon.
(3) Contribute toward reimbursement of this system for
administrative expenses incurred in responding to this situation, to
the extent the member is determined by the executive officer to be at
fault.
(c) Any public employer that employs a retired member in violation
of this article shall:
(1) Pay to this system an amount of money equal to employer
contributions that would otherwise have been paid for the period or
periods of time that the member is employed in violation of this
article, plus interest thereon.
(2) Contribute toward reimbursement of this system for
administrative expenses incurred in responding to this situation, to
the extent the employer is determined by the executive officer of
this system to be at fault.
SEC. 137. Section 21362.3 of the Government Code is amended to
read:
21362.3. (a) Notwithstanding subdivision (b) of Section 21362.2,
for the California Highway Patrol Commissioner, with respect to
service to all state employers under Section 21362.2, the benefit may
not exceed 100 percent of final compensation.
(b) This section shall become inoperative on January 1, 2008,
unless a later enacted statute deletes or extends that date.
SEC. 138. Section 21465 of the Government Code is amended to read:
21465. (a) Optional settlement 5 consists of a partial
distribution of the actuarial present value of the portion, as
specified in this section, of the member's unmodified monthly
allowance, as prescribed in Section 21362, 21362.2, 21363, or
21363.1, or Section 21423 when a service retirement allowance is
payable. The actuarial present value shall be based upon the
investment return and postretirement mortality assumptions adopted by
the board for that purpose. The member may elect to receive the
actuarial present value of no less than 20 percent and no more than
50 percent of his or her unmodified allowance. The member may elect
to receive the remaining portion of the unmodified allowance, not
distributed as a lump-sum, under one of the settlements specified in
this article for the remainder of his or her lifetime and thereafter
to his or her designated beneficiary, unless this amount is solely
limited to the survivor continuance portion. Under no circumstances
shall the portion of the unmodified allowance equivalent to the
survivor continuance pursuant to Section 21624 be distributed as a
lump-sum. Under no circumstances shall the benefits provided under
this section exceed the benefits that would have otherwise been
provided under any other section in this article.
(b) This section shall only apply to the following members who
retire on or after January 1, 1999:
(1) State peace officer/firefighter members in State Bargaining
Unit 6.
(2) State peace officer/firefighter members in State Bargaining
Unit 8 and state patrol members in State Bargaining Unit 5, provided
that a memorandum of understanding has been agreed upon by the state
and the recognized employee organization to become subject to this
section.
(3) This section shall also apply to state peace
officer/firefighter members and state patrol members in related
supervisory and confidential positions, provided the Department of
Personnel Administration has approved their inclusion.
SEC. 139. Section 22009.03 of the Government Code is amended to
read:
22009.03. "Public agency" also includes a school district, a
county superintendent of schools, and a regional occupational center
or program established pursuant to Article 1 (commencing with Section
6500) of Chapter 5 of Division 7 of Title 1, with respect to
employees eligible for membership in the State Teachers' Retirement
Plan.
This section shall become inoperative on July 1, 2004, and, as of
January 1, 2005, is repealed, unless a later enacted statute, which
becomes effective on or before January 1, 2005, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 140. Section 22009.1 of the Government Code is amended to
read:
22009.1. "Retirement system" includes:
(a) A pension, annuity, retirement, or similar fund or system
established by a public agency and covering only positions of that
agency.
(b) The Public Employees' Retirement System with respect only to
employees of the state and employees of the University of California
in positions covered by that system.
(c) The Public Employees' Retirement System with respect to
employees of all school districts in positions covered under each
contract entered into by a county superintendent of schools and the
system.
(d) The State Teachers' Retirement System with respect to all
employees in positions subject to coverage by the State Teachers'
Retirement Plan except employees of a public agency having any
employees in positions covered by such system who are also in
positions covered by a local retirement system for the retirement of
teachers, or for membership in which public school teachers are
eligible, operated by city, city and county, county, or other public
agency or combination of public agencies of the state.
(e) The Legislators' Retirement System with respect to all
employees in positions covered by that system.
(f) The Judges' Retirement System with respect to all employees in
positions covered by that system.
(g) The University of California Retirement System only with
respect to all employees in positions covered by that system.
(h) The San Francisco City and County Employees' Retirement System
with respect to all employees in positions covered by that system.
(i) Any other retirement system with respect only to employees of
any two or more of the public agencies having employees in positions
covered by the system, as designated by the board and with regard to
which the board authorizes conduct of a referendum.
(j) Any retirement system with respect only to employees of a
hospital which is an integral part of a city incorporated between
January 15, 1898, and July 15, 1898, in positions covered by the
system, as designated by the board on request of the city.
(k) Except as otherwise provided in subdivisions (b) to (j),
inclusive, any retirement system with respect to employees of each of
the public agencies having employees in positions covered by the
system.
(l) Each division or part of a retirement system, as defined in
subdivisions (a), (b), (c), (e), (g), (h), (i), (j), (k), and (m),
which is divided pursuant to this chapter into two parts:
(1) The part composed of the positions of members of a system who
desire coverage under the federal system.
(2) The part composed of the positions of members of a system who
do not desire coverage under the federal system.
(m) The State Teachers' Retirement System with respect to all
employees of each public agency, as defined by Section 22009.03, in
positions covered by the State Teachers' Retirement Plan. This
subdivision shall become inoperative on July 1, 2004.
SEC. 141. Section 22018 of the Government Code is amended to read:
22018. (a) It is the intent of the Legislature that, to the
extent possible, members of the State Teachers' Retirement Plan earn
credit towards Medicare coverage.
(b) In accomplishing the goal specified in subdivision (a), the
board shall make available to school districts, community college
districts, and county superintendents of schools information
concerning the procedure for earning credit for social security
coverage for school-related service not credited under the Teachers'
Retirement Law.
SEC. 142. Section 22156 of the Government Code is amended to read:
22156. (a) A division of the State Teachers' Retirement System is
hereby authorized by the Legislature to provide Medicare coverage
for employees of a public agency as defined in Section 22009.03, upon
the request of the public agency.
(b) The division authorized by subdivision (a) shall be
conducted pursuant to this article.
(c) A member of the State Teachers' Retirement Plan on whose
behalf a request is made pursuant to subdivision (a), may elect to be
covered by Medicare, pursuant to Section 218 of the federal Social
Security Act (42 U.S.C. Sec. 418), and applicable federal regulations
if (1) the member was employed in a position covered by the system
on March 31, 1986, and (2) the member has not since been mandated
into Medicare coverage due to the enactment of Public Law 99-272, and
(3) the member is in a position covered or the member is eligible to
elect to be covered by the retirement system on the date of the
division.
(d) The public agency shall, immediately after the elections
authorized in subdivision (b) have been made, make application
pursuant to Chapter 2 (commencing with Section 22200) of this part
for Medicare coverage for those members who have elected to receive
Medicare coverage.
(e) The effective date of the coverage may be retroactive a
maximum of five years but not earlier than January 1, 1987.
(f) This section shall become inoperative on July 1, 2004, and, as
of January 1, 2005, is repealed, unless a later enacted statute,
which becomes effective on or before January 1, 2005, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 143. Section 22502 of the Government Code is amended to read:
22502. Agreements as defined in Section 22006, and all
applications and agreements and contracts and any amendments thereto
between the board and the Adjutant General, the Teachers' Retirement
Board, the Regents of the University of California, and any public
agency, except the state, executed by the board pursuant to this part
are hereby excepted from the provisions of Section 13370, and of any
other statutory provision that would otherwise require the approval
of any such agreements and contracts and any amendments thereto by
any other state officer or agency.
SEC. 144. Section 22754 of the Government Code is amended to read:
22754. As used in this part, the following definitions, unless
the context otherwise requires, shall govern the interpretation of
terms:
(a) "Board" means the Board of Administration of the Public
Employees' Retirement System.
(b) "Employee" means:
(1) Any officer or employee of the State of California or of any
agency, department, authority, or instrumentality of the state
including the University of California, or any officer or employee
who is a local or school member of the Public Employees' Retirement
System employed by a contracting agency that has elected to be or
otherwise has become subject to this part, or who is a member or
retirant of the State Teachers' Retirement Plan employed by an
employer who has elected to become subject to this part, or who is an
employee or annuitant of a special district or county subject to the
County Employees Retirement Law of 1937 (Chapter 3 (commencing with
Section 31450) of Part 3 of Division 4 of Title 3) that has elected
to become subject to this part, or who is an employee or annuitant of
a special district, as defined in subdivision (i), that has elected
to become subject to this part, except persons employed on an
intermittent, irregular, or less than half-time basis, or employees
similarly situated, or employees in respect to whom contributions by
the state for any type of plan or program offering prepaid hospital
and medical care are otherwise authorized by law.
(2) Any officer or employee who participates in the retirement
system of a contracting agency as defined in paragraph (2) of
subdivision (g) that has elected to become subject to this part,
except persons employed less than half time or who are otherwise
determined to be ineligible.
(3) Any annuitant of the Public Employees' Retirement System
employed by a contracting agency as defined in subdivision (g) that
has elected to become subject to this part who is a person retired
under Section 21228.
(4) Any officer or employee of a contracting agency as defined in
paragraph (3) of subdivision (g) that has elected to become subject
to this part, except persons who are determined to be ineligible.
(c) "Carrier" means a private insurance company holding a valid
outstanding certificate of authority from the Insurance Commissioner
of the state, a medical society or other medical group, a nonprofit
hospital service plan qualifying under Chapter 11A (commencing with
Section 11491) of Part 2 of Division 2 of the Insurance Code, or
nonprofit membership corporation lawfully operating under Section
9200 or Section 9201 of the Corporations Code, or a health care
service plan as defined under subdivision (f) of Section 1345 of the
Health and Safety Code, or a health maintenance organization approved
under Title XIII of the federal Public Health Services Act (42
U.S.C. Sec. 201 et seq.), that is lawfully engaged in providing,
arranging, paying for, or reimbursing the cost of personal health
services under insurance policies or contracts, medical and hospital
service agreements, membership contracts, or the like, in
consideration of premiums or other periodic charges payable to it.
(d) "Health benefits plan" means any program or entity that
provides, arranges, pays for, or reimburses the cost of health
benefits.
(e) "Annuitant" means:
(1) Any person who has retired within 120 days of separation from
employment and who receives any retirement allowance under any state
or University of California retirement system to which the state was
a contributing party.
(2) A family member receiving an allowance as the survivor of an
annuitant who has retired as provided in paragraph (1), or as the
survivor of a deceased employee under Section 21541, 21546, or 21547
or similar provisions of any other state retirement system.
(3) Any employee who has retired under the retirement system
provided by a contracting agency as defined in paragraph (2) or (3)
of subdivision (g) and who receives a retirement allowance from that
retirement system, or a surviving family member who receives the
retirement allowance in place of the deceased.
(4) Any person who was a state member for 30 years or more and
who, at the time of retirement, was a local member employed by a
contracting agency.
(f) "Family member" means an employee's or annuitant's spouse and
any unmarried child (including an adopted child, a stepchild, or
recognized natural child who lives with the employee or annuitant in
a regular parent-child relationship). The board shall, by
regulation, prescribe age limits and other conditions and limitations
pertaining to unmarried children.
(g) "Contracting agency" means:
(1) Any contracting agency as defined in Section 20022, any county
or special district subject to the County Employees Retirement Law
of 1937 (Chapter 3 (commencing with Section 31450) of Part 3 of
Division 4 of Title 3), and any special district, school district,
county board of education, personnel commission of a school district,
or a county superintendent of schools.
(2) Any public body or agency of, or within California not covered
by the Public Employees' Retirement System or subject to the County
Employees Retirement Law of 1937 (Chapter 3 (commencing with Section
31450) of Part 3 of Division 4 of Title 3), that provides a
retirement system for its employees funded wholly or in part by
public funds and a trial court as defined in the Trial Court
Employment Protections and Governance Act (Chapter 7 (commencing with
Section 71600) of Title 8).
(3) The protection and advocacy agency described in subdivision
(h) of Section 4900 of the Welfare and Institutions Code, if the
agency obtains a written advisory opinion from the United States
Department of Labor stating that the organization is an agency or
instrumentality of the state or a political subdivision thereof
within the meaning of the Chapter 18 (commencing with Section 1001)
of Title 29 of the United States Code.
(h) "Employer" means the state, any contracting agency employing
an employee, and any agency that has elected to become subject to
this part pursuant to Section 22856.
(i) "Special district" means a nonprofit, self-governed public
agency, within the State of California and comprised solely of public
employees, performing a governmental rather than proprietary
function.
SEC. 145. Section 22810 of the Government Code is amended to read:
22810. (a) An employee or annuitant may, under eligibility rules
as the board may by regulation prescribe, enroll in an approved
health benefits plan, either as an individual or for self and family,
except that an employee of a contracting agency, or an annuitant who
retired while an employee or who is the beneficiary of an employee,
may enroll only in a health benefits plan for which the board has
contracted. With respect to state officers and employees, the
regulations shall provide that every employee or annuitant enrolled
in a health benefits plan shall be enrolled in a major medical plan
or shall provide for inclusion of major medical benefits in health
benefits plans. The regulations may provide for the exclusion of
employees on the basis of the nature and type of their employment or
conditions pertaining thereto, including, but not limited to,
short-term appointments, seasonal or intermittent employment, and
employment of a like nature, but no employee or group of employees
may be excluded solely on the basis of the hazardous nature of the
employment. Any enrollment shall authorize the deduction of the
contributions required under this part from the employee's or
annuitant's salary or retirement allowance.
(b) Any annuitant who satisfies the requirement to retire within
120 days of separation as specified in subdivision (e) of Section
22754 may continue his or her enrollment, enroll within 60 days of
retirement, or enroll during any future open enrollment period, as
provided by regulations of the board, without discrimination as to
premium rates or benefits coverage. If the survivor of an annuitant
who satisfied the requirement to retire within 120 days of separation
as specified in subdivision (e) of Section 22754 is also an
annuitant as defined in this part, he or she shall also be eligible
to enroll within 60 days of the annuitant's death or during any
future open enrollment period, as provided by regulation of the
board, without discrimination as to premium rates or benefits
coverage. The effective date of enrollment of persons who, at the
time of becoming an annuitant or survivor, were not enrolled in a
health benefits plan under this part shall be a prospective date
determined by the board.
(c) Any permanent intermittent employee and any employee who works
less than full time may continue his or her enrollment while retired
from state employment if (1) he or she was enrolled prior to
separation from state employment and (2) he or she lost eligibility
prior to separation but continued his or her coverage under federal
law.
(d) Any annuitant who becomes entitled to the survivor allowance
under Section 21571 at the age of 62 years and who was enrolled in a
health benefits plan at the death of the member on whose account the
survivor allowance is payable may enroll in a health benefits plan
without discrimination as to premium rates or benefits coverage.
(e) In the case of the death of an employee after application has
been filed for coverage of family members but prior to the effective
date of coverage, family members shall be deemed to have been covered
on the date of the death of the employee, and if one of the family
members is an annuitant he or she shall be enrolled as if the
coverage applied for were continued without discrimination as to
premium rates or benefits coverage.
(f) The board shall, by rule and regulation, make whatever
provisions it deems necessary to eliminate or minimize the impact of
adverse selection that would affect any plans approved or contracted
for because of the enrollment of annuitants. This may include the
reimbursement of surcharges for late enrollment in Part B of Medicare
if the board determines that payment of the surcharge would be less
costly than continued enrollment in a basic plan.
SEC. 146. Section 22840.2 of the Government Code is amended to
read:
22840.2. (a) There shall be maintained in the State Treasury the
Public Employees' Health Care Fund, the purpose of which is to fund
the health benefits plan or plans administered or approved by the
board. The board may invest funds in the Public Employees' Health
Care Fund in accordance with the provisions of law governing its
investment of the retirement fund.
(b) The Public Employees' Health Care Fund shall consist of the
following:
(1) Any self-funded or minimum premium plan premiums paid by
public agencies, the state, and enrolled employees, annuitants, and
family members, including premiums paid directly for continuation
coverage authorized under the Consolidated Omnibus Budget and
Reconciliation Act of 1986 or as thereafter amended, and as
authorized by this part.
(2) Any reserve moneys from terminated plans designated by the
board for payment to self-funded or minimum premium plans.
(c) Income, of whatever nature, earned on the Public Employees'
Health Care Fund during any fiscal year, shall be credited to the
fund.
(d) Notwithstanding Section 13340, the Public Employees' Health
Care Fund is continuously appropriated, without regard to fiscal
years, to pay benefits and claims costs, to pay the costs of
administering self-funded or minimum premium plans, to refund those
who made direct premium payments, and to pay other costs as the board
may determine as necessary, consistent with its fiduciary duty.
(e) The Legislature finds and declares that the Public Employees'
Health Care Fund is a trust fund held for the exclusive benefit of
enrolled employees, annuitants, family members, the self-funded plan
administrator, and those contracting to provide medical and hospital
care services.
SEC. 147. Section 23119 of the Government Code is amended to read:
23119. The boundaries of Los Angeles County are as follows:
Beginning at a point in the southwesterly boundary line of the
State of California, said point being on the southerly prolongation
of the westerly boundary line of Rancho Topanga Malibu Sequit; thence
northerly along said prolongation and westerly line of said rancho
to the northwesterly corner thereof; thence northeasterly in a direct
line to corner number seven of the boundary of Rancho Simi; thence
easterly along line number seven, northerly along line number eight,
easterly along line number nine of the boundary of Rancho Simi to
corner number ten of the boundary of Rancho Simi; thence following
the boundary line as surveyed by E. T. Wright and J. T. Stow, county
surveyors, in June and July, 1881 as shown on map recorded in book
43, page 25 et seq., miscellaneous records of Los Angeles County as
follows: north 105.01 chains to a point; thence north 07 degrees 29
minutes W., 157.50 chains to a point; thence north 21 degrees 57
minutes W., to a point in the north line of Sec. 4, T. 8 N., R. 19
W., S. B. B. & M., distant westerly along said north line 1,400 feet,
more or less, from the northeast corner of said Sec. 4, said point
being common to the boundaries of Kern, Ventura, and Los Angeles;
thence east along the north line of T. 8 N., S. B. B. & M., to the
easterly line of Golden State Freeway (Interstate 5); thence
southwesterly, southerly, and southeasterly along said easterly line
to the south line of Sec. 3, T. 8 N., R. 19 W., S. B. B. & M.; thence
easterly along said south line and the south line of Sec. 2, T. 8
N., R. 19 W., S. B. B. & M., to the southeast corner of said Sec. 2;
thence northerly along the east line of said Sec. 2 to the north line
of T. 8 N., S. B. B. & M.; thence easterly along the north line of
T. 8 N., S. B. B. & M. to the northeast corner of T. 8 N., R. 8 W.,
S. B. B. & M., said corner being a point common to the boundaries of
San Bernardino, Kern, and Los Angeles;
Thence south along the range line between R. 7 and 8 W., to the
southeast corner of T. 6 N., R. 8 W., S. B. B. & M.; thence east
along the township line between T. 5 and 6 N., to the northeast
corner of T. 5 N., R. 8 W., S. B. B. & M.; thence south along the
range line between R. 7 and 8 W., to a point in the east line of Sec.
12, T. 4 N., R. 8 W., S. B. B. & M., distant southerly 940 feet,
measured along said east line, from the northeast corner of said Sec.
12; thence southerly in a direct line to the summit of San Antonio
Peak; thence southerly along a straight line which passes through the
northwest corner of Rancho Cucamonga to a point in said straight
line distant south 11*51'04 west thereon, 333.81 feet from its
intersection with the north line of Tract 37, T. 2 N., R. 7 W., S. B.
B. & M.; thence north 25*38'59 west, 15.06 feet; thence south 70*15'
29 west, 47.76 feet; thence south 09*57'30 east, 62.51 feet; thence
south 34*17'02 east, 36.94 feet to said straight line; thence
continuing southerly along said straight line to a point in said
straight line distant north 11*51'04 east, 547.37 feet from its
intersection with the south line of said Tract 37; thence south 84*57'
02 west, 35.25 feet; thence south 23*47'27 west, 75.70 feet to the
beginning of a nontangent curve concave to the southwest having a
radius of 181.00 feet and to which beginning a radial line bears
south 29*24'24 west; thence southeasterly along said curve through a
central angle of 12*08'32 an arc distance of 38.36 feet to the
beginning of a reverse curve concave to the northeast having a radius
of 169.00 feet; thence southeasterly 16.07 feet along said curve
through a central angle of 05*26'52 to said straight line; thence
southwest in a direct line to the northwest corner of Rancho
Cucamonga, thence southwesterly along the northwesterly boundary line
of Rancho Cucamonga to the most westerly corner of Rancho Cucamonga;
thence southwesterly in a direct line to the northeast corner of
Rancho San Jose; thence southwesterly and westerly along the easterly
and southerly boundary lines of Rancho San Jose to the range line
between R. 8 and 9 W. in T. 2 S., S. B. B. & M.;
Thence south along the range line between R. 8 and 9 W., to the
southeast corner of Sec. 12, T. 2 S., R. 9 W., S. B. B. & M., said
corner being an angle point in the boundary line of Rancho Santa Ana
del Chino; thence westerly, southwesterly, southerly, easterly, and
southerly along the boundary line of Rancho Santa Ana del Chino to
the southwest corner of Rancho Santa Ana del Chino, said corner being
the center of Sec. 35, T. 2 S., R. 9 W., S. B. B. & M.; thence
southeasterly in a straight line to a point in the south line of Sec.
36, T. 2 S., R. 9 W., S. B. B. & M., distant 52.84 feet easterly
thereon from the southwest corner of said Sec. 36, said point being
common to the boundaries of San Bernardino, Orange, and Los Angeles;
thence westerly along the northern line of Orange to the
southeasterly corner of Tract No. 46685 filed in Book 1209, pages 56
and 57, of Maps, in the office of the Recorder of the County of Los
Angeles, said southeasterly corner being common to the boundaries of
Orange and Los Angeles; thence northerly following along the boundary
of said Tract No. 46685, the following courses: north 13*53'07 east
100.12 feet, north 76*01'25 west 1018.58 feet, north 85*34'56 west
163.25 feet, and south 00*57'29 west 47.01 feet to a point in the
northerly line of Tract No. 25335, filed in Book 775, pages 35 and
36, of said Maps, said point distant westerly along said northerly
line 10.26 feet from the northeasterly corner of said Tract No.
25335; thence northwesterly following along the boundary of said
Tract No. 25335 the following courses: north 76*00'59 west 1224.52
feet and south 00*52'39 west 564.75 feet to a point on the boundary
common to Orange and Los Angeles; thence westerly along the northern
line of Orange to the southwesterly boundary line of the State of
California; thence northwesterly along the southwesterly boundary
line of the State of California to the point of beginning. Also the
Islands of Santa Catalina and San Clemente.
SEC. 148. Section 26608.3 of the Government Code is amended to
read:
26608.3. (a) In Shasta County, the board of supervisors by
ordinance or resolution may transfer from the sheriff to the marshal
of the Shasta County Superior Court the duty to serve all writs,
notices, and other process issued by any state court, or other
competent authority.
(b) After adoption of the ordinance or resolution pursuant to
subdivision (a), and notwithstanding any other provision of law, in
Shasta County the marshal shall have the duty to serve all writs,
notices, and other process issued by any state court or other
competent authority, and the sheriff shall be relieved of any
obligation imposed by Section 26608 and any liability imposed by
Section 26663 or 26664.
(c) Nothing in this section shall be construed as limiting the
responsibility or authority of a private person or registered process
server from serving process and notices in the manner prescribed by
law, nor shall it limit the authority of the sheriff or any other
peace officer to serve warrants of arrest or other process
specifically directed by a court to the sheriff or any other peace
officer.
SEC. 149. Section 26638.5 of the Government Code, as added by
Chapter 1072 of the Statutes of 2002, is amended and renumbered to
read:
26638.15. Notwithstanding any other provision of law, the Board
of Supervisors of Merced County may abolish, by ordinance, the Merced
County Marshal's office and establish a court security division in
the Merced County Sheriff's Department. If the board of supervisors
chooses to abolish this office, the following provisions shall apply:
(a) The sheriff shall be appointing authority for all division
personnel. The person selected by the sheriff to oversee the
operation of court security services shall report directly to the
sheriff, or his or her designee.
(b) Notwithstanding any other provision of law, all personnel of
the marshal's office affected by the abolition of the marshal's
office in Merced County shall become employees of the sheriff's
department at their existing or equivalent classification, salaries,
and benefits.
(c) Permanent employees of the marshal's office on the effective
date of transfer of services from the marshal to the sheriff pursuant
to this section shall be deemed to be qualified, and no other
qualifications shall be required for employment or retention.
Promotions for all personnel from the marshal's office shall be made
pursuant to standards set by the sheriff. Probationary employees in
the marshal's office on the effective date of the abolition shall not
be required to serve a new probationary period. All probationary
time served as an employee of the marshall shall be credited toward
probationary time required as an employee of the sheriff's
department.
(d) All county service with the marshal's office by employees of
the marshal's office on the effective date of the abolition of the
marshal's office shall be counted toward seniority in the court
security division of the sheriff's department.
(e) No employee of the marshal's office on the effective date of a
consolidation pursuant to this section shall lose peace officer
status, or otherwise be adversely affected as a result of the
abolition and merger of personnel into the sheriff's department.
(f) The personnel of the marshal's office who become employees of
the sheriff's department may not be transferred from the division in
the sheriff's department under which court security services are
provided unless the transfer is voluntary.
(g) Personnel of the abolished marshal's office shall be entitled
to request an assignment to another division within the sheriff's
department, and that request shall be reviewed in the same manner as
any other request from within the department.
SEC. 150. Section 30061 of the Government Code is amended to read:
30061. (a) There shall be established in each county treasury a
Supplemental Law Enforcement Services Fund (SLESF), to receive all
amounts allocated to a county for purposes of implementing this
chapter.
(b) In any fiscal year for which a county receives money to be
expended for the implementation of this chapter, the county auditor
shall allocate moneys in the county's SLESF, including any interest
or other return earned on the investment of those moneys, within 30
days of the deposit of those moneys into the fund, and shall allocate
those moneys in accordance with the requirements set forth in this
subdivision. However, the auditor shall not transfer those moneys to
a recipient agency until the Supplemental Law Enforcement Oversight
Committee certifies receipt of an approved expenditure plan from the
governing board of that agency.
(1) Five and fifteen one hundredths percent (5.15%) to the county
sheriff for county jail construction and operation. In the case of
Madera, Napa, and Santa Clara Counties, this allocation shall be made
to the county director or chief of corrections.
(2) Five and fifteen one hundredths percent (5.15%) to the
district attorney for criminal prosecution.
(3) Thirty-nine and seven-tenths percent (39.7%) to the county and
the cities within the county, and, in the case of San Mateo, Kern,
Siskiyou, and Contra Costa Counties, also to the Broadmoor Police
Protection District, the Bear Valley Community Services District, the
Stallion Springs Community Services District, the Lake Shastina
Community Services District, and the Kensington Police Protection and
Community Services District, in accordance with the relative
population of the cities within the county and the unincorporated
area of the county, and the Broadmoor Police Protection District in
the County of San Mateo, the Bear Valley Community Services District
and the Stallion Springs Community Services District in Kern County,
the Lake Shastina Community Services District in Siskiyou County, and
the Kensington Police Protection and Community Services District in
Contra Costa County, as specified in the most recent January estimate
by the population research unit of the Department of Finance, and as
adjusted to provide a grant of at least one hundred thousand dollars
($100,000) to each law enforcement jurisdiction. For a newly
incorporated city whose population estimate is not published by the
Department of Finance but which was incorporated prior to July 1 of
the fiscal year in which an allocation from
the SLESF is to be made, the city manager, or an
appointee of the legislative body, if a city manager is not
available, and the county administrative or executive officer shall
prepare a joint notification to the Department of Finance and the
county auditor with a population estimate reduction of the
unincorporated area of the county equal to the population of the
newly incorporated city by July 15, or within 15 days after the
Budget Act is enacted, of the fiscal year in which an allocation from
the SLESF is to be made. No person residing within the Broadmoor
Police Protection District, the Bear Valley Community Services
District, the Stallion Springs Community Services District, the Lake
Shastina Community Services District, or the Kensington Police
Protection and Community Services District shall also be counted as
residing within the unincorporated area of the County of San Mateo,
Kern, Siskiyou, or Contra Costa, or within any city located within
those counties. The county auditor shall allocate a grant of at
least one hundred thousand dollars ($100,000) to each law enforcement
jurisdiction. Moneys allocated to the county pursuant to this
subdivision shall be retained in the county SLESF, and moneys
allocated to a city pursuant to this subdivision shall be deposited
in an SLESF established in the city treasury.
(4) Fifty percent (50%) to the county or city and county to
implement a comprehensive multiagency juvenile justice plan as
provided in this paragraph. This plan shall be developed by the
local juvenile justice coordinating council in each county and city
and county with the membership described in Section 749.22 of the
Welfare and Institutions Code. If a plan has been previously
approved by the Board of Corrections, the plan shall be reviewed and
modified annually by the council. The plan or modified plan shall be
approved by the county board of supervisors, and in the case of a
city and county, the plan shall also be approved by the mayor. The
plan or modified plan shall be submitted to the Board of Corrections
by May 1, 2002, and annually thereafter.
(A) Juvenile justice plans shall include, but not be limited to,
all of the following components:
(i) An assessment of existing law enforcement, probation,
education, mental health, health, social services, drug and alcohol,
and youth services resources that specifically target at-risk
juveniles, juvenile offenders, and their families.
(ii) An identification and prioritization of the neighborhoods,
schools, and other areas in the community that face a significant
public safety risk from juvenile crime, such as gang activity,
daylight burglary, late-night robbery, vandalism, truancy, controlled
substances sales, firearm-related violence, and juvenile substance
abuse and alcohol use.
(iii) A local juvenile justice action strategy that provides for a
continuum of responses to juvenile crime and delinquency and
demonstrates a collaborative and integrated approach for implementing
a system of swift, certain, and graduated responses for at-risk
youth and juvenile offenders.
(iv) Programs identified in clause (iii) that are proposed to be
funded pursuant to this subparagraph, including the projected amount
of funding for each program.
(B) Programs proposed to be funded shall satisfy all of the
following requirements:
(i) Be based on programs and approaches that have been
demonstrated to be effective in reducing delinquency and addressing
juvenile crime for any elements of response to juvenile crime and
delinquency, including prevention, intervention, suppression, and
incapacitation.
(ii) Collaborate and integrate services of all the resources set
forth in clause (i) of subparagraph (A), to the extent appropriate.
(iii) Employ information sharing systems to ensure that county
actions are fully coordinated, and designed to provide data for
measuring the success of juvenile justice programs and strategies.
(iv) Adopt goals related to the outcome measures that shall be
used to determine the effectiveness of the local juvenile justice
action strategy.
(C) The plan shall identify the specific objectives of the
programs proposed for funding and specified outcome measures to
determine the effectiveness of the programs and provide an accounting
for all program participants, including those who do not complete
the programs. Outcome measures of the programs proposed to be funded
shall include, but not be limited to, all of the following:
(i) The rate of juvenile arrests per 100,000 population.
(ii) The rate of successful completion of probation.
(iii) The rate of successful completion of restitution and
court-ordered community service responsibilities.
(iv) Arrest, incarceration, and probation violation rates of
program participants.
(v) Quantification of the annual per capita costs of the program.
(D) The Board of Corrections shall review plans or modified plans
submitted pursuant to this paragraph within 30 days upon receipt of
submitted or resubmitted plans or modified plans. The board shall
approve only those plans or modified plans that fulfill the
requirements of this paragraph, and shall advise a submitting county
or city and county immediately upon the approval of its plan or
modified plan. The board shall offer, and provide if requested,
technical assistance to any county or city and county that submits a
plan or modified plan not in compliance with the requirements of this
paragraph. The SLESF shall only allocate funding pursuant to this
paragraph upon notification from the board that a plan or modified
plan has been approved.
(E) To assess the effectiveness of programs funded pursuant to
this paragraph using the program outcome criteria specified in
subparagraph (C), the following periodic reports shall be submitted:
(i) Each county or city and county shall report, beginning October
15, 2002, and annually each October 15 thereafter, to the county
board of supervisors and the Board of Corrections, in a format
specified by the Board of Corrections, on the programs funded
pursuant to this chapter and program outcomes as specified in
subparagraph (C).
(ii) The Board of Corrections shall compile the local reports and,
by March 15, 2003, and annually thereafter, make a report to the
Governor and the Legislature on program expenditures within each
county and city and county from the appropriation for the purposes of
this paragraph, on the outcomes as specified in subparagraph (C) of
the programs funded pursuant to this paragraph and the statewide
effectiveness of the comprehensive multiagency juvenile justice
plans.
(c) Subject to subdivision (d), for each fiscal year in which the
county, each city, the Broadmoor Police Protection District, the Bear
Valley Community Services District, the Stallion Springs Community
Services District, the Lake Shastina Community Services District, and
the Kensington Police Protection and Community Services District
receive moneys pursuant to paragraph (3) of subdivision (b), the
county, each city, and each district specified in this subdivision
shall appropriate those moneys in accordance with the following
procedures:
(1) In the case of the county, the county board of supervisors
shall appropriate existing and anticipated moneys exclusively to
provide frontline law enforcement services, other than those services
specified in paragraphs (1) and (2) of subdivision (b), in the
unincorporated areas of the county, in response to written requests
submitted to the board by the county sheriff and the district
attorney. Any request submitted pursuant to this paragraph shall
specify the frontline law enforcement needs of the requesting entity,
and those personnel, equipment, and programs that are necessary to
meet those needs. The board shall, at a public hearing held in
September in each year that the Legislature appropriates funds for
purposes of this chapter, consider and determine each submitted
request within 60 days of receipt, pursuant to the decision of a
majority of a quorum present. The board shall consider these written
requests separate and apart from the process applicable to proposed
allocations of the county general fund.
(2) In the case of a city, the city council shall appropriate
existing and anticipated moneys exclusively to fund frontline
municipal police services, in accordance with written requests
submitted by the chief of police of that city or the chief
administrator of the law enforcement agency that provides police
services for that city. These written requests shall be acted upon
by the city council in the same manner as specified in paragraph (1)
for county appropriations.
(3) In the case of the Broadmoor Police Protection District within
the County of San Mateo, the Bear Valley Community Services District
or the Stallion Springs Community Services District within Kern
County, the Lake Shastina Community Services District within Siskiyou
County, or the Kensington Police Protection and Community Services
District within Contra Costa County, the legislative body of that
special district shall appropriate existing and anticipated moneys
exclusively to fund frontline municipal police services, in
accordance with written requests submitted by the chief administrator
of the law enforcement agency that provides police services for that
special district. These written requests shall be acted upon by the
legislative body in the same manner specified in paragraph (1) for
county appropriations.
(d) For each fiscal year in which the county, a city, or the
Broadmoor Police Protection District within the County of San Mateo,
the Bear Valley Community Services District or the Stallion Springs
Community Services District within Kern County, the Lake Shastina
Community Services District within Siskiyou County, or the Kensington
Police Protection and Community Services District within Contra
Costa County receives any moneys pursuant to this chapter, in no
event shall the governing body of any of those recipient agencies
subsequently alter any previous, valid appropriation by that body,
for that same fiscal year, of moneys allocated to the county or city
pursuant to paragraph (3) of subdivision (b).
(e) Funds received pursuant to subdivision (b) shall be expended
or encumbered in accordance with this chapter no later than June 30
of the following fiscal year. A local agency that has not met this
requirement shall remit unspent SLESF moneys to the Controller for
deposit into the General Fund.
(f) In the event that a county, a city, a city and county, or a
qualifying special district does not comply with the requirements of
this chapter to receive an SLESF allocation, the Controller shall
revert those funds to the General Fund.
SEC. 151. Section 30063 of the Government Code is amended to read:
30063. (a) The Supplemental Law Enforcement Services Fund (SLESF)
in each county or city is to be expended exclusively as required by
this chapter. Moneys in that fund shall not be transferred to, or
intermingled with, the moneys in any other fund in the county or city
treasury, except that moneys may be transferred from the SLESF to
the county's or city's general fund to the extent necessary to
facilitate the appropriation and expenditure of those transferred
moneys in the manner required by this chapter.
(b) Moneys in an SLESF may only be invested in safe and
conservative investments in accordance with those standards of
prudent investment applicable to the investment of trust moneys. The
treasurer of the county and each city shall provide a monthly SLESF
investment report to either the police chief or the county sheriff
and district attorney, as applicable.
(c) Each year, at least 30 days prior to the date of the duly
noticed public hearing required pursuant to paragraph (1) of
subdivision (c) of Section 30061, the county auditor and city
treasurer shall detail and summarize allocations from the county's or
city's SLESF, as applicable, in a written, public report filed with
the Supplemental Law Enforcement Oversight Committee (SLEOC), the
county board of supervisors, or the city council, as applicable, for
the entirety of the immediately preceding fiscal year, and the county
sheriff or police chief, as applicable.
(d) A summary of the annual reports required in subdivision (c)
shall be submitted in a standardized format to be developed by the
Controller, in conjunction with the California District Attorney's
Association, California Police Chief's Association, California State
Sheriff's Association, California Peace Officer's Association,
California County Auditor's Association, and California Municipal
Treasurer's Association, by each SLEOC to the Controller on or before
October 15, 2001, and each year thereafter. The Controller shall
make a copy of the summarized reports available to the Governor, the
Legislature, and the Legislative Analyst's office.
(e) By March 1 of each year, the Legislative Analyst's office
shall report to the Legislature on the types of expenditures made by
local law enforcement agencies in the previous fiscal year pursuant
to this chapter, and, to the extent feasible, on the effects of those
expenditures on law enforcement and public safety.
(f) A county, a city, or a city and county that fails to submit
the data required pursuant to subdivision (d) of this section or to
report as required pursuant to clause (i) of subparagraph (E) of
paragraph (4) of subdivision (b) of Section 30061 shall not continue
to expend funds allocated pursuant to subdivision (b) of Section
30061 or interest earned pursuant to subdivision (b) of this section
until that data and that report are submitted as required by this
chapter.
(g) Notwithstanding subdivision (f), if the SLEOC fails to
transmit the data to the Controller required pursuant to subdivision
(d), the local law enforcement agency may submit its expenditure data
directly to the Controller no later than 15 days after the date
specified in subdivision (d). If the local law enforcement agency
has complied with other requirements in this chapter, it may continue
to expend funds allocated and interest earned pursuant to this
chapter.
SEC. 152. Section 31520.1 of the Government Code is amended to
read:
31520.1. In any county subject to the provisions of Articles 6.8
(commencing with Section 31639) and 7.5 (commencing with Section
31662.2), the board of retirement shall consist of nine members and
one alternate, one of whom shall be the county treasurer. The second
and third members of the board shall be members of the association,
other than safety members, elected by the members within 30 days
after the retirement system becomes operative in a manner determined
by the board of supervisors. The fourth, fifth, sixth, and ninth
members shall be qualified electors of the county who are not
connected with the county government in any capacity, except one may
be a supervisor, and shall be appointed by the board of supervisors.
A supervisor appointed as a member of the retirement board shall not
serve beyond his or her term of office as supervisor. The seventh
member shall be a safety member of the association elected by the
safety members. The eighth member shall be a retired member elected
by the retired members of the association in a manner to be
determined by the board of supervisors. The alternate member shall
be that candidate, if any, for the seventh member from the group
under Section 31470.2 or 31470.4, which is not represented by a board
member who received the highest number of votes of all candidates in
that group. If there is no such candidate there shall be no
alternate member. The first person chosen as the second and fourth
members shall serve for a term of two years beginning with the date
the system becomes operative, the third and fifth members shall serve
for a term of three years beginning with that date, and the sixth,
seventh, and alternate members shall serve for a term of two years
beginning January 1, 1952, or the date on which a retirement system
established by this chapter becomes operative, whichever is the
later. The eighth and ninth members shall take office as soon as
practicable for an initial term to expire concurrent with the
expiration of the longest remaining term of an elected member.
Thereafter the terms of office of the elected and appointed members
and alternate are three years.
The alternate member provided for by this section shall vote as a
member of the board only in the event the second, third, seventh, or
eighth member is absent from a board meeting for any cause, or if
there is a vacancy with respect to the second, third, seventh, or
eighth member, the alternate member shall fill the vacancy until a
successor qualifies. The alternate shall sit on the board in place
of the seventh member when a member of the same service is before the
board for determination of his or her retirement.
The amendments to this section during the 1972 Regular Session
shall not be construed to affect the continuation on the board of
retired members appointed by the board of supervisors until the
expiration of the term for which they were appointed.
SEC. 153. Section 31629.5 of the Government Code is amended to
read:
31629.5. (a) Notwithstanding Sections 31628 and 31629, on and
after January 1, 2003, a member who is credited with less than the
number of years of service required for vesting shall have the right
to elect to leave accumulated contributions on deposit in the
retirement fund. Failure to make an election to withdraw accumulated
contributions shall be deemed an election to leave accumulated
contributions on deposit in the retirement fund.
(b) An election to allow accumulated contributions to remain in
the retirement fund may be revoked by the member at any time except:
(1) while the member is employed in county service in a position in
which the member is not excluded from membership in this system with
respect to that service; (2) while the member is in service as a
member of a public retirement system supported, in whole or in part,
by state funds; or (3) while the member is in service, entered within
six months after discontinuing county service, as a member of a
reciprocal retirement system. All accumulated contributions
contributed up to the time of revocation may then be withdrawn.
(c) A member whose membership continues under this section is
subject to the same age, service, and disability requirements that
apply to other members for service or disability retirement. After
the qualification of the member for retirement by reason of age,
which shall be the lowest age applicable to any membership category
in which the member has credited service, or disability, the member
shall be entitled to receive a retirement allowance based upon the
amount of the member's accumulated contributions and service standing
to the member's credit at the time of retirement and on the employer
contributions held for the member and calculated in the same manner
as for other members.
(d) Service, solely for purposes of meeting minimum service
qualifications for service or disability retirement, shall also
include service credited as an employee of a reciprocal system when
the member retires concurrently from all reciprocal retirement
systems. A member whose combined service from all reciprocal
retirement systems does not meet the minimum service qualifications
may not receive a service or disability retirement from this system.
(e) Notwithstanding Section 31467, for purposes of this section,
"accumulated contributions" means the sum of all member contributions
standing to the credit of a member's individual account, and
interest thereon.
SEC. 154. Section 31787.6 of the Government Code is amended to
read:
31787.6. A surviving spouse of a safety member who is killed in
the performance of duty or who dies as the result of an accident or
injury caused by external violence or physical force, incurred in the
performance of his or her duty, shall be paid the following amount
in addition to all other benefits provided by this chapter:
A one-time lump-sum benefit equal to an amount, provided from
contributions by the county or district, equal to the annual
compensation earnable by the deceased at his or her monthly rate of
compensation at the time of his or her death.
This section is not applicable to members described in Section
31469.2.
SEC. 155. Section 45310.7 of the Government Code is amended to
read:
45310.7. (a) On and after January 1, 2003, a member who is
credited with less than the number of years of service required for
vesting shall have the right to elect to leave accumulated
contributions on deposit in the retirement fund of the city's
retirement system. Failure to make an election to withdraw
accumulated contributions shall be deemed an election to leave
accumulated contributions on deposit in the system's retirement fund.
(b) An election to allow accumulated contributions to remain in
the system's retirement fund may be revoked by the member at any time
except: (1) while the member is employed in service in a position
in which the member is not excluded from membership in the system
with respect to that service; (2) while the member is in service as a
member of a public retirement system supported, in whole or in part,
by state funds; or (3) while the member is in service in a
reciprocal retirement system, entered within six months after
discontinuing service in the city's retirement system. All
accumulated contributions made up to the time of revocation may then
be withdrawn.
(c) A member whose membership continues under this section is
subject to the same age, service, and disability requirements as
apply to other members for service or disability retirement. After
the qualification of the member for retirement by reason of age,
which shall be the lowest age applicable to any membership category
in which the member has credited service, or disability, the member
shall be entitled to receive a retirement allowance based upon the
amount of the member's accumulated contributions and service standing
to the member's credit at the time of retirement and on the employer
contributions held for the member and calculated in the same manner
as for other members.
(d) Service, solely for purposes of meeting minimum service
qualifications for service or disability retirement, shall also
include service credited as an employee of a reciprocal system when
the member retires concurrently from all reciprocal retirement
systems. A member whose combined service from all reciprocal
retirement systems does not meet the minimum service qualifications
may not receive a service or disability retirement from this system.
(e) For purposes of this section, "accumulated contributions"
means the sum of all member contributions standing to the credit of a
member's individual account, and interest thereon.
(f) It is the intent of the Legislature in enacting this section
to recognize that the state has a compelling interest in ensuring
that its public agencies recruit and retain the highest caliber of
public employees by allowing local public employees to retain the
service credit that they earned through their service as local public
employees in order to encourage them to return to public employment
and continue to serve the public.
SEC. 156. Section 53216.8 of the Government Code, as added by
Chapter 883 of the Statutes of 2002, is amended to read:
53216.8. (a) Any former member who left the service of a local
agency with established reciprocity, and who became a member of a
county retirement system, a retirement system established under the
Public Employees' Retirement Law, or another reciprocal retirement
system and who did not elect to, or was not eligible to, leave his or
her contributions on deposit, may elect to redeposit those
contributions if he or she is an active member of a reciprocal
retirement system or the Public Employees' Retirement System at the
time of redeposit. A former member may exercise this right by
redepositing in the retirement fund of the local agency he or she
left, the amount of accumulated contributions and interest that he or
she withdrew from that retirement fund plus regular interest thereon
from the date of separation.
(b) A former member who redeposits under this section shall have
the same rights as a member who elected to leave his or her
accumulated contributions on deposit in the local agency's fund. The
deferred retirement allowance of the member shall be determined in
accordance with provisions applicable to a member retiring directly
from local agency employment on the date of his or her retirement.
(c) A former member who redeposits under this section shall be
entitled to a reduced age at entry, commencing with contributions
payable the first day of the month following the date the local
agency receives notice of the redeposit, if applicable.
(d) This section does not apply to either of the following:
(1) A member or former member who is retired.
(2) A former member who is not in the service of an employer
making him or her a member of a county retirement system, a
retirement system established under the Public Employees' Retirement
Law, or another reciprocal retirement system.
(e) This section shall only apply to either of the following:
(1) A former member who is in the service of an employer as an
officer or employee of a law enforcement agency or fire department
whose principal duties consist of active law enforcement or
firefighting and prevention service, but excluding one whose
principal duties are those of a telephone operator, clerk,
stenographer, machinist, mechanic, or otherwise, and whose functions
do not clearly come within the scope of active law enforcement or
firefighting and prevention service, even though the officer or
employee is subject to occasional call, or is occasionally called
upon, to perform duties within the scope of active law enforcement or
firefighting and prevention service.
(2) A former member who is in the service of an employer and seeks
to redeposit contributions for past employment as an officer or
employee of a law enforcement agency or fire department in this
system whose principal duties consisted of active law enforcement or
firefighting and prevention service, but excluding one whose
principal duties were those of a telephone operator, clerk,
stenographer, machinist, mechanic, or otherwise, and whose functions
did not clearly come within the scope of active law enforcement or
firefighting and prevention service, even though the officer or
employee was subject to occasional call, or
was occasionally called upon, to perform duties
within the scope of active law enforcement or firefighting and
prevention service.
(f) For purposes of this section, a "former member" is a member
who left service under a retirement system established under this
article and who did not elect to, or was not eligible to, leave his
or her contributions on deposit.
(g) Each retirement system subject to this section shall establish
criteria to determine the eligibility of a former member to
redeposit contributions, and the amount of contributions that may be
redeposited, in those cases in which the system no longer maintains
complete records with respect to the former member.
(h) It is the intent of the Legislature in enacting this section
to recognize a statewide public obligation to all those whose duties
as local public safety officers expose them to more than ordinary
risks through their contribution to ensuring public safety and to
ensure that those who do serve or have served as local public safety
officers shall have the ability to receive pension benefits for past
public service in other jurisdictions within the state.
SEC. 157. Section 53601.7 of the Government Code is amended to
read:
53601.7. Notwithstanding the investment parameters of Sections
53601 and 53635, a local agency that is a county or a city and county
may invest any portion of the funds that it deems wise or expedient,
using the following criteria:
(a) No investment shall be made in any security, other than a
security underlying a repurchase or reverse purchase agreement, that,
at the time of purchase, has a term remaining to maturity in excess
of 397 days, and that would cause the dollar-weighted average
maturity of the funds in the investment pool to exceed 90 days.
(b) All corporate and depository institution investments shall
meet or exceed the following credit rating criteria at time of
purchase:
(1) Short-term debt shall be rated at least "A-1" by Standard &
Poor's Corporation, "P-1" by Moody's Investors Service, Inc., or "F-1"
by Fitch Ratings. If the issuer of short-term debt has also issued
long-term debt, this long-term debt rating shall be rated at least
"A," without regard to +/- or 1, 2, 3 modifiers, by Standard & Poor's
Corporation, Moody's Investors Service, Inc., or Fitch Ratings.
(2) Long-term debt shall be rated at least "A," without regard to
+/-or 1, 2, 3 modifiers, by Standard & Poor's Corporation, Moody's
Investors Service, Inc., or Fitch Ratings.
(c) No more than 5 percent of the total assets of the investments
held by a local agency may be invested in the securities of any one
issuer, except the obligations of the United States government,
United States government agencies, and United States
government-sponsored enterprises. No more than 10 percent may be
invested in any one mutual fund.
(d) Where this section specifies a percentage limitation for a
particular category of investment, that percentage is applicable only
at the date of purchase. A later increase or decrease in a
percentage resulting from a change in values or assets shall not
constitute a violation of that restriction. If subsequent to
purchase, securities are downgraded below the minimum acceptable
rating level, the securities shall be reviewed for possible sale
within a reasonable amount of time after the downgrade.
(e) Within the limitations set forth in this section, a local
agency electing to invest its funds pursuant to this section may
invest in the following securities:
(1) Direct obligations of the United States Treasury or any other
obligation guaranteed as to principal and interest by the United
States government.
(2) Bonds, notes, debentures, or any other obligations of, or
securities issued by, any federal government agency, instrumentality,
or government-sponsored enterprise.
(3) Registered state warrants or treasury notes or bonds of this
state, including bonds payable solely out of the revenues from a
revenue-producing property owned, controlled, or operated by the
state or by a department, board, agency, or other entity of the
state.
(4) Bonds, notes, warrants, or other indebtedness of the local
agency, or any local agency within this state, including bonds
payable solely out of the revenues from a revenue-producing property
owned, controlled, or operated by the local agency, or by a
department, board, agency, or authority of the local agency.
(5) Bankers acceptance, otherwise known as bills of exchange or
time drafts drawn on and accepted by a commercial bank, primarily
used to finance international trade. Purchases of bankers
acceptances may not exceed 180 days to maturity.
(6) Short-term unsecured promissory notes issued by corporations
for maturities of 270 days or less. Eligible commercial paper is
further limited to the following:
(A) Issuing corporations that are organized and operating within
the United States, having total assets in excess of five hundred
million dollars ($500,000,000).
(B) Maturities for eligible commercial paper that may not exceed
270 days and may not represent more than 10 percent of the
outstanding paper of an issuing corporation.
(7) A certificate representing a deposit of funds at a commercial
bank for a specified period of time and for a specified return at
maturity. Eligible certificates of deposit shall be issued by a
nationally or state-chartered bank or a state or federal association,
as defined in Section 5102 of the Financial Code, or by a
state-licensed branch of a foreign bank. For purposes of this
subdivision, certificates of deposits shall not come within Article 2
(commencing with Section 53630), except that the amount so invested
shall be subject to the limitations of Section 53638. The
legislative body of a local agency and the treasurer or other
official of the local agency having legal custody of the money may
not invest local agency funds, or funds in the custody of the local
agency, in negotiable certificates of deposit issued by a state or
federal credit union if a member of the legislative body of the local
agency, or any person with investment decisionmaking authority in
the administrative office, manager's office, budget office,
auditor-controller's office, or treasurer's office of the local
agency also serves on the board of directors, or any committee
appointed by the board of directors, other credit committee or the
supervisory committee of the state or federal credit union issuing
the negotiable certificate of deposit.
(8) Repurchase agreements, reverse repurchase agreements, or
securities lending agreements of any securities authorized by this
section, if the agreements meet the requirements of this paragraph
and the delivery requirements specified in Section 53601.
Investments in repurchase agreements may be made, on any investment
authorized by this section, when the term of the agreement does not
exceed one year. The market value of the securities that underlay a
repurchase agreement shall be valued at 102 percent or greater of the
funds borrowed against those securities, and the value shall be
adjusted no less than quarterly. Because the market value of the
underlying securities is subject to daily market fluctuations, the
investments in repurchase agreements shall be in compliance with this
section if the value of the underlying securities is brought back to
102 percent no later than the next business day. Reverse repurchase
agreements may be utilized only when all of the following criteria
are met:
(A) The security being sold on reverse repurchase agreement or
securities lending agreement has been owned and fully paid for by the
local agency for a minimum of 30 days prior to the sale.
(B) The total of all reverse repurchase agreements on investments
owned by the local agency not purchased or committed to purchase does
not exceed 20 percent of the market value of the portfolio.
(C) The agreement does not exceed a term of 92 days, unless the
agreement includes a written codicil guaranteeing a minimum earning
or spread for the entire period between the sale of a security using
a reverse repurchase agreement and the final maturity date of the
same security.
(D) Funds obtained or funds within the pool of an equivalent
amount to that obtained from selling a security to a counterparty by
way of a reverse repurchase agreement or securities lending
agreement, may not be used to purchase another security with a
maturity longer than 92 days from the initial settlement date of the
reverse repurchase agreement or securities lending agreement, unless
the agreement includes a written codicil guaranteeing a minimum
earning or spread for the entire period between the sale of a
security using a reverse repurchase agreement or securities lending
agreement and the final maturity date of the same security.
(E) Investments in reverse repurchase agreements or similar
investments in which the local agency sells securities prior to
purchase with a simultaneous agreement to repurchase the security,
shall only be made with prior approval of the governing body of the
local agency and shall only be made with primary dealers of the
Federal Reserve Bank of New York or with a nationally or
state-chartered bank that has or has had a significant banking
relationship with a local agency.
"Securities," for purposes of this paragraph, means securities of
the same issuer, description, issue date, and maturity.
(9) All debt securities issued by a corporation or depository
institution with a remaining maturity of not more than 397 days,
including securities specified as "medium-term notes," as well as
other debt instruments originally issued with maturities longer than
397 days, but which, at time of purchase, have a final maturity of
397 days or less. Eligible medium-term notes shall be issued by
corporations organized and operating within the United States or by
depository institutions licensed by the United States or any state
and operating within the United States.
(10) (A) Shares of beneficial interest issued by diversified
management companies that invest in the securities and obligations
described in this subdivision and that comply with the investment
restrictions of this section. However, notwithstanding these
restrictions, a counterparty to a reverse repurchase agreement shall
not be required to be a primary dealer of the Federal Reserve Bank of
New York if the company's board of directors finds that the
counterparty presents a minimal risk of default. The value of the
securities underlying a repurchase agreement may be 100 percent of
the sales price if the securities are marked to market daily.
(B) Shares of beneficial interest issued by diversified management
companies that are money market funds registered with the Securities
and Exchange Commission under the federal Investment Company Act of
1940 (15 U.S.C. Sec. 80a-1 et seq.).
(C) All shares of beneficial interest described in this paragraph
shall have met either of the following criteria:
(i) Attained the highest ranking or the highest letter and
numerical rating provided by not less than two nationally recognized
statistical rating organizations.
(ii) Retained an investment adviser registered or exempt from
registration with the Securities and Exchange Commission and who has
not less than five years' experience investing in money market
instruments and with assets under management in excess of five
hundred million dollars ($500,000,000).
(11) Any mortgage pass-through security, collateralized mortgage
obligation, mortgage-backed or other pay-through bond, equipment
lease-backed certificate, consumer receivable passthrough
certificate, or consumer receivable-backed bond.
Securities eligible for investment under this paragraph shall be
issued by an issuer having an "A" or higher rating from the issuer's
debt as provided by a nationally recognized rating service and rated
in a rating category of "AA" or its equivalent or better by a
nationally recognized rating.
(12) Contracts issued by insurance companies that provide the
policyholder with the right to receive a fixed or variable rate of
interest and the full return of principal at the maturity date.
(13) Any investments that would qualify under SEC Rule 2a-7 of the
Investment Company Act of 1940 guidelines. These investments shall
also meet the limitations detailed in this section.
(f) For purposes of this section, all of the following definitions
shall apply:
(1) "Repurchase agreement" means a purchase of securities pursuant
to an agreement by which the counterparty seller will repurchase the
securities on or before a specified date and for a specified amount
and the counterparty will deliver the underlying securities to the
local agency by book entry, physical delivery, or by third-party
custodial agreement.
(2) "Significant banking relationship" means any of the following
activities of a bank:
(A) Involvement in the creation, sale, purchase, or retirement of
a local agency's bands, warrants, notes, or other evidence of
indebtedness.
(B) Financing of a local agency's securities or funds as deposits.
(C) Acceptance of a local agency's securities or funds as
deposits.
(3) "Reverse repurchase agreement" means a sale of securities by
the local agency pursuant to an agreement by which the local agency
will repurchase the securities on or before a specified date and
includes other comparable agreements.
(4) "Securities lending agreement" means an agreement with a local
agency that agrees to transfer securities to a borrower who, in turn
agrees to provide collateral to the local agency. During the term
of the agreement, both the securities and the collateral are held by
a third party. At the conclusion of the agreement, the securities
are transferred back to the local agency in return for the
collateral.
(5) "Local agency" means a county or city and county.
(g) For purposes of this section, the base value of the local
agency's pool portfolio shall be that dollar amount obtained by
totaling all cash balances placed in the pool by all pool
participants, excluding any amounts obtained through selling
securities by way of reverse repurchase agreements, or other similar
borrowing methods.
(h) For purposes of this section, the spread is the difference
between the cost of funds obtained using the reverse repurchase
agreement and the earnings obtained on the reinvestment of the funds.
(i) This section shall remain in effect only until January 1,
2007, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2007, deletes or extends
that date.
SEC. 158. Section 53635 of the Government Code is amended to read:
53635. (a) This section shall apply to a local agency that is a
county, a city and county, or other local agency that pools money in
deposits or investments with other local agencies, including local
agencies that have the same governing body. However, Section 53601
shall apply to all local agencies that pool money in deposits or
investments exclusively with local agencies that have the same
governing body.
This section shall be interpreted in a manner that recognizes the
distinct characteristics of investment pools and the distinct
administrative burdens on managing and investing funds on a pooled
basis pursuant to Article 6 (commencing with Section 27130) of
Chapter 5 of Division 2 of Title 3.
A local agency that is a county, a city and county, or other local
agency that pools money in deposits or investments with other
agencies may invest in commercial paper pursuant to subdivision (g)
of Section 53601, except that the local agency shall be subject to
the following concentration limits:
(1) No more than 40 percent of the local agency's money may be
invested in eligible commercial paper.
(2) No more than 10 percent of the local agency's money that may
be invested pursuant to this section may be invested in the
outstanding commercial paper of any single corporate issuer.
(3) No more than 10 percent of the outstanding commercial paper of
any single corporate issuer may be purchased by the local agency.
(b) Notwithstanding Section 53601, the City of Los Angeles shall
be subject to the concentration limits of this section for counties
and cities and counties with regard to the investment of money in
eligible commercial paper.
SEC. 159. Section 57116 of the Government Code is amended to read:
57116. In addition to any other requirements, any resolution of
the commission ordering an incorporation subject to an election shall
do all of the following:
(a) Provide for the election of the officers of the proposed city
required to be elected, except as provided in Section 56724 and
except as to officers designated as appointive, pursuant to Section
56723.
(b) Provide for the election on the question of whether members of
the city council in future elections are to be elected by district
or at large.
(c) If the petition so requests, state that the voters may express
a preference as to whether or not the city shall operate under the
city manager form of government, the ballot question being for or
against the city manager form of government.
(d) If the petition so requests, state that the voters may express
their preference between names for the new city.
SEC. 160. Section 68085 of the Government Code is amended to read:
68085. (a) (1) There is hereby established the Trial Court Trust
Fund, the proceeds of which shall be apportioned at least quarterly
for the purpose of funding trial court operations, as defined in
Section 77003. Apportionment payments may not exceed 30 percent of
the total annual apportionment to the Trial Court Trust Fund for
state trial court funding in any 90-day period.
(2) The apportionment payments shall be made by the Controller.
The final payment from the Trial Court Trust Fund for each fiscal
year shall be made on or before August 31 of the subsequent fiscal
year.
(3) If apportionment payments are made on a quarterly basis, the
payments shall be on July 15, October 15, January 15, and April 15.
In addition to quarterly payments, a final payment from the Trial
Court Trust Fund for each fiscal year may be made on or before August
31 of the subsequent fiscal year.
(4) Notwithstanding any other provision of law, in order to
promote statewide efficiency, the Judicial Council may authorize the
direct payment or reimbursement or both of actual costs from the
Trial Court Trust Fund for trial court programs, contract costs, or
legal and financial services to one or more participating courts upon
appropriation of funding for these purposes in the annual Budget
Act. Upon prior written approval of the Director of Finance, the
Judicial Council may also authorize an increase in any reimbursements
or direct payments in excess of the amount appropriated in the
annual Budget Act. For any increases in reimbursements or direct
payments within the fiscal year that exceed two hundred thousand
dollars ($200,000), the Director of Finance shall provide
notification in writing of any approval granted under this section,
not less than 30 days prior to the effective date of that approval,
to the chairperson of the committee in each house of the Legislature
that considers appropriations, the chairpersons of the committees and
the appropriate subcommittees in each house of the Legislature that
consider the annual Budget Act, and the Chairperson of the Joint
Legislative Budget Committee, or not sooner than whatever lesser time
the Chairperson of the Joint Legislative Budget Committee, or his or
her designee, may in each instance, determine. The direct payment
or reimbursement of costs may be supported by the reduction of a
participating court's allocation from the Trial Court Trust Fund to
the extent that the court's expenditures for the program are reduced
and the court is supported by the program. The Judicial Council
shall provide the affected trial courts with quarterly reports on
expenditures incurred as authorized by this subdivision. The
Judicial Council shall establish procedures to provide for the
administration of this paragraph in a way that promotes the
effective, efficient, reliable, and accountable operation of the
trial courts.
(b) Notwithstanding any other provision of law, the fees listed in
subdivision (c) shall all be deposited upon collection in a special
account in the county treasury, and transmitted monthly to the
Controller for deposit in the Trial Court Trust Fund.
(c) (1) Except as specified in subdivision (d), this section
applies to all fees collected pursuant to Sections 631.3, 116.230,
and 403.060 of the Code of Civil Procedure and Sections 26820.4,
26823, 26826, 26826.01, 26827, 26827.4, 26830, 26832.1, 26833.1,
26835.1, 26836.1, 26837.1, 26838, 26850.1, 26851.1, 26852.1, 26853.1,
26855.4, 26862, 27081.5, 68086, 72055, 72056, 72056.01, and 72060.
(2) If any of the fees provided for in this subdivision are
partially waived by court order, and the fee is to be divided between
the Trial Court Trust Fund and any other fund, the amount of the
partial waiver shall be deducted from the amount to be distributed to
each fund in the same proportion as the amount of each distribution
bears to the total amount of the fee.
(3) Any amounts transmitted by a county to the Controller for
deposit into the Trial Court Trust Fund from fees collected pursuant
to Section 27361 between January 1, 1998, and the effective date of
this paragraph shall be credited against the total amount the county
is required to pay to the state pursuant to paragraph (2) of
subdivision (b) of Section 77201 for the 1997-98 fiscal year.
(d) This section does not apply to that portion of a filing fee
collected pursuant to Section 26820.4, 26826, 26827, 72055, or 72056
which is allocated for dispute resolution pursuant to Section 470.3
of the Business and Professions Code, the county law library pursuant
to Section 6320 of the Business and Professions Code, the Judges'
Retirement Fund pursuant to Section 26822.3, automated recordkeeping
or conversion to micrographics pursuant to Sections 26863 and
68090.7, and courthouse financing pursuant to Section 76238. This
section also does not apply to fees collected pursuant to
subdivisions (a) and (c) of Section 27361.
(e) This section applies to all payments required to be made to
the State Treasury by any county or city and county pursuant to
Section 77201, 77201.1, or 77205.
(f) Notwithstanding any other provision of law, no agency may take
action to change the amounts allocated to any of the funds described
in subdivision (a), (b), (c), or (d).
(g) Before making any apportionments under this section, the
Controller shall deduct, from the annual appropriation for that
purpose, the actual administrative costs that will be incurred under
this section. Costs reimbursed under this section shall be
determined on an annual basis in consultation with the Judicial
Council.
(h) Any amounts required to be transmitted by a county or city and
county to the state pursuant to this section shall be remitted to
the Controller no later than 45 days after the end of the month in
which the fees were collected. This remittance shall be accompanied
by a remittance advice identifying the collection month and the
appropriate account in the Trial Court Trust Fund to which it is to
be deposited. Any remittance which is not made by the county or city
and county in accordance with this section shall be considered
delinquent, and subject to the penalties specified in this section.
(i) Upon receipt of any delinquent payment required pursuant to
this section, the Controller shall calculate a penalty on any
delinquent payment by multiplying the amount of the delinquent
payment at a daily rate equivalent to 11/2 percent per month for the
number of days the payment is delinquent. Notwithstanding Section
77009, any penalty on a delinquent payment that a court is required
to reimburse to a county's general fund pursuant to this section and
Section 24353 shall be paid from the Trial Court Operations Fund for
that court.
(j) Penalty amounts calculated pursuant to subdivision (i) shall
be paid by the county to the Trial Court Trust Fund no later than 45
days after the end of the month in which the penalty was calculated.
(k) The Trial Court Trust Fund shall be invested in the Surplus
Money Investment Fund and all interest earned shall be allocated to
the Trial Court Trust Fund semiannually and shall be allocated among
the courts in accordance with the requirements of subdivision (a).
The specific allocations shall be specified by the Judicial Council,
based upon recommendations from the Trial Court Budget Commission.
(l) It is the intent of the Legislature that the revenues required
to be deposited into the Trial Court Trust Fund be remitted as soon
after collection by the courts as possible. Not later than February
1, 2001, the Judicial Council, in consultation with the California
State Association of Counties and the California County Auditors
Association, shall study and make recommendations to the Legislature
on alternative procedures that would improve the collection and
remittance of revenues to the Trial Court Trust Fund.
SEC. 161. Section 68095 of the Government Code is amended to read:
68095. Except as otherwise provided by law, witness' fees for
each day's actual attendance, when legally required to attend, or if
the witness attends voluntarily and is called to testify, before a
coroner's jury, are twelve dollars ($12) a day and mileage for each
mile actually traveled in attendance as a witness, one way only,
twenty cents ($0.20). That per diem and mileage shall be a county
charge.
SEC. 162. Section 68115 of the Government Code is amended to read:
68115. When war, insurrection, pestilence, or other public
calamity, or the danger thereof, or the destruction of or danger to
the building appointed for holding the court, renders it necessary,
or when a large influx of criminal cases resulting from a large
number of arrests within a short period of time threatens the orderly
operation of a superior court, the presiding judge may request and
the Chairperson of the Judicial Council may, notwithstanding any
other provision of law, by order authorize the court to do one or
more of the following:
(a) Hold sessions anywhere within the county.
(b) Transfer civil cases pending trial in the court to a superior
court in an adjacent county. No such transfer shall be made pursuant
to this subdivision except with the consent of all parties to the
case or upon a showing by a
party that extreme or undue hardship would result unless the case is
transferred for trial. Any civil case so transferred shall be
integrated into the existing caseload of the court to which it is
transferred pursuant to rules to be provided by the Judicial Council.
(c) Within the affected county during a state of emergency
resulting from a natural or human-made disaster proclaimed by the
President of the United States or by the Governor pursuant to Section
8625 of the Government Code, extend the time period provided in
Section 825 of the Penal Code within which a defendant charged with a
felony offense shall be taken before a magistrate from 48 hours to
not more than seven days, with the number of days to be designated by
the Chairperson of the Judicial Council. This authorization shall
be effective for 30 days unless it is extended by a new request and a
new order.
(d) Extend the time period provided in Section 859b of the Penal
Code for the holding of a preliminary examination from 10 court days
to not more than 15 days.
(e) Extend the time period provided in Section 1382 of the Penal
Code within which the trial must be held by not more than 30 days,
but the trial of a defendant in custody whose time is so extended
shall be given precedence over all other cases.
(f) Within the affected area of a county during a state of
emergency resulting from a natural or human-made disaster proclaimed
by the President of the United States or by the Governor pursuant to
Section 8625 of the Government Code, extend the time period provided
in Sections 632 and 637 of the Welfare and Institutions Code within
which a minor shall be given a detention hearing, with the number of
days to be designated by the Chairperson of the Judicial Council.
The extension of time shall be for the shortest period of time
necessary under the circumstances of the emergency, but in no event
shall the time period within which a detention hearing must be given
be extended to more than seven days. This authorization shall be
effective for 30 days unless it is extended by a new request and a
new order. This subdivision shall apply only where the minor has
been charged with a felony.
(g) Within the affected county during a state of emergency
resulting from a natural or human-made disaster proclaimed by the
President of the United States or by the Governor pursuant to Section
8625 of the Government Code, extend the time period provided in
Section 657 of the Welfare and Institutions Code within which an
adjudication on a juvenile court petition shall be held to not more
than 15 days, with the number of days to be designated by the
Chairperson of the Judicial Council. This authorization shall be
effective for 30 days unless it is extended by a new request and a
new order. This subdivision shall apply only where the minor has
been charged with a felony.
SEC. 163. Section 68620 of the Government Code is amended to read:
68620. (a) Each superior court shall establish a delay reduction
program for limited civil cases in consultation with the local bar
that is consistent with the provisions of this article. In its
discretion, the Judicial Council may assist in the development of, or
may develop and adopt, any or all procedures, standards, or policies
for a delay reduction program for limited civil cases in superior
courts on a statewide basis which are consistent with the provisions
of the Trial Court Delay Reduction Act.
(b) Actions and proceedings subject to the provisions of Chapter
5.5 (commencing with Section 116.110) of Title 1 of Part 1 of the
Code of Civil Procedure or provisions of Chapter 4 (commencing with
Section 1159) of Title 3 of Part 3 of the Code of Civil Procedure may
not be assigned to or governed by the provisions of any delay
reduction program established pursuant to this section.
(c) It is the intent of the Legislature that the civil discovery
in actions and proceedings subject to a program established pursuant
to Article 2 (commencing with Section 90) of Chapter 5 of Title 1 of
Part 1 of the Code of Civil Procedure shall be governed by the times
and procedures specified in that article. Civil discovery in these
actions and proceedings is not affected by the provisions of any
delay reduction program adopted pursuant to this section.
SEC. 164. Section 69587 of the Government Code is amended to read:
69587. In the County of Madera there are seven judges of the
Superior Court.
SEC. 165. Section 69588 of the Government Code is amended to read:
69588. In the County of Marin there are 10 judges of the Superior
Court.
SEC. 166. Section 70367 of the Government Code is amended to read:
70367. (a) Within 30 days after the Administrative Director of
the Courts has mailed to the county, under Section 70364, the
approved county facilities payment, the Administrative Director of
the Courts may submit a declaration to the Court Facilities Dispute
Resolution Committee, mailing of copies to the other parties, that
the amount is incorrect because the county failed to report court
facilities expenses paid by the county which reduced the amount of
the approved county facilities payment.
(b) The county shall mail its comments to the Court Facilities
Dispute Resolution Committee on the administrative director's
declaration within 30 days of the mailing of the administrative
director's declaration, with mailing to the other parties.
(c) Within 90 days of receipt of comments pursuant to subdivision
(b), the Court Facilities Dispute Resolution Committee shall review
the declarations and comments received, and make its recommendation
to the Director of Finance concerning correction of any errors and,
if necessary, adjustment of the amount of the county facilities
payment. The Court Facilities Dispute Resolution Committee shall
mail a copy of its recommendation to all the parties.
(d) The Director of Finance or his or her designee shall review
the recommendations of the Court Facilities Dispute Resolution
Committee and make his or her determination concerning any correction
of errors and, if necessary, adjustment of the amount of the county
facilities payment. The director shall serve a copy of his or her
determination on all the parties.
SEC. 167. Section 70391 of the Government Code is amended to read:
70391. The Judicial Council, as the policymaking body for the
judicial branch, shall have the following responsibilities and
authorities with regard to court facilities, in addition to any other
responsibilities or authorities established by law:
(a) Exercise full responsibility, jurisdiction, control, and
authority as an owner would have over trial court facilities whose
title is held by the state, including, but not limited to, the
acquisition and development of facilities.
(b) Exercise the full range of policymaking authority over trial
court facilities, including, but not limited to, planning,
construction, acquisition, and operation, to the extent not expressly
otherwise limited by law.
(c) Dispose of surplus court facilities following the transfer of
responsibility under Article 3 (commencing with Section 70321),
subject to all of the following:
(1) If the property was a court facility previously the
responsibility of the county, the Judicial Council shall comply with
the requirements of Section 11011, and as follows, except that,
notwithstanding any other provision of law, the proportion of the net
proceeds that represents the proportion of other state funds used on
the property other than for operation and maintenance shall be
returned to the fund from which it came and the remainder of the
proceeds shall be deposited in the State Court Facilities
Construction Fund.
(2) The Judicial Council shall consult with the county concerning
the disposition of the facility.
(3) The Judicial Council shall consider whether the potential new
or planned use of the facility:
(A) Is compatible with the use of other adjacent public buildings.
(B) Unreasonably departs from the historic or local character of
the surrounding property or local community.
(C) Has a negative impact on the local community.
(D) Unreasonably interferes with other governmental agencies that
use or are located in or adjacent to the building containing the
court facility.
(E) Is of sufficient benefit to outweigh the public good in
maintaining it as a court facility or building.
(4) All funds received for disposal of surplus court facilities
shall be deposited by the Judicial Council in the State Court
Facilities Construction Fund.
(5) If the facility was acquired, rehabilitated, or constructed,
in whole or in part, with money in the State Court Facilities
Construction Fund that was deposited in that fund from the state
fund, any funds received for disposal of that facility shall be
apportioned to the state fund and the State Court Facilities
Construction Fund in the same proportion that the original cost of
the building was paid from the state fund and other sources of the
State Court Facilities Construction Fund.
(d) Conduct audits of all of the following:
(1) The collection of fees by the local courts.
(2) The money in local courthouse construction funds established
pursuant to Section 76100.
(e) Establish policies, procedures, and guidelines for ensuring
that the courts have adequate and sufficient facilities, including,
but not limited to, facilities planning, acquisition, construction,
design, operation, and maintenance.
(f) Establish and consult with local project advisory groups on
the construction of new trial court facilities, including the trial
court, the county, state agencies, bar groups, and members of the
community.
(g) Manage court facilities in consultation with the trial courts.
(h) Allocate appropriated funds for court facilities maintenance
and construction, subject to the other provisions of this chapter.
(i) Manage shared-use facilities to the extent required by the
agreement under Section 70343.
(j) Prepare funding requests for court facility construction,
repair, and maintenance.
(k) Implement the design, bid, award, and construction of all
court construction projects, except as delegated to others.
(l) Provide for capital outlay projects that may be built with
funds appropriated or otherwise available for these purposes as
follows:
(1) Approve five-year and master plans for each district.
(2) Establish priorities for construction.
(3) Recommend to the Governor and the Legislature the projects to
be funded by the State Court Facilities Construction Fund.
(4) Submit the cost of projects proposed to be funded to the
Department of Finance for inclusion in the Governor's Budget.
(m) In carrying out its responsibilities and authority under this
section, the Judicial Council shall consult with the local court for:
(1) Selecting and contracting with facility consultants.
(2) Preparing and reviewing architectural programs and designs for
court facilities.
(3) Preparing strategic master and five-year capital facilities
plans.
(4) Major maintenance of any facility.
SEC. 168. Section 70392 of the Government Code is amended to read:
70392. Pursuant to subdivision (b) of Section 70374, the
Administrative Office of the Courts shall have the following
responsibilities and authority in addition to other responsibilities
and authority granted by law or delegated by the Judicial Council:
(a) Notwithstanding any other provision of law and subject to the
appropriation of funds, provide the ongoing oversight, management,
operation, and maintenance of facilities used by the trial courts, if
the responsibility for the facility has been transferred to the
Judicial Council pursuant to this chapter.
(b) Carry out the Judicial Council's policies with regard to trial
court facilities, except as otherwise expressly limited by law.
(c) Develop for Judicial Council approval the master plans for
trial court facilities in each district.
(d) Construction of court buildings, including, but not limited
to, selection of architects and contractors, except as otherwise
expressly limited by law.
(e) Delegate its responsibilities and authority to the local trial
court for court facilities used by that court.
SEC. 169. Section 71601 of the Government Code is amended to read:
71601. For purposes of this chapter, the following definitions
shall apply:
(a) "Appointment" means the offer to and acceptance by a person of
a position in the trial court in accordance with this chapter and
the trial court's personnel policies, procedures, and plans.
(b) "Employee organization" means any organization that includes
trial court employees and has as one of its primary purposes
representing those employees in their relations with the trial court.
(c) "Hiring" means appointment as defined in subdivision (a).
(d) "Mediation" means effort by an impartial third party to assist
in reconciling a dispute regarding wages, hours, and other terms and
conditions of employment between representatives of the trial court
and the recognized employee organization or recognized employee
organizations through interpretation, suggestion, and advice.
(e) "Meet and confer in good faith" means that a trial court or
representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual obligation
personally to meet and confer promptly upon request by either party
and continue for a reasonable period of time in order to exchange
freely information, opinions, and proposals, and to endeavor to reach
agreement on matters within the scope of representation. The
process should include adequate time for the resolution of impasses
where specific procedures for resolution are contained in this
chapter or in a local rule, or when the procedures are utilized by
mutual consent.
(f) "Personnel rules," "personnel policies, procedures, and plans,"
and "rules and regulations" mean policies, procedures, plans, rules,
or regulations adopted by a trial court or its designee pertaining
to conditions of employment of trial court employees, subject to meet
and confer in good faith.
(g) "Promotion" means promotion within the trial court as defined
in the trial court's personnel policies, procedures, and plans,
subject to meet and confer in good faith.
(h) "Recognized employee organization" means an employee
organization that has been formally acknowledged to represent trial
court employees by the county under Sections 3500 to 3510, inclusive,
prior to the implementation date of this chapter, or by the trial
court under Rules 2201 to 2210, inclusive, of the California Rules of
Court, as those rules read on April 23, 1997, Sections 70210 to
70219, inclusive, or Article 3 (commencing with Section 71630) of
this chapter.
(i) "Subordinate judicial officer" means an officer appointed to
perform subordinate judicial duties as authorized by Section 22 of
Article VI of the California Constitution, including, but not limited
to, a court commissioner, probate commissioner, referee, traffic
referee, juvenile referee, and judge pro tempore.
(j) "Transfer" means transfer within the trial court as defined in
the trial court's personnel policies, procedures, and plans, subject
to meet and confer in good faith.
(k) "Trial court" means a superior court or a municipal court.
(l) "Trial court employee" means a person who is both of the
following:
(1) Paid from the trial court's budget, regardless of the funding
source. For the purpose of this paragraph, "trial court's budget"
means funds from which the presiding judge of a trial court, or his
or her designee, has authority to control, authorize, and direct
expenditures, including, but not limited to, local revenues, all
grant funds, and trial court operations funds.
(2) Subject to the trial court's right to control the manner and
means of his or her work because of the trial court's authority to
hire, supervise, discipline, and terminate employment. For purposes
of this paragraph only, the "trial court" includes the judges of a
trial court or their appointees who are vested with or delegated the
authority to hire, supervise, discipline, and terminate.
(m) A person is a "trial court employee" if and only if both
paragraphs (1) and (2) of subdivision (l) are true irrespective of
job classification or whether the functions performed by that person
are identified in Rule 810 of the California Rules of Court. The
phrase "trial court employee" includes those subordinate judicial
officers who satisfy paragraphs (1) and (2) of subdivision (l). The
phrase "trial court employee" does not include temporary employees
hired through agencies, jurors, individuals hired by the trial court
pursuant to an independent contractor agreement, individuals for whom
the county or trial court reports income to the Internal Revenue
Service on a Form 1099 and does not withhold employment taxes,
sheriffs, and judges whether elected or appointed. A temporary
employee, whether hired through an agency or not, may not be employed
in the trial court for a period exceeding 180 calendar days.
SEC. 170. Section 71615 of the Government Code is amended to read:
71615. (a) Except as provided in subdivision (b), the effective
date of this act shall be its implementation date.
(b) Representatives of a trial court and representatives of
recognized employee organizations may mutually agree to an
implementation date of this act later than the effective date of this
act. However, if any provisions of this chapter are governed by an
existing memorandum of understanding or agreement covering trial
court employees, as to those provisions the implementation date shall
be either the date a successor memorandum of understanding or
agreement is effective or, if no agreement for a successor memorandum
of understanding or agreement is reached, 90 days from the date of
the expiration of the predecessor memorandum of understanding or
agreement, unless representatives of the trial court and
representatives of recognized employee organizations mutually agree
otherwise.
(c) As of the implementation date of this chapter, all of the
following shall apply:
(1) All persons who meet the definition of trial court employee
shall become trial court employees at their existing or equivalent
classifications.
(2) Employment seniority of a trial court employee, as calculated
and used under the system in effect prior to the implementation of
this act, shall be calculated and used in the same manner by the
trial court.
(3) A trial court employee shall have the same status he or she
had as a probationary, permanent, or regular employee under the
system in effect prior to implementation of this act. A probationary
employee shall not be required to serve a new probationary period
and shall continue the existing probationary period under the terms
of hire.
(4) Subject to the agreement of the county, and unless prohibited
or limited by charter provisions, the policies regarding transfer
between the trial court and the county that are in place as of the
implementation date of this act shall be continued while an existing
memorandum of understanding or agreement remains in effect or for two
years, whichever is longer, and any further rights of trial court
employees to transfer between the trial court and the county shall be
subject to the obligation to meet and confer in good faith at the
local level between representatives of the trial court and
representatives of recognized employee organizations and local
negotiation between the trial court and the county. Subject to the
agreement of the county, and unless prohibited or limited by charter
provisions, the policies regarding the portability of seniority,
accrued leave credits, and leave accrual rates that are in effect
upon the implementation date of this act shall be continued if trial
court or county employees transfer between the trial court and the
county or the county and the trial court while an existing memorandum
of understanding or agreement remains in effect, or for a period of
two years, whichever is longer. Any further right of trial court
employees to portability is subject to the obligation to meet and
confer in good faith between representatives of the trial court and
representatives of recognized employee organizations and local
negotiation between the trial court and the county.
(5) Each trial court shall be deemed the successor employer of all
trial court employees in the county in which the trial court is
located.
(d) In establishing local personnel structures for trial court
employees in accordance with this chapter, the trial court shall
comply with contractual obligations, and consideration shall be given
to minimizing disruption of the trial court workforce and protecting
the rights accrued by trial court employees under their current
systems. However, prior contractual obligations and rights may be
reconsidered subject to the obligation to meet and confer in good
faith, provided both parties give consideration to past contractual
obligations and rights.
(e) Unrepresented trial court employees are governed by a trial
court's personnel policies, procedures, and plans. The
implementation of this act may not be a cause for changing a trial
court's personnel policies, procedures, and plans applicable to
unrepresented trial court employees except where required to bring
those policies, procedures, and plans into conformity with this
chapter. Except as otherwise expressly provided in this act, a trial
court retains all existing rights with respect to revising its
personnel policies, procedures, and plans as applied to unrepresented
trial court employees.
(f) Upon implementation of this act in a trial court, Sections
68650 to 68655, inclusive, and Rules 2201 to 2210, inclusive, of the
California Rules of Court, shall be inoperative as to that trial
court.
(g) Notwithstanding paragraph (4) of subdivision (c), both of the
following shall apply:
(1) Unless prohibited or limited by charter provisions, the
policies regarding transfer between either the trial court and the
county or the county and the trial court that were in effect as of
January 1, 2001, shall be continued while an existing memorandum of
understanding or agreement remains in effect or until January 1,
2005, whichever period is longer. Thereafter, any rights of trial
court employees to transfer between the trial court and the county
shall be subject to the obligation to meet and confer in good faith
at the local level between representatives of the trial court and
representatives of recognized employee organizations, and local
negotiation between the trial court and the county.
(2) Unless prohibited or limited by charter provisions, the
policies regarding the portability of seniority, accrued leave
credits, and leave accrual rates that were in effect on January 1,
2001, shall be continued if trial court or county employees transfer
between either the trial court and the county or the county and the
trial court while an existing memorandum of understanding or
agreement remains in effect, or until January 1, 2005, whichever
period is longer. Thereafter, any right of trial court employees to
portability is subject to the obligation to meet and confer in good
faith between representatives of the trial court and representatives
of recognized employee organizations and local negotiation between
the trial court and the county.
SEC. 171. Section 71632.5 of the Government Code is amended to
read:
71632.5. (a) Notwithstanding any other provision of law, rule, or
regulation, an agency shop agreement may be negotiated between a
trial court and a recognized employee organization that has been
recognized as the exclusive or majority bargaining agent pursuant to
reasonable rules and regulations, and enactments, in accordance with
this article. As used in this article, "agency shop" means an
arrangement that requires an employee, as a condition of continued
employment, either to join the recognized employee organization, or
to pay the organization a service fee in an amount not to exceed the
standard initiation fee, periodic dues, and general assessments of
that organization for the duration of the agreement or a period of
three years from the effective date of the agreement, whichever comes
first. However, any employee who is a member of a bona fide
religion, body, or sect that has historically held conscientious
objections to joining or financially supporting recognized employee
organizations shall not be required to join or financially support
any recognized employee organization as a condition of employment.
That employee may be required, in lieu of periodic dues, initiation
fees, or agency shop fees to pay sums equal to those dues, initiation
fees, or agency shop fees to a nonreligious, nonlabor charitable
organization fund exempt from taxation under Section 501 (c)(3) of
the Internal Revenue Code, chosen by the employee from a list of at
least three funds, designated in a memorandum of understanding or
agreement between the trial court and the recognized employee
organization, or if the memorandum of understanding or agreement
fails to designate any funds, then to any fund chosen by the
employee. Proof of those payments shall be made on a monthly basis
to the trial court as a condition of continued exemption from the
requirement of financial support to the recognized employee
organization.
(b) An agency shop provision in a memorandum of understanding or
agreement which is in effect may be rescinded by a majority vote of
all the employees in the unit covered by the memorandum of
understanding or agreement, provided that (1) a request for the vote
is supported by a petition containing the signatures of at least 30
percent of the employees in the unit; (2) the vote is by secret
ballot; and (3) the vote may be taken at any time during the term of
the memorandum of understanding or agreement, but in no event shall
there be more than one vote taken during that term.
(c) In addition to the procedure prescribed in subdivision (a), an
agency shop arrangement between the trial court and a recognized
employee organization or recognized employee organizations shall be
placed in effect, without a negotiated agreement, upon (1) a signed
petition of at least 30 percent of the employees in the applicable
bargaining unit requesting an agency shop agreement and an election
to implement an agency fee arrangement, and (2) the approval of a
majority of employees who cast ballots and vote in a secret ballot
election in favor of
the agency shop agreement. The petition may only be filed after the
recognized employee organization has requested the trial court to
negotiate on an agency shop arrangement and, beginning seven working
days after the trial court received this request, the two parties
have had 30 calendar days to attempt good faith negotiations in an
effort to reach agreement. An election, that may not be held more
frequently than once a year, shall be conducted by the Division of
Conciliation of the Department of Industrial Relations in the event
that the trial court and the recognized employee organization cannot
agree within 10 days from the filing of the petition to select
jointly a neutral person or entity to conduct the election. In the
event of an agency fee arrangement outside of an agreement that was
in effect on January 1, 2002, the recognized employee organization
shall defend, indemnify, and hold the trial court harmless against
any liability arising from any claims, demands, or other action
relating to the trial court's compliance with the agency fee
obligation. Upon notification to the trial court by the recognized
employee organization, the amount of the fee shall be deducted by the
trial court from the wages or salary of the employee and paid to the
employee organization. This subdivision shall be applicable on the
operative date of this section, except that if a memorandum of
understanding or agreement between the trial court and a recognized
employee organization was in effect before January 1, 2002, as to the
employees covered by the memorandum of understanding or agreement,
the implementation date of this subdivision shall be either the date
a successor memorandum of understanding or agreement is effective or,
if no agreement for a successor memorandum of understanding or
agreement is reached, 90 days from the date of the expiration of the
predecessor memorandum of understanding or agreement. The trial
court and representatives of recognized employee organizations may
mutually agree to a different date on which this subdivision is
applicable.
(d) Notwithstanding subdivisions (a), (b), and (c), the trial
court and the recognized employee organization may negotiate, and by
mutual agreement provide for, an alternative procedure or procedures
regarding a vote on any agency shop agreement.
(e) An agency shop agreement or arrangement does not apply to
management, confidential, or supervisory employees. If those
employees nonetheless choose to join the recognized employee
organization and pay dues or pay the organization a service fee,
Section 71638 shall apply to those employees, and the trial court
shall administer deductions for which the recognized employee
organization shall defend, indemnify, and hold the trial court
harmless.
(f) Every recognized employee organization that has agreed to an
agency shop provision, or is a party to an agency shop arrangement,
shall keep an adequate itemized record of its financial transactions
and shall make available annually, to the trial court with which the
agency shop provision was negotiated, and to the employees who are
members of the organization, within 60 days after the end of its
fiscal year, a detailed written financial report thereof in the form
of a balance sheet and an operating statement, certified as to
accuracy by its president and treasurer or corresponding principal
officer, or by a certified public accountant. An employee
organization required to file financial reports under the federal
Labor-Management Disclosure Act of 1959 covering employees governed
by this chapter or required to file financial reports under Section
3546.5, may satisfy the financial reporting requirement of this
section by providing the trial court with a copy of those financial
reports.
(g) This section shall become operative only if Section 3502.5 is
amended to provide that a 30-percent or greater showing of interest
by means of a petition requires an election regarding an agency shop,
and a vote at that election of 50 percent plus one of those voting
secures an agency shop arrangement.
(h) A trial court may not offer employees inducements or benefits
of any kind in return for employees opposing or rescinding an agency
shop arrangement.
SEC. 172. Section 71636 of the Government Code is amended to read:
71636. (a) A trial court may adopt reasonable rules and
regulations, after consultation in good faith with representatives of
an employee organization or organizations, for the administration of
employer-employee relations under this article. These rules and
regulations may include provisions for:
(1) Verifying that an organization does in fact represent
employees of the trial court.
(2) Verifying the official status of employee organization
officers and representatives.
(3) Recognition of employee organizations.
(4) Exclusive recognition of employee organizations formally
recognized pursuant to a vote of the employees of the trial court or
an appropriate unit thereof, subject to the right of an employee to
represent himself or herself as provided in Section 71631.
(5) Additional procedures for the resolution of disputes involving
wages, hours, and other terms and conditions of employment.
(6) Access of employee organization officers and representatives
to work locations.
(7) Use of official bulletin boards and other means of
communication by employee organizations.
(8) Furnishing nonconfidential information pertaining to
employment relations to employee organizations.
(9) Any other matters as are necessary to carry out the purposes
of this article.
(b) Exclusive recognition of employee organizations formally
recognized as majority representatives pursuant to a vote of the
employees may be revoked by a majority vote of the employees only
after a period of not less than 12 months following the date of
recognition.
(c) No trial court shall unreasonably withhold recognition of
employee organizations. A trial court may not offer to provide
employees benefits of any kind for the purpose of inducing those
employees to decertify or withdraw support from a recognized employee
organization.
(d) Pursuant to the obligation to meet and confer in good faith,
the trial court shall establish procedures to determine the
appropriateness of any bargaining unit of court employees.
SEC. 173. Section 71636.3 of the Government Code is amended to
read:
71636.3. (a) Unit determinations and representation elections
shall be determined and processed in accordance with rules adopted by
a trial court in accordance with this chapter. In a representation
election, a majority of the votes cast by the employees in the
appropriate bargaining unit shall be required.
(b) Notwithstanding subdivision (a) and rules adopted by a trial
court pursuant to Section 71636, a bargaining unit in effect as of
January 1, 2002, shall continue in effect unless changed under the
rules adopted by the trial court pursuant to Section 71636.
(c) A trial court shall grant exclusive or majority recognition to
an employee organization based on a signed petition, authorization
cards, or union membership cards showing that a majority of the
employees in an appropriate bargaining unit desire the
representation, unless another labor organization has previously been
lawfully recognized as exclusive or majority representative of all
or part of the same unit. Exclusive or majority representation shall
be determined by a neutral third party, selected by the trial court
and the employee organization, who shall review the signed petition,
authorization cards, or union membership cards to verify the
exclusive or majority status of the employee organization. If the
trial court and the employee organization cannot agree on a neutral
third party, the Division of Conciliation of the Department of
Industrial Relations shall be the neutral third party and shall
verify the exclusive or majority status of the employee organization.
If the neutral third party determines, based on a signed petition,
authorization cards, or union membership cards, that a second labor
organization has the support of at least 30 percent of the employees
in the unit in which recognition is sought, the neutral third party
shall order an election to establish which labor organization, if
any, has majority status.
SEC. 174. Section 73665 of the Government Code is amended to read:
73665. (a) Effective January 1, 1999, the Sheriff of Humboldt
County shall assume the duties and responsibilities of the Humboldt
County Marshal and the office of the marshal shall be consolidated
with the office of sheriff. Upon the effective date of the
consolidation there shall be established within the Humboldt County
Sheriff's Department a unit designated as the Court Security Services
Division. The Sheriff of Humboldt County shall be responsible for
the management and operation of this division, in accordance with
this article.
(b) No provision of this article may be deemed in any manner to
limit or otherwise impair the power vested by all other laws in the
Superior Court of Humboldt County to secure proper provision of
court-related services.
(c) This section shall remain in effect only until January 1,
2018, and as of that date is repealed unless a later enacted statute,
which is enacted before January 1, 2018, deletes or extends that
date. The repeal of this section does not affect any right or
benefit to which a person was entitled on the date of repeal.
SEC. 175. Section 73757 of the Government Code is amended to read:
73757. (a) In Madera County the majority of the judges of the
superior court have voted to consolidate court services and security
functions in the office of the Sheriff of Madera County.
(b) The sheriff's functions shall include, but not be limited to,
providing all bailiff functions for the unified superior court in
Madera County, and all other duties imposed by law upon deputy
sheriffs and peace officers generally.
(c) The sheriff shall be responsible for the service of all writs,
notices, and other processes issued by any court or other competent
authority. Nothing in this section shall be construed as limiting
the responsibility or authority of a private person or registered
process server from serving process or notices in the manner
prescribed by law, nor shall it limit the authority of the sheriff or
any other peace officer to serve warrants of arrest or other process
specifically directed by any court to the sheriff or any other peace
officer.
(d) Each elected marshal holding office in Madera County as of
January 1, 2000, shall become an employee of the Madera County
Sheriff's Department in the position of sheriff's bailiff, as of that
date and each elective position of Marshal of the Madera County
Municipal Court District is abolished as of that date. Each marshal
transferring to the sheriff's department pursuant to this section
shall be compensated at not less than the EL-10 step of Salary Range
43 (table B). No transferring marshal shall lose peace officer
status or be demoted or otherwise be adversely affected by the
consolidation of court-related services accomplished by this section.
Each transferring marshal employed in the position of sheriff's
bailiff shall be deemed duly qualified for that position and no other
qualifications shall be required for that employment or retention in
that position. Any transferring marshal wishing to transfer to
another position shall meet the qualifications of a peace officer as
required by subdivision (a) of Section 832 of the Penal Code and any
other requirements of the Madera County civil service system. For
purposes of establishing seniority within the class of sheriff's
bailiff, each transferring marshal shall be credited with the marshal'
s total years of service to Madera County as a constable and marshal.
(e) This section shall remain in effect only until January 1,
2018, and as of that date is repealed unless a later enacted statute,
which is enacted before January 1, 2018, deletes or extends that
date. The repeal of this section does not affect any right or
benefit to which a person was entitled on the date of repeal.
SEC. 176. Section 82011 of the Government Code is amended to read:
82011. "Code reviewing body" means all of the following:
(a) The commission, with respect to the conflict-of-interest code
of a state agency other than an agency in the judicial branch of
government, or any local government agency with jurisdiction in more
than one county.
(b) The board of supervisors, with respect to the
conflict-of-interest code of any county agency other than the board
of supervisors, or any agency of the judicial branch of government,
and of any local government agency, other than a city agency, with
jurisdiction wholly within the county.
(c) The city council, with respect to the conflict-of-interest
code of any city agency other than the city council.
(d) The Attorney General, with respect to the conflict-of-interest
code of the commission.
(e) The Chief Justice of California or his or her designee, with
respect to the conflict-of-interest code of the members of the
Judicial Council, Commission on Judicial Performance, and Board of
Governors of the State Bar of California.
(f) The Board of Governors of the State Bar of California with
respect to the conflict-of-interest code of the State Bar of
California.
(g) The Chief Justice of California, the administrative presiding
judges of the courts of appeal, and the presiding judges of superior
courts, or their designees, with respect to the conflict-of-interest
code of any agency of the judicial branch of government subject to
the immediate administrative supervision of that court.
(h) The Judicial Council of California, with respect to the
conflict-of-interest code of any state agency within the judicial
branch of government not included under subdivisions (e), (f), and
(g).
SEC. 177. Section 1339.63 of the Health and Safety Code is amended
to read:
1339.63. (a) (1) As a condition of licensure under this division,
every general acute care hospital, as defined in subdivision (a) of
Section 1250, special hospital, as defined in subdivision (f) of
Section 1250, and surgical clinic, as defined in paragraph (1) of
subdivision (b) of Section 1204, shall adopt a formal plan to
eliminate or substantially reduce medication-related errors. With
the exception of small and rural hospitals, as defined in Section
124840, this plan shall include technology implementation, such as,
but not limited to, computerized physician order entry or other
technology that, based upon independent, expert scientific advice and
data, has been shown effective in eliminating or substantially
reducing medication-related errors.
(2) Each facility's plan shall be provided to the State Department
of Health Services no later than January 1, 2002. Within 90 days
after submitting a plan, the department shall either approve the
plan, or return it to the facility with comments and suggestions for
improvement. The facility shall revise and resubmit the plan within
90 days after receiving it from the department. The department shall
provide final written approval within 90 days after resubmission,
but in no event later than January 1, 2003. The plan shall be
implemented on or before January 1, 2005.
(b) Any of the following facilities that is in the process of
constructing a new structure or retrofitting an existing structure
for the purposes of complying with seismic safety requirements shall
be exempt from implementing a plan by January 1, 2005:
(1) General acute care hospitals, as defined in subdivision (a) of
Section 1250.
(2) Special hospitals, as defined in subdivision (f) of Section
1250.
(3) Surgical clinics, as defined in paragraph (1) of subdivision
(b) of Section 1204.
(c) The implementation date for facilities that are in the process
of constructing a new structure or retrofitting an existing
structure is six months after the date of completion of all
retrofitting or new construction. The exemption and new
implementation date specified in subdivision (b) and this subdivision
apply to those facilities that have construction plans and financing
for projects in place no later than July 1, 2002.
(d) For purposes of this chapter, a "medication-related error"
means any preventable medication-related event that adversely affects
a patient in a facility listed in subdivision (a), and that is
related to professional practice, or health care products,
procedures, and systems, including, but not limited to, prescribing,
prescription order communications, product labeling, packaging and
nomenclature, compounding, dispensing, distribution, administration,
education, monitoring, and use.
(e) Each facility's plan shall do the following:
(1) Evaluate, assess, and include a method to address each of the
procedures and systems listed under subdivision (d) to identify
weaknesses or deficiencies that could contribute to errors in the
administration of medication.
(2) Include an annual review to assess the effectiveness of the
implementation of each of the procedures and systems listed under
subdivision (d).
(3) Be modified as warranted when weaknesses or deficiencies are
noted to achieve the reduction of medication errors.
(4) Describe the technology to be implemented and how it is
expected to reduce medication-related errors as described in
paragraph (1) of subdivision (a).
(5) Include a system or process to proactively identify actual or
potential medication-related errors. The system or process shall
include concurrent and retrospective review of clinical care.
(6) Include a multidisciplinary process, including health care
professionals responsible for pharmaceuticals, nursing, medical, and
administration, to regularly analyze all identified actual or
potential medication-related errors and describe how the analysis
will be utilized to change current procedures and systems to reduce
medication-related errors.
(7) Include a process to incorporate external medication-related
error alerts to modify current processes and systems as appropriate.
Failure to meet this criterion shall not cause disapproval of the
initial plan submitted.
(f) Beginning January 1, 2005, the department shall monitor the
implementation of each facility's plan upon licensure visits.
(g) The department may work with the facility's health care
community to present an annual symposium to recognize the best
practices for each of the procedures and systems listed under
subdivision (d).
SEC. 178. Section 1368.015 of the Health and Safety Code is
amended to read:
1368.015. (a) Effective July 1, 2003, every plan with a Web site
shall provide an online form through its Web site that subscribers or
enrollees can use to file with the plan a grievance, as described in
Section 1368, online.
(b) The Web site shall have an easily accessible online grievance
submission procedure that shall be accessible through a hyperlink on
the Web site's home page or member services portal clearly identified
as "GRIEVANCE FORM." All information submitted through this process
shall be processed through a secure server.
(c) The online grievance submission process shall be approved by
the Department of Managed Health Care and shall meet the following
requirements:
(1) It shall utilize an online grievance form in HTML format that
allows the user to enter required information directly into the form.
(2) It shall allow the subscriber or enrollee to preview the
grievance that will be submitted, including the opportunity to edit
the form prior to submittal.
(3) It shall include a current hyperlink to the California
Department of Managed Health Care Web site, and shall include a
statement in a legible font that is clearly distinguishable from
other content on the page and is in a legible size and type,
containing the following language:
"The California Department of Managed Health Care is responsible
for regulating health care service plans. If you have a grievance
against your health plan, you should first telephone your health plan
at (insert health plan's telephone number) and use your health plan'
s grievance process before contacting the department. Utilizing this
grievance procedure does not prohibit any potential legal rights or
remedies that may be available to you. If you need help with a
grievance involving an emergency, a grievance that has not been
satisfactorily resolved by your health plan, or a grievance that has
remained unresolved for more than 30 days, you may call the
department for assistance. You may also be eligible for an
Independent Medical Review (IMR). If you are eligible for IMR, the
IMR process will provide an impartial review of medical decisions
made by a health plan related to the medical necessity of a proposed
service or treatment, coverage decisions for treatments that are
experimental or investigational in nature and payment disputes for
emergency or urgent medical services. The department also has a
toll-free telephone number (1-888-HMO-2219) and a TDD line
(1-877-688-9891) for the hearing and speech impaired. The department'
s Internet Web site http://www.hmohelp.ca.gov has complaint forms,
IMR application forms and instructions online."
The plan shall update the URL, hyperlink, and telephone numbers in
this statement as necessary.
(d) A plan that utilizes a hardware system that does not have the
minimum system requirements to support the software necessary to meet
the requirements of this section is exempt from these requirements
until January 1, 2006.
(e) For purposes of this section, the following terms shall have
the following meanings:
(1) "Homepage" means the first page or welcome page of a Web site
that serves as a starting point for navigation of the Web site.
(2) "HTML" means Hypertext Markup Language, the authoring language
used to create documents on the World Wide Web, which defines the
structure and layout of a Web document.
(3) "Hyperlink" means a special HTML code that allows text or
graphics to serve as a link that, when clicked on, takes a user to
another place in the same document, to another document, or to
another Web site or Web page.
(4) "Member services portal" means the first page or welcome page
of a Web site that can be reached directly by the Web site's homepage
and that serves as a starting point for a navigation of member
services available on the Web site.
(5) "Secure server" means an Internet connection to a Web site
that encrypts and decrypts transmissions, protecting them against
third-party tampering and allowing for the secure transfer of data.
(6) "URL" or "Uniform Resource Locator" means the address of a Web
site or the location of a resource on the World Wide Web that allows
a browser to locate and retrieve the Web site or the resource.
(7) "Web site" means a site or location on the World Wide Web.
(f) Every health care service plan, except a plan that primarily
serves Medi-Cal or Healthy Families Program enrollees, shall maintain
a Web site.
SEC. 179. Section 1368.02 of the Health and Safety Code is amended
to read:
1368.02. (a) The director shall establish and maintain a
toll-free telephone number for the purpose of receiving complaints
regarding health care service plans regulated by the director.
(b) Every health care service plan shall publish the department's
toll-free telephone number, the department's TDD line for the hearing
and speech impaired, the plan's telephone number, and the department'
s Internet address, on every plan contract, on every evidence of
coverage, on copies of plan grievance procedures, on plan complaint
forms, and on all written notices to enrollees required under the
grievance process of the plan, including any written communications
to an enrollee that offer the enrollee the opportunity to participate
in the grievance process of the plan and on all written responses to
grievances. The department's telephone number, the department's TDD
line, the plan's telephone number, and the department's Internet
address shall be displayed by the plan in each of these documents in
12-point boldface type in the following regular type statement:
"The California Department of Managed Health Care is responsible
for regulating health care service plans. If you have a grievance
against your health plan, you should first telephone your health plan
at (insert health plan's telephone number) and use your health plan'
s grievance process before contacting the department. Utilizing this
grievance procedure does not prohibit any potential legal rights or
remedies that may be available to you. If you need help with a
grievance involving an emergency, a grievance that has not been
satisfactorily resolved by your health plan, or a grievance that has
remained unresolved for more than 30 days, you may call the
department for assistance. You may also be eligible for an
Independent Medical Review (IMR). If you are eligible for IMR, the
IMR process will provide an impartial review of medical decisions
made by a health plan related to the medical necessity of a proposed
service or treatment, coverage decisions for treatments that are
experimental or investigational in nature and payment disputes for
emergency or urgent medical services. The department also has a
toll-free telephone number (1-888-HMO-2219) and a TDD line
(1-877-688-9891) for the hearing and speech impaired. The department'
s Internet Web site http://www.hmohelp.ca.gov has complaint forms,
IMR application forms and instructions online."
(c) (1) There is within the department an Office of Patient
Advocate, which shall be known and may be cited as the
Gallegos-Rosenthal Patient Advocate Program, to represent the
interests of enrollees served by health care service plans regulated
by the department. The goal of the office shall be to help enrollees
secure health care services to which they are entitled under the
laws administered by the department.
(2) The office shall be headed by a patient advocate recommended
to the Governor by the Secretary of the Business, Transportation and
Housing Agency. The patient advocate shall be appointed by and serve
at the pleasure of the Governor.
(3) The duties of the office shall be determined by the secretary,
in consultation with the director, and shall include, but not be
limited to:
(A) Developing educational and informational guides for consumers
describing enrollee rights and responsibilities, and informing
enrollees on effective ways to exercise their rights to secure health
care services. The guides
shall be easy to read and understand, available in English and other
languages, and shall be made available to the public by the
department, including access on the department's Internet Web site
and through public outreach and educational programs.
(B) Compiling an annual publication, to be made available on the
department's Internet Web site, of a quality of care report card,
including, but not limited to, health care service plans.
(C) Rendering advice and assistance to enrollees regarding
procedures, rights, and responsibilities related to the use of health
care service plan grievance systems, the department's system for
reviewing unresolved grievances, and the independent review process.
(D) Making referrals within the department regarding studies,
investigations, audits, or enforcement that may be appropriate to
protect the interests of enrollees.
(E) Coordinating and working with other government and
nongovernment patient assistance programs and health care
ombudsperson programs.
(4) The director, in consultation with the patient advocate, shall
provide for the assignment of personnel to the office. The
department may employ or contract with experts when necessary to
carry out functions of the office. The annual budget for the office
shall be separately identified in the annual budget request of the
department.
(5) The office shall have access to department records including,
but not limited to, information related to health care service plan
audits, surveys, and enrollee grievances. The department shall
assist the office in compelling the production and disclosure of any
information the office deems necessary to perform its duties, from
entities regulated by the department, if the information is
determined by the department's legal counsel to be subject, under
existing law, to production or disclosure to the department.
(6) The patient advocate shall annually issue a public report on
the activities of the office, and shall appear before the appropriate
policy and fiscal committees of the Senate and Assembly, if
requested, to report and make recommendations on the activities of
the office.
SEC. 180. Section 1797.115 of the Health and Safety Code is
amended to read:
1797.115. (a) To the extent permitted by federal law and upon
appropriation in the annual Budget Act or another statute, the
Director of Finance may transfer any moneys in the Federal Trust Fund
established pursuant to Section 16360 of the Government Code to the
Emergency Medical Services Authority if the money is made available
by the United States for expenditure by the state for purposes
consistent with the implementation of this section.
(b) Moneys appropriated pursuant to subdivision (a) shall be
allocated by the authority to the California Fire Fighter Joint
Apprenticeship Program to do all of the following:
(1) Offset the cost of paramedic training course development.
(2) Enter into reimbursement contracts with eligible state and
local agencies that in turn may contract with educational
institutions for the delivery of paramedic training conducted in
compliance with the requirements of subdivision (a) of Section
1797.172.
(3) Allocate funds, in the form of grants, to eligible state and
local agencies to defray the cost of providing paramedic training for
fire services personnel, including, but not limited to,
instructional supplies and trainee compensation expenses.
(c) To the extent permitted by federal law, the authority shall
recover its costs for administration of this section from the funds
transferred pursuant to subdivision (a).
(d) In order to be eligible for a grant under paragraph (3) of
subdivision (b), a state or local agency shall demonstrate a need for
additional paramedics.
(e) For purposes of this section, the following definitions apply:
(1) "Fire service personnel" includes, but is not limited to, a
firefighter or prehospital emergency medical worker employed by a
state or local agency.
(2) "Local agency" means any city, county, city and county, fire
district, special district, joint powers agency, or any other
political subdivision of the state that provides fire protection
services.
(3) "State agency" means any state agency that provides
residential or institutional fire protection, including, but not
limited to, the Department of Forestry and Fire Protection.
SEC. 181. Section 1797.196 of the Health and Safety Code, as
amended by Section 3 of Chapter 718 of the Statutes of 2002, is
amended to read:
1797.196. (a) For purposes of this section, "AED" or
"defibrillator" means an automated or automatic external
defibrillator.
(b) In order to ensure public safety, any person or entity that
acquires an AED is not liable for any civil damages resulting from
any acts or omissions in the rendering of the emergency care under
subdivision (b) of Section 1714.21 of the Civil Code, if that person
or entity does all of the following:
(1) Complies with all regulations governing the placement of an
AED.
(2) Ensures all of the following:
(A) That the AED is maintained and regularly tested according to
the operation and maintenance guidelines set forth by the
manufacturer, the American Heart Association, and the American Red
Cross, and according to any applicable rules and regulations set
forth by the governmental authority under the federal Food and Drug
Administration and any other applicable state and federal authority.
(B) That the AED is checked for readiness after each use and at
least once every 30 days if the AED has not been used in the
preceding 30 days. Records of these checks shall be maintained.
(C) That any person who renders emergency care or treatment on a
person in cardiac arrest by using an AED activates the emergency
medical services system as soon as possible, and reports any use of
the AED to the licensed physician and to the local EMS agency.
(D) For every AED unit acquired up to five units, no less than one
employee per AED unit shall complete a training course in
cardiopulmonary resuscitation and AED use that complies with the
regulations adopted by the Emergency Medical Service Authority and
the standards of the American Heart Association or the American Red
Cross. After the first five AED units are acquired, for each
additional five AED units acquired, one employee shall be trained
beginning with the first AED unit acquired. Acquirers of AED units
shall have trained employees who should be available to respond to an
emergency that may involve the use of an AED unit during normal
operating hours.
(E) That there is a written plan that describes the procedures to
be followed in the event of an emergency that may involve the use of
an AED, to ensure compliance with the requirements of this section.
The written plan shall include, but not be limited to, immediate
notification of 911 and trained office personnel at the start of AED
procedures.
(3) Building owners ensure that tenants annually receive a
brochure, approved as to content and style by the American Heart
Association or American Red Cross, which describes the proper use of
an AED, and also ensure that similar information is posted next to
any installed AED.
(4) No less than once a year, building owners will notify their
tenants as to the location of AED units in the building.
(c) Any person or entity that supplies an AED shall do all of the
following:
(1) Notify an agent of the local EMS agency of the existence,
location, and type of AED acquired.
(2) Provide to the acquirer of the AED all information governing
the use, installation, operation, training, and maintenance of the
AED.
(d) A violation of this provision is not subject to penalties
pursuant to Section 1798.206.
(e) The protections specified in this section do not apply in the
case of personal injury or wrongful death that results from the gross
negligence or willful or wanton misconduct of the person who renders
emergency care or treatment by the use of an AED.
(f) Nothing in this section or Section 1714.21 may be construed to
require a building owner or a building manager to acquire and have
installed an AED in any building.
(g) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
SEC. 182. Section 11571 of the Health and Safety Code is amended
to read:
11571. Whenever there is reason to believe that a nuisance as
described in Section 11570 is kept, maintained, or exists in any
county, the district attorney of the county, or the city attorney of
any incorporated city or of any city and county, in the name of the
people, may, or any citizen of the state resident in the county, in
his or her own name, may maintain an action to abate and prevent the
nuisance and perpetually to enjoin the person conducting or
maintaining it, and the owner, lessee, or agent of the building or
place in or upon which the nuisance exists from directly or
indirectly maintaining or permitting the nuisance.
SEC. 183. Section 11581 of the Health and Safety Code is amended
to read:
11581. (a) If the existence of the nuisance is established in the
action, an order of abatement shall be entered as a part of the
judgment, which order shall direct the removal from the building or
place of all fixtures, musical instruments, and other movable
property used in conducting, maintaining, aiding, or abetting the
nuisance and shall direct their sale in the manner provided for the
sale of chattels under execution.
(b) (1) The order shall provide for the effectual closing of the
building or place against its use for any purpose, and for keeping it
closed for a period of one year. This subdivision is intended to
give priority to closure. Any alternative to closure may be
considered only as provided in this section.
(2) In addition, the court may assess a civil penalty not to
exceed twenty-five thousand dollars ($25,000) against any or all of
the defendants, based upon the severity of the nuisance and its
duration.
(3) One-half of the civil penalties collected pursuant to this
section shall be deposited in the Restitution Fund in the State
Treasury, the proceeds of which shall be available only upon
appropriation by the Legislature to indemnify persons filing claims
pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of
Part 4 of Division 3 of Title 2 of the Government Code, and one-half
of the civil penalties collected shall be paid to the city in which
the judgment was entered, if the action was brought by the city
attorney or city prosecutor. If the action was brought by a district
attorney, one-half of the civil penalties collected shall be paid to
the treasurer of the county in which the judgment was entered.
(c) (1) If the court finds that any vacancy resulting from closure
of the building or place may create a nuisance or that closure is
otherwise harmful to the community, in lieu of ordering the building
or place closed, the court may order the person who is responsible
for the existence of the nuisance, or the person who knowingly
permits controlled substances to be unlawfully sold, served, stored,
kept, or given away in or from a building or place he or she owns, to
pay damages in an amount equal to the fair market rental value of
the building or place for one year to the city or county in whose
jurisdiction the nuisance is located for the purpose of carrying out
drug abuse treatment, prevention, and education programs. If awarded
to a city, eligible programs may include those developed as a result
of cooperative programs among schools, community agencies, and the
local law enforcement agency. These funds shall not be used to
supplant existing city, county, state, or federal resources used for
drug prevention and education programs.
(2) For purposes of this subdivision, the actual amount of rent
being received for the rental of the building or place, or the
existence of any vacancy therein, may be considered, but shall not be
the sole determinant of the fair market rental value. Expert
testimony may be used to determine the fair market rental value.
(d) This section shall become operative on January 1, 1996.
SEC. 184. Section 18943 of the Health and Safety Code is amended
to read:
18943. Building standards in individual titles of the California
Code of Regulations other than the California Building Standards Code
shall have no force or effect after January 1, 1985.
SEC. 185. Section 25249.7 of the Health and Safety Code is amended
to read:
25249.7. (a) Any person that violates or threatens to violate
Section 25249.5 or 25249.6 may be enjoined in any court of competent
jurisdiction.
(b) (1) Any person who has violated Section 25249.5 or 25249.6
shall be liable for a civil penalty not to exceed two thousand five
hundred dollars ($2,500) per day for each violation in addition to
any other penalty established by law. That civil penalty may be
assessed and recovered in a civil action brought in any court of
competent jurisdiction.
(2) In assessing the amount of a civil penalty for a violation of
this chapter, the court shall consider all of the following:
(A) The nature and extent of the violation.
(B) The number of, and severity of, the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with
this chapter and the time these measures were taken.
(E) The willfulness of the violator's misconduct.
(F) The deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a whole.
(G) Any other factor that justice may require.
(c) Actions pursuant to this section may be brought by the
Attorney General in the name of the people of the State of
California, by any district attorney, by any city attorney of a city
having a population in excess of 750,000, or, with the consent of the
district attorney, by a city prosecutor in any city or city and
county having a full-time city prosecutor, or as provided in
subdivision (d).
(d) Actions pursuant to this section may be brought by any person
in the public interest if both of the following requirements are met:
(1) The private action is commenced more than 60 days from the
date that the person has given notice of an alleged violation of
Section 25249.5 or 25249.6 that is the subject of the private action
to the Attorney General and the district attorney, city attorney, or
prosecutor in whose jurisdiction the violation is alleged to have
occurred, and to the alleged violator. If the notice alleges a
violation of Section 25249.6, the notice of the alleged violation
shall include a certificate of merit executed by the attorney for the
noticing party, or by the noticing party, if the noticing party is
not represented by an attorney. The certificate of merit shall state
that the person executing the certificate has consulted with one or
more persons with relevant and appropriate experience or expertise
who has reviewed facts, studies, or other data regarding the exposure
to the listed chemical that is the subject of the action, and that,
based on that information, the person executing the certificate
believes there is a reasonable and meritorious case for the private
action. Factual information sufficient to establish the basis of the
certificate of merit, including the information identified in
paragraph (2) of subdivision (h), shall be attached to the
certificate of merit that is served on the Attorney General.
(2) Neither the Attorney General, any district attorney, any city
attorney, nor any prosecutor has commenced and is diligently
prosecuting an action against the violation.
(e) Any person bringing an action in the public interest pursuant
to subdivision (d) and any person filing any action in which a
violation of this chapter is alleged shall notify the Attorney
General that the action has been filed. Neither this subdivision nor
the procedures provided in subdivisions (f) to (j), inclusive, shall
affect the requirements imposed by statute or a court decision in
existence on January 1, 2002, concerning whether any person filing
any action in which a violation of this chapter is alleged is
required to comply with the requirements of subdivision (d).
(f) (1) Any person filing an action in the public interest
pursuant to subdivision (d), any private person filing any action in
which a violation of this chapter is alleged, or any private person
settling any violation of this chapter alleged in a notice given
pursuant to paragraph (1) of subdivision (d), shall, after the action
or violation is subject either to a settlement or to a judgment,
submit to the Attorney General a reporting form that includes the
results of that settlement or judgment and the final disposition of
the case, even if dismissed. At the time of the filing of any
judgment pursuant to an action brought in the public interest
pursuant to subdivision (d), or any action brought by a private
person in which a violation of this chapter is alleged, the plaintiff
shall file an affidavit verifying that the report required by this
subdivision has been accurately completed and submitted to the
Attorney General.
(2) Any person bringing an action in the public interest pursuant
to subdivision (d), or any private person bringing an action in which
a violation of this chapter is alleged, shall, after the action is
either subject to a settlement, with or without court approval, or to
a judgment, submit to the Attorney General a report that includes
information on any corrective action being taken as a part of the
settlement or resolution of the action.
(3) The Attorney General shall develop a reporting form that
specifies the information that shall be reported, including, but not
limited to, for purposes of subdivision (e), the date the action was
filed, the nature of the relief sought, and for purposes of this
subdivision, the amount of the settlement or civil penalty assessed,
other financial terms of the settlement, and any other information
the Attorney General deems appropriate.
(4) If there is a settlement of an action brought by a person in
the public interest under subdivision (d), the plaintiff shall submit
the settlement, other than a voluntary dismissal in which no
consideration is received from the defendant, to the court for
approval upon noticed motion, and the court may approve the
settlement only if the court makes all of the following findings:
(A) Any warning that is required by the settlement complies with
this chapter.
(B) Any award of attorney's fees is reasonable under California
law.
(C) Any penalty amount is reasonable based on the criteria set
forth in paragraph (2) of subdivision (b).
(5) The plaintiff subject to paragraph (4) has the burden of
producing evidence sufficient to sustain each required finding. The
plaintiff shall serve the motion and all supporting papers on the
Attorney General, who may appear and participate in any proceeding
without intervening in the case.
(6) Neither this subdivision nor the procedures provided in
subdivision (e) and subdivisions (g) to (j), inclusive, shall affect
the requirements imposed by statute or a court decision in existence
on January 1, 2002, concerning whether claims raised by any person or
public prosecutor not a party to the action are precluded by a
settlement approved by the court.
(g) The Attorney General shall maintain a record of the
information submitted pursuant to subdivisions (e) and (f) and shall
make this information available to the public.
(h) (1) Except as provided in paragraph (2), the basis for the
certificate of merit required by subdivision (d) is not discoverable.
However, nothing in this subdivision shall preclude the discovery
of information related to the certificate of merit if that
information is relevant to the subject matter of the action and is
otherwise discoverable, solely on the ground that it was used in
support of the certificate of merit.
(2) Upon the conclusion of an action brought pursuant to
subdivision (d) with respect to any defendant, if the trial court
determines that there was no actual or threatened exposure to a
listed chemical, the court may, upon the motion of that alleged
violator or upon the court's own motion, review the basis for the
belief of the person executing the certificate of merit, expressed in
the certificate of merit, that an exposure to a listed chemical had
occurred or was threatened. The information in the certificate of
merit, including the identity of the persons consulted with and
relied on by the certifier, and the facts, studies, or other data
reviewed by those persons, shall be disclosed to the court in an
in-camera proceeding at which the moving party shall not be present.
If the court finds that there was no credible factual basis for the
certifier's belief that an exposure to a listed chemical had occurred
or was threatened, then the action shall be deemed frivolous within
the meaning of Section 128.6 or 128.7 of the Code of Civil Procedure,
whichever provision is applicable to the action. The court shall
not find a factual basis credible on the basis of a legal theory of
liability that is frivolous within the meaning of Section 128.6 or
128.7 of the Code of Civil Procedure, whichever provision is
applicable to the action.
(i) The Attorney General may provide the factual information
submitted to establish the basis of the certificate of merit on
request to any district attorney, city attorney, or prosecutor within
whose jurisdiction the violation is alleged to have occurred, or to
any other state or federal government agency, but in all other
respects the Attorney General shall maintain, and ensure that all
recipients maintain, the submitted information as confidential
official information to the full extent authorized in Section 1040 of
the Evidence Code.
(j) In any action brought by the Attorney General, a district
attorney, a city attorney, or a prosecutor pursuant to this chapter,
the Attorney General, district attorney, city attorney, or prosecutor
may seek and recover costs and attorney's fees on behalf of any
party who provides a notice pursuant to subdivision (d) and who
renders assistance in that action.
SEC. 186. Section 42801.1 of the Health and Safety Code is amended
to read:
42801.1. For purposes of this chapter, the following terms have
the following meanings:
(a) "Annual emissions results" means the participant's applicable
data on the direct and indirect release of greenhouse gases in one
particular year. In addition to annual emissions results a
participant may report data annually on emission reductions from a
project or other action, including the sequestration of stocks of
carbon in forests.
(b) "Baseline" means a datum against which to measure greenhouse
gas emissions performance over time, usually annual emissions in a
selected base year. For the purposes of this subdivision, the
baseline shall start on or after January 1, 1990.
(c) "Certification" means the determination of whether a given
participant's greenhouse gas emissions inventory (either baseline or
annual result) has met a minimum quality standard and complied with
an appropriate set of registry-approved procedures and protocols for
submitting emissions inventory information. The process for
certification of emissions results will be specified within the
procedures and protocols approved for industry-specific emissions
inventory reporting, and may involve a range of options depending
upon the nature of the emissions, complexity of a company's
facilities and operations, or both, and the procedures deemed
necessary by the registry board to validate a participant's emissions
information.
(d) "De minimis emissions" means emissions that are below a
certain threshold, when summed across all applicable sources of the
participating entity. The State Energy Resources Conservation and
Development Commission shall recommend to the registry for adoption a
threshold emissions level for each type of greenhouse gas emission
that shall be considered de minimis.
(e) "Emissions" means the release of greenhouse gases into the
atmosphere.
(f) (1) "Emissions inventory" means an accounting of the amount of
greenhouse gases discharged into the atmosphere. It is generally
characterized by all of the following factors:
(A) The chemical or physical identity of the pollutants included.
(B) The geographic area covered.
(C) The institutional entities covered.
(D) The time period over which emissions are estimated.
(E) The types of activities that cause emissions.
(2) An emissions inventory shall include sufficient documentation
and supporting data to make transparent the underlying assumptions
and calculations for all of the reported results.
(g) "Forest" means lands that support, or can support, at least 10
percent tree canopy cover and that allow for management of one or
more forest resources including timber, fish and wildlife,
biodiversity, water quality, recreation, aesthetics, and other public
benefits.
(h) "Greenhouse gases" include all of the following gases: carbon
dioxide, methane, nitrous oxide, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(i) "Material" means any emission of greenhouse gas that is not de
minimis.
(j) "Native" means forests classified in the 1988 edition, or its
approved successor equivalent, of "A Guide to Wildlife Habitats of
California," published by the Department of Fish and Game, and
forests that are composed of the forest types within those
classifications.
(k) "Natural forest management" means forest management practices
that promote and maintain native forests comprised of multiple ages
and mixed native species in the overstory and understory.
SEC. 187. Section 44299.80 of the Health and Safety Code is
amended to read:
44299.80. As used in this chapter, the following terms have the
following meanings:
(a) "Advanced introduction cost" means the cost of a project less
a baseline cost that would otherwise be incurred by the applicant in
the normal course of business based on the actual age and turnover
rates of trucks used at ports, and may include, but is not limited
to, any of the following: incremental engine costs, re-engine or
retrofit costs, additional operational costs, incremental fuel costs,
facility modifications, and scrappage costs to eliminate operation
on highways in the state.
(b)
"Cost-effectiveness" means the funds provided to a project for each
ton of particulate matter reduction attributed to a project or to the
program as a whole. In calculating cost-effectiveness, a one-time
grant of funds made at the beginning of a project shall be annualized
using a time value of public funds or discount rate determined for
each project. Cost-effectiveness shall be calculated by dividing
annualized costs by local emissions reductions of PM.
(c) "Covered engine" includes an engine from any onroad heavy-duty
diesel truck or bus weighing over 33,000 pounds and used in for-hire
or proprietary trucking operated by a trucking company that services
a port in the state.
(d) "Covered source" includes onroad heavy-duty diesel vehicles
and other onroad high-emitting diesel engine categories.
(e) "Covered vehicle" includes any vehicle or piece of equipment
powered by a covered engine.
(f) "District" means the Bay Area Air Quality Management District
as described in Chapter 4 (commencing with Section 40200) of Part 3
and the South Coast Air Quality Management District as described in
Chapter 5.5 (commencing with Section 40400) of Part 3.
(g) "Gr-bhph" means grams-per brake horsepower hour.
(h) "Marine terminal" has the same meaning as in Section 40720.
(i) "New very low-emission vehicle" means a vehicle that qualifies
as a very low-emission vehicle when it is a new vehicle, as defined
in Section 430 of the Vehicle Code, with regard to particulate matter
emissions standards or that is modified with the approval and
warranty of the original equipment manufacturer to qualify as a very
low-emission vehicle with regard to particulate matter emissions
standards within 12 months of delivery to an owner for private or
commercial use.
(j) "Port" means any sea or river port in the state.
(k) "PM" means particulate matter.
(l) "Program" means the California Port Community Air Quality
Program created by this chapter.
(m) "Project" means the replacement, repowering, scrapping, or
retrofitting of a covered vehicle or covered engine that receives a
grant pursuant to this chapter.
(n) "Repower" means replacing an engine with a different engine.
The term "repower," as used in this chapter, refers to replacing an
older, uncontrolled engine with a newer model engine that meets the
latest emissions standards.
(o) "Retrofit" means making modifications to the engine and fuel
system so that the retrofitted engine does not have the same
emissions of particulate matter as the original engine.
(p) "Very low-emission vehicle" means a vehicle with emissions
significantly lower than otherwise applicable baseline emission
standards or uncontrolled emission levels.
SEC. 188. Section 50199.74 of the Health and Safety Code is
amended to read:
50199.74. (a) The committee is hereby designated as the state's
only commercial revitalization agency for purposes of Section 1400I
of Title 26 of the United States Code. The committee shall annually
allocate the aggregate commercial revitalization expenditure amount
available to the state in accordance with this chapter and applicable
federal law. The committee shall undertake any and all
responsibilities of commercial revitalization agencies set forth in
Section 1400I of Title 26 of the United States Code.
(b) For the purpose of allocating the state's aggregate commercial
revitalization expenditure amount, the committee shall do all of the
following:
(1) Determine and disseminate the requirements for an application
for allocation of the commercial revitalization expenditures.
(2) Devise and implement the review procedure to determine the
priority of each project as well as the amount of qualifying
expenditures attributable to each application.
(3) Allocate the available commercial revitalization expenditures
for each calendar year among the applicants.
(c) The committee shall not be required to allocate twelve million
dollars ($12,000,000) to each renewal community.
(d) The committee shall develop and provide application forms for
use by applicants. The committee shall adopt uniform procedures for
submission and review of applications, including fees it shall charge
to defray the committee's cost in administering this chapter. In
the committee's discretion, the fees may be charged to an applicant
as a condition of submitting an application or as a condition of
receiving an allocation or reservation of the state's current or
anticipated commercial revitalization ceiling, or both.
(e) No allocations or reservations shall be made pursuant to this
section with respect to projects that do not meet the requirements of
the qualified allocation plan, this chapter, or Section 1400I of
Title 26 of the United States Code.
SEC. 189. Section 52075.1 of the Health and Safety Code is amended
to read:
52075.1. As used in this chapter, "city or county" includes any
city and county.
SEC. 190. Section 100870 of the Health and Safety Code is amended
to read:
100870. (a) Any laboratory that is ELAP certified or holds NELAP
accreditation or has applied for ELAP certification or NELAP
accreditation or for renewal of ELAP certification or NELAP
accreditation under this article shall analyze proficiency testing
samples, if these testing samples are available. The department
shall have the authority to contract with third parties for the
provision of proficiency testing samples for those laboratories that
hold or are applying for ELAP certification. The samples shall be
tested by the laboratory according to methods specifically approved
for this purpose by the United States government or the department,
or alternate methods of demonstrated adequacy or equivalence, as
determined by the department. Proficiency testing sample sets shall
be provided, when available, not less than twice, nor more than four
times, a year to each certified laboratory that performs analyses of
food for pesticide residues.
(b) (1) The department may provide, directly or indirectly,
proficiency testing samples to a laboratory for the purpose of
determining compliance with this article with or without identifying
the department.
(2) When the department identifies itself, all of the following
shall apply:
(A) The results of the testing shall be submitted to the
department on forms provided by the department on or before the date
specified by the department, and shall be used in determining the
competency of the laboratory.
(B) There shall be no charge to the department for the analysis.
(3) When the department does not identify itself, the department
shall pay the price requested by the laboratory for the analyses.
(c) If a certified or NELAP accredited laboratory submits
proficiency testing sample results generated by another laboratory as
its own, the certification or NELAP accreditation shall be
immediately revoked.
(d) Laboratories shall obtain their proficiency testing samples
from proficiency testing sample providers that meet NELAC standards.
Laboratories shall bear the cost of any proficiency testing study
fee charged for participation. Each laboratory shall authorize the
providers of proficiency testing samples to release the report of the
study results directly to the department, as well as to the
laboratory.
SEC. 191. Section 102247 of the Health and Safety Code is amended
to read:
102247. (a) There is hereby created in the State Treasury the
Health Statistics Special Fund. The fund shall consist of revenues,
including, but not limited to, all of the following:
(1) Fees or charges remitted to the State Registrar for record
search or issuance of certificates, permits, registrations, or other
documents pursuant to Chapter 3 (commencing with Section 26801) of
Part 3 of Division 2 of Title 3 of the Government Code, and Chapter 4
(commencing with Section 102525), Chapter 5 (commencing with Section
102625), Chapter 8 (commencing with Section 103050), and Chapter 15
(commencing with Section 103600) of Part 1 of Division 102.
(2) Funds remitted to the State Registrar by the federal Social
Security Administration for participation in the enumeration at birth
program.
(3) Funds remitted to the State Registrar by the National Center
for Health Statistics pursuant to the federal Vital Statistics
Cooperative Program.
(4) Any other funds collected by the State Registrar, except
Children's Trust Fund fees collected pursuant to Section 18966 of the
Welfare and Institutions Code, fees allocated to the Judicial
Council pursuant to Section 1852 of the Family Code, and fees
collected pursuant to Section 103645, all of which shall be deposited
into the General Fund.
(b) Moneys in the Health Statistics Special Fund shall be expended
by the State Registrar for the purpose of funding its existing
programs and programs that may become necessary to carry out its
mission, upon appropriation by the Legislature.
(c) Health Statistics Special Fund moneys shall be expended only
for the purposes set forth in this section and Section 102249, and
shall not be expended for any other purpose or for any other state
program.
(d) It is the intent of the Legislature that the Health Statistics
Special Fund provide for the following:
(1) Registration and preservation of vital event records and
dissemination of vital event information to the public.
(2) Data analysis of vital statistics for population projections,
health trends and patterns, epidemiologic research, and development
of information to support new health policies.
(3) Development of uniform health data systems that are
integrated, accessible, and useful in the collection of information
on health status.
SEC. 192. Section 113995 of the Health and Safety Code is amended
to read:
113995. (a) Except as otherwise provided in this section, all
potentially hazardous food held at a retail food facility, or being
transported to or from a retail food facility for a period of longer
than 30 minutes, excluding raw shell eggs, shall be held at or below
7 degrees Celsius (45 degrees Fahrenheit) or shall be kept at or
above 60 degrees Celsius (140 degrees Fahrenheit) at all times.
Storage and display of raw shell eggs shall be governed by Sections
113997 and 114351.
(b) A retail food facility may accept potentially hazardous food
at or below 7 degrees Celsius (45 degrees Fahrenheit), pursuant to
subdivision (a), if the potentially hazardous food is cooled within
four hours of receipt to a temperature at or below 5 degrees Celsius
(41 degrees Fahrenheit).
(c) (1) Commencing January 1, 1997, all potentially hazardous food
shall be held at or below 5 degrees Celsius (41 degrees Fahrenheit)
or shall be kept at or above 60 degrees Celsius (140 degrees
Fahrenheit) at all times, except for the following:
(A) Unshucked live molluscan shellfish shall not be stored or
displayed at a temperature above 7 degrees Celsius (45 degrees
Fahrenheit).
(B) Frozen potentially hazardous foods shall be stored and
displayed in their frozen state unless being thawed in accordance
with Section 114085.
(C) Potentially hazardous foods held for dispensing in serving
lines and salad bars during periods not to exceed 12 hours in any
24-hour period or held in vending machines may not exceed 7 degrees
Celsius (45 degrees Fahrenheit). For purposes of this subdivision, a
display case shall not be deemed to be a serving line.
(D) Pasteurized milk and pasteurized milk products in original,
sealed containers may not be held at a temperature above 7 degrees
Celsius (45 degrees Fahrenheit).
(2) Nothing in this subdivision shall be deemed to require any
person to replace or modify any existing refrigeration equipment
owned by that person on January 1, 1997, until January 1, 2002. For
purposes of this paragraph, neither a simple adjustment of
temperature controls nor a needed repair shall constitute a
modification.
(d) Potentially hazardous foods may be held at temperatures other
than those specified in this section when being heated or cooled, or
when the food facility operates pursuant to an HACCP plan adopted
pursuant to Section 114055 or 114056. If it is necessary to remove
potentially hazardous food from specified holding temperatures to
facilitate preparations, this preparation shall be diligent, and in
no case shall the period of an ambient-temperature preparation step
exceed two hours without a return to the specified holding
temperatures. The total ambient-temperature holding of a potentially
hazardous food for the purposes of preparation shall not exceed a
total cumulative time of four hours. For purposes of this
subdivision, preparation shall be deemed to be "diligent" with
respect to raw shell eggs held for the preparation of egg-containing
foods that are prepared to the specific order of the customer as long
as the total ambient-temperature holding of these eggs does not
exceed a total time of four hours.
(e) A thermometer accurate to plus or minus 1 degree Celsius (2
degrees Fahrenheit) shall be provided for each refrigeration unit,
shall be located to indicate the air temperature in the warmest part
of the unit and, except for vending machines, shall be affixed to be
readily visible. Except for vending machines, an accurate easily
readable metal probe thermometer suitable for measuring the
temperature of food shall be readily available on the premises.
SEC. 193. Section 115000.1 of the Health and Safety Code is
amended to read:
115000.1. (a) For the purposes of this section, the following
terms have the following meanings:
(1) "Generate" means to produce or cause the production of, or to
engage in an activity which otherwise results in the creation or
increase in the volume of, low-level radioactive waste.
(2) (A) "Generator" means any person who, by his or her actions,
or by the actions of his or her agent, employee, or independent
contractor, generates low-level radioactive waste in the state.
(B) For purposes of this section, a person who provides for or
arranges for the collection, transportation, treatment, storage, or
disposal of low-level radioactive waste generated by others is a
generator only to the extent that his or her actions, or the actions
of his or her agent, employee, or independent contractor, generate
low-level radioactive waste.
(3) "Person" means an individual, partnership, corporation, or
other legal entity, including any state, interstate, federal, or
municipal governmental entity.
(4) "Waste" means material that is not in use and is no longer
useful.
(5) "Generator category" includes, but is not limited to, any of
the following:
(A) Nuclear powerplants.
(B) Reactor vendors or designers.
(C) Government.
(D) Medicine.
(E) Academia.
(F) Aerospace.
(G) Military.
(H) Research.
(I) Industrial gauges.
(J) Manufacturing.
(6) "Low-level radioactive waste" or "LLRW" has the same meaning
as defined in Article 2 of the Southwestern Low-Level Radioactive
Waste Disposal Compact, as set forth in Section 115255.
(7) "Class" means the class of low-level radioactive waste.
"Class A", "class B", and "class C" waste are those classes defined
in Section 61.55 of Title 10 of the Code of Federal Regulations.
(8) "Licensed LLRW disposal facility" means any of the three
disposal facilities located at Barnwell, South Carolina; Clive, Utah;
or Richland, Washington, that exist on January 1, 2003.
(b) The department shall, for the protection of public health and
safety maintain a file of each manifest from each generator of LLRW
that is sent to a disposal facility or to a facility subject to the
Southwestern Low-level Radioactive Waste Disposal Compact, as set
forth in Article 17 (commencing with Section 115250).
(c) The department shall, for the protection of public health and
safety, maintain a file of all LLRW transferred for disposal to a
licensed LLRW disposal facility during the reporting period, either
directly or through a broker or agent, that shall meet all of the
following conditions:
(1) Specify the category of generator, class, quantity by
activity, and volume of LLRW, including an estimate of the peak and
average quantities in storage, along with the identity of the
generator, and the chemical and physical characteristics of that
waste, including its half-life, properties, or constituents, and
radionuclides present at, or above, the minimum labeling
requirements, with their respective concentrations and amounts of
radioactivity.
(2) Be updated annually, at minimum, to ensure an accurate and
timely depiction of radioactive waste in the state.
(3) Include all of the following information in the file:
(A) The total volume, volume by class, and activity by
radionuclide and class.
(B) The types and specifications of individual containers used and
the number of each type transferred for disposal.
(C) The maximum surface radiation exposure level on any single
container of LLRW transferred, the number of disposal containers that
exceed 200 mR/hour, and the volume, class, and activity by
radionuclide.
(D) The identification of each licensed LLRW disposal facility to
which LLRW was transferred, either directly or through a broker or
agent, and the volume and activity by class of LLRW transferred by
each broker to each licensed LLRW disposal facility.
(E) The identification of all brokers or agents to which LLRW was
transferred and the volume and activity by class of the generator's
LLRW transferred by each broker or agent to each licensed LLRW
disposal facility.
(F) The weight of source material by its type. For purposes of
this paragraph, "type" includes, but is not limited to, natural
uranium, depleted uranium, or thorium.
(G) The total number of grams of special nuclear material by
radionuclide, and the maximum number of grams of special nuclear
material in any single shipment by radionuclide.
(H) As complete a description as practicable of the principal
chemical and physical form of the LLRW by volume and radionuclide,
including the identification of any known hazardous properties, other
than its radioactive property.
(I) For solidified or sorbed liquids, the nature of the liquid,
the solidifying or sorbing agent used, and the final volume.
(J) For LLRW containing more than 0.1 percent by weight chelating
agents, the identification of the chelating agent, the volume and
weight of the LLRW and the weight percentage of chelating agent.
(K) For LLRW that was treated, either by the generator or its
agent or independent contractor, in preparation for transfer to a
licensed LLRW disposal facility described in paragraph (8) of
subdivision (a) for the purpose of reducing its volume or activity by
any method including reduction by storage for decay, or for the
purpose of changing its physical or chemical characteristics in a
manner other than by solidification or sorption of liquids, the file
shall include a description of the treatment process.
(L) The volume, volume by class, and activity by radionuclide and
class of that LLRW, if any, that the generator is holding at the end
of the annual reporting period because the generator knows or has
reason to believe that LLRW will not be accepted for disposal at any
of the licensed LLRW disposal facilities. The file shall include a
description of this LLRW.
(d) The department shall maintain a file on each generator's LLRW
stored, including specific radionuclides, total volume, volume by
class, total activity, and activity by radionuclide and class of LLRW
stored for decay and stored for later transfer, including the
periods of time for both types of storage.
(e) (1) The department shall prepare an annual report, including a
set of tables summarizing data collected from the activities and
maintenance of files specified in subdivisions (c) and (d) to the
department. These annual data tables shall contain information that
summarizes and categorizes, by category, and if applicable,
subcategory, of generator and location by county and identity of
generator, the nature, characteristics and the total volume, volume
by class, total activity and activity by radionuclide and class of
LLRW generated, disposed of, treated, transferred, stored for later
transfer, and stored for decay during each calendar year.
(2) The department shall note, in the set of tables prepared
pursuant to paragraph (1), any generator for which data are lacking.
(f) The department shall make the information described in
subdivisions (c) and (d) available to the public in a format that
aggregates the information by county. The department shall not make
public the identity and location of any site where LLRW is stored or
used. The department may combine information from multiple counties
if necessary to protect public security. Notwithstanding any other
provision of law the department shall not make the report prepared
pursuant to subdivision (e) available to the public, and the report
is not subject to the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 6 of Title 1 of the
Government Code).
(g) The department may make the information described in
subdivisions (c) and (d) available upon request to any Member of the
Legislature. No Member of the Legislature may disclose the identity
or location of any site where LLRW is stored or used to any member of
the general public.
(h) To meet the requirements of this section, each generator shall
submit to the department the information included in Forms 540, 541,
and 542, and any successor forms, of the Nuclear Regulatory
Commission, for each LLRW shipment. In addition, for purposes of
subparagraph (L) of paragraph (4) of subdivision (c) and subdivision
(d), each generator shall annually complete and submit to the
department the information included on Forms 540, 541, and 542, and
any successor forms, of the Nuclear Regulatory Commission that
describe the LLRW stored and shipped by the generator.
SEC. 194. Section 115928 of the Health and Safety Code is amended
to read:
115928. Whenever a construction permit is issued for the
construction of a new swimming pool or spa, the pool or spa shall
meet all of the following requirements:
(a) (1) The suction outlet of the pool or spa for which the permit
is issued shall be equipped to provide circulation throughout the
pool or spa as prescribed in paragraph (2).
(2) The swimming pool or spa shall have at least two circulation
drains per pump that shall be hydraulically balanced and
symmetrically plumbed through one or more "T" fittings, and that are
separated by a distance of at least three feet in any dimension
between the drains.
(b) Suction outlets that are less than 12 inches across shall be
covered with antientrapment grates that cannot be removed except with
the use of tools. Slots or openings in the grates or similar
protective devices shall be of a shape, area, and arrangement that
would prevent physical entrapment and would not pose any suction
hazard to bathers.
(c) Any backup safety system that an owner of a new swimming pool
or spa may choose to install in addition to the requirements set
forth in subdivisions (a) and (b) shall meet the standards as
published in the document, "Guidelines for Entrapment Hazards:
Making Pools and Spas Safer," Publication Number 363, January 1998,
United States Consumer Product Safety Commission.
SEC. 195. Section 121140 of the Health and Safety Code is amended
and renumbered to read:
120263. (a) No health care provider, as defined in this chapter,
shall be subject to civil or criminal liability or professional
disciplinary action for performing tests for a communicable disease
on the available blood or patient sample of a source patient, or for
disclosing the communicable disease status of a source patient to the
source patient, an attending physician of the source patient, the
certifying physician, the exposed individual, or any attending
physician of the exposed individual, if the health care provider has
acted in good faith in complying with this chapter.
(b) Any health care provider or first responder, or any exposed
individual, who willfully performs or permits the performance of a
test for a communicable disease on a source patient, that results in
economic, bodily, or psychological harm to the source patient,
without adhering to the procedure set forth in this chapter is guilty
of a misdemeanor, punishable by imprisonment in the county jail for
a period not to exceed one year, or a fine not to exceed ten thousand
dollars ($10,000), or by both.
SEC. 196. Section 122137 of the Health and Safety Code is amended
to read:
122137. (a) (1) It is the intent of the Legislature and the
purpose of this section to inform consumers who purchase dogs and
cats from retail pet dealers about the benefits of spaying and
neutering and the importance of establishing a relationship with a
veterinarian, and to facilitate dog licensing by encouraging pet
dealers to promote licensure compliance.
(2) The Legislature declares that pet dealers, when feasible,
should offer incentives to purchasers to encourage the use of spaying
and neutering services, and that local animal control agencies
should investigate selling licenses through pet shops, or making
licensure applications available in pet shops, since these businesses
already serve a large number of pet owners through the sale of pet
supplies.
(b) Every pet dealer shall deliver to the purchaser of each dog or
cat at the time of sale, written material, in a form determined by
the pet dealer, containing information on the benefits of spaying and
neutering. The written material shall include recommendations on
establishing a relationship with a veterinarian, information on
early-age spaying and neutering, the health benefits associated with
spaying and neutering pets, the importance of minimizing the risk of
homeless or unwanted animals, and the need to comply with applicable
license laws.
(c) The delivering of any model materials prepared by the Pet
Industry Joint Advisory Council, the California Animal Control
Directors Association, the State Humane Association of California,
and the California Veterinary Medical Association shall satisfy the
requirements of subdivision (b).
SEC. 197. Section 123418 of the Health and Safety Code is amended
to read:
123418. Subject to all other provisions of this article, all
residency programs in obstetrics and gynecology shall comply with the
program requirements for residency education in obstetrics and
gynecology of the Accreditation Council for Graduate
Medical Education, which require that in
addition to education and training in in-patient care, the program in
obstetrics-gynecology be geared toward the development of competence
in the provision of ambulatory primary health care for women,
including, but not limited to, training in the performance of
abortion services.
SEC. 198. Section 123464 of the Health and Safety Code is amended
to read:
123464. The following definitions shall apply for purposes of
this chapter:
(a) "Abortion" means any medical treatment intended to induce the
termination of a pregnancy except for the purpose of producing a live
birth.
(b) "Pregnancy" means the human reproductive process, beginning
with the implantation of an embryo.
(c) "State" means the State of California, and every county, city,
town and municipal corporation, and quasi-municipal corporation in
the state.
(d) "Viability" means the point in a pregnancy when, in the good
faith medical judgment of a physician, on the particular facts of the
case before that physician, there is a reasonable likelihood of the
fetus' sustained survival outside the uterus without the application
of extraordinary medical measures.
SEC. 199. Section 125116 of the Health and Safety Code is amended
to read:
125116. (a) A physician and surgeon or other health care provider
delivering fertility treatment shall provide his or her patient with
timely, relevant, and appropriate information to allow the
individual to make an informed and voluntary choice regarding the
disposition of any human embryos remaining following the fertility
treatment.
(b) Any individual to whom information is provided pursuant to
subdivision (a) shall be presented with the option of storing any
unused embryos, donating them to another individual, discarding the
embryos, or donating the remaining embryos for research.
(c) Any individual who elects to donate embryos remaining after
fertility treatments for research shall provide written consent.
SEC. 200. Section 1211 of the Insurance Code is amended to read:
1211. (a) For the purposes of this section the following
definitions shall apply:
(1) "Aggregate counterparty exposure" means the sum of the
aggregate statement value options, swaptions, caps, floors, and
warrants purchased, and the aggregate potential exposure of collars,
swaps, forwards, and futures entered into.
(2) "Cap" means an agreement obligating the seller to make
payments to the buyer with each payment based on the amount by which
a reference price or level or the performance or value of one or more
underlying interests exceeds a predetermined number, sometimes
referred to as the strike rate or strike price.
(3) "Collar" means an agreement to receive payments as the buyer
of an option, cap, or floor and to make payments as the seller of a
different option, cap, or floor.
(4) "Credit default swap" means an agreement obligating the buyer
to pay a periodic payment to the seller in return for the seller's
obligation to make a payment to the buyer if a credit event or events
occur with respect to underlying interests or an entity, as
specified in the documentation of the credit default swap.
(5) "Derivative instrument" means an agreement, option,
instrument, or a series or combination of those (A) to make or take
delivery of, or assume or relinquish, a specified amount of one or
more underlying interests, or to make a cash settlement in lieu
thereof, or (B) that has a price, performance, value, or cashflow
based primarily upon the actual or expected price, level,
performance, value, or cashflow of one or more underlying interests.
A derivative instrument includes all investment instruments or
contracts that derive all or almost all of their value from the
performance of an underlying market, index, or financial instruments.
The term includes options, warrants, caps, floors, collars, swaps,
credit default swaps, swaptions, forwards, and futures.
(6) "Derivative transaction" means a transaction involving the use
of one or more derivative instruments.
(7) "Floor" means an agreement obligating the seller to make
payments to the buyer in which each payment is based on the amount by
which a predetermined number, sometimes called the floor rate or
price, exceeds a reference price, level, performance, or value of one
or more underlying interests.
(8) "Forward" means an agreement, other than a future, to make or
take delivery in the future of one or more underlying interests, or
effect a cash settlement, based on the actual or expected price,
level, performance, or value of those underlying interests, but does
not mean or include spot transactions effected within customary
settlement periods, when issued purchases, or other similar cash
market transactions.
(9) "Future" means an agreement traded on an organized and
qualified futures exchange, to make or take delivery of, or effect a
cash settlement based on the actual or expected price, level,
performance, or value of, one or more underlying interests.
(10) "Hedging transaction" means a derivative transaction that is
entered into and at all times maintained to reduce (A) risk due to a
change in the value, yield, price, cashflow, or quantity of assets or
liabilities that the insurer has acquired or incurred or anticipates
acquiring or incurring or (B) risk due to changes in the currency
exchange rate or the degree of exposure as to assets or liabilities
denominated in a foreign currency that an insurer has acquired or
incurred or anticipates acquiring or incurring.
(11) "Option" means an agreement giving the buyer the right to buy
or receive, sell, or deliver, enter into, extend, or terminate or
effect a cash settlement based on the actual or expected price,
spread, level, performance, or value of one or more underlying
interests.
(A) For purposes of this paragraph, an agreement giving the buyer
the right to buy or receive may also be called a "call option."
(B) For purposes of this paragraph, an agreement giving the buyer
the right to sell or deliver may be called a "put option."
(12) "Potential exposure" means the amount determined in
accordance with the National Association of Insurance Commissioners
Annual Statement Instructions.
(13) "Qualified bank" means a bank or trust company that meets all
of the following:
(A) The bank or trust company is organized and existing, or in the
case of a branch or agency of a foreign banking organization is
licensed, under federal law or the law of any state.
(B) The bank or trust company is regulated, supervised, and
examined by the United States federal or state authorities having
regulatory authority over banks and trust companies.
(C) The bank or trust company has assets in excess of five billion
dollars ($5,000,000,000).
(D) The bank or trust company has senior obligations outstanding,
or has a parent corporation that has senior obligations outstanding,
rated AA or better, or the equivalent, by two independent nationally
recognized statistical rating organizations.
(E) The bank or trust company has a ratio of primary capital to
total assets of at least 51/2 percent and a ratio of total capital to
total assets of at least 6 percent.
(14) "Qualified counterparty" is a qualified broker or dealer or a
qualified bank or other counterparty rated AA- or Aa3 or higher by a
nationally recognized statistical rating organization.
(15) "Qualified broker or dealer" means a broker or dealer that is
organized under the laws of a state and is registered under the
Securities Exchange Act of 1934 (15 U.S.C. Sec. 78a et seq.), and has
net capital in excess of two hundred fifty million dollars
($250,000,000).
(16) "Replication transaction" means a derivative transaction or
combination of derivative transactions effected either separately or
in conjunction with cash market investments included in the insurer's
investment portfolio in order to replicate the investment
characteristic of another authorized transaction, investment, or
instrument or that may operate as a substitute for cash market
investments. A derivative transaction entered into by the insurer as
a hedging transaction authorized pursuant to this section shall not
be considered a replication transaction.
(17) "Swap" means an agreement to exchange or to net payments or
income streams at one or more times based on the actual or expected
price, yield, level, performance, or value of one or more underlying
interests.
(18) "Swaption" means an option to purchase or sell a swap at a
given price and time or at a series of prices and times. A swaption
does not mean a swap with an embedded option.
(19) "Underlying interest" means the assets, liabilities, other
interests, or a combination thereof, underlying a derivative
instrument, such as any one or more securities, currencies, rates,
indices, commodities, or derivative instruments.
(20) "Warrant" means an instrument that gives the holder the right
to purchase or sell the underlying interest at a given price and
time or at a series of prices and times outlined in the warrant
agreement.
(b) Any domestic incorporated insurer having admitted assets, as
of the preceding December 31, of at least one billion dollars
($1,000,000,000) and capital and surplus of at least two hundred
million dollars ($200,000,000), after investing an amount equal to
its required minimum paid-in capital in securities specified in
Article 3 (commencing with Section 1170), may engage in derivative
transactions pursuant to, and in compliance with, this section.
(c) An insurer may only use derivative instruments under this
section to engage in hedging transactions and replication
transactions authorized pursuant to this section.
(d) An insurer that engages in hedging transactions or replication
transactions as authorized pursuant to this section shall do both of
the following:
(1) Maintain its position in any outstanding derivative instrument
used as part of a hedging transaction or replication transaction for
only as long as the hedging transaction or replication transaction,
as the case may be, continues to be effective in meeting the
objective and the rationale the insurer identifies at the point of
inception of the hedging or replication transaction.
(2) Be able to demonstrate to the commissioner, upon request, that
any hedging transaction or replication transaction continues to be
effective in meeting that objective and rationale.
(e) (1) The aggregate statement value, and potential exposure, of
all transactions held under the authority of this section at any one
time shall not be in excess of 71/2 percent of the insurer's admitted
assets, as of the preceding December 31.
(2) Hedging transactions under this section may only be made if,
as a result of, and after giving effect to the transaction, all of
the following is established:
(A) Excluding options acquired under Section 1212, the aggregate
statement value of options, swaptions, caps, floors, and warrants
purchased pursuant to this section does not exceed 71/2 percent of
its admitted assets as of the preceding December 31.
(B) Excluding options acquired under Section 1212, the aggregate
statement value of options, swaptions, caps, and floors written
pursuant to this section does not exceed 3 percent of its admitted
assets as of the preceding December 31.
(C) Excluding futures entered into under Section 1212, the
aggregate potential exposure of collars, swaps, forwards, and
futures, entered into and, except for options acquired under Section
1212, options, swaptions, caps, and floors written pursuant to this
section does not exceed 61/2 percent of its admitted assets as of the
preceding December 31.
(f) An insurer may purchase or sell one or more derivative
instruments to offset any derivative instrument previously purchased
or sold, as the case may be, without regard to the quantitative
limitations of this section, provided that the derivative instrument
is an exact offset to the original derivative instrument being
offset.
(g) (1) The board of directors of any domestic insurer that makes
investments pursuant to this section shall first adopt written
guidelines for the making of the investments. The guidelines shall
cover factors including concentration and diversification of
counterparty risk, quality, maturity, and diversification of
derivative investments, and other specifications, including
investment strategies, asset liability management practices, the
insurer's liquidity needs and its capital and surplus, and other
factors that the board of directors deems appropriate. The
guidelines shall also include processes and practices that will
facilitate the monitoring of derivative transactions through cashflow
testing or other methods to substantiate the effectiveness of the
hedging strategies and derivative transactions and provide the board
of directors of the committee thereof charged with the responsibility
for supervising investments the opportunity to assure itself of the
training, sufficient understanding, and competency of pertinent
personnel implementing the derivative transactions.
(2) In order to address the need for appropriate oversight by
senior management and by the board of directors, or a committee
thereof charged with the responsibility for supervising investments,
and to provide for a comprehensive risk management process, an
insurer shall establish the following with respect to derivative
transactions:
(A) Appropriate limits for various identified risks relevant to
the derivative transactions used by the insurer.
(B) Procedures and practices that control the nature and amount of
those risks.
(C) Adequate systems or processes for identifying and measuring
those risks.
(D) Systems or processes for documenting, monitoring, and
reporting risk exposures on a timely basis.
(E) Systems or processes of internal review and audit to ensure
the integrity of the overall risk management process.
(3) The board of directors, or a committee thereof charged with
the responsibility for supervising investments, shall receive and
review quarterly reports which shall include all of the following:
(A) Information to ascertain that all derivative transactions have
been made in accordance with delegations, standards, limitations,
and investment objectives contained in the derivative guidelines.
(B) The outstanding derivative positions.
(C) The unrealized gains or losses thereon.
(D) The derivative transactions closed during the report period.
(E) A performance review of the derivative transactions.
(F) An evaluation of the risks and benefits of the derivative
transactions.
(G) Other information necessary to ensure that the internal
control procedures are being followed.
(4) The board of directors, or a committee thereof charged with
the responsibility for supervising investments, shall establish the
following management oversight standards for derivative transactions:
(A) The board of directors, or a committee thereof charged with
the responsibility for supervising investments, has an affirmative
obligation to inform management of its desired risk tolerance levels.
Management shall appropriately translate these risk tolerance
levels into effective policies and procedures that address both
individual transactions and entire portfolios.
(B) Management and the board of directors, or a committee thereof
charged with the responsibility for supervising investments, shall
receive sufficient information to assess the strengths and
limitations of the insurer's risk measurement systems in order to
determine appropriate risk limits. The board of directors, or a
committee thereof charged with the responsibility for supervising
investments, shall also review management's response to strengths and
limitations identified through oversight processes such as stress
testing, independent validation, and back-testing of risk measurement
models. Management and the board of directors, or a committee
thereof charged with the responsibility for supervising investments,
shall consider the information identified by the oversight processes,
including the potential for indirect effects of downside performance
beyond the insurer's finances, when they determine and communicate
their risk profile.
(C) When management or the board of directors, or a committee
thereof charged with the responsibility for supervising investments,
identifies weaknesses in the risk management process, they shall
consider alternatives and take steps to strengthen that process and
maintain detailed documentation of steps and actions taken.
(D) Actions shall be taken to correct any deficiencies in internal
controls relative to derivative transactions, including any
deficiencies determined by the independent certified public
accountant in the evaluation of accounting procedures and internal
controls and maintain detailed documentation of steps and actions
taken.
(E) Personnel responsible for risk oversight functions shall
possess independence, authority, and expertise.
(F) Issuer and counterparty credit decisions for each transaction
shall be consistent with the overall credit standards of the insurer.
(G) In connection with each derivative transaction under this
section, insurers shall maintain a statement in their records listing
any member of the board of directors who is employed by, or a
partner in, a party involved in the derivative transaction.
(5) The board of directors or committee charged with the
responsibility of supervising investments shall determine at least
quarterly whether all derivative transactions have been made in
accordance with delegations, standards, limitations, and investment
objectives prescribed in the guidelines. If the determinations are
made by a committee of the board of directors, the minutes of the
committee reflecting the determinations shall be recorded and a
report thereon shall be submitted to the board for its review at the
board's next meeting.
(6) The commissioner shall require the guidelines to be submitted
and shall disapprove the guidelines if the insurer is unable to show
that the guidelines are found sufficient to prevent financially
unsound or hazardous transactions or practices.
(h) An insurer shall comply with applicable financial requirements
as promulgated by the commissioner and the National Association of
Insurance Commissioners included in the Purposes and Procedures
Manual of the National Association of Insurance Commissioners
Securities Valuation Office, the National Association of Insurance
Commissioners Accounting Practices and Procedures Manual, and the
National Association of Insurance Commissioners Annual Statement
Instructions, including, but not limited to, the reporting of
transfers, if any, of interests in the assets of the insurer pledged
as collateral or interests in the assets of counterparties received
as collateral in connection with derivative transactions.
(i) (1) The counterparty exposure under a derivative instrument
entered into by an insurer authorized to engage in derivative
transactions pursuant to this section shall be deemed to be an
obligation of the institution to which the insurer is exposed to
credit risk and shall be included in determining compliance with any
single or aggregate quantitative limitation on investments made by an
insurer under this section.
(2) An insurer shall only enter into derivative transactions with
counterparties that are rated one by the Securities Valuation Office.
(3) Notwithstanding any single or aggregate quantitative
limitation on investments made by an insurer under this section, the
aggregate counterparty exposure under one or more derivative
transactions to any single counterparty rated one by the Securities
Valuation Office, other than a "qualified counterparty," shall be
limited to one-half of 1 percent of an insurer's admitted assets, and
all counterparties rated one by the Securities Valuation Office,
other than qualified counterparties, shall be limited to 3 percent of
an insurer's admitted assets.
(j) Investments made pursuant to this section, and related
transactions, are deemed excess funds investments and shall be
subject to the provisions of Sections 1153.5, 1154, and 1210, and
Article 4 (commencing with Section 1190), provided that if an insurer
classifies an investment under Section 1210 that investment shall
continue to be subject to the limitations of paragraph (1) of
subdivision (e). Notwithstanding anything to the contrary, a
requirement providing that any derivative transaction be disposed of
by the insurer pursuant to Section 1202 shall be deemed conclusive
unless the insurer establishes that the derivative transaction or
transactions are financially sound and not hazardous. This section
shall only be deemed to permit replication of investments or
instruments, that are otherwise permitted in this code, and that are
reported in compliance with the requirements of the risk-based
capital and risk-based capital instructions required by Section
739.2.
(k) Except as permitted in this section, nothing in this section
shall be deemed to permit an investment, transaction, or practice
that is not authorized by another section of this code. Exposure to
risk by use of derivatives shall be consistent with the overall
investment guidelines. Insurers shall not enter into derivative
transactions in whole or in part with funds borrowed for that
purpose, including, but not limited to, on margin.
(l) The commissioner may adopt rules and issue guidelines
establishing standards and requirements relative to practices
authorized in this section. In connection with any of the actions
contemplated by this section to be taken by the commissioner,
including review of an insurer's written guidelines with respect to
derivative transactions and review of documentation maintained by an
insurer with respect to derivative transactions, the commissioner may
deem the actions to be an examination of an insurer subject to the
provisions of Sections 730 to 738, inclusive. The commissioner shall
issue regulations establishing requirements regarding the disclosure
of affiliations and conflicts of interest between an insurer and
persons contracted by the commissioner to perform services on behalf
of the commissioner in connection with the matters authorized by this
section.
(m) An insurer that is not engaged in the issuance of new policies
of insurance and that is formed for the purpose of facilitating the
rehabilitation of an insolvent insurer under Article 14 (commencing
with Section 1010) of Chapter 1, shall, prior to engaging in any
derivative transaction, obtain approval for each transaction from the
commissioner, and shall otherwise comply with the requirements of
this section. However, the insurer may, upon request to the
commissioner, and upon showing satisfactory to the commissioner that
prior approval of each transaction would not be in the best interests
of the policyholders, request that the commissioner waive the
requirement of prior approval and the insurer shall, in addition to
complying with the requirements of this section, submit monthly
written reports of all derivative transactions to the commissioner in
the form required by the commissioner within 30 days of the prior
month's end.
SEC. 201. Section 10235.52 of the Insurance Code, as added by
Section 3 of Chapter 675 of the Statutes of 2002, is amended to read:
10235.52. (a) Every policy shall contain a provision that, in the
event the insurer develops new benefits or benefit eligibility or
new policies with new benefits or benefit eligibility not included in
the previously issued policy, the insurer will grant current holders
of its policies who are not in benefit or within the elimination
period the following rights:
(1) The policyholder will be notified of the availability of the
new benefits or benefit eligibility or new policy within 12 months.
The insurer's notice shall be filed with the department at the same
time as the new policy or rider.
(2) The insurer shall offer the policyholder new benefits or
benefit eligibility in one of the following ways:
(A) By adding a rider to the existing policy and paying a separate
premium for the new benefits or benefit eligibility based on the
insured's attained age. The premium for the existing policy will
remain unchanged based on the insured's age at issuance.
(B) By replacing the existing policy or certificate in accordance
with Section 10234.87.
(C) By replacing the existing policy or certificate with a new
policy or certificate in which case consideration for past insured
status shall be recognized by setting the premium for the replacement
policy or certificate at the issue age of the policy or certificate
being replaced.
(b) The insured may be required to undergo new underwriting, but
the underwriting can be no more restrictive than if the policyholder
or certificate holder were applying for a new policy or certificate.
(c) The insurer of a group policy as defined under subdivisions
(a) to (c), inclusive, of Section 10231.6 must offer the group
policyholder the opportunity to have the new benefits and provisions
extended to existing certificate holders, but the insurer is relieved
of the obligations imposed by this section if the holder of the
group policy declines the issuer's offer.
(d) This section shall become operative on June 30, 2003.
SEC. 202. Section 98.2 of the Labor Code is amended to read:
98.2. (a) Within 10 days after service of notice of an order,
decision, or award, the parties may seek review by filing an appeal
to the superior court, where the appeal shall be heard de novo. A
copy of the appeal request shall be served upon the Labor
Commissioner by the appellant. For purposes of computing the 10-day
period after service, Section 1013 of the Code of Civil Procedure is
applicable.
(b) Whenever an employer files an appeal pursuant to this section,
the employer shall post an undertaking with the reviewing court in
the amount of the order, decision, or award. The undertaking shall
consist of an appeal bond issued by a licensed surety or a cash
deposit with the court in the amount of the order, decision, or
award. The employer shall provide written notification to the other
parties and the Labor Commissioner of the posting of the undertaking.
The undertaking shall be on the condition that, if any judgment is
entered in favor of the employee, the employer shall pay the amount
owed pursuant to the judgment, and if the appeal is withdrawn or
dismissed without entry of judgment, the employer shall pay the
amount owed pursuant to the
order, decision, or award of the Labor Commissioner unless the
parties have executed a settlement agreement for payment of some
other amount, in which case the employer shall pay the amount that
the employer is obligated to pay under the terms of the settlement
agreement. If the employer fails to pay the amount owed within 10
days of entry of the judgment, dismissal, or withdrawal of the
appeal, or the execution of a settlement agreement, a portion of the
undertaking equal to the amount owed, or the entire undertaking if
the amount owed exceeds the undertaking, is forfeited to the
employee.
(c) If the party seeking review by filing an appeal to the
superior court is unsuccessful in the appeal, the court shall
determine the costs and reasonable attorney's fees incurred by the
other parties to the appeal, and assess that amount as a cost upon
the party filing the appeal.
(d) If no notice of appeal of the order, decision, or award is
filed within the period set forth in subdivision (a), the order,
decision, or award shall, in the absence of fraud, be deemed the
final order.
(e) The Labor Commissioner shall file, within 10 days of the order
becoming final pursuant to subdivision (d), a certified copy of the
final order with the clerk of the superior court of the appropriate
county unless a settlement has been reached by the parties and
approved by the Labor Commissioner. Judgment shall be entered
immediately by the court clerk in conformity therewith. The judgment
so entered has the same force and effect as, and is subject to all
of the provisions of law relating to, a judgment in a civil action,
and may be enforced in the same manner as any other judgment of the
court in which it is entered. Enforcement of the judgment shall
receive court priority.
(f) In order to ensure that judgments are satisfied, the Labor
Commissioner may serve upon the judgment debtor, personally or by
first-class mail at the last known address of the judgment debtor
listed with the division, a form similar to, and requiring the
reporting of the same information as, the form approved or adopted by
the Judicial Council for purposes of subdivision (a) of Section
116.830 of the Code of Civil Procedure to assist in identifying the
nature and location of any assets of the judgment debtor.
The judgment debtor shall complete the form and cause it to be
delivered to the division at the address listed on the form within 35
days after the form has been served on the judgment debtor, unless
the judgment has been satisfied. In case of willful failure by the
judgment debtor to comply with this subdivision, the division or the
judgment creditor may request the court to apply the sanctions
provided in Section 708.170 of the Code of Civil Procedure.
(g) Notwithstanding subdivision (e), the Labor Commissioner may
stay execution of any judgment entered upon an order, decision, or
award that has become final upon good cause appearing therefor and
may impose the terms and conditions of the stay of execution. A
certified copy of the stay of execution shall be filed with the clerk
entering the judgment.
(h) When a judgment is satisfied in fact, other than by execution,
the Labor Commissioner may, upon the motion of either party or on
its own motion, order entry of satisfaction of judgment. The clerk
of the court shall enter a satisfaction of judgment upon the filing
of a certified copy of the order.
(i) The Labor Commissioner shall make every reasonable effort to
ensure that judgments are satisfied, including taking all appropriate
legal action and requiring the employer to deposit a bond as
provided in Section 240.
(j) The judgment creditor, or the Labor Commissioner as assignee
of the judgment creditor, is entitled to court costs and reasonable
attorney's fees for enforcing the judgment that is rendered pursuant
to this section.
SEC. 203. Section 176 of the Labor Code is amended to read:
176. (a) The Legislature hereby finds and declares that the
Dymally-Alatorre Bilingual Services Act, Chapter 17.5 (commencing
with Section 7290) of Division 7 of Title 1 of the Government Code,
was enacted in 1973 to provide for the removal of language barriers
that prevent the people of this state who are not proficient in
English from effectively accessing government services and otherwise
communicating with their government.
The Legislature further finds and declares that
limited-English-proficient individuals will benefit from increased
language-based access to the programs and services of the Division of
Occupational Safety and Health.
The Legislature further finds and declares that federal statistics
show that from 1996 to 2000, while overall worker fatalities dropped
14 percent, immigrant worker fatalities rose 17 percent. Immigrant
workers die on the job at higher rates because they frequently work
in more dangerous industries with little or no training. Language
barriers compound the problem because training and warning signs are
often only in English.
(b) As used in this section, a "public contact position" means any
position responsible for responding to telephone or in-office
inquiries or taking complaints from the general public regarding
matters pertaining to occupational safety and health.
(c) As used in the section, an "investigative position" means any
position responsible for investigating complaints, injuries, or
deaths related to occupational safety and health.
(d) As used in this section, "limited-English-proficient" refers
to persons who speak English less than "very well," in accordance
with United States Census data.
(e) The division shall make all efforts to ensure that
limited-English-proficient persons can communicate effectively with
the division. Examples of potential measures include, but are not
limited to, the hiring of bilingual persons in public contact
positions and investigative positions, the use of contract based
interpreters, and the use of telephone-based interpretation services.
Nothing contained in this section relieves the division of its
separate obligations under the Dymally-Alatorre Bilingual Services
Act, Chapter 17.5 (commencing with Section 7290) of Division 7 of
Title 1 of the Government Code, or any other state or federal laws
requiring the provision of its services in languages other than
English.
(f) On July 30, 2004, the Division of Occupational Safety and
Health shall issue a progress report to the Legislature on the
implementation of this section that shall, at a minimum, include all
of the following:
(1) The most recent information provided to the California State
Personnel Board pursuant to Section 7299.4 of the Government Code.
(2) The number of bilingual employees in public contact and
investigative positions in each local office of the division and the
languages they speak, other than English.
(3) A description of any centralized system or other resources for
providing translation and interpretation services within the
division.
(4) A description of any quality control measures or evaluations
undertaken by the division to evaluate whether
limited-English-proficient persons are able to communicate
effectively with the division.
(5) A description of any means, such as contracted interpreters,
telephone-based interpretation services, or video conferencing, used
by the division to communicate with individuals who are
limited-English-proficient in the event that bilingual employees in
public contact or investigative positions are not available, and the
frequency in which these services were used by the division during
the most recent fiscal year.
SEC. 204. Section 230.1 of the Labor Code is amended to read:
230.1. (a) In addition to the requirements and prohibitions
imposed on employees pursuant to Section 230, an employer with 25 or
more employees may not discharge or in any manner discriminate or
retaliate against an employee who is a victim of domestic violence or
a victim of sexual assault for taking time off from work to attend
to any of the following:
(1) To seek medical attention for injuries caused by domestic
violence or sexual assault.
(2) To obtain services from a domestic violence shelter, program,
or rape crisis center as a result of domestic violence or sexual
assault.
(3) To obtain psychological counseling related to an experience of
domestic violence or sexual assault.
(4) To participate in safety planning and take other actions to
increase safety from future domestic violence or sexual assault,
including temporary or permanent relocation.
(b) (1) As a condition of taking time off for a purpose set forth
in subdivision (a), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer may not take
any action against the employee if the employee, within a reasonable
time after the absence, provides a certification to the employer.
Certification shall be sufficient in the form of any of the
following:
(A) A police report indicating that the employee was a victim of
domestic violence or sexual assault.
(B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence or sexual assault, or
other evidence from the court or prosecuting attorney that the
employee appeared in court.
(C) Documentation from a medical professional, domestic violence
advocate or advocate for victims of sexual assault, health care
provider, or counselor that the employee was undergoing treatment for
physical or mental injuries or abuse resulting in victimization from
an act of domestic violence or sexual assault.
(3) To the extent allowed by law, employers shall maintain the
confidentiality of any employee requesting leave under subdivision
(a).
(c) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has taken time off for a purpose
set forth in subdivision (a) is entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer. Any employer who willfully refuses to rehire, promote,
or otherwise restore an employee or former employee who has been
determined to be eligible for rehiring or promotion by a grievance
procedure or hearing authorized by law is guilty of a misdemeanor.
(d) (1) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has exercised his or her rights
as set forth in subdivision (a) may file a complaint with the
Division of Labor Standards Enforcement of the Department of
Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an
employee filing a complaint with the division based upon a violation
of subdivision (a) has one year from the date of occurrence of the
violation to file his or her complaint.
(e) An employee may use vacation, personal leave, or compensatory
time off that is otherwise available to the employee under the
applicable terms of employment, unless otherwise provided by a
collective bargaining agreement, for time taken off for a purpose
specified in subdivision (a). The entitlement of any employee under
this section may not be diminished by any collective bargaining
agreement term or condition.
(f) This section does not create a right for an employee to take
unpaid leave that exceeds the unpaid leave time allowed under, or is
in addition to the unpaid leave time permitted by, the federal Family
and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.).
(g) For purposes of this section:
(1) "Domestic violence" means any of the types of abuse set forth
in Section 6211 of the Family Code, as amended.
(2) "Sexual assault" means any of the crimes set forth in Section
261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
as amended.
SEC. 205. Section 1776 of the Labor Code is amended to read:
1776. (a) Each contractor and subcontractor shall keep accurate
payroll records, showing the name, address, social security number,
work classification, straight time and overtime hours worked each day
and week, and the actual per diem wages paid to each journeyman,
apprentice, worker, or other employee employed by him or her in
connection with the public work. Each payroll record shall contain
or be verified by a written declaration that it is made under penalty
of perjury, stating both of the following:
(1) The information contained in the payroll record is true and
correct.
(2) The employer has complied with the requirements of Sections
1771, 1811, and 1815 for any work performed by his or her employees
on the public works project.
(b) The payroll records enumerated under subdivision (a) shall be
certified and shall be available for inspection at all reasonable
hours at the principal office of the contractor on the following
basis:
(1) A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or his or her
authorized representative on request.
(2) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available for inspection or furnished
upon request to a representative of the body awarding the contract,
the Division of Labor Standards Enforcement, and the Division of
Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available upon request by the public
for inspection or for copies thereof. However, a request by the
public shall be made through either the body awarding the contract,
the Division of Apprenticeship Standards, or the Division of Labor
Standards Enforcement. If the requested payroll records have not
been provided pursuant to paragraph (2), the requesting party shall,
prior to being provided the records, reimburse the costs of
preparation by the contractor, subcontractors, and the entity through
which the request was made. The public may not be given access to
the records at the principal office of the contractor.
(c) The certified payroll records shall be on forms provided by
the Division of Labor Standards Enforcement or shall contain the same
information as the forms provided by the division.
(d) A contractor or subcontractor shall file a certified copy of
the records enumerated in subdivision (a) with the entity that
requested the records within 10 days after receipt of a written
request.
(e) Any copy of records made available for inspection as copies
and furnished upon request to the public or any public agency by the
awarding body, the Division of Apprenticeship Standards, or the
Division of Labor Standards Enforcement shall be marked or
obliterated to prevent disclosure of an individual's name, address,
and social security number. The name and address of the contractor
awarded the contract or the subcontractor performing the contract
shall not be marked or obliterated. Any copy of records made
available for inspection by, or furnished to, a joint
labor-management committee established pursuant to the federal Labor
Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be
marked or obliterated only to prevent disclosure of an individual's
name and social security number. A joint labor management committee
may maintain an action in a court of competent jurisdiction against
an employer who fails to comply with Section 1774. The court may
award restitution to an employee for unpaid wages and may award the
joint labor management committee reasonable attorney's fees and
costs incurred in maintaining the action. An action under this
subdivision may not be based on the employer's misclassification of
the craft of a worker on its certified payroll records. Nothing in
this subdivision limits any other available remedies for a violation
of this chapter.
(f) The contractor shall inform the body awarding the contract of
the location of the records enumerated under subdivision (a),
including the street address, city, and county, and shall, within
five working days, provide a notice of a change of location and
address.
(g) The contractor or subcontractor has 10 days in which to comply
subsequent to receipt of a written notice requesting the records
enumerated in subdivision (a). In the event that the contractor or
subcontractor fails to comply within the 10-day period, he or she
shall, as a penalty to the state or political subdivision on whose
behalf the contract is made or awarded, forfeit twenty-five dollars
($25) for each calendar day, or portion thereof, for each worker,
until strict compliance is effectuated. Upon the request of the
Division of Apprenticeship Standards or the Division of Labor
Standards Enforcement, these penalties shall be withheld from
progress payments then due. A contractor is not subject to a penalty
assessment pursuant to this section due to the failure of a
subcontractor to comply with this section.
(h) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section.
(i) The director shall adopt rules consistent with the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code) and the Information
Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of
Part 4 of Division 3 of the Civil Code) governing the release of
these records, including the establishment of reasonable fees to be
charged for reproducing copies of records required by this section.
SEC. 206. Section 3099.3 of the Labor Code is amended to read:
3099.3. The Division of Apprenticeship Standards shall do all of
the following:
(a) Make information about electrician certification available in
non-English languages spoken by a substantial number of construction
workers, as defined in Section 7296.2 of the Government Code.
(b) Provide for the administration of certification tests in
non-English languages spoken by a substantial number of applicants,
as defined in Section 7296.2 of the Government Code, except insofar
as the ability to understand warning signs, instructions, and certain
other information in English is necessary for safety reasons.
(c) Ensure, in conjunction with the California Apprenticeship
Council, that by no later than January 1, 2003, all electrician
apprenticeship programs approved under this chapter that impose
minimum formal education requirements as a condition of entry provide
for reasonable alternative means of satisfying those requirements.
(d) Ensure, in conjunction with the California Apprenticeship
Council, that by no later than January 1, 2003, all electrician
apprenticeship programs approved under this chapter have adopted
reasonable procedures for granting credit toward a term of
apprenticeship for other vocational training and on-the-job training
experience.
(e) Report to the Legislature by January 1, 2004, on the status of
electrician certification, including all of the following:
(1) The number of persons who have been certified pursuant to
Section 3099.
(2) The number of persons enrolled in electrician apprenticeship
programs.
(3) The number of persons who have registered pursuant to Section
3099.4.
(4) The estimated number of individuals performing work for Class
C-10 electrical contractors for which certification will be required
after January 1, 2005, who have not yet been certified and are not
enrolled in apprenticeship programs or registered pursuant to Section
3099.4.
(5) Whether enforcement of the January 1, 2005, deadline for
certification will cause a shortage of electricians in California.
(6) Whether persons who wish to become certified electricians will
have an adequate opportunity to pass the certification exam, to
register pursuant to Section 3099.4, or to enroll in an
apprenticeship program prior to January 1, 2005.
SEC. 207. Section 179 of the Military and Veterans Code is amended
to read:
179. (a) The Adjutant General shall establish a California State
Military Museum and Resource Center as a repository for military
artifacts, memorabilia, equipment, documents, and other items
relating to the history of the California National Guard, in
accordance with applicable regulations of the United States Army
governing Army museum activities. The museum and resource center
shall consist of the facility described in the Proclamation of the
Governor dated May 11, 1994, and any branches as may currently exist
or may from time-to-time be created throughout the state. Each
facility shall be deemed to be an armory within the meaning of
Section 430.
(b) The Adjutant General shall enter into an operating agreement
with the California Military Museum Foundation, formerly known as the
California National Guard Historical Society, an existing California
nonprofit public benefit corporation, that is tax exempt under
Section 501(c)(3) of the Internal Revenue Code. Under the operating
agreement with the Adjutant General, the foundation shall operate the
museum and resource center in coordination with the California
Center for Military History of the California State Military Reserve.
The foundation shall develop, administer, interpret, and manage
museum and resource center historical programs and related public
services, and acquire and manage funding for museum and resource
center programs and services.
(c) Volunteers, docents, members of the State Military Reserve, or
others working with or for the California Military Museum Foundation
for purposes consistent with the mission of the organization, shall
be considered volunteers under Sections 3118 and 3119 of the
Government Code and Section 3363.5 of the Labor Code.
(d) The Board of Trustees of the California Military Museum
Foundation shall include the Adjutant General, or the Assistant
Adjutant General, or any Deputy Adjutant General designated by the
Adjutant General, as an ex officio voting member of the board. The
board of trustees of the foundation shall be the governing authority
for operations funded through moneys received by the foundation. The
board of trustees of the foundation shall submit an audit report
annually to the Adjutant General. The board of trustees of the
foundation shall submit copies of annual audit reports to the
Director of the Department of Finance, the Chair of the Joint
Legislative Audit Committee, and the Chair of the Joint Legislative
Budget Committee. No funds raised or assets acquired by the
foundation shall be used for purposes inconsistent with support of
the museum and resource center.
(e) The Board of Trustees of the California Military Museum
Foundation shall, no later than January 10 of each year, submit a
business plan for the following fiscal year to the Adjutant General,
the Director of the Department of Finance, and the Chair of the Joint
Legislative Budget Committee for review and comment. The board of
trustees shall also submit, not less than 30 days prior to adoption,
any proposed formal amendments to the business plan to the Adjutant
General, the Director of the Department of Finance, and the Chair of
the Joint Legislative Budget Committee for review and comment.
(f) The Adjutant General or the California State Military Museum
and Resource Center may solicit, receive, and administer donations of
funds or property for the support and improvement of the museum and
resource center. Any grants or donations received may be expended or
used for museum and resource center purposes. Property of
historical military significance, not including real property, that
is owned by the state and is determined by the Adjutant General to be
in excess of the needs of the Military Department, shall be
transferred to the museum and resource center. Property determined
by the California State Military Museum and Resource Center to be in
excess of the needs of the museum and resource center may be sold,
donated, exchanged, or otherwise disposed of, at its discretion, in a
manner appropriate to the historical and intrinsic value of the
property, and the benefits from the disposition shall inure to the
museum and resource center.
(g) The Adjutant General or the California State Military Museum
and Resource Center may solicit and receive firearms and other
weaponry confiscated by or otherwise in the possession of law
enforcement officers as donations to the museum and resource center
if he or she deems them to be of historical or military interest.
(h) The Adjutant General shall, in cooperation with the California
State Military Museum and Resource Center, conduct a study of the
future needs of the National Guard to preserve, display, and
interpret artifacts, documents, photographs, films, literature, and
other items relating to the history of the military in California.
SEC. 208. Section 395.3 of the Military and Veterans Code is
amended to read:
395.3. In the event that any public officer or employee has
resigned or resigns his or her office or employment to serve or to
continue to serve in the Armed Forces of the United States or in the
militia of this state, he or she shall have a right to return to and
reenter the office or employment prior to the time at which his or
her term of office or his or her employment would have ended if he or
she had not resigned, on serving a written notice to that effect
upon the authorized appointing power, or if there is no authorized
appointing power, upon the officer or agency having power to fill a
vacancy in the office or employment, within six months of the
termination of his or her active service with the Armed Forces;
provided, that the right to return and reenter upon the office or
position shall not extend to or be granted to any public officer or
employee, who shall fail to return to and reenter upon his or her
office or position within 12 months after the first date upon which
he or she could terminate or could cause to have terminated his or
her active service with the Armed Forces of the United States or of
the militia of this state.
As used in this section, "public officers and employees" includes
all of the following:
(a) Members of the Senate and of the Assembly.
(b) Justices of the Supreme Court and the courts of appeal, judges
of the superior courts, and all other judicial officers.
(c) All other state officers and employees not within Chapter 11
(commencing with Section 19770) of Part 2 of Division 5 of Title 2 of
the Government Code, including all officers for whose selection and
term of office provision is made in the California Constitution and
laws of this state.
(d) All officers and employees of any county, city and county,
city, township, district, political subdivision, authority,
commission, board, or other public agency within this state.
The right of reentry into public office or employment provided for
in this section shall include the right to be restored to the civil
service status as the officer or employee would have if he or she had
not so resigned; and no other person shall acquire civil service
status in the same position so as to deprive the officer or employee
of his or her right to restoration as provided for herein.
This section shall be retroactively applied to extend the right of
reentry into public office or employment to public officers and
employees who resigned prior to its effective date.
This section does not apply to any public officer or employee to
whom the right to reenter public office or employment after service
in the Armed Forces has been granted by any other provision of law.
If any provision of this section, or the application of this
section to any person or circumstance, is held invalid, the remainder
of this section, or the application of this section to persons or
circumstances other than those as to which it is held invalid, shall
not be affected thereby.
If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1 of
the Government Code, 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, the provisions shall not become effective unless approved
by the Legislature in the annual Budget Act.
SEC. 209. Section 406 of the Military and Veterans Code is amended
to read:
406. (a) No eviction or distress shall be made during the period
of military service specified in Section 400, during which a service
member is called to active state service pursuant to Section 143 or
146 or active federal service pursuant to Title 10 or 32 of the
United States Code or active duty, until 30 days after the service
member is released from active service or duty if the premises are
occupied primarily for dwelling purposes by the spouse, children, or
other dependents of a service member, except upon leave of court
granted upon application therefor or granted in an action or
proceeding affecting the right of possession.
(b) On any application or in any action under this section, the
court may on its own motion, and shall, on application, stay the
proceedings for the period specified in subdivision (a) or rather
than granting a complete stay, the court may require the tenant to
make regular partial payments during the service member's period of
military service, or the court may make any other order that it finds
to be just, unless the court finds that the ability of the tenant to
pay the agreed rent is not materially affected by that military
service. Where that stay is made by the court, the owner of the
premises shall be entitled, upon application therefor, to relief in
respect of those premises similar to that granted persons in military
service in Sections 407, 408, and 409.1 to that extent and for that
period as may appear to the court to be just.
(c) Any person who knowingly takes part in any eviction or
distress as provided in this section or who attempts to do so, is
guilty of a misdemeanor, and shall be punishable by imprisonment not
to exceed one year or by a fine not to exceed one thousand dollars
($1,000), or both.
SEC. 210. Section 411 of the Military and Veterans Code, as added
by Section 6, first occurrence, of Chapter 60 of the Statutes of
2002, is amended and renumbered to read:
409.1. (a) Where any life insurance policy on the life of a
service member in military service has been assigned prior to that
person's period of military service to secure the payment of any
obligation of the person, no assignee of the policy, except the
insurer in connection with a policy loan, shall, during the period of
military service of the insured or within one year thereafter,
except upon the consent in writing of the insured made during that
period or when the premiums thereon are due and unpaid or upon the
death of the insured, exercise any right or option by virtue of that
assignment unless upon leave of court granted upon an application
made therefor by the assignee. The court may thereupon refuse to
grant that leave unless in the opinion of the court the ability of
the obligor to comply with the terms of the obligation is not
materially affected by reason of his or her military service.
(b) No person shall exercise any right to foreclose or enforce any
lien for storage of household goods, furniture, or personal effects
of a service member during that person's period of military service
and for three months thereafter, except upon an order previously
granted by a court upon application therefor and a return thereto
made and approved by the court. In that proceeding the court may,
after hearing, in its discretion on its own motion, and shall, on
application to it by a service member or some person on his or her
behalf, unless in the opinion of the court the ability of the
defendant to pay the storage charges due is not materially affected
by reason of his or her military service, do either of the following:
(1) Stay the proceedings as provided in this chapter.
(2) Make that other disposition of the case as may be equitable to
conserve the interest of all parties. This section shall not be
construed in any way as affecting or as limiting the scope of Section
408.
(c) A person violating any provision of this section is guilty of
a misdemeanor, and shall be punishable by imprisonment not to exceed
one year or by a fine not to exceed one thousand dollars ($1,000), or
both.
SEC. 211. Section 411 of the Military and Veterans Code, as added
by Section 6, second occurrence, of Chapter 60 of the Statutes of
2002, is amended and renumbered to read:
409.2. (a) This section shall apply when any taxes or
assessments, whether general or special, other than taxes on income,
whether falling due prior to or during the period of military
service, in respect of personal property, money, or credits, or real
property owned and occupied for dwelling, professional, business, or
agricultural purposes by a service member or his or her dependents at
the commencement of the service member's period of military service
and still so occupied by the service member's dependents or employees
are not paid.
(b) No sale of this property shall be made to enforce the
collection of any tax or assessment, or any proceeding or action
commenced for that purpose, except upon leave of court granted upon
application made therefor by the collector of taxes or other officer
whose duty it is to enforce the collection of taxes or assessments.
The court thereupon, unless in its opinion the ability of the service
member to pay the taxes or assessments is not materially affected by
reason of that service, may stay the proceedings or sale, as
provided in this section, for a period extending not more than six
months after the termination of the period of military service.
(c) When by law this property may be sold or forfeited to enforce
the collection of any tax or assessment, the service member shall
have the right to redeem or commence an action to redeem that
property, at any time not later than six months after the termination
of the period of military service.
(d) Whenever any tax or assessment shall not be paid when due, the
tax or assessment due and unpaid shall bear interest until paid at
the rate of 6 percent per year, and no other penalty or interest
shall be incurred by reason of that nonpayment. Any lien for any
unpaid taxes or assessment shall also include that interest thereon.
SEC. 212. Section 412 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.3. (a) A service member may, at any time during his or her
period of military service or within six months thereafter, apply to
a court for relief in respect of any obligation or liability incurred
by the service member prior to his or her period of military service
or in respect of any tax or assessment whether falling due prior to
or during his or her period of military service. The court, after
appropriate notice and hearing, unless in its opinion the ability of
the applicant to comply with the terms of the obligation or liability
or to pay the tax or assessment has not been materially affected by
reason of his or her military service, may grant the following
relief:
(1) In the case of an obligation payable under its terms in
installments under a contract for the purchase of real estate, or
secured by a mortgage or other instrument in the nature of a mortgage
upon real estate, a stay of the enforcement of the obligation during
the applicant's period of military service and, from the date of
termination of the period of military service or from the date of
application if made after the service, for a period equal to the
period of the remaining life of the installment contract or other
instrument plus a period of time equal to the period of military
service of the applicant or any part of the combined period, subject
to payment of the balance of principal and accumulated interest due
and unpaid at the date of termination of the period of military
service or from the date of application, as the case may be, in equal
installments during the combined period at the rate of interest on
the unpaid balance as is prescribed in the contract, or other
instrument evidencing the obligation, for installments paid when due,
and subject to any other terms as may be just.
(2) In the case of any other obligation, liability, tax, or
assessment, a stay of the enforcement thereof during the applicant's
period of military service and, from the date of termination of the
period of military service or from the date of application if made
after the service, for a period of time equal to the period of
military service of the applicant or any part of that period, subject
to payment of the balance of principal and accumulated interest due
and unpaid at the date of termination of the period of military
service or the date of application, as the case may be, in equal
periodic installments during the extended period at the rate of
interest as may be prescribed for the obligation, liability, tax, or
assessment, if paid when due, and subject to any other terms as may
be just.
(b) When any court has granted a stay as provided in this section,
no fine or penalty shall accrue during the period the terms and
conditions of the stay are complied with by reason of failure to
comply with the terms or conditions of the obligation, liability,
tax, or assessment in respect of which the stay was granted.
(c) Nothing in this section shall permit a service member ordered
to military service to obtain a delay, deferment, or stay on an
obligation to pay child support. Nothing in this section shall
preclude a service member ordered to military service from seeking a
modification of an order to pay child support due to a reduction in
income resulting from the order to service, or from seeking the
imposition of the maximum interest rate provided by this chapter on
arrearages in child support payments existing prior to the order to
service.
SEC. 213. Section 413 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.4. (a) A person who by reason of military service is entitled
to the rights and benefits of this chapter shall also be entitled
upon release from that military service to reinstatement of any
health insurance that was in effect on the day before the service
commenced, and was terminated effective on a date during the period
of the service.
(b) An exclusion or a waiting period may not be imposed in
connection with reinstatement of health insurance coverage of a
health or physical condition of a person under subdivision (a), or a
health or physical condition of any other person who is covered by
the insurance by reason of the coverage of that person, if any of the
following apply:
(1) The condition arose before or during that person's period of
service.
(2) An exclusion or waiting period would not have been imposed for
the condition during a period of coverage resulting from
participation by that person in the insurance.
(3) The condition of the person has not been determined by the
Secretary of Veterans Affairs to be a disability incurred or
aggravated in the line of duty within the meaning of Section 105 of
Title 38 of the United States Code.
SEC. 214. Section 414 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.5. Dependents of a service member shall be entitled to the
benefits accorded to service members under Sections 406 to 409.4,
inclusive, upon application to a court therefor, unless in the
opinion of the court the ability of the dependents to comply with the
terms of the obligation, contract, lease, or bailment has not been
materially impaired by reason of the military service of the person
upon whom the applicants are dependent.
SEC. 215. Section 415 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.6. The collection from any service member of any tax on the
income of the person, whether falling due prior to or during his or
her period of military service, shall be deferred for a period
extending not more than six months after the termination of his or
her period of military service if the person's ability to pay the tax
is materially impaired by reason of the service. No interest on any
amount of tax, collection of which is deferred for any period under
this chapter, and no penalty for nonpayment of the amount during that
period, shall accrue for any period of deferment by reason of that
nonpayment. The running of any statute of limitations against the
collection of any tax by distraint or otherwise shall be suspended
for the period of military service of any individual the collection
of whose tax is deferred under this section, and for an additional
period of nine months beginning with the day following the period of
military service.
SEC. 216. Section 416 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.7. Where in any proceeding to enforce a civil right in any
court, it is made to appear to the satisfaction of the court that any
interest, property, or contract has been transferred or acquired
since the effective date of this chapter with the intent to delay the
just enforcement of that right by taking advantage of the benefits
provided under this chapter, the court shall enter judgment or make
an order as might lawfully be entered or made, notwithstanding any
contrary provision of this chapter.
SEC. 217. Section 417 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.8. (a) In any proceeding under this chapter, a certificate
signed by an appropriately authorized officer of the military
department, branch, or unit in which a service member is serving
shall be prima facie evidence as to any of the following facts stated
in that certificate:
(1) That a person named has not been, or is, or has been in the
military service.
(2) The time when and the place where the person entered military
service.
(3) The person's residence at that time, and the rank, branch, and
unit of the service that the person entered.
(4) The dates within which the person was in the military service.
(5) The monthly pay received by the person at the date of issuing
the certificate.
(6) The time when and the place where the person died in or was
discharged from the service.
(b) It shall be the duty of the authorized officer to furnish that
certificate on application, and any certificate, when purporting to
be signed by an officer purporting on the face of the certificate to
have been so authorized, shall be prima facie evidence of its
contents and of the authority of the signer to issue the certificate.
(c) Where a person in military service has been reported missing,
he or she shall be presumed to continue in the service until
accounted for, and no period herein limited which begins or ends with
the death of the person shall begin or end until the death of the
person is in fact reported to or found by the United States
Department of Defense or any court or board thereof, or the Military
Department or any court or board thereof, or until the person's death
is found by a court of competent jurisdiction.
SEC. 218. Section 418 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.9. Any interlocutory order made by any court under the
provisions of this chapter may, upon the court's own motion or
otherwise, be revoked, modified, or extended by it upon notice to the
parties affected as it may require.
SEC. 219. Section 419 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.10. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 220. Section 420 of the Military and Veterans Code, as added
by Chapter 60 of the Statutes of 2002, is amended and renumbered to
read:
409.11. It is the intent of the Legislature that qualification
for the benefits and protections conferred upon service members, as
defined by Section 400, by this chapter apply retroactively to
September 11, 2001. However, it is also the intent of the
Legislature that the benefits and protections that attach to
qualified service members under this chapter apply only on a
prospective basis.
SEC. 221. Section 1035.6 of the Military and Veterans Code is
amended to read:
1035.6. (a) The administrator shall provide each member of the
home with a quarterly statement or accounting of all charges for the
costs of care rendered to the member in excess of the member fee, as
defined in subdivision (b). The quarterly statement or accounting of
charges shall clearly indicate that the charges for the excess costs
of care are provided to the member for informational purposes only.
(b) "Costs of care in excess of the member fee" means all costs
that are not covered by the member contribution fee, including, but
not limited to, the unreimbursed costs of medical or dental services
rendered to the member, either by the home or under contract with the
home. The Department of Veterans Affairs shall promulgate
regulations specifying the costs that are in excess of the member
contribution fee and constitute the unreimbursed costs of care.
SEC. 222. Section 132.5 of the Penal Code, as amended by Section 1
of Chapter 210 of the Statutes of 2002, is amended to read:
132.5. (a) A person who is a witness to an event or occurrence
that he or she knows, or reasonably should know, is a crime or who
has personal knowledge of facts that he or she knows, or reasonably
should know, may require that person to be called as a witness in a
criminal prosecution shall not accept or receive, directly or
indirectly, any payment or benefit in consideration for providing
information obtained as a result of witnessing the event or
occurrence or having personal knowledge of the facts.
(b) A violation of this section is a misdemeanor and shall be
punished by imprisonment in a county jail for not exceeding six
months, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine.
(c) Upon conviction under this section, in addition to the penalty
described in subdivision (b), any compensation received in violation
of this section shall be forfeited by the defendant and deposited in
the Victim Restitution Fund.
(d) This section shall not apply if more than one year has elapsed
from the date of any criminal act related to the information that is
provided under subdivision (a) unless prosecution has commenced for
that criminal act. If prosecution has commenced, this section shall
remain applicable until the final judgment in the action.
(e) This section shall not apply to any of the following
circumstances:
(1) Lawful compensation paid to expert witnesses, investigators,
employees, or agents by a prosecutor, law enforcement agency, or an
attorney employed to represent a person in a criminal matter.
(2) Lawful compensation provided to an informant by a prosecutor
or law enforcement agency.
(3) Compensation paid to a publisher, editor, reporter, writer, or
other person connected with or employed by a newspaper, magazine, or
other publication or a television or radio news reporter or other
person connected with a television or radio station, for disclosing
information obtained in the ordinary course of business.
(4) Statutorily authorized rewards offered by governmental
agencies for information leading to the arrest and conviction of
specified offenders.
(5) Lawful compensation provided to a witness participating in the
Witness Protection Program established pursuant to Title 7.5
(commencing with Section 14020) of Part 4.
(f) For purposes of this section, "information" does not include a
photograph, videotape, audiotape, or any other direct recording of
events or occurrences.
SEC. 223. Section 132.5 of the Penal Code, as amended by Section 2
of Chapter 210 of the Statutes of 2002, is amended to read:
132.5. (a) The Legislature supports and affirms the
constitutional right of every person to communicate on any subject.
This section is intended to preserve the right of every accused
person to a fair trial, the right of the people to due process of
law, and the integrity of judicial proceedings. This section is not
intended to prevent any person from disseminating any information or
opinion.
The Legislature hereby finds and declares that the disclosure for
valuable consideration of information relating to crimes by
prospective witnesses can cause the loss of credible evidence in
criminal trials and threatens to erode the reliability of verdicts.
The Legislature further finds and declares that the disclosure for
valuable consideration of information relating to crimes by
prospective witnesses creates an appearance of injustice that is
destructive of public confidence.
(b) A person who is a witness to an event or occurrence that he or
she knows is a crime or who has personal knowledge of facts that he
or she knows or reasonably should know may require that person to be
called as a witness in a criminal prosecution shall not accept or
receive, directly or indirectly, any money or its equivalent in
consideration for providing information obtained as a result of
witnessing the event or occurrence or having personal knowledge of
the facts.
(c) Any person who is a witness to an event or occurrence that he
or she reasonably should know is a crime shall not accept or receive,
directly or indirectly, any money or its equivalent in consideration
for providing information obtained as a result of his or her
witnessing the event or occurrence.
(d) The Attorney General or the district attorney of the county in
which an alleged violation of subdivision (c) occurs may institute a
civil proceeding. Where a final judgment is rendered in the civil
proceeding, the defendant shall be punished for the violation of
subdivision (c) by a fine equal to 150 percent of the amount received
or contracted for by the person.
(e) A violation of subdivision (b) is a misdemeanor punishable by
imprisonment for a term not exceeding six months in a county jail, a
fine not exceeding three times the amount of compensation requested,
accepted, or received, or both the imprisonment and fine.
(f) This section does not apply if more than one year has elapsed
from the date of any criminal act related to the information that is
provided under subdivision (b) or (c) unless prosecution has
commenced for that criminal act. If prosecution has commenced, this
section shall remain applicable until the final judgment in the
action.
(g) This section does not apply to any of the following
circumstances:
(1) Lawful compensation paid to expert witnesses, investigators,
employees, or agents by a prosecutor, law enforcement agency, or an
attorney employed to represent a person in a criminal matter.
(2) Lawful compensation provided to an informant by a prosecutor
or law enforcement agency.
(3) Compensation paid to a publisher, editor, reporter, writer, or
other person connected with or employed by a newspaper, magazine, or
other publication or a television or radio news reporter or other
person connected with a television or radio station, for disclosing
information obtained in the ordinary course of business.
(4) Statutorily authorized rewards offered by governmental
agencies or private reward programs offered by victims of crimes for
information leading to the arrest and conviction of specified
offenders.
(5) Lawful compensation provided to a witness participating in the
Witness Protection Program established pursuant to Title 7.5
(commencing with Section 14020) of Part 4.
(h) For purposes of this section, "information" does not include a
photograph, videotape, audiotape, or any other direct recording of
an event or occurrence.
(i) For purposes of this section, "victims of crimes" shall be
construed in a manner consistent with Section 28 of Article I of the
California Constitution, and shall include victims, as defined in
subdivision (3) of Section 136.
SEC. 224. Section 171.5
of the Penal Code is amended to read:
171.5. (a) For purposes of this section:
(1) "Airport" means an airport, with a secured area, that
regularly serves an air carrier holding a certificate issued by the
United States Secretary of Transportation.
(2) "Sterile area" means a portion of an airport defined in the
airport security program to which access generally is controlled
through the screening of persons and property, as specified in
Section 1540.5 of Title 49 of the Code of Federal Regulations.
(b) It is unlawful for any person to knowingly possess within any
sterile area of an airport, any of the items listed in subdivision
(c).
(c) The following items are unlawful to possess as provided in
subdivision (b):
(1) Any firearm.
(2) Any knife with a blade length in excess of four inches, the
blade of which is fixed in an unguarded position by the use of one or
two hands.
(3) Any box cutter or straight razor.
(4) Any metal military practice hand grenade.
(5) Any metal replica hand grenade.
(6) Any plastic replica hand grenade.
(7) Any imitation firearm as defined in Section 417.4.
(8) Any frame, receiver, barrel, or magazine of a firearm.
(9) Any unauthorized tear gas weapon.
(10) Any taser or stun gun, as defined in Section 244.5.
(11) Any instrument that expels a metallic projectile, such as a
BB or pellet, through the force of air pressure, CO2 pressure, or
spring action, or any spot marker gun or paint gun.
(12) Any ammunition as defined in Section 12316.
(d) Subdivision (b) shall not apply to, or affect, any of the
following:
(1) A duly appointed peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, a retired peace
officer with authorization to carry concealed weapons as described in
subdivision (a) of Section 12027, a full-time paid peace officer of
another state or the federal government who is carrying out official
duties while in California, or any person summoned by any of these
officers to assist in making arrests or preserving the peace while he
or she is actually engaged in assisting the officer.
(2) A person who has authorization to possess a weapon specified
in subdivision (c), granted in writing by an airport security
coordinator who is designated as specified in Section 1542.3 of Title
49 of the Code of Federal Regulations, and who is responsible for
the security of the airport.
(e) A violation of this section is punishable by imprisonment in a
county jail for a period not exceeding six months, or by a fine not
exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment.
(f) The provisions of this section are cumulative, and shall not
be construed as restricting the application of any other law.
However, an act or omission that is punishable in different ways by
this and any other provision of law shall not be punished under more
than one provision.
(g) Nothing in this section is intended to affect existing state
or federal law regarding the transportation of firearms on airplanes
in checked luggage, or the possession of the items listed in
subdivision (c) in areas that are not "sterile areas."
SEC. 225. Section 337u of the Penal Code is amended to read:
337u. It is unlawful for any person to commit any of the
following acts:
(a) To alter or misrepresent the outcome of a gambling game or
other event on which wagers lawfully have been made after the outcome
is determined, but before it is revealed to the players.
(b) To place, increase, or decrease a wager or to determine the
course of play after acquiring knowledge, not available to all
players, of the outcome of the gambling game or any event that
affects the outcome of the gambling game or which is the subject of
the wager or to aid anyone in acquiring that knowledge for the
purpose of placing, increasing, or decreasing a wager or determining
the course of play contingent upon that event or outcome.
(c) To claim, collect, or take, or attempt to claim, collect, or
take, money or anything of value in or from a gambling game, with
intent to defraud, without having made a wager contingent on the
game, or to claim, collect, or take an amount greater than the amount
actually won.
(d) Knowingly to entice or induce another to go to any place where
a gambling game is being conducted or operated in violation of this
section, or Section 337v, 337w, 337x, or 337y, with the intent that
the other person play or participate in that gambling game.
(e) To place or increase a wager after acquiring knowledge of the
outcome of the gambling game or other event which is the subject of
the wager, including past-posting and pressing wagers.
(f) To reduce the amount wagered or cancel the wager after
acquiring knowledge of the outcome of the gambling game or other
event which is the subject of the bet, including pinching wagers.
(g) To manipulate, with the intent to cheat, any component of a
gambling game device in a manner contrary to the designed and normal
operational purpose for the component, including, but not limited to,
varying the pull of the handle of a slot machine, with knowledge
that the manipulation affects the outcome of the gambling game or
with knowledge of any event that affects the outcome of the gambling
game.
SEC. 226. Section 383c of the Penal Code is amended to read:
383c. Every person who with intent to defraud, sells or exposes
for sale any meat or meat preparations, and falsely represents the
same to be halal, whether the meat or meat preparations is raw or
prepared for human consumption, or as having been prepared under and
from a product or products sanctioned by the Islamic religious
requirements; or falsely represents any food product, or the contents
of any package or container, to be so constituted and prepared, by
having or permitting to be inscribed thereon the word "halal" in any
language; or sells or exposes for sale in the same place of business
both halal and nonhalal meat or meat preparations, either raw or
prepared for human consumption, who fails to indicate on his or her
window signs in all display advertising in block letters at least
four inches in height "halal and nonhalal meats sold here"; or who
exposes for sale in any show window or place of business as both
halal and nonhalal meat preparations, either raw or prepared for
human consumption, who fails to display over each kind of meat or
meat preparation so exposed a sign in block letters at least four
inches in height, reading "halal meat" or "nonhalal meat" as the case
may be; or sells or exposes for sale in any restaurant or any other
place where food products are sold for consumption on the premises,
any article of food or food preparations and falsely represents the
same to be halal, or as having been prepared in accordance with the
Islamic religious requirements; or sells or exposes for sale in a
restaurant, or other place, both halal and nonhalal food or food
preparations for consumption on the premises, not prepared in
accordance with the Islamic ritual, or not sanctioned by Islamic
religious requirements, and who fails to display on his or her window
signs in all display advertising, in block letters at least four
inches in height "halal and nonhalal food served here" is guilty of a
misdemeanor and upon conviction thereof be punishable by a fine of
not less than one hundred dollars ($100), nor more than six hundred
dollars ($600), or imprisonment in a county jail of not less than 30
days, nor more than 90 days, or both that fine and imprisonment.
The word "halal" is here defined to mean a strict compliance with
every Islamic law and custom pertaining and relating to the killing
of the animal or fowl from which the meat is taken or extracted, the
dressing, treatment, and preparation thereof for human consumption,
and the manufacture, production, treatment, and preparation of other
food or foods in connection wherewith Islamic laws and customs obtain
and to the use of tools, implements, vessels, utensils, dishes, and
containers that are used in connection with the killing of animals
and fowls and the dressing, preparation, production, manufacture, and
treatment of meats and other products, foods, and food stuffs.
SEC. 227. Section 424 of the Penal Code is amended to read:
424. (a) Each officer of this state, or of any county, city,
town, or district of this state, and every other person charged with
the receipt, safekeeping, transfer, or disbursement of public moneys,
who either: 1. Without authority of law, appropriates the same,
or any portion thereof, to his or her own use, or to the use of
another; or, 2. Loans the same or any portion thereof; makes any
profit out of, or uses the same for any purpose not authorized by
law; or, 3. Knowingly keeps any false account, or makes any false
entry or erasure in any account of or relating to the same; or, 4.
Fraudulently alters, falsifies, conceals, destroys, or obliterates
any account; or, 5. Willfully refuses or omits to pay over, on
demand, any public moneys in his or her hands, upon the presentation
of a draft, order, or warrant drawn upon these moneys by competent
authority; or, 6. Willfully omits to transfer the same, when
transfer is required by law; or, 7. Willfully omits or refuses to
pay over to any officer or person authorized by law to receive the
same, any money received by him or her under any duty imposed by law
so to pay over the same;-- Is punishable by imprisonment in the state
prison for two, three, or four years, and is disqualified from
holding any office in this state.
(b) As used in this section, "public moneys" includes the proceeds
derived from the sale of bonds or other evidence or indebtedness
authorized by the legislative body of any city, county, district, or
public agency.
(c) This section does not apply to the incidental and minimal use
of public resources authorized by Section 8314 of the Government
Code.
SEC. 228. Section 597l of the Penal Code is amended to read:
597l. (a) It shall be unlawful for any person who operates a pet
shop to fail to do all of the following:
(1) Maintain the facilities used for the keeping of pet animals in
a sanitary condition.
(2) Provide proper heating and ventilation for the facilities used
for the keeping of pet animals.
(3) Provide adequate nutrition for, and humane care and treatment
of, all pet animals under his or her care and control.
(4) Take reasonable care to release for sale, trade, or adoption
only those pet animals that are free of disease or injuries.
(5) Provide adequate space appropriate to the size, weight, and
specie of pet animals.
(b) (1) Sellers of pet animals shall provide buyers of a pet
animal with general written recommendations for the generally
accepted care of the class of pet animal sold, including
recommendations as to the housing, equipment, cleaning, environment,
and feeding of the animal. This written information shall be in a
form determined by the sellers of pet animals and may include
references to Web sites, books, pamphlets, videos, and compact discs.
(2) If a seller of pet animals distributes material prepared by a
third party, the seller shall not be liable for damages caused by any
erroneous information in that material unless a reasonable person
exercising ordinary care should have known of the error causing the
damage.
(3) This subdivision shall apply to any private or public retail
business that sells pet animals to the public and is required to
possess a permit pursuant to Section 6066 of the Revenue and Taxation
Code.
(4) Charges brought against a seller of pet animals for a first
violation of the provisions of this subdivision shall be dismissed if
the person charged produces in court satisfactory proof of
compliance. A second or subsequent violation is an infraction
punishable by a fine not to exceed two hundred fifty dollars ($250).
(c) As used in this section, the following terms have the
following meanings:
(1) "Pet animals" means dogs, cats, monkeys and other primates,
rabbits, birds, guinea pigs, hamsters, mice, snakes, iguanas,
turtles, and any other species of animal sold or retained for the
purpose of being kept as a household pet.
(2) "Pet shop" means every place or premises where pet animals are
kept for the purpose of either wholesale or retail sale. "Pet shop"
does not include any place or premises where pet animals are
occasionally sold.
(d) Any person who violates any provision of subdivision (a) is
guilty of a misdemeanor and is punishable by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in the county jail not
exceeding 90 days, or by both that fine and imprisonment.
SEC. 229. Section 808 of the Penal Code is amended to read:
808. The following persons are magistrates:
(a) The judges of the Supreme Court.
(b) The judges of the courts of appeal.
(c) The judges of the superior courts.
SEC. 230. Section 1089 of the Penal Code is amended to read:
1089. Whenever, in the opinion of a judge of a superior court
about to try a defendant against whom has been filed any indictment
or information or complaint, the trial is likely to be a protracted
one, the court may cause an entry to that effect to be made in the
minutes of the court, and thereupon, immediately after the jury is
impaneled and sworn, the court may direct the calling of one or more
additional jurors, in its discretion, to be known as "alternate
jurors."
The alternate jurors must be drawn from the same source, and in
the same manner, and have the same qualifications as the jurors
already sworn, and be subject to the same examination and challenges,
provided that the prosecution and the defendant shall each be
entitled to as many peremptory challenges to the alternate jurors as
there are alternate jurors called. When two or more defendants are
tried jointly each defendant shall be entitled to as many peremptory
challenges to the alternate jurors as there are alternate jurors
called. The prosecution shall be entitled to additional peremptory
challenges equal to the number of all the additional separate
challenges allowed the defendant or defendants to the alternate
jurors.
The alternate jurors shall be seated so as to have equal power and
facilities for seeing and hearing the proceedings in the case, and
shall take the same oath as the jurors already selected, and must
attend at all times upon the trial of the cause in company with the
other jurors, and for a failure so to do are liable to be punished
for contempt.
They shall obey the orders of and be bound by the admonition of
the court, upon each adjournment of the court; but if the regular
jurors are ordered to be kept in the custody of the sheriff or
marshal during the trial of the cause, the alternate jurors shall
also be kept in confinement with the other jurors; and upon final
submission of the case to the jury the alternate jurors shall be kept
in the custody of the sheriff or marshal and shall not be discharged
until the original jurors are discharged, except as hereinafter
provided.
If at any time, whether before or after the final submission of
the case to the jury, a juror dies or becomes ill, or upon other good
cause shown to the court is found to be unable to perform his or her
duty, or if a juror requests a discharge and good cause appears
therefor, the court may order the juror to be discharged and draw the
name of an alternate, who shall then take a place in the jury box,
and be subject to the same rules and regulations as though the
alternate juror had been selected as one of the original jurors.
SEC. 231. Section 1203.3 of the Penal Code is amended to read:
1203.3. (a) The court shall have authority at any time during the
term of probation to revoke, modify, or change its order of
suspension of imposition or execution of sentence. The court may at
any time when the ends of justice will be subserved thereby, and when
the good conduct and reform of the person so held on probation shall
warrant it, terminate the period of probation, and discharge the
person so held.
(b) The exercise of the court's authority in subdivision (a) to
revoke, modify, change, or terminate probation is subject to the
following:
(1) Before any sentence or term or condition of probation is
modified, a hearing shall be held in open court before the judge.
The prosecuting attorney shall be given a two-day written notice and
an opportunity to be heard on the matter, except that, as to
modifying or terminating a protective order in a case involving
domestic violence, as defined in Section 6211 of the Family Code, the
prosecuting attorney shall be given a five-day written notice and an
opportunity to be heard.
(A) If the sentence or term or condition of probation is modified
pursuant to this section, the judge shall state the reasons for that
modification on the record.
(B) As used in this section, modification of sentence shall
include reducing a felony to a misdemeanor.
(2) No order shall be made without written notice first given by
the court or the clerk thereof to the proper probation officer of the
intention to revoke, modify, or change its order.
(3) In all cases, if the court has not seen fit to revoke the
order of probation and impose sentence or pronounce judgment, the
defendant shall at the end of the term of probation or any extension
thereof, be by the court discharged subject to the provisions of
these sections.
(4) The court may modify the time and manner of the term of
probation for purposes of measuring the timely payment of restitution
obligations or the good conduct and reform of the defendant while on
probation. The court shall not modify the dollar amount of the
restitution obligations due to the good conduct and reform of the
defendant, absent compelling and extraordinary reasons, nor shall the
court limit the ability of payees to enforce the obligations in the
manner of judgments in civil actions.
(5) Nothing in this section shall be construed to prohibit the
court from modifying the dollar amount of a restitution order
pursuant to subdivision (f) of Section 1202.4 at any time during the
term of the probation.
(6) The court may limit or terminate a protective order that is a
condition of probation in a case involving domestic violence, as
defined in Section 6211 of the Family Code. In determining whether
to limit or terminate the protective order, the court shall consider
if there has been any material change in circumstances since the
crime for which the order was issued, and any issue that relates to
whether there exists good cause for the change, including, but not
limited to, consideration of all of the following:
(A) Whether the probationer has accepted responsibility for the
abusive behavior perpetrated against the victim.
(B) Whether the probationer is currently attending and actively
participating in counseling sessions.
(C) Whether the probationer has completed parenting counseling, or
attended alcoholics or narcotics counseling.
(D) Whether the probationer has moved from the state, or is
incarcerated.
(E) Whether the probationer is still cohabiting, or intends to
cohabit, with any subject of the order.
(F) Whether the defendant has performed well on probation,
including consideration of any progress reports.
(G) Whether the victim desires the change, and if so, the victim's
reasons, whether the victim has consulted a victim advocate, and
whether the victim has prepared a safety plan and has access to local
resources.
(H) Whether the change will impact any children involved,
including consideration of any Child Protective Services information.
(I) Whether the ends of justice would be served by limiting or
terminating the order.
(c) If a probationer is ordered to serve time in jail, and the
probationer escapes while serving that time, the probation is revoked
as a matter of law on the day of the escape.
(d) If probation is revoked pursuant to subdivision (c), upon
taking the probationer into custody, the probationer shall be
accorded a hearing or hearings consistent with the holding in the
case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that
hearing or hearings is not to revoke probation, as the revocation has
occurred as a matter of law in accordance with subdivision (c), but
rather to afford the defendant an opportunity to require the
prosecution to establish that the alleged violation did in fact occur
and to justify the revocation.
(e) This section does not apply to cases covered by Section
1203.2.
SEC. 232. Section 1240.1 of the Penal Code is amended to read:
1240.1. (a) In any noncapital criminal, juvenile court, or civil
commitment case wherein the defendant would be entitled to the
appointment of counsel on appeal if indigent, it shall be the duty of
the attorney who represented the person at trial to provide counsel
and advice as to whether arguably meritorious grounds exist for
reversal or modification of the judgment on appeal. The attorney
shall admonish the defendant that he or she is not able to provide
advice concerning his or her own competency, and that the State
Public Defender or other counsel should be consulted for advice as to
whether an issue regarding the competency of counsel should be
raised on appeal. The trial court may require trial counsel to
certify that he or she has counseled the defendant as to whether
arguably meritorious grounds for appeal exist at the time a notice of
appeal is filed. Nothing in this section shall be construed to
prevent any person having a right to appeal from doing so.
(b) It shall be the duty of every attorney representing an
indigent defendant in any criminal, juvenile court, or civil
commitment case to execute and file on his or her client's behalf a
timely notice of appeal when the attorney is of the opinion that
arguably meritorious grounds exist for a reversal or modification of
the judgment or orders to be appealed from, and where, in the
attorney's judgment, it is in the defendant's interest to pursue any
relief that may be available to him or her on appeal; or when
directed to do so by a defendant having a right to appeal.
With the notice of appeal the attorney shall file a brief
statement of the points to be raised on appeal and a designation of
any document, paper, pleading, or transcript of oral proceedings
necessary to properly present those points on appeal when the
document, paper, pleading, or transcript of oral proceedings would
not be included in the normal record on appeal according to the
applicable provisions of the California Rules of Court. The
executing of the notice of appeal by the defendant's attorney shall
not constitute an undertaking to represent the defendant on appeal
unless the undertaking is expressly stated in the notice of appeal.
If the defendant was represented by appointed counsel on the trial
level, or if it appears that the defendant will request the
appointment of counsel on appeal by reason of indigency, the trial
attorney shall also assist the defendant in preparing and submitting
a motion for the appointment of counsel and any supporting
declaration or affidavit as to the defendant's financial condition.
These documents shall be filed with the trial court at the time of
filing a notice of appeal, and shall be transmitted by the clerk of
the trial court to the clerk of the appellate court within three
judicial days of their receipt. The appellate court shall act upon
that motion without unnecessary delay. An attorney's failure to file
a motion for the appointment of counsel with the notice of appeal
shall not foreclose the defendant from filing a motion at any time it
becomes known to him or her that the attorney has failed to do so,
or at any time he or she shall become indigent if he or she was not
previously indigent.
(c) The State Public Defender shall, at the request of any
attorney representing a prospective indigent appellant or at the
request of the prospective indigent appellant himself or herself,
provide counsel and advice to the prospective indigent appellant or
attorney as to whether arguably meritorious grounds exist on which
the judgment or order to be appealed from would be reversed or
modified on appeal.
(d) The failure of a trial attorney to perform any duty prescribed
in this section, assign any particular point or error in the notice
of appeal, or designate any particular thing for inclusion in the
record on appeal shall not foreclose any defendant from filing a
notice of appeal on his or her own behalf or from raising any point
or argument on appeal; nor shall it foreclose the defendant or his or
her counsel on appeal from requesting the augmentation or correction
of the record on appeal in the reviewing court.
(e) (1) In order to expedite certification of the entire record on
appeal in all capital cases, the defendant's trial counsel, whether
retained by the defendant or court-appointed, and the prosecutor
shall continue to represent the respective parties. Each counsel's
obligations extend to taking all steps necessary to facilitate the
preparation and timely certification of the record of all trial court
proceedings.
(2) The duties imposed on trial counsel in paragraph (1) shall not
foreclose the defendant's appellate counsel from requesting
additions or corrections to the record on appeal in either the trial
court or the California Supreme Court in a manner provided by rules
of court adopted by the Judicial Council.
SEC. 233. Section 1463 of the Penal Code is amended to read:
1463. All fines and forfeitures imposed and collected for crimes
shall be distributed in accordance with Section 1463.001.
The following definitions shall apply to terms used in this
chapter:
(a) "Arrest" means any law enforcement action, including issuance
of a notice to appear or notice of violation, which results in a
criminal charge.
(b) "City" includes any city, city and county, district, including
any enterprise special district, community service district, or
community service area engaged in police protection activities as
reported to the Controller for inclusion in the 1989-90 edition of
the Financial Transactions Report Concerning Special Districts under
the heading of Police Protection and Public Safety, authority, or
other local agency (other than a county) which employs persons
authorized to make arrests or to issue notices to appear or notices
of violation which may be filed in court.
(c) "City arrest" means an arrest
by an employee of a city, or by a California Highway Patrol officer
within the limits of a city.
(d) "County" means the county in which the arrest took place.
(e) "County arrest" means an arrest by a California Highway Patrol
officer outside the limits of a city, or any arrest by a county
officer or by any other state officer.
(f) "Court" means the superior court or a juvenile forum
established under Section 257 of the Welfare and Institutions Code,
in which the case arising from the arrest is filed.
(g) "Division of moneys" means an allocation of base fine proceeds
between agencies as required by statute, including, but not limited
to, Sections 1463.003, 1463.9, 1463.23, and 1463.26 of this code,
Sections 13001, 13002, and 13003 of the Fish and Game Code, and
Section 11502 of the Health and Safety Code.
(h) "Offense" means any infraction, misdemeanor, or felony, and
any act by a juvenile leading to an order to pay a financial sanction
by reason of the act being defined as an infraction, misdemeanor, or
felony, whether defined in this or any other code, except any
parking offense as defined in subdivision (i).
(i) "Parking offense" means any offense charged pursuant to
Article 3 (commencing with Section 40200) of Chapter 1 of Division 17
of the Vehicle Code, including registration and equipment offenses
included on a notice of parking violation.
(j) "Penalty allocation" means the deposit of a specified part of
moneys to offset designated processing costs, as provided by Section
1463.16 of this code and by Section 68090.8 of the Government Code.
(k) "Total parking penalty" means the total sum to be collected
for a parking offense, whether as fine, forfeiture of bail, or
payment of penalty to the Department of Motor Vehicles (DMV). It may
include the following components:
(1) The base parking penalty as established pursuant to Section
40203.5 of the Vehicle Code.
(2) The DMV fees added upon the placement of a hold pursuant to
Section 40220 of the Vehicle Code.
(3) The surcharges required by Section 76000 of the Government
Code.
(4) The notice penalty added to the base parking penalty when a
notice of delinquent parking violations is given.
(l) "Total fine or forfeiture" means the total sum to be collected
upon a conviction, or the total amount of bail forfeited or
deposited as cash bail subject to forfeiture. It may include, but is
not limited to, the following components as specified for the
particular offense:
(1) The "base fine" upon which the state penalty and additional
county penalty is calculated.
(2) The "county penalty" required by Section 76000 of the
Government Code.
(3) The "service charge" permitted by Section 853.7 of the Penal
Code and Section 40508.5 of the Vehicle Code.
(4) The "special penalty" dedicated for blood alcohol analysis,
alcohol program services, traumatic brain injury research, and
similar purposes.
(5) The "state penalty" required by Section 1464.
SEC. 234. Section 1524.1 of the Penal Code is amended to read:
1524.1. (a) The primary purpose of the testing and disclosure
provided in this section is to benefit the victim of a crime by
informing the victim whether the defendant is infected with the HIV
virus. It is also the intent of the Legislature in enacting this
section to protect the health of both victims of crime and those
accused of committing a crime. Nothing in this section shall be
construed to authorize mandatory testing or disclosure of test
results for the purpose of a charging decision by a prosecutor, nor,
except as specified in subdivisions (g) and (i), shall this section
be construed to authorize breach of the confidentiality provisions
contained in Chapter 7 (commencing with Section 120975) of Part 4 of
Division 105 of the Health and Safety Code.
(b) (1) Notwithstanding the provisions of Chapter 7 (commencing
with Section 120975) of Part 4 of Division 105 of the Health and
Safety Code, when a defendant has been charged by complaint,
information, or indictment with a crime, or a minor is the subject of
a petition filed in juvenile court alleging the commission of a
crime, the court, at the request of the victim, may issue a search
warrant for the purpose of testing the accused's blood or oral
mucosal transudate saliva with any HIV test, as defined in Section
120775 of the Health and Safety Code only under the following
circumstances: when the court finds, upon the conclusion of the
hearing described in paragraph (3), or in those cases in which a
preliminary hearing is not required to be held, that there is
probable cause to believe that the accused committed the offense, and
that there is probable cause to believe that blood, semen, or any
other bodily fluid identified by the State Department of Health
Services in appropriate regulations as capable of transmitting the
human immunodeficiency virus has been transferred from the accused to
the victim.
(2) Notwithstanding Chapter 7 (commencing with Section 120975) of
Part 4 of Division 105 of the Health and Safety Code, when a
defendant has been charged by complaint, information, or indictment
with a crime under Section 220, 261, 261.5, 262, 264.1, 266c, 269,
286, 288, 288a, 288.5, 289, or 289.5, or with an attempt to commit
any of the offenses, and is the subject of a police report alleging
the commission of a separate, uncharged offense that could be charged
under Section 220, 261, 261.5, 262, 264.1, 266c, 269, 286, 288,
288a, 288.5, 289, or 289.5, or of an attempt to commit any of the
offenses, or a minor is the subject of a petition filed in juvenile
court alleging the commission of a crime under Section 220, 261,
261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5,
or of an attempt to commit any of the offenses, and is the subject of
a police report alleging the commission of a separate, uncharged
offense that could be charged under Section 220, 261, 261.5, 262,
264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5, or of an
attempt to commit any of the offenses, the court, at the request of
the victim of the uncharged offense, may issue a search warrant for
the purpose of testing the accused's blood or oral mucosal transudate
saliva with any HIV test, as defined in Section 120775 of the Health
and Safety Code only under the following circumstances: when the
court finds that there is probable cause to believe that the accused
committed the uncharged offense, and that there is probable cause to
believe that blood, semen, or any other bodily fluid identified by
the State Department of Health Services in appropriate regulations as
capable of transmitting the human immunodeficiency virus has been
transferred from the accused to the victim. As used in this
paragraph, "Section 289.5" refers to the statute enacted by Chapter
293 of the Statutes of 1991, penetration by an unknown object.
(3) (A) Prior to the issuance of a search warrant pursuant to
paragraph (1), the court, where applicable and at the conclusion of
the preliminary examination if the defendant is ordered to answer
pursuant to Section 872, shall conduct a hearing at which both the
victim and the defendant have the right to be present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (1) shall be admissible.
(B) Prior to the issuance of a search warrant pursuant to
paragraph (2), the court, where applicable, shall conduct a hearing
at which both the victim and the defendant are present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (2) shall be admissible.
(4) A request for a probable cause hearing made by a victim under
paragraph (2) shall be made before sentencing in the superior court,
or before disposition on a petition in a juvenile court, of the
criminal charge or charges filed against the defendant.
(c) (1) In all cases in which the person has been charged by
complaint, information, or indictment with a crime, or is the subject
of a petition filed in a juvenile court alleging the commission of a
crime, the prosecutor shall advise the victim of his or her right to
make this request. To assist the victim of the crime to determine
whether he or she should make this request, the prosecutor shall
refer the victim to the local health officer for prerequest
counseling to help that person understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the accused, to ensure
that the victim understands both the benefits and limitations of the
current tests for HIV, to help the victim decide whether he or she
wants to request that the accused be tested, and to help the victim
decide whether he or she wants to be tested.
(2) The Department of Justice, in cooperation with the California
District Attorneys Association, shall prepare a form to be used in
providing victims with the notice required by paragraph (1).
(d) If the victim decides to request HIV testing of the accused,
the victim shall request the issuance of a search warrant, as
described in subdivision (b).
Neither the failure of a prosecutor to refer or advise the victim
as provided in this subdivision, nor the failure or refusal by the
victim to seek or obtain counseling, shall be considered by the court
in ruling on the victim's request.
(e) The local health officer shall make provision for
administering all HIV tests ordered pursuant to subdivision (b).
(f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (b) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
accused unless any initially reactive test result has been confirmed
by appropriate confirmatory tests for positive reactors.
(g) The local health officer shall have the responsibility for
disclosing test results to the victim who requested the test and to
the accused who was tested. However, no positive test results shall
be disclosed to the victim or to the accused without also providing
or offering professional counseling appropriate to the circumstances.
(h) The local health officer and victim shall comply with all laws
and policies relating to medical confidentiality subject to the
disclosure authorized by subdivisions (g) and (i). Any individual
who files a false report of sexual assault in order to obtain test
result information pursuant to this section shall, in addition to any
other liability under law, be guilty of a misdemeanor punishable as
provided in subdivision (c) of Section 120980 of the Health and
Safety Code. Any individual as described in the preceding sentence
who discloses test result information obtained pursuant to this
section shall also be guilty of an additional misdemeanor punishable
as provided for in subdivision (c) of Section 120980 of the Health
and Safety Code for each separate disclosure of that information.
(i) Any victim who receives information from the health officer
pursuant to subdivision (g) may disclose the test results as the
victim deems necessary to protect his or her health and safety or the
health and safety of his or her family or sexual partner.
(j) Any person transmitting test results or disclosing information
pursuant to this section shall be immune from civil liability for
any actions taken in compliance with this section.
(k) The results of any blood or oral mucosal transudate saliva
tested pursuant to subdivision (b) shall not be used in any criminal
proceeding as evidence of either guilt or innocence.
SEC. 235. Section 11171 of the Penal Code is amended to read:
11171. (a) (1) The Legislature hereby finds and declares that
adequate protection of victims of child physical abuse or neglect has
been hampered by the lack of consistent and comprehensive medical
examinations.
(2) Enhancing examination procedures, documentation, and evidence
collection relating to child abuse or neglect will improve the
investigation and prosecution of child abuse or neglect as well as
other child protection efforts.
(b) On or before January 1, 2004, the Office of Criminal Justice
Planning shall, in cooperation with the State Department of Social
Services, the Department of Justice, the California Association of
Crime Lab Directors, the California State District Attorneys
Association, the California State Sheriffs Association, the
California Peace Officers Association, the California Medical
Association, the California Police Chiefs' Association, child
advocates, the California Medical Training Center, child protective
services, and other appropriate experts, establish medical forensic
forms, instructions, and examination protocols for victims of child
physical abuse or neglect using as a model the form and guidelines
developed pursuant to Section 13823.5.
(c) The form shall include, but not be limited to, a place for
notation concerning each of the following:
(1) Any notification of injuries or any report of suspected child
physical abuse or neglect to law enforcement authorities or children'
s protective services, in accordance with existing reporting
procedures.
(2) Addressing relevant consent issues, if indicated.
(3) The taking of a patient history of child physical abuse or
neglect that includes other relevant medical history.
(4) The performance of a physical examination for evidence of
child physical abuse or neglect.
(5) The collection or documentation of any physical evidence of
child physical abuse or neglect, including any recommended
photographic procedures.
(6) The collection of other medical or forensic specimens,
including drug ingestion or toxication, as indicated.
(7) Procedures for the preservation and disposition of evidence.
(8) Complete documentation of medical forensic exam findings with
recommendations for diagnostic studies, including blood tests and
X-rays.
(9) An assessment as to whether there are findings that indicate
physical abuse or neglect.
(d) The forms shall become part of the patient's medical record
pursuant to guidelines established by the advisory committee of the
Office of Criminal Justice Planning and subject to the
confidentiality laws pertaining to the release of a medical forensic
examination record.
(e) The forms shall be made accessible for use on the Internet.
SEC. 236. Section 11199 of the Penal Code is amended to read:
11199. (a) Any employee of a county child or adult protective
services agency, while acting in his or her professional capacity or
within the scope of his or her employment, who has knowledge of or
observes an animal whom he or she knows or reasonably suspects has
been the victim of cruelty, abuse, or neglect, may report the known
or reasonably suspected animal cruelty, abuse, or neglect to the
entity or entities that investigate reports of animal cruelty, abuse,
and neglect in that county.
(b) The report may be made within two working days of receiving
the information concerning the animal by facsimile transmission of a
written report presented in the form described in subdivision (e) or
by telephone if all of the information that is required to be
provided pursuant to subdivision (e) is furnished. In cases where an
immediate response may be necessary in order to protect the health
and safety of the animal or others, the report may be made by
telephone as soon as possible.
(c) Nothing in this section shall be construed to impose a duty to
investigate known or reasonably suspected animal cruelty, abuse, or
neglect.
(d) As used in this section, the terms "animal," "cruelty,"
"abuse," "neglect," "reasonable suspicion," and "owner" are defined
as follows:
(1) "Animal" includes every dumb creature.
(2) "Cruelty," "abuse," and "neglect" include every act, omission,
or neglect whereby unnecessary or unjustifiable physical pain or
suffering is caused or permitted.
(3) "Reasonable suspicion" means that it is objectively reasonable
for a person to entertain a suspicion, based upon facts that could
cause a reasonable person in a like position, drawing, when
appropriate, on his or her training and experience, to suspect animal
cruelty, abuse, or neglect.
(4) "Owner" means any person who is the legal owner, keeper,
harborer, possessor, or the actual custodian of an animal. "Owner"
includes corporations as well as individuals.
(e) Reports made pursuant to this section may be made on a
preprinted form prepared by the entity or entities that investigate
reports of animal cruelty, abuse, and neglect in that county that
includes the definitions contained in subdivision (d), and a space
for the reporter to include each of the following:
(1) His or her name and title.
(2) His or her business address and telephone number.
(3) The name, if known, of the animal owner or custodian.
(4) The location of the animal and the premises on which the known
or reasonably suspected animal cruelty, abuse, or neglect took
place.
(5) A description of the location of the animal and the premises.
(6) Type and numbers of animals involved.
(7) A description of the animal and its condition.
(8) The date, time, and a description of the observation or
incident which led the reporter to suspect animal cruelty, abuse, or
neglect and any other information the reporter believes may be
relevant.
(f) When two or more employees of a county child or adult
protective services agency are present and jointly have knowledge of
known or reasonably suspected animal cruelty, abuse, or neglect, and
where there is agreement among them, a report may be made by one
person by mutual agreement. Any reporter who has knowledge that the
person designated to report has failed to do so may thereafter make
the report.
SEC. 237. Section 11226 of the Penal Code is amended to read:
11226. Whenever there is reason to believe that a nuisance as
defined in this article is kept, maintained, or is in existence in
any county, the district attorney, in the name of the people of the
State of California, or the city attorney of an incorporated city or
any city and county may, or any citizen of the state resident within
the county in his or her own name may, maintain an action in equity
to abate and prevent the nuisance and to perpetually enjoin the
person conducting or maintaining it, and the owner, lessee, or agent
of the building or place, in or upon which the nuisance exists, from
directly or indirectly maintaining or permitting it.
The complaint in the action shall be verified unless filed by the
district attorney or the city attorney.
SEC. 238. Section 11230 of the Penal Code is amended to read:
11230. (a) (1) If the existence of a nuisance is established in
an action as provided in this article, an order of abatement shall be
entered as a part of the judgment in the case, directing the removal
from the building or place of all fixtures, musical instruments and
movable property used in conducting, maintaining, aiding, or abetting
the nuisance, and directing the sale thereof in the manner provided
for the sale of chattels under execution, and the effectual closing
of the building or place against its use for any purpose, and that it
be kept closed for a period of one year, unless sooner released. If
the court finds that any vacancy resulting from closure of the
building or place may create a nuisance or that closure is otherwise
harmful to the community, in lieu of ordering the building or place
closed, the court may order the person who is responsible for the
existence of the nuisance to pay damages in an amount equal to the
fair market rental value of the building or place for one year to the
city or county in whose jurisdiction the nuisance is located. The
actual amount of rent being received for the rental of the building
or place, or the existence of any vacancy therein, may be considered,
but shall not be the sole determinant of the fair market rental
value. Expert testimony may be used to determine the fair market
rental value.
(2) While the order remains in effect as to closing, the building
or place is and shall remain in the custody of the court.
(3) For removing and selling the movable property, the officer is
entitled to charge and receive the same fees as he or she would for
levying upon and selling like property on execution.
(4) For closing the premises and keeping them closed, a reasonable
sum shall be allowed by the court.
(b) The court may assess a civil penalty not to exceed twenty-five
thousand dollars ($25,000) against any and all of the defendants,
based upon the severity of the nuisance and its duration.
(c) One-half of the civil penalties collected pursuant to this
section shall be deposited in the Restitution Fund in the State
Treasury, the proceeds of which shall be available for appropriation
by the Legislature to indemnify persons filing claims pursuant to
Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of
Division 3 of Title 2 of the Government Code, and one-half of the
civil penalties collected shall be paid to the city in which the
judgment was entered, if the action was brought by the city attorney
or city prosecutor. If the action was brought by a district
attorney, one-half of the civil penalties collected shall be paid to
the treasurer of the county in which the judgment was entered.
SEC. 239. Article 4.5 (commencing with Section 12087) of Chapter 1
of Title 2 of Part 4 of the Penal Code, as added by Section 1 of
Chapter 245 of the Statutes of 1999, is repealed.
SEC. 240. Section 12087.5 of the Penal Code, as added by Section 1
of Chapter 246 of the Statutes of 1999, is amended to read:
12087.5. The Legislature makes the following findings:
(a) In the years 1987 to 1996, nearly 2,200 children in the United
States under the age of 15 years died in unintentional shootings.
In 1996 alone, 138 children were shot and killed unintentionally.
Thus, more than 11 children every month, or one child every three
days, were shot or killed unintentionally in firearms-related
incidents.
(b) The United States leads the industrialized world in the rates
of children and youth lost to unintentional, firearms-related deaths.
A 1997 study from the federal Centers for Disease Control and
Prevention reveals that for unintentional firearm-related deaths for
children under the age of 15, the rate in the United States was nine
times higher than in 25 other industrialized countries combined.
(c) While the number of unintentional deaths from firearms is an
unacceptable toll on America's children, nearly eight times that
number are treated in U.S. hospital emergency rooms each year for
nonfatal unintentional gunshot wounds.
(d) A study of unintentional firearm deaths among children in
California found that unintentional gunshot wounds most often involve
handguns.
(e) A study in the December 1995 issue of the Archives of
Pediatric and Adolescent Medicine found that children as young as
three years old are strong enough to fire most commercially available
handguns. The study revealed that 25 percent of three to four year
olds and 70 percent of five to six year olds had sufficient finger
strength to fire 59 (92 percent) of the 64 commonly available
handguns referenced in the study.
(f) The Government Accounting Office (GAO), in its March 1991
study, "Accidental Shootings: Many Deaths and Injuries Caused by
Firearms Could be Prevented," estimates that 31 percent of accidental
deaths caused by firearms might be prevented by the addition of two
safety devices: a child-resistant safety device that automatically
engages and a device that indicates whether the gun is loaded.
According to the study results, of the 107 unintentional
firearms-related fatalities the GAO examined for the calendar years
1988 and 1989, 8 percent could have been prevented had the firearm
been equipped with a child-resistant safety device. This 8 percent
represents instances in which children under the age of six
unintentionally shot and killed themselves or other persons.
(g) Currently, firearms are the only products manufactured in the
United States that are not subject to minimum safety standards.
(h) A 1997 public opinion poll conducted by the National Opinion
Research Center at the University of Chicago in conjunction with the
Johns Hopkins Center for Gun Policy and Research found that 74
percent of Americans support safety regulation of the firearms
industry.
(i) Some currently available trigger locks and other similar
devices are inadequate to prevent the accidental discharge of the
firearms to which they are attached, or to prevent children from
gaining access to the firearm.
SEC. 241. Section 13823.9 of the Penal Code is amended to read:
13823.9. (a) Every public or private general acute care hospital
that examines a victim of sexual assault or attempted sexual assault,
including child molestation, shall comply with the standards
specified in Section 13823.11 and the protocol and guidelines adopted
pursuant to Section 13823.5.
(b) Each county with a population of more than 100,000 shall
arrange that professional personnel trained in the examination of
victims of sexual assault, including child molestation, shall be
present or on call either in the county hospital which provides
emergency medical services or in any general acute care hospital
which has contracted with the county to provide emergency medical
services. In counties with a population of 1,000,000 or more, the
presence of these professional personnel shall be arranged in at
least one general acute care hospital for each 1,000,000 persons in
the county.
(c) Each county shall designate at least one general acute care
hospital to perform examinations on victims of sexual assault,
including child molestation.
(d) (1) The protocol published by the Office of Criminal Justice
Planning shall be used as a guide for the procedures to be used by
every public or private general acute care hospital in the state for
the examination and treatment of victims of sexual assault and
attempted sexual assault, including child molestation, and the
collection and preservation of evidence therefrom.
(2) The informational guide developed by the Office of Criminal
Justice Planning shall be consulted where indicated in the protocol,
as well as to gain knowledge about all aspects of examination and
treatment of victims of
sexual assault and child molestation.
SEC. 242. Section 1513.1 of the Probate Code is amended to read:
1513.1. (a) Each court or county shall assess (1) the parent,
parents, or other person charged with the support and maintenance of
the ward or proposed ward, and (2) the guardian, proposed guardian,
or the estate of the ward or proposed ward, for court or county
expenses incurred for any investigation or review conducted by the
court investigator, probation officer, or domestic relations
investigator. The court may order reimbursement to the court or to
the county in the amount of the assessment, unless the court finds
that all or any part of the assessment would impose a hardship on the
ward or the ward's estate. A county may waive any or all of an
assessment against the guardianship on the basis of hardship. There
shall be a rebuttable presumption that the assessment would impose a
hardship if the ward is receiving Medi-Cal benefits.
(b) Any amount chargeable as state-mandated local costs incurred
by a county for the cost of the investigation or review shall be
reduced by any assessments actually collected by the county pursuant
to subdivision (a) during that fiscal year.
SEC. 242.5. Section 10524 of the Public Contract Code is amended
to read:
10524. Persons convicted under Section 10522 or 10523 are also
liable to the University of California for double the amount the
university may have lost or be liable to lose by reason of the acts
made crimes by this article.
SEC. 243. Section 20103.8 of the Public Contract Code is amended
to read:
20103.8. A local agency may require a bid for a public works
contract to include prices for items that may be added to, or
deducted from, the scope of work in the contract for which the bid is
being submitted. Whenever additive or deductive items are included
in a bid, the bid solicitation shall specify which one of the
following methods will be used to determine the lowest bid. In the
absence of a specification, only the method provided by subdivision
(a) will be used:
(a) The lowest bid shall be the lowest bid price on the base
contract without consideration of the prices on the additive or
deductive items.
(b) The lowest bid shall be the lowest total of the bid prices on
the base contract and those additive or deductive items that were
specifically identified in the bid solicitation as being used for the
purpose of determining the lowest bid price.
(c) The lowest bid shall be the lowest total of the bid prices on
the base contract and those additive or deductive items that when
taken in order from a specifically identified list of those items in
the solicitation, and added to, or subtracted from, the base
contract, are less than, or equal to, a funding amount publicly
disclosed by the local agency before the first bid is opened.
(d) The lowest bid shall be determined in a manner that prevents
any information that would identify any of the bidders or proposed
subcontractors or suppliers from being revealed to the public entity
before the ranking of all bidders from lowest to highest has been
determined.
A responsible bidder who submitted the lowest bid as determined by
this section shall be awarded the contract, if it is awarded. This
section does not preclude the local agency from adding to or
deducting from the contract any of the additive or deductive items
after the lowest responsible bidder has been determined.
(e) Nothing in this section shall preclude the prequalification of
subcontractors.
SEC. 244. Section 4114.5 of the Public Resources Code is amended
to read:
4114.5. (a) Any contract entered into by the department to retain
the services of pilots to fly firefighting aircraft shall expressly
provide that, if the pilot dies while performing the duties specified
in the contract, eligible survivors, if any, of the pilot shall be
paid a one-time death benefit equal to the sum of the following:
(1) The amount of the one-time benefit that the eligible survivors
of the pilot would receive if the pilot were subject to the federal
Public Safety Officers' Death Benefits Act (42 U.S.C. Sec. 3796 et
seq.). This paragraph shall not be applicable if, at the time of the
pilot's death, the eligible survivors of the pilot are entitled to
benefits under that act.
(2) An amount, as determined by the department, that would be
commensurate with the death benefit payable to a mid-career
firefighter employed by the department who died in the line of duty.
(b) The benefits payable pursuant to any contract subject to this
section shall be paid to eligible survivors in a lump sum as follows:
(1) If there is no eligible child, to the surviving spouse.
(2) If there is an eligible child or children and a surviving
spouse, one-half to the child or to the children in equal shares and
one-half to the surviving spouse.
(3) If there is no surviving spouse and there is an eligible child
or children, to the eligible child or in equal shares to the
eligible children.
(4) If there is no surviving spouse nor any eligible child or
children, to the surviving parent or in equal shares to the surviving
parents.
(c) If there are no eligible survivors, no benefit shall be
payable and a pilot may not otherwise designate a beneficiary to
receive the benefits under the contract.
(d) (1) As used in this section, an "eligible survivor" means the
surviving spouse, eligible children, or surviving parents of the
deceased pilot.
(2) "Surviving spouse" means a husband or wife who was married to
the pilot at the time of the pilot's death.
(3) "Eligible child" means an unmarried, natural child of the
deceased pilot who (A) was born before or after the death of the
pilot or is an adopted child or stepchild of the pilot, and (B) is 18
years of age or younger at the time of the pilot's death, or over
the age of 18 years and incapable of self-support due to a physical
or mental disability, or between the age of 18 and 22 years and
pursuing a full-time course of study or training, if the child has
not already completed four years of education beyond high school.
(e) This section shall be applicable irrespective of whether the
department contracts directly with the pilot or contracts with a
third party that employs or contracts with pilots.
(f) Nothing in this section relieves the pilot's employer from the
obligation to secure coverage for workers' compensation; eliminates
or reduces any workers' compensation benefits otherwise available; or
affects, alters, or eliminates any other remedy otherwise available
at law.
SEC. 245. Section 4123 of the Public Resources Code is amended to
read:
4123. (a) The director of the department shall establish a
working group that consists of the following members:
(1) Four representatives from either state or local government, or
both.
(2) Three representatives of industries with experience in state
forestry and fire suppression policy.
(3) Three representatives of environmental groups with experience
in state forestry and fire suppression policy.
(4) Two representatives with experience in state forestry and fire
suppression policy from sectors of the public that are not otherwise
represented in the working group.
(b) The working group established pursuant to subdivision (a)
shall do both of the following:
(1) Identify potential incentives for landowners to implement
prefire activities in state responsibility areas and urban wildland
interface communities.
(2) Identify all federal, state, or local programs, private
programs, and any other programs requiring a cost share that involves
prefire activities.
(c) The department shall report the findings of the working group
to the Legislature on or before January 1, 2004. The department
shall include in the report any recommendations identified by the
working group to provide potential incentives for consideration by
the Legislature.
(d) For the purposes of this section, the following terms mean:
(1) "Prefire activities" means those lawful activities that reduce
the risk of wildfire, including precommercial thinning, selective
harvesting, shaded fuel breaks, brush treatments, grazing, and
prescribed burns.
(2) "Urban wildland interface community" means an area that is
identified by the United States Department of Agriculture and the
United States Department of the Interior as an urban wildland
interface community at high risk from wildfire and listed in the
"List of fire threatened communities in California, Appendix A,"
issued by the Department of Forestry and Fire Protection.
SEC. 246. Section 5090.37 of the Public Resources Code is amended
to read:
5090.37. Eminent domain shall not be exercised to acquire any
interest in property for a state vehicular recreation area, the
California Statewide Motorized Trail, or any grant program area or
trail by the division or any public agency that has entered into a
grant or cooperative agreement with the division.
SEC. 247. Section 5631 of the Public Resources Code is amended to
read:
5631. The department, in cooperation with the federal government,
local public agencies, and appropriate representatives of industry,
shall, from time to time as needed but no less frequently than once
every five years, coordinate and conduct a statewide needs analysis
in relation to the purposes of this chapter. That analysis shall
include a full review of the grant program authorized pursuant to
this chapter. The department shall report its findings and
recommendations from any analysis, including recommendations as to
funding levels and sources in connection with the grant program, to
the Legislature. The department may recommend specific legislative
changes to the program.
SEC. 248. Section 6307.1 of the Public Resources Code is amended
to read:
6307.1. (a) This section applies only to land in which California
has a sovereign interest that lies within the boundaries of the
State of Arizona and land in which Arizona has a sovereign interest
that lies within the boundaries of the State of California, as a
result of changes in the course of the Colorado River, and the
redefinition in 1963 of the boundary between the two states.
(b) The commission may enter into land exchange agreements with
Arizona to transfer California's sovereign interest in land located
within the boundaries of Arizona and to acquire Arizona's sovereign
interest in land located within the boundaries of California.
(c) The fair market value of the land transferred to Arizona shall
be equal to the fair market value of the land acquired from Arizona.
This requirement is not mandatory for each separate exchange
transaction, but to the extent possible shall be complied with upon
completion of all possible exchanges.
(d) The total value of all lands exchanged pursuant to this
section shall be determined according to fair market value. Upon
completion of all possible exchanges, if there is a difference
between the total value of all land transferred to Arizona, and all
land acquired by California, the difference shall be eliminated by
cash payments from or to the Land Bank Fund established by the
Kapiloff Land Bank Act (Division 7 (commencing with Section 8600)).
(e) The commission may release the mineral rights in all the land
transferred if it receives the mineral rights in all the land
acquired.
(f) All land to be acquired by California pursuant to this section
shall become, upon acquisition, sovereign land of California subject
to the public trust. Any exchange shall be void unless the land to
be acquired by Arizona pursuant to the exchange becomes, upon
acquisition, sovereign land of Arizona subject to the public trust.
(g) Any land exchange made pursuant to this section shall be
subject to the exemption from the California Environmental Quality
Act contained in Section 21080.11.
SEC. 249. Section 21061.0.5 of the Public Resources Code is
amended and renumbered to read:
21061.3. "Infill site" means a site in an urbanized area that
meets either of the following criteria:
(a) The immediately adjacent parcels are developed with qualified
urban uses or at least 75 percent of the perimeter of the site
adjoins parcels that are developed with urban uses and the remaining
25 percent of the site adjoins parcels that have previously been
developed for qualified urban uses, and the site has not been
developed for urban uses and no parcel within the site has been
created within the past 10 years.
(b) The site has been previously developed for qualified urban
uses.
SEC. 250. Section 21098 of the Public Resources Code is amended to
read:
21098. (a) For the purposes of this section, the following terms
have the following meanings:
(1) "Low-level flight path" includes any flight path for any
aircraft owned, maintained, or that is under the jurisdiction of the
United States Department of Defense that flies lower than 1,500 feet
above ground level, as indicated in the United States Department of
Defense Flight Information Publication, "Area Planning Military
Training Routes: North and South America (AP/1B)" published by the
United States National Imagery and Mapping Agency.
(2) "Military impact zone" includes any area, including airspace,
that meets both of the following criteria:
(A) Is within two miles of a military installation, including, but
not limited to, any base, military airport, camp, post, station,
yard, center, homeport facility for a ship, or any other military
activity center that is under the jurisdiction of the United States
Department of Defense.
(B) Covers greater than 500 acres of unincorporated land, or
greater than 100 acres of city incorporated land.
(3) "Military service" means any branch of the United States Armed
Forces.
(4) "Special use airspace" means the land area underlying the
airspace that is designated for training, research, development, or
evaluation for a military service, as that land area is established
by the United States Department of Defense Flight Information
Publication, "Area Planning: Special Use Airspace: North and South
America (AP/1A)" published by the United States National Imagery and
Mapping Agency.
(b) If the United States Department of Defense or a military
service notifies a lead agency of the contact office and address for
the military service and the specific boundaries of a low-level
flight path, military impact zone, or special use airspace, the lead
agency shall submit notices, as required pursuant to Sections 21080.4
and 21092, to the military service if the project is within those
boundaries and any of the following apply:
(1) The project includes a general plan amendment.
(2) The project is of statewide, regional, or areawide
significance.
(3) The project is required to be referred to the airport land use
commission, or appropriately designated body, pursuant to Article
3.5 (commencing with Section 21670) of Chapter 4 of Part 1 of
Division 9 of the Public Utilities Code.
(c) The requirement to submit notices imposed by this section does
not apply to any of the following:
(1) Response actions taken pursuant to Chapter 6.8 (commencing
with Section 25300) of Division 20 of the Health and Safety Code.
(2) Response actions taken pursuant to Chapter 6.85 (commencing
with Section 25396) of Division 20 of the Health and Safety Code.
(3) Sites subject to corrective action orders issued pursuant to
Section 25187 of the Health and Safety Code.
(d) (1) The effect or potential effect that a project may have on
military activities does not itself constitute an adverse effect on
the environment for the purposes of this division.
(2) Notwithstanding paragraph (1), a project's impact on military
activities may cause, or be associated with, adverse effects on the
environment that are subject to the requirements of this division,
including, but not limited to, Section 21081.
SEC. 251. Section 25534 of the Public Resources Code is amended to
read:
25534. (a) The commission may, after one or more hearings, amend
the conditions of, or revoke the certification for, any facility for
any of the following reasons:
(1) Any material false statement set forth in the application,
presented in proceedings of the commission, or included in
supplemental documentation provided by the applicant.
(2) Any significant failure to comply with the terms or conditions
of approval of the application, as specified by the commission in
its written decision.
(3) A violation of this division or any regulation or order issued
by the commission under this division.
(4) The owner of a project does not start construction of the
project within 12 months after the date all permits necessary for the
project become final and all administrative and judicial appeals
have been resolved provided the California Consumer Power and
Conservation Financing Authority notifies the commission that it is
willing and able to construct the project pursuant to subdivision
(g). The project owner may extend the 12-month period by 24
additional months pursuant to subdivision (f). This paragraph
applies only to projects with a project permit application deemed
complete by the commission after January 1, 2003.
(b) The commission may also administratively impose a civil
penalty for a violation of paragraph (1) or (2) of subdivision (a).
Any civil penalty shall be imposed in accordance with Section 25534.1
and may not exceed seventy-five thousand dollars ($75,000) per
violation, except that the civil penalty may be increased by an
amount not to exceed one thousand five hundred dollars ($1,500) per
day for each day in which the violation occurs or persists, but the
total of the per day penalties may not exceed fifty thousand dollars
($50,000).
(c) A project owner shall commence construction of a project
subject to the start-of-construction deadline provided by paragraph
(4) of subdivision (a) within 12 months after the project has been
certified by the commission and after all accompanying project
permits are final and administrative and judicial appeals have been
completed. The project owner shall submit construction and
commercial operation milestones to the commission within 30 days
after project certification. Construction milestones shall require
the start of construction within the 12-month period established by
this subdivision. The commission shall approve milestones within 60
days after project certification. If the 30-day deadline to submit
construction milestones to the commission is not met, the commission
shall establish milestones for the project.
(d) The failure of the owner of a project subject to the
start-of-construction deadline provided by paragraph (4) of
subdivision (a) to meet construction or commercial operation
milestones, without a finding by the commission of good cause, shall
be cause for revocation of certification or the imposition of other
penalties by the commission.
(e) A finding by the commission that there is good cause for
failure to meet the start-of-construction deadline required by
paragraph (4) of subdivision (a) or any subsequent milestones of
subdivision (c) shall be made if the commission determines that any
of the following criteria are met:
(1) The change in any deadline or milestone does not change the
established deadline or milestone for the start of commercial
operation.
(2) The deadline or milestone is changed due to circumstances
beyond the project owner's control, including, but not limited to,
administrative and legal appeals.
(3) The deadline or milestone will be missed but the project owner
demonstrates a good faith effort to meet the project deadline or
milestone.
(4) The deadline or milestone will be missed due to unforeseen
natural disasters or acts of God that prevent timely completion of
the project deadline or milestone.
(5) The deadline or milestone will be missed for any other reason
determined reasonable by the commission.
(f) The commission shall extend the start-of-construction deadline
required by paragraph (4) of subdivision (a) by an additional 24
months, if the owner reimburses the commission's actual cost of
licensing the project. For the purposes of this section, the
commission's actual cost of licensing the project shall be based on a
certified audit report filed by the commission staff within 180 days
of the commission's certification of the project. The certified
audit shall be filed and served on all parties to the proceeding, is
subject to public review and comment, and is subject to at least one
public hearing if requested by the project owner. Any reimbursement
received by the commission pursuant to this subdivision shall be
deposited in the General Fund.
(g) If the owner of a project subject to the start-of-construction
deadline provided by paragraph (4) of subdivision (a) fails to
commence construction, without good cause, within 12 months after the
project has been certified by the commission and has not received an
extension pursuant to subdivision (f), the commission shall provide
immediate notice to the California Consumer Power and Conservation
Financing Authority. The authority shall evaluate whether to pursue
the project independently or in conjunction with any other public or
private entity, including the original certificate holder. If the
authority demonstrates to the commission that it is willing and able
to construct the project either independently or in conjunction with
any other public or private entity, including the original
certificate holder, the commission may revoke the original
certification and issue a new certification for the project to the
authority, unless the authority's statutory authorization to finance
or approve new programs, enterprises, or projects has expired. If
the authority declines to pursue the project, the permit shall remain
with the current project owner until it expires pursuant to the
regulations adopted by the commission.
(h) If the commission issues a new certification for a project
subject to the start-of-construction deadline provided by paragraph
(4) of subdivision (a) to the authority, the commission shall adopt
new milestones for the project that allow the authority up to 24
months to start construction of the project or to start to meet the
applicable deadlines or milestones. If the authority fails to begin
construction in conformity with the deadlines or milestones adopted
by the commission, without good cause, the certification may be
revoked.
(i) (1) If the commission issues a new certification for a project
subject to the start-of-construction deadline provided by paragraph
(4) of subdivision (a) to the authority and the authority pursues the
project, without participation of the original certificate holder,
the authority shall offer to reimburse the original certificate
holder for the actual costs the original certificate holder incurred
in permitting the project and in procuring assets associated with the
license, including, but not limited to, major equipment and the
emission offsets. In order to receive reimbursement, the original
certificate holder shall provide to the commission documentation of
the actual costs incurred in permitting the project. The commission
shall validate those costs. The certificate holder may refuse to
accept the offer of reimbursement for any asset associated with the
license and retain the asset. To the extent the certificate holder
chooses to accept the offer for an asset, it shall provide the
authority with the asset.
(2) If the authority reimburses the original certificate holder
for the costs described in paragraph (1), the original certificate
holder shall provide the authority with all of the assets for which
the original certificate holder received reimbursement.
(j) This section does not prevent a certificate holder from
selling its license to construct and operate a project prior to its
revocation by the commission. In the event of a sale to an entity
that is not an affiliate of the certificate holder, the commission
shall adopt new deadlines or milestones for the project that allow
the new certificate holder up to 12 months to start construction of
the project or to start to meet the applicable deadlines or
milestones.
(k) Paragraph (4) of subdivision (a) and subdivisions (c) to (j),
inclusive, do not apply to licenses issued for the modernization,
repowering, replacement, or refurbishment of existing facilities or
to a qualifying small power production facility or a qualifying
cogeneration facility within the meaning of Sections 201 and 210 of
Title II of the federal Public Utility Regulatory Policies Act of
1978 (16 U.S.C. Secs. 796(17), 796(18), and 824a-3), and the
regulations adopted pursuant to those sections by the Federal Energy
Regulatory Commission (18 C.F.R. Parts 292.101 to 292.602,
inclusive), nor shall those provisions apply to any other generation
units installed, operated, and maintained at a customer site
exclusively to serve that facility's load. For the purposes of this
subdivision, "replacement" of an existing facility includes, but is
not limited to, a comparable project at a location different than the
facility being replaced, provided that the commission certifies that
the new project will result in the decommissioning of the existing
facility.
(l) Paragraph (4) of subdivision (a) and subdivisions (c) to (j),
inclusive, do not apply to licenses issued to "local publicly owned
electric utilities" as defined in subdivision (d) of Section 9604 of
the Public Utilities Code whose governing bodies certify to the
commission that the project is needed to meet the projected native
load of the local publicly owned utility.
(m) To implement this section, the commission and the California
Consumer Power and Conservation Financing Authority may, in
consultation with each other, adopt emergency regulations in
accordance with Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code. For purposes of
that chapter, including, without limitation, Section 11349.6 of the
Government Code, the adoption of the regulations shall be considered
by the Office of Administrative Law to be necessary for the immediate
preservation of the public peace, health and safety, or general
welfare.
SEC. 252. Section 30812 of the Public Resources Code is amended to
read:
30812. (a) Whenever the executive director of the commission has
determined, based on substantial evidence, that real property has
been developed in violation of this
division, the executive director may cause a
notification of intention to record a notice of violation to be
mailed by regular and certified mail to the owner of the real
property at issue, describing the real property, identifying the
nature of the violation, naming the owners thereof, and stating that
if the owner objects to the filing of a notice of violation, an
opportunity will be given to the owner to present evidence on the
issue of whether a violation has occurred.
(b) The notification specified in subdivision (a) shall indicate
that the owner is required to respond in writing, within 20 days of
the postmarked mailing of the notification, to object to recording
the notice of violation. The notification shall also state that if,
within 20 days of mailing of the notification, the owner of the real
property at issue fails to inform the executive director of the owner'
s objection to recording the notice of violation, the executive
director shall record the notice of violation in the office of each
county recorder where all or part of the property is located.
(c) If the owner submits a timely objection to the proposed filing
of the notice of violation, a public hearing shall be held at the
next regularly scheduled commission meeting for which adequate public
notice can be provided, at which the owner may present evidence to
the commission why the notice of violation should not be recorded.
The hearing may be postponed for cause for not more than 90 days
after the date of the receipt of the objection to recordation of the
notice of violation.
(d) If, after the commission has completed its hearing and the
owner has been given the opportunity to present evidence, the
commission finds that, based on substantial evidence, a violation has
occurred, the executive director shall record the notice of
violation in the office of each county recorder where all or part of
the real property is located. If the commission finds that no
violation has occurred, the executive director shall mail a clearance
letter to the owner of the real property.
(e) (1) The notice of violation shall be contained in a separate
document prominently entitled "Notice of Violation of the Coastal
Act." The notice of violation shall contain all of the following
information:
(A) The names of the owners of record.
(B) A legal description of the real property affected by the
notice.
(C) A statement specifically identifying the nature of the alleged
violation.
(D) A commission file number relating to the notice.
(2) The notice of violation, when properly recorded and indexed,
shall be considered notice of the violation to all successors in
interest in that property. This notice is for informational purposes
only and is not a defect, lien, or encumbrance on the property.
(f) Within 30 days after the final resolution of a violation that
is the subject of a recorded notice of violation, the executive
director shall mail a clearance letter to the owner of the real
property and shall record a notice of recision in the office of each
county recorder in which the notice of violation was filed,
indicating that the notice of violation is no longer valid. The
notice of recision shall have the same effect of a withdrawal or
expungement under Section 405.61 of the Code of Civil Procedure.
(g) The executive director may not invoke the procedures of this
section until all existing administrative methods for resolving the
violation have been utilized and the property owner has been made
aware of the potential for the recordation of a notice of violation.
For purposes of this subdivision, existing methods for resolving the
violation do not include the commencement of an administrative or
judicial proceeding.
(h) This section only applies in circumstances where the
commission is the legally responsible coastal development permitting
authority or where a local government or port governing body requests
the commission to assist in the resolution of an unresolved
violation if the local government is the legally responsible coastal
development permitting authority.
(i) The commission, 24 months from the date of recordation, shall
review each notice of violation that has been recorded to determine
why the violation has not been resolved and whether the notice of
violation should be expunged.
(j) The commission, at any time and for cause, on its own
initiative or at the request of the property owner, may cause a
notice of recision to be recorded invalidating the notice of
violation recorded pursuant to this section. The notice of recision
shall have the same effect of a withdrawal or expungement under
Section 405.61 of the Code of Civil Procedure.
SEC. 253. Section 30950 of the Public Resources Code, as added by
Chapter 1079 of the Statutes of 1986, is amended and renumbered to
read:
30960. The Secretary of the Resources Agency shall initiate a
comprehensive, long-range planning process for the use of ocean
waters offshore of California, may use the advisory panel appointed
pursuant to paragraph (4) of subdivision (d) of Section 6217 as the
planning committee, and may use the California Sea Grant Program to
promote sound scientific data analysis and assessment in this
planning process.
SEC. 254. Section 31119 of the Public Resources Code is amended to
read:
31119. (a) (1) The conservancy may undertake educational projects
and programs for pupils in kindergarten to grade 12, inclusive,
relating to the preservation, protection, enhancement, and
maintenance of coastal resources, and may award grants to nonprofit
organizations, educational institutions, and public agencies for
those purposes, subject to the limitations contained in subdivision
(b).
(2) An educational grant program established pursuant to paragraph
(1) shall comply with all of the following:
(A) Funds provided for the educational program may be used for
planning and implementation or development of marine science
education programs.
(B) An educational program shall meet State Board of Education
adopted content standards.
(C) The conservancy may consult with the Superintendent of Public
Instruction prior to awarding grants pursuant to this section.
(D) A grant recipient shall use a portion of any funding provided
for an educational program to promote maximum participation of pupils
and schools, by providing scholarships or grants for this purpose.
(E) A nonprofit organization shall comply with all of the
following as a condition of receiving a grant:
(i) Document increased pupil participation in its educational
programs.
(ii) Provide outreach to low-income, underserved, and noncoastal
areas.
(iii) Maintain any data necessary for evaluation, as determined by
the conservancy.
(b) The conservancy is not required to take any action under
subdivision (a), unless and until new funds from sources not
currently available to the conservancy are made available by the
Legislature for the purposes described in subdivision (a). No more
than 10 percent of the funds provided for the educational programs
under subdivision (a) may be used for the costs of the conservancy in
administering the projects. No General Fund money may be used to
fund a grant awarded pursuant to subdivision (a) to a local public
educational agency or community college.
SEC. 255. Section 40507 of the Public Resources Code is amended to
read:
40507. (a) On or before March 1 of each year, the board shall
file an annual report with the Legislature highlighting significant
programs or actions undertaken by the board to implement programs
pursuant to this division during the prior calendar year. The report
shall include, but is not limited to, the information described in
subdivision (b).
(b) Commencing January 1, 1997, the board shall file annual
progress reports with the Legislature covering the activities and
actions undertaken by the board in the prior fiscal year. The board
shall prepare the progress reports throughout the calendar year, as
determined by the board, on the following programs:
(1) The local enforcement agency program.
(2) The research and development program.
(3) The public education program.
(4) The market development program.
(5) The used oil program.
(6) The planning and local assistance program.
(7) The site cleanup program.
(c) The progress report shall specifically include, but is not
limited to, all of the following information:
(1) Pursuant to paragraph (1) of subdivision (b), the status of
the certification and evaluation of local enforcement agencies
pursuant to Chapter 2 (commencing with Section 43200) of Part 4.
(2) Pursuant to paragraph (2) of subdivision (b), all of the
following information:
(A) The results of the research and development programs
established pursuant to Chapter 13 (commencing with Section 42650) of
Part 3.
(B) A report on information and activities associated with the
establishment of the Plastics Recycling Information Clearinghouse,
pursuant to Section 42520.
(C) A report on the progress in implementing the monitoring and
control program for the subsurface migration of landfill gas
established pursuant to Section 43030, including recommendations, as
needed, to improve the program.
(D) A report on the comparative costs and benefits of the
recycling or conversion processes for waste tires funded pursuant to
Chapter 17 (commencing with Section 42860) of Part 3.
(3) Pursuant to paragraph (3) of subdivision (b), all of the
following information:
(A) A review of actions taken by the board to educate and inform
individuals and public and private sector entities who generate solid
waste on the importance of source reduction, recycling, and
composting of solid waste, and recommendations for administrative or
legislative actions which will inform and educate these parties.
(B) A report on the effectiveness of the public information
program required to be implemented pursuant to Chapter 12 (commencing
with Section 42600) of Part 3, including recommendations on
administrative and legislative changes to improve the program.
(C) A report on the status and effectiveness of school district
source reduction and recycling programs implemented pursuant to
Chapter 12.5 (commencing with Section 42620) of Part 3, including
recommendations on administrative and legislative changes to improve
the program's effectiveness.
(D) A report on the effectiveness of the integrated waste
management educational program and teacher training plan implemented
pursuant to Section 42603, including recommendations on
administrative and legislative changes which will improve the
program.
(E) A summary of available and wanted materials, a profile of the
participants, and the amount of waste diverted from disposal sites as
a result of the California Materials Exchange Program established
pursuant to subdivision (a) of Section 42600.
(4) Pursuant to paragraph (4) of subdivision (b), all of the
following information:
(A) A review of market development strategies undertaken by the
board pursuant to this division to ensure that markets exist for
materials diverted from solid waste facilities, including
recommendations for administrative and legislative actions which will
promote expansion of those markets. The recommendations shall
include, but not be limited to, all of the following:
(i) Recommendations for actions to develop more direct liaisons
with private manufacturing industries in the state to promote
increased utilization of recycled feedstock in manufacturing
processes.
(ii) Recommendations for actions which can be taken to assist
local governments in the inclusion of recycling activities in county
overall economic development plans.
(iii) Recommendations for actions to utilize available financial
resources for expansion of recycling industry capacity.
(iv) Recommendations to improve state, local, and private industry
product and material procurement practices.
(B) Development and implementation of a program to assist local
agencies in the identification of markets for materials that are
diverted from disposal facilities through source reduction,
recycling, and composting pursuant to Section 40913.
(C) A report on the Recycling Market Development Zone Loan Program
conducted pursuant to Article 3 (commencing with Section 42010) of
Chapter 1 of Part 3.
(D) A report on implementation of the Compost Market Program
pursuant to Chapter 5 (commencing with Section 42230) of Part 3.
(E) A report on the progress in developing and implementing the
comprehensive Market Development Plan, pursuant to Article 2 of
Chapter 1 (commencing with Section 42005) of Part 3.
(F) The number of retreaded tires purchased by the Department of
General Services during the prior fiscal year pursuant to Section
42414.
(G) The results of the study performed in consultation with the
Department of General Services pursuant to Section 42415 to determine
if tire retreads, procured by the department, have met all quality
and performance criteria of a new tire, including any recommendations
to expand, revise, or curtail the program.
(H) The number of recycled lead-acid batteries purchased during
the prior fiscal year by the Department of General Services pursuant
to Section 42443.
(I) A list of established price preferences for recycled paper
products for the prior fiscal year pursuant to paragraph (1) of
subdivision (c) of Section 12162 of the Public Contract Code.
(J) A report on the implementation of the white office paper
recovery program pursuant to Chapter 10 (commencing with Section
42560) of Part 3.
(5) Pursuant to paragraph (5) of subdivision (b), both of the
following information:
(A) A report on the annual audit of the used oil recycling program
established pursuant to Chapter 4 (commencing with Section 48600) of
Part 7.
(B) A summary of industrial and lubricating oil sales and
recycling rates, the results of programs funded pursuant to Chapter 4
(commencing with Section 48600) of Part 7, recommendations, if any,
for statutory changes to the program, including changes in the
amounts of the payment required by Section 48650 and the recycling
incentive, and plans for present and future programs to be conducted
over the next two years.
(6) Pursuant to paragraph (6) of subdivision (b), all of the
following information:
(A) The development by the board of the model countywide or
regional siting element and model countywide or regional agency
integrated waste management plan pursuant to Section 40912, including
its effectiveness in assisting local agencies.
(B) The adoption by the board of a program to provide assistance
to cities, counties, or regional agencies in the development and
implementation of source reduction programs pursuant to subdivision
(c) of Section 40912.
(C) The development by the board of model programs and materials
to assist rural counties and cities in preparing city and county
source reduction and recycling elements pursuant to Section 41787.3.
(D) A report on the number of tires that are recycled or otherwise
diverted from disposal in landfills or stockpiles.
(E) A report on the development and implementation of
recommendations, with proposed implementing regulations, for
providing technical assistance to counties and cities that meet
criteria specified in Section 41782, so that those counties and
cities will be able to meet the objectives of this division. The
recommendations shall, among other things, address both of the
following matters:
(i) Assistance in developing methods of raising revenue at the
local level to fund rural integrated waste management programs.
(ii) Assistance in developing alternative methods of source
reduction, recycling, and composting of solid waste suitable for
rural local governments.
(F) A report on the status and implementation of the "Buy Recycled"
program established pursuant to subdivision (d) of Section 42600,
including the waste collection and recycling programs established
pursuant to Sections 12164.5 and 12165 of the Public Contract Code.
(7) Pursuant to paragraph (7) of subdivision (b), a description of
sites cleaned up under the Solid Waste Disposal and Codisposal Site
Cleanup Program established pursuant to Article 2.5 (commencing with
Section 48020) of Chapter 2 of Part 7, a description of remaining
sites where there is no responsible party or the responsible party is
unable or unwilling to pay for cleanup, and recommendations for any
needed legislative changes.
SEC. 256. Section 334 of the Public Utilities Code is amended to
read:
334. The Legislature finds and declares that in order to ensure
the success of electric industry restructuring, in the transition to
a new market structure it is important to ensure a reliable supply of
electricity. Reliable electric service is of paramount importance
to the safety, health, and comfort of the people of California.
Transmission connections between electric utilities allow them to
share generation resources and reduce the number of powerplants
necessary to maintain a reliable system. The connections between
utilities also create exposure to events that can cause widespread
and extended transmission and service outages that reach far beyond
the originating utility service area. California utilities and those
in the western United States voluntarily adhere to reliability
standards developed by the Western Electricity Coordinating Council.
The economic cost of extended electricity outages, such as those
that occurred in California and throughout the Western Electricity
Coordinating Council on July 2, 1996, and August 10, 1996, to
California's residential, commercial, agricultural, and industrial
customers is significant. The proposed restructuring of the
electricity industry would transfer responsibility for ensuring
short- and long-term reliability away from electric utilities and
regulatory bodies to the Independent System Operator and various
market-based mechanisms. The Legislature has an interest in ensuring
that the change in the locus of responsibility for reliability does
not expose California citizens to undue economic risk in connection
with system reliability.
SEC. 257. Section 345 of the Public Utilities Code is amended to
read:
345. The Independent System Operator shall ensure efficient use
and reliable operation of the transmission grid consistent with
achievement of planning and operating reserve criteria no less
stringent than those established by the Western Electricity
Coordinating Council and the North American Electric Reliability
Council.
SEC. 258. Section 346 of the Public Utilities Code is amended to
read:
346. The Independent System Operator shall immediately
participate in all relevant Federal Energy Regulatory Commission
proceedings. The Independent System Operator shall ensure that
additional filings at the Federal Energy Regulatory Commission
request confirmation of the relevant provisions of this chapter and
seek the authority needed to give the Independent System Operator the
ability to secure generating and transmission resources necessary to
guarantee achievement of planning and operating reserve criteria no
less stringent than those established by the Western Electricity
Coordinating Council and the North American Electric Reliability
Council.
SEC. 259. Section 350 of the Public Utilities Code is amended to
read:
350. The Independent System Operator, in consultation with the
California Energy Resources Conservation and Development Commission,
the Public Utilities Commission, the Western Electricity Coordinating
Council, and concerned regulatory agencies in other western states,
shall within six months after the Federal Energy Regulatory
Commission approval of the Independent System Operator, provide a
report to the Legislature and to the Oversight Board that does the
following:
(a) Conducts an independent review and assessment of Western
Electricity Coordinating Council operating reliability criteria.
(b) Quantifies the economic cost of major transmission outages
relating to the Pacific Intertie, Southwest Power Link, DC link, and
other important high voltage lines that carry power both into and
from California.
(c) Identifies the range of cost-effective options that would
prevent or mitigate the consequences of major transmission outages.
(d) Identifies communication protocols that may be needed to be
established to provide advance warning of incipient problems.
(e) Identifies the need for additional generation reserves and
other voltage support equipment, if any, or other resources that may
be necessary to carry out its functions.
(f) Identifies transmission capacity additions that may be
necessary at certain times of the year or under certain conditions.
(g) Assesses the adequacy of current and prospective institutional
provisions for the maintenance of reliability.
(h) Identifies mechanisms to enforce transmission right-of-way
maintenance.
(i) Contains recommendations regarding cost-beneficial
improvements to electric system reliability for the citizens of
California.
SEC. 260. Section 360 of the Public Utilities Code is amended to
read:
360. The commission shall ensure that existing, and if necessary,
additional filings at the Federal Energy Regulatory Commission
request confirmation of the relevant provisions of this chapter and
seek the authority needed to give the Independent System Operator the
ability to secure generating and transmission resources necessary to
guarantee achievement of planning and operating reserve criteria no
less stringent than those established by the Western Electricity
Coordinating Council and the North American Electric Reliability
Council.
SEC. 261. Section 362 of the Public Utilities Code is amended to
read:
362. (a) In proceedings pursuant to Section 455.5, 851, or 854,
the commission shall ensure that facilities needed to maintain the
reliability of the electric supply remain available and operational,
consistent with maintaining open competition and avoiding an
overconcentration of market power. In order to determine whether the
facility needs to remain available and operational, the commission
shall utilize standards that are no less stringent than the Western
Electricity Coordinating Council and North American Electric
Reliability Council standards for planning reserve criteria.
(b) The commission shall require that generation facilities
located in the state that have been disposed of in proceedings
pursuant to Section 851 are operated by the persons or corporations
who own or control them in a manner that ensures their availability
to maintain the reliability of the electric supply system.
SEC. 262. Section 394.25 of the Public Utilities Code is amended
to read:
394.25. (a) The commission may enforce Sections 2102, 2103, 2104,
2105, 2107, 2108, and 2114 against electric service providers as if
those electric service providers were public utilities as defined in
these code sections. Notwithstanding the above, nothing in this
section grants the commission jurisdiction to regulate electric
service providers other than as specifically set forth in this part.
Electric service providers shall continue to be subject to Sections
2111 and 2112. Upon a finding by the commission's executive director
that there is evidence to support a finding that the electric
service provider has committed an act constituting grounds for
suspension or revocation of registration as set forth in subdivision
(b) of Section 394.25, the commission shall notify the electric
service provider in writing and notice an expedited hearing on the
suspension or revocation of the electric service provider's
registration to be held within 30 days of the notification to the
electric service provider of the executive director's finding of
evidence to support suspension or revocation of registration. The
commission shall, within 45 days after holding the hearing, issue a
decision on the suspension or revocation of registration, which shall
be based on findings of fact and conclusions of law based on the
evidence presented at the hearing. The decision shall include the
findings of fact and the conclusions of law relied upon.
(b) An electric service provider may have its registration
suspended or revoked, immediately or prospectively, in whole or in
part, for any of the following acts:
(1) Making material misrepresentations in the course of soliciting
customers, entering into service agreements with those customers, or
administering those service agreements.
(2) Dishonesty, fraud, or deceit with the intent to substantially
benefit the electric service provider or its employees, agents, or
representatives, or to disadvantage retail electricity customers.
(3) Where the commission finds that there is evidence that the
electric service provider is not financially or operationally capable
of providing the offered electric service.
(4) The misrepresentation of a material fact by an applicant in
obtaining a registration pursuant to Section 394.
(c) Pursuant to its authority to revoke or suspend registration,
the commission may suspend a registration for a specified period or
revoke the registration, or in lieu of suspension or revocation,
impose a moratorium on adding or soliciting additional customers.
Any suspension or revocation of a registration shall require the
electric service provider to cease serving customers within the
boundaries of investor-owned electrical corporations, and the
affected customers shall be served by the electrical corporation
until the time when they may select service from another service
provider. Customers shall not be liable for the payment of any early
termination fees or other penalties to any electric service provider
under the service agreement if the serving electric service provider'
s registration is suspended or revoked.
(d) The commission shall require any electric service provider
whose registration is revoked pursuant to paragraph (4) of
subdivision (b) to refund all of the customer credit funds that the
electric service provider received from the State Energy Resources
Conservation and Development Commission pursuant to paragraph (1) of
subdivision (f) of Section 383.5. The repayment of these funds shall
be in addition to all other penalties and fines appropriately
assessed the electric service provider for committing those acts
under other provisions of law. All customer credit funds refunded
under this subdivision shall be deposited in the Renewable Resource
Trust Fund for
redistribution by the State Energy Resources Conservation and
Development Commission pursuant to Section 383.5. This subdivision
may not be construed to apply retroactively.
(e) If a customer of an electric service provider or a community
choice aggregator is involuntarily returned to service provided by an
electrical corporation, any reentry fee imposed on that customer
that the commission deems is necessary to avoid imposing costs on
other customers of the electric corporation shall be the obligation
of the electric service provider or a community choice aggregator,
except in the case of a customer returned due to default in payment
or other contractual obligations or because the customer's contract
has expired. As a condition of its registration, an electric service
provider or a community choice aggregator shall post a bond or
demonstrate insurance sufficient to cover those reentry fees. In the
event that an electric service provider becomes insolvent and is
unable to discharge its obligation to pay reentry fees, the fees
shall be allocated to the returning customers.
SEC. 263. Section 398.4 of the Public Utilities Code is amended to
read:
398.4. (a) Every retail supplier that makes an offering to sell
electricity that is consumed in California shall disclose its
electricity sources. A retail supplier that does not make any claims
that identify its electricity sources as different than net system
power may disclose net system power. Every retail supplier that
makes an offering to sell electricity that is consumed in California
and makes any claims that identify any of its electricity sources as
different than net system power shall disclose these sources as
specific purchases.
(b) The disclosures required by this section shall be made to
potential end-use consumers in all product-specific written
promotional materials that are distributed to consumers by either
printed or electronic means, except that advertisements and notices
in general circulation media shall not be subject to this
requirement.
(c) The disclosures required by this section shall be made at
least quarterly to end-use consumers of the offered electricity.
(d) The disclosures required by this section shall be made
separately for each offering made by the retail supplier.
(e) On or before January 1, 1998, the California Energy Resources
Conservation and Development Commission shall specify guidelines for
the format and means for disclosure required by Section 398.3 and
this section, based on the requirements of this article and subject
to public hearing.
(f) The costs of making the disclosures required by this section
shall be considered to be generation-related.
(g) The disclosures required by this section shall be expressed as
a percentage of annual sales derived from each of the following
categories, unless no specific purchases are disclosed, in which case
only the first category shall be disclosed:
(1) Net system power.
(2) Specific purchases.
(h) (1) Each of the categories specified in subdivision (g) shall
be additionally identified as a percentage of annual sales that is
derived from each fuel type of the categories specified as follows:
(A) Coal.
(B) Large hydroelectric (greater than 30 megawatts).
(C) Natural gas.
(D) Nuclear.
(E) Other.
(F) Eligible renewables, which means renewable resource
technologies defined as electricity produced from other than a
conventional power source within the meaning of Section 2805,
provided that a power source utilizing more than 25 percent fossil
fuel may not be included, shall be additionally identified as a
percentage of annual sales that is derived from each fuel type of the
subcategories specified as follows:
(i) Biomass and waste.
(ii) Geothermal.
(iii) Small hydroelectric (less than or equal to 30 megawatts).
(iv) Solar.
(v) Wind.
(2) The category "Other" shall be used for fuel types other than
those listed above that represent less than 2 percent of net system
power. The California Energy Resources Conservation and Development
Commission may specify additional categories or change these
categories, consistent with the requirements of this article and
subject to public hearing, if it determines that the changes will
facilitate the disclosure objectives of this section.
(i) All electricity sources disclosed as specific purchases shall
meet the requirements of subdivision (b) of Section 398.2.
(j) Specific purchases identified pursuant to this section shall
be from sources connected to the Western Electricity Coordinating
Council interconnected grid.
(k) Net system power shall be disclosed for the most recent
calendar year available. Disclosure of net system power shall be
accompanied by this qualifying note: "The State of California
determines this net system power mix annually; your actual
electricity purchases may vary." The California Energy Resources
Conservation and Development Commission may modify this note,
consistent with the requirements of this article and subject to
public hearing, if it determines that the changes will facilitate the
disclosure objectives of this section.
(l) For each offering made by a retail supplier for which specific
purchases are disclosed, the retail supplier shall disclose
projected specific purchases for the current calendar year.
Projected specific purchases need not be disclosed by numerical
percentage at the subcategory level identified in subparagraph (F) of
paragraph (1) of subdivision (h). On or before April 15, 1999, and
annually thereafter, every retail supplier that discloses specific
purchases shall also disclose to its customers, separately for each
offering made by the retail supplier, its actual specific purchases
for the previous calendar year consistent with information provided
to the California Energy Resources Conservation and Development
Commission pursuant to Section 398.5. Disclosure of projected
specific purchases and actual specific purchases shall each be
accompanied by statements identifying whether the data are projected
or actual, as developed by the California Energy Resources
Conservation and Development Commission, subject to public hearing.
(m) The provisions of this section shall not apply to generators
providing electric service onsite, under an over-the-fence
transaction as described in Section 218, or to an affiliate or
affiliates, as defined in subdivision (a) of Section 372.
SEC. 264. Section 5411.5 of the Public Utilities Code is amended
to read:
5411.5. (a) Whenever a peace officer arrests a person for a
violation of Section 5411 involving the operation of a charter-party
carrier of passengers without a valid certificate or permit at a
public airport, within 100 feet of a public airport, or within two
miles of the international border between the United States and
Mexico, the peace officer may impound and retain possession of the
vehicle used in violation of Section 5411.
(b) If the vehicle is seized from a person who is not the owner of
the vehicle, the impounding authority shall immediately give notice
to the owner by first-class mail.
(c) The vehicle shall immediately be returned to the owner without
cost to the owner if the infraction or violation is not prosecuted
or is dismissed, the owner is found not guilty of the offense, or it
is determined that the vehicle was used in violation of Section 5411
without the knowledge and consent of the owner. Otherwise, the
vehicle shall be returned to the owner upon payment of any fine
ordered by the court. After the expiration of six weeks from the
final disposition of the criminal case, the impounding authority may
deal with the vehicle as lost or abandoned property under Section
1411 of the Penal Code.
(d) At any time, a person may make a motion in superior court for
the immediate return of the vehicle on the ground that there was no
probable cause to seize it or that there is some other good cause, as
determined by the court, for the return of the vehicle. A
proceeding under this section is a limited civil case.
(e) No peace officer, however, may impound any vehicle owned or
operated by a nonprofit organization exempt from taxation pursuant to
Section 501(c)(3) of the Internal Revenue Code which serves youth or
senior citizens and provides transportation incidental to its
programs or services.
SEC. 265. Section 7000 of the Public Utilities Code is amended to
read:
7000. (a) For purposes of this chapter, a utility shall mean all
of the following:
(1) An electric corporation, as defined in Section 218.
(2) A water corporation, as defined in Section 241.
(3) A telephone corporation, as defined in Section 234.
(4) A telecommunications carrier, as defined in Section 153 of
Title 47 of the United States Code.
(5) A gas corporation, as defined in Section 222.
(6) A local publicly owned electric utility, as defined in Section
9604, and a publicly owned gas utility.
(7) A special district that owns or operates utilities.
(b) This chapter shall also apply to the following entities:
(1) A cable television corporation, as defined in Section 215.5.
(2) A cable operator, as defined in Section 522 of Title 47 of the
United States Code.
SEC. 266. Section 15704 of the Public Utilities Code is amended to
read:
15704. Each petition shall name or describe the territory within
which the registered voters signing it reside. Every petition shall
set forth the boundaries and name of the proposed district, which
shall include the words "public utility district." Every petition
shall contain a prayer that a public utility district comprising all
of the proposed territory, or any portions thereof as are designated
in the petitions as essential to its formation, be incorporated
pursuant to this division. Every registered voter signing a petition
shall write his or her address opposite his or her signature.
SEC. 267. Section 132353.2 of the Public Utilities Code is amended
to read:
132353.2. (a) A transition plan for the transfer of project
development and construction responsibilities of the transit boards
and the financial resources therefore to the consolidated agency
shall be developed by the consolidated agency in consultation with
the transit boards to ensure the efficient and timely transfer of the
transit boards' project development and construction functions and
responsibilities to the consolidated agency no later than September
30, 2003. The transfer and consolidation of project development and
construction functions and responsibilities and the funding therefore
shall occur no later than January 30, 2004, and shall be referred to
as the subsequent transfer.
(b) The transition plans should define the functional roles and
responsibilities of the consolidated agency and the transit boards
and should define, in the applicable transition plan, service and
operational planning, programming, project development, and
construction. The transition plans should acknowledge a strong
linkage between service planning and operations scheduling.
(c) Local route planning and scheduling and local financial
planning therefor, would continue to be the responsibility of the
transit boards in accordance with guidelines provided by the
consolidated agency. The initial transition plan would include the
development of guidelines and would define local route planning.
(d) Notwithstanding the provisions of Section 132353.2, at any
time after the initial transfer, the consolidated agency may enter
into individual agreements with the MTDB or the NCTD for the transfer
and consolidation of any or all functions, personnel, and funding of
either agency, except those functions set forth in Section 132354.5,
to the consolidated agency on terms and conditions as may be
mutually agreed upon.
(e) The MTDB and the NCTD shall continue to be a claimant,
applicant, and grantee of local, state, and federal grants until the
transfer and consolidation of functions or responsibilities to the
consolidated agency pursuant to a transition plan at which time the
consolidated agency shall become the claimant, applicant, and grantee
for these funds. Except for funds which are transferred to the
consolidated agency pursuant to a transition plan, the MTDB and the
NCTD shall continue to receive funding pursuant to Article 4
(commencing with Section 99260) and Article 4.5 (commencing with
Section 99275) of the Transportation Development Act in Chapter 4 of
Part 11 of Division 10 and the State Transportation Assistance Fund
in accordance with state law. Except for funds which are transferred
to the consolidated agency pursuant to a transition plan, the MTDB
and the NCTD shall continue to receive the Federal Section 5307
Urbanized Area Formula funds pursuant to federal statute. These
funds should be allocated in a manner which will help enable the
transit boards to meet their obligations and responsibilities
recognizing the methodology and historic funding levels that have
previously guided these funding decisions. The consolidated agency
shall conduct a periodic review of the allocation and methodology for
all formula-based funding.
(f) The consolidated agency and the MTDB and the NCTD shall work
together to obtain funds for transit projects and services.
(g) It is the intent of the Legislature that future consolidation
of transit operations of the MTDB and the NCTD into the consolidated
agency should be comprehensively evaluated by the consolidated
agency. This consolidation shall be referred to as a complete
consolidation and shall be implemented only if it is considered to be
appropriate by the consolidated agency and approved by a statute
enacted by the Legislature.
SEC. 268. Section 132370.5 of the Public Utilities Code is amended
to read:
132370.5. The consolidated agency shall be considered to be a
"local agency" as defined in subdivision (f) of Section 6585 of the
Government Code and the provisions of Article 4 (commencing with
Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government
Code are applicable to the consolidated agency.
SEC. 269. Section 132370.6 of the Public Utilities Code is amended
to read:
132370.6. The consolidated agency may borrow money in accordance
with Article 7 (commencing with Section 53820), Article 7.6
(commencing with Section 53850), or Article 7.7 (commencing with
Section 53859) of Chapter 4 of Part 1 of Division 2 of Title 5 of the
Government Code.
SEC. 270. Section 132632 of the Public Utilities Code is amended
and renumbered to read:
132362. In addition to the authority set forth in Article 5
(commencing with Section 132300) and Article 6 (commencing with
Section 132320) of Chapter 2 of Division 12.7, if the consolidated
agency provides compensation to San Diego County for the cost of
including an ordinance or measure on the ballot, the consolidated
agency may call an election, including an advisory election, in San
Diego County on any ordinance or measure regarding the governance of
or matters related to the powers, privileges, or duties of the
consolidated agency, including, but not limited to, merger or
complete consolidation of the transit boards.
SEC. 271. Section 132634 of the Public Utilities Code is amended
and renumbered to read:
132364. The county shall conduct an election, including an
advisory election, called by the consolidated agency in the same
manner as provided by law for the conduct of elections by a county.
SEC. 272. Section 96.1 of the Revenue and Taxation Code is amended
to read:
96.1. (a) Except as otherwise provided in Article 3 (commencing
with Section 97), and in Article 4 (commencing with Section 98), for
the 1980-81 fiscal year and each fiscal year thereafter, property tax
revenues shall be apportioned to each jurisdiction pursuant to this
section and Section 96.2 by the county auditor, subject to allocation
and payment of funds as provided for in subdivision (b) of Section
33670 of the Health and Safety Code, to each jurisdiction in the
following manner:
(1) For each tax rate area, each jurisdiction shall be allocated
an amount of property tax revenue equal to the amount of property tax
revenue allocated pursuant to this chapter to each jurisdiction in
the prior fiscal year, modified by any adjustments required by
Section 99 or 99.02.
(2) The difference between the total amount of property tax
revenue and the amounts allocated pursuant to paragraph (1) shall be
allocated pursuant to Section 96.5, and shall be known as the "annual
tax increment."
(3) For purposes of this section, the amount of property tax
revenue referred to in paragraph (1) shall not include amounts
generated by the increased assessments under Chapter 3.5 (commencing
with Section 75).
(b) Any allocation of property tax revenue that was subjected to a
prior completed audit by the Controller, pursuant to the
requirements of Section 12468 of the Government Code, where all
findings have been resolved, shall be deemed correct.
(c) (1) Guidelines for legislation implementation issued and
determined necessary by the State Association of County Auditors, and
when adopted as regulations by either the Controller or the
Department of Finance pursuant to Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code, shall be considered an authoritative source deemed correct
until some future clarification by legislation or court decision.
(2) If a county auditor knowingly does not follow the guidelines
referred to in paragraph (1), that county auditor shall inform the
Controller of the reason or reasons for not following the guidelines.
If the Controller disagrees with the stated reason or reasons for
not following the guidelines, the provisions of paragraph (3) do not
apply.
(3) If, by audit begun on or after July 1, 2001, or discovery by
an entity on or after July 1, 2001, it is determined that an
allocation method is required to be adjusted and a reallocation is
required for previous fiscal years, the cumulative reallocation or
adjustment may not exceed 1 percent of the total amount levied at a 1
percent rate of the current year's original secured tax roll. The
reallocation shall be completed in equal increments within the
following three fiscal years, or as negotiated with the Controller in
the case of reallocation to the Educational Revenue Augmentation
Fund or school entities.
(4) If it is determined that an allocation method is required to
be adjusted as provided in paragraph (3), the county auditor shall,
in the fiscal year following the fiscal year in which this
determination is made, correct the allocation method in accordance
with statute.
SEC. 273. Section 408 of the Revenue and Taxation Code is amended
to read:
408. (a) Except as otherwise provided in subdivisions (b), (c),
(d), and (e), any information and records in the assessor's office
that are not required by law to be kept or prepared by the assessor,
and homeowners' exemption claims, are not public documents and shall
not be open to public inspection. Property receiving the homeowners'
exemption shall be clearly identified on the assessment roll. The
assessor shall maintain records which shall be open to public
inspection to identify those claimants who have been granted the
homeowners' exemption.
(b) The assessor may provide any appraisal data in his or her
possession to the assessor of any county.
The assessor shall disclose information, furnish abstracts, or
permit access to all records in his or her office to law enforcement
agencies, the county grand jury, the board of supervisors or their
duly authorized agents, employees, or representatives when conducting
an investigation of the assessor's office pursuant to Section 25303
of the Government Code, the Controller, employees of the Controller
for property tax postponement purposes, probate referees, employees
of the Franchise Tax Board for tax administration purposes only,
staff appraisers of the Department of Financial Institutions, the
Department of Transportation, the Department of General Services, the
State Board of Equalization, the State Lands Commission, the State
Department of Social Services, the Department of Child Support
Services, the Department of Water Resources, and other duly
authorized legislative or administrative bodies of the state pursuant
to their authorization to examine the records. Whenever the
assessor discloses information, furnishes abstracts, or permits
access to records in his or her office to staff appraisers of the
Department of Financial Institutions, the Department of
Transportation, the Department of General Services, the State Lands
Commission, or the Department of Water Resources pursuant to this
section, the department shall reimburse the assessor for any costs
incurred as a result thereof.
(c) Upon the request of the tax collector, the assessor shall
disclose and provide to the tax collector information used in the
preparation of that portion of the unsecured roll for which the taxes
thereon are delinquent. The tax collector shall certify to the
assessor that he or she needs the information requested for the
enforcement of the tax lien in collecting those delinquent taxes.
Information requested by the tax collector may include social
security numbers, and the assessor shall recover from the tax
collector his or her actual and reasonable costs for providing the
information. The tax collector shall add the costs described in the
preceding sentence to the assessee's delinquent tax lien and collect
those costs subject to subdivision (e) of Section 2922.
(d) The assessor shall, upon the request of an assessee or his or
her designated representative, permit the assessee or representative
to inspect or copy any market data in the assessor's possession. For
purposes of this subdivision, "market data" means any information in
the assessor's possession, whether or not required to be prepared or
kept by him or her, relating to the sale of any property comparable
to the property of the assessee, if the assessor bases his or her
assessment of the assessee's property, in whole or in part, on that
comparable sale or sales. The assessor shall provide the names of
the seller and buyer of each property on which the comparison is
based, the location of that property, the date of the sale, and the
consideration paid for the property, whether paid in money or
otherwise. However, for purposes of providing market data, the
assessor may not display any document relating to the business
affairs or property of another.
(e) (1) With respect to information, documents, and records, other
than market data as defined in subdivision (d), the assessor shall,
upon request of an assessee of property, or his or her designated
representative, permit the assessee or representative to inspect or
copy all information, documents, and records, including auditors'
narrations and workpapers, whether or not required to be kept or
prepared by the assessor, relating to the appraisal and the
assessment of the assessee's property, and any penalties and interest
thereon.
(2) After enrolling an assessment, the assessor shall respond to a
written request for information supporting the assessment,
including, but not limited to, any appraisal and other data requested
by the assessee.
(3) Except as provided in Section 408.1, an assessee, or his or
her designated representative, may not be permitted to inspect or
copy information and records that also relate to the property or
business affairs of another, unless that disclosure is ordered by a
competent court in a proceeding initiated by a taxpayer seeking to
challenge the legality of the assessment of his or her property.
(f) (1) Permission for the inspection or copying requested
pursuant to subdivision (d) or (e) shall be granted as soon as
reasonably possible to the assessee or his or her designated
representative.
(2) If the assessee, or his or her designated representative,
requests the assessor to make copies of any of the requested records,
the assessee shall reimburse the assessor for the reasonable costs
incurred in reproducing and providing the copies.
(3) If the assessor fails to permit the inspection or copying of
materials or information as requested pursuant to subdivision (d) or
(e) and the assessor introduces any requested materials or
information at any assessment appeals board hearing, the assessee or
his or her representative may request and shall be granted a
continuance for a reasonable period of time. The continuance shall
extend the two-year period specified in subdivision (c) of Section
1604 for a period of time equal to the period of continuance.
SEC. 274. Section 426 of the Revenue and Taxation Code is amended
to read:
426. (a) Notwithstanding any provision of Section 423 to the
contrary, if either the county, city, or nonprofit organization or
the owner of land subject to contract, agreement, scenic restriction,
or open-space easement has served notice of nonrenewal as provided
in Section 51091, 51245, or 51296.9 of the Government Code, and the
county assessors shall, unless the parties shall have subsequently
rescinded the contract pursuant to Section 51254 or 51255 of the
Government Code, value the land as provided in this section.
(b) If the owner of land serves notice of nonrenewal or the
county, city, or nonprofit organization serves notice of nonrenewal
and the owner fails to protest as provided in Section 51091, 51245,
or 51296.9 of the Government Code, subdivision (c) shall apply
immediately. If the county, city, or nonprofit organization serves
notice of nonrenewal and the owner does protest as provided in
Section 51091, 51245, or 51296 of the Government Code, subdivision
(c) shall apply when less than six years remain until the termination
of the period for which the land is enforceably restricted.
(c) Where any of the conditions in subdivision (b) apply, the
board or assessor in each year until the termination of the period
for which the land is enforceably restricted shall do all of the
following:
(1) Determine the value of the land pursuant to Section 110.1. If
the land is not subject to Section 110.1 when the restriction
expires, the value shall be determined pursuant to Section 110 as if
it were free of contractual restriction. If the land will be subject
to a use for which this code provides a special restricted
assessment, the value shall be determined as if it were subject to
the new restriction.
(2) Determine the value of the land by capitalization of income as
provided in Section 423 and without regard to the existence of any of
the conditions in subdivision (b).
(3) Subtract the value determined in paragraph (2) of subdivision
(c) by capitalization of income from the full value determined in
paragraph (1).
(4) Using the rate announced by the board pursuant to paragraph
(1) of subdivision (b) of Section 423, discount the amount obtained
in paragraph (3) for the number of years remaining until the
termination of the contract, agreement, scenic restriction, or
open-space easement.
(5) Determine the value of the land by adding the value determined
by capitalization of income as provided in paragraph (2) and the
value obtained in paragraph (4).
(6) Apply the ratio prescribed in Section 401 to the value of the
land determined in paragraph (5) to obtain its assessed value.
SEC. 275. Section 998 of the Revenue and Taxation Code is amended
to read:
998. (a) The full value of a time-share estate or a time-share
use subject to tax under this division shall be determined by finding
the real property value of the interest involved and shall not
include the value of any nonreal property items, including, but not
limited to, vacation exchange rights, vacation conveniences and
services, and club memberships. Accordingly, the full value of a
time-share estate or time-share use may be determined by reference to
resort properties, condominiums, cooperatives, or other properties
which are similar in size, type, and location to the property subject
to time-share ownership and are not owned on a time-share basis.
The aggregate assessed value of all the time-share estates or uses
relating to a single lot, parcel, unit, or other segment of real
property shall be determined by adding (1) the fair market value of
the similar lot, parcel, unit, or other segment not owned on a
time-share basis, and (2) an amount necessary to reflect any increase
or decrease to the market value attributable to the fact that the
property is marketed in increments of time, or by any alternate
method which will determine the real property value without regard to
any nonreal property items which may be included.
(b) Nothing in this section shall authorize a reassessment of real
property as a result of the creation or transfer of a time-share
interest in the property unless the creation or transfer of the
time-share interest constitutes a change in ownership under Chapter 2
(commencing with Section 60) of Part 2 and Section 2 of Article XIII
A of the California Constitution.
(c) For purposes of this section, "time-share estate" and
"time-share use" shall have the meanings set forth in Section 11003.5
of the Business and Professions Code, and "time-share interest"
shall refer to both time-share estates and time-share uses.
(d) Nothing in this section may be construed as requiring the
assessment of any property at less than fair market value as required
by Section 401.
SEC. 276. Section 2921.5 of the Revenue and Taxation Code is
amended to read:
2921.5. Taxes, penalties, and costs on unsecured property, as
defined in subdivision (b) of Section 134, shall be transferred from
the "secured roll" to the "unsecured roll" of the corresponding year
by the county auditor on order of the board of supervisors with the
written consent of the county legal advisor pursuant to Article 5
(commencing with Section 5081) of Chapter 4 of Part 9 at the same
time the taxes are canceled on the property, and shall be collected
in the same manner as other delinquent taxes on the "unsecured roll."
Amounts transferred pursuant to this section continue to be subject
to delinquent penalties until the amounts are paid and are
collectible from either the person from whom the property was
acquired or the public entity that acquired the property.
SEC. 277. Section 7280 of the Revenue and Taxation Code is amended
to read:
7280. (a) The legislative body of any city or county may levy a
tax on the privilege of occupying a room or rooms, or other living
space, in a hotel, inn, tourist home or house, motel, or other
lodging unless the occupancy is for any period of more than 30 days.
The tax when levied by the legislative body of a county shall apply
only to the unincorporated areas of the county.
(b) For purposes of this section, the term "the privilege of
occupying a room or rooms, or other living space, in a hotel, inn,
tourist home or house, motel, or other lodging" does not include the
right of an owner of a time-share estate in a room or rooms in a
time-share project, or the owner of a membership camping contract in
a camping site at a campground, or the guest of the owner, to occupy
the room, rooms, camping site, or other real property in which the
owner retains that interest.
For purposes of this subdivision:
(1) "Time-share estate" means a time-share estate, as defined by
Section 11003.5 of the Business and Professions Code.
(2) "Membership camping contract" means a right or license as
defined by subdivision (b) of Section 1812.300 of the Civil Code.
(3) "Guest of that owner" means a person who does either of the
following:
(A) Occupies real property accompanied by the owner of either of
the following:
(i) A time-share estate in that real property.
(ii) A camping site in a campground pursuant to a right or license
under a membership camping contract.
(B) Exercises that owner's right of occupancy without payment of
any compensation to the owner.
"Guest of that owner" specifically includes a person occupying a
time-share unit or a camping site in a campground pursuant to any
form of exchange program.
(c) For purposes of this section, "other lodging" includes, but is
not limited to, a camping site or a space at a campground or
recreational vehicle park, but does not include any of the following:
(1) Any facilities operated by a local government entity.
(2) Any lodging excluded pursuant to subdivision (b).
(3) Any campsite excluded from taxation pursuant to Section 7282.
(d) Subdivision (b) shall not affect or apply to the authority of
any city or county to collect a transient occupancy tax from
time-share projects which were in existence as of May 1, 1985, and
which time-share projects were then subject to a transient occupancy
tax imposed by an ordinance duly enacted prior to May 1, 1985,
pursuant to this section. The act adding this subdivision shall not
in any way affect any litigation pending on or prior to December 31,
1985.
SEC. 278. Section 7286.24 of the Revenue and Taxation Code is
amended to read:
7286.24. (a) (1) In addition to any tax levied pursuant to Part
1.5 (commencing with Section 7200) and any other tax authorized by
this part, and subject to paragraph (2), a qualified city may levy a
transactions and use tax at a rate of 0.25 percent, or a multiple
thereof not to exceed 1 percent, if both of the following conditions
are met:
(A) An ordinance proposing the transactions and use tax is
approved by a majority vote of all the members of the city council.
(B) The proposing ordinance is approved by a two-thirds majority
of qualified voters of the city in an election on the issue.
(2) (A) Any transactions and use tax levied under this section
shall be levied pursuant to the Transactions and Use Tax Law (Part
1.6 (commencing with Section 7251)).
(B) The net revenues derived from a tax levied under this section
shall be exclusively expended for the maintenance, repair,
replacement, construction, or reconstruction of the qualified city's
road system.
(b) For purposes of this section, "qualified city" means the City
of Clearlake, the City of Fort Bragg, the City of Point Arena, the
City of Ukiah, and the City of Willits.
SEC. 279. The heading of Chapter 2.98 (commencing with Section
7286.75) of Part 1.7 of Division 2 of the Revenue and Taxation Code
is amended and renumbered to read:
CHAPTER 2.985. WEST SACRAMENTO TRANSACTIONS AND USE TAX
SEC. 280. Section 17041 of the Revenue and Taxation Code is
amended to read:
17041. (a) There shall be imposed for each taxable year upon the
entire taxable income of every resident of this state who is not a
part-year resident, except the head of a household as defined in
Section 17042, taxes in the following amounts and at the following
rates upon the amount of taxable income computed for the taxable year
as if the resident were a resident of this state for the entire
taxable year and for all prior taxable years for any carryover items,
deferred income, suspended losses, or suspended deductions:
If the taxable income is: The tax is:
Not over $3,650................... 1% of the taxable income
Over $3,650 but not
over $8,650...................... $36.50 plus 2% of the excess
over $3,650
Over $8,650 but not
over $13,650..................... $136.50 plus 4% of the excess
over $8,650
Over $13,650 but not
over $18,950..................... $336.50 plus 6% of the excess
over $13,650
Over $18,950 but not
over $23,950..................... $654.50 plus 8% of the excess
over $18,950
Over $23,950...................... $1,054.50 plus 9.3% of the
excess
over $23,950
(b) (1) There shall be imposed for each taxable year upon the
taxable income of every nonresident or part-year resident, except the
head of a household as defined in Section 17042, a tax as calculated
in paragraph (2).
(2) The tax imposed under paragraph (1) shall be calculated by
multiplying the "taxable income of a nonresident or part-year
resident," as defined in subdivision (i), by a rate (expressed as a
percentage) equal to the tax computed under subdivision (a) on the
entire taxable income of the nonresident or part-year resident as if
the nonresident or part-year resident were a resident of this state
for the taxable year and as if the nonresident or part-year resident
were a resident of this state for all prior taxable years for any
carryover items, deferred income, suspended losses, or suspended
deductions, divided by the amount of that income.
(c) There shall be imposed for each taxable year upon the entire
taxable income of every resident of this state who is not a part-year
resident for that taxable year, when the resident is the head of a
household, as defined in Section 17042, taxes in the following
amounts and at the following rates upon the amount of taxable income
computed for the taxable year as if the resident were a resident of
the state for the entire taxable year and for all prior taxable years
for carryover items, deferred income, suspended losses, or suspended
deductions:
If the taxable income is: The tax is:
Not over $7,300..................... 1% of the taxable income
Over $7,300 but not
over $17,300....................... $73 plus 2% of the excess
over $7,300
Over $17,300 but not
over $22,300....................... $273 plus 4% of the excess
over $17,300
Over $22,300 but not
over $27,600....................... $473 plus 6% of the excess
over $22,300
Over $27,600 but not
over $32,600....................... $791 plus 8% of the excess
over $27,600
Over $32,600......................... $1,191 plus 9.3% of the
excess
over $32,600
(d) (1) There shall be imposed for each taxable year upon the
taxable income of every nonresident or part-year resident when the
nonresident or part-year resident is the head of a household, as
defined in Section 17042, a tax as calculated in paragraph (2).
(2) The tax imposed under paragraph (1) shall be calculated by
multiplying the "taxable income of a nonresident or part-year
resident," as defined in subdivision (i), by a rate (expressed as a
percentage) equal to the tax computed under subdivision (a) on the
entire taxable income of the nonresident or part-year resident as if
the nonresident or part-year resident were a resident of this state
for the taxable year and as if the nonresident or part-year resident
were a resident of this state for all prior taxable years for any
carryover items, deferred income, suspended losses, or suspended
deductions, divided by the amount of that income.
(e) There shall be imposed for each taxable year upon the taxable
income of every estate, trust, or common trust fund taxes equal to
the amount computed under subdivision (a) for an individual having
the same amount of taxable income.
(f) The tax imposed by this part is not a surtax.
(g) (1) Section 1 (g) of the Internal Revenue Code, relating to
certain unearned income of minor children taxed as if the parent's
income, shall apply, except as otherwise provided.
(2) Section 1(g)(7)(B)(ii)(II) of the Internal Revenue Code,
relating to income included on parent's return, is modified, for
purposes of this part, by substituting "1 percent" for "15 percent."
(h) For each taxable year beginning on or after January 1, 1988,
the Franchise Tax Board shall recompute the income tax brackets
prescribed in subdivisions (a) and (c). That computation shall be
made as follows:
(1) The California Department of Industrial Relations shall
transmit annually to the Franchise Tax Board the percentage change in
the California Consumer Price Index for all items from June of the
prior calendar year to June of the current calendar year, no later
than August 1 of the current calendar year.
(2) The Franchise Tax Board shall do both of the following:
(A) Compute an inflation adjustment factor by adding 100 percent
to the percentage change figure that is furnished pursuant to
paragraph (1) and dividing the result by 100.
(B) Multiply the preceding taxable year income tax brackets by the
inflation adjustment factor determined in subparagraph (A) and round
off the resulting products to the nearest one dollar ($1).
(i) (1) For purposes of this part, the term "taxable income of a
nonresident or part-year resident" includes each of the following:
(A) For any part of the taxable year during which the taxpayer was
a resident of this state (as defined by Section 17014), all items of
gross income and all deductions, regardless of source.
(B) For any part of the taxable year during which the taxpayer was
not a resident of this state, gross income and deductions derived
from sources within this state, determined in accordance with Article
9 of Chapter 3 (commencing with Section 17031) and Chapter 11
(commencing with Section 17951).
(2) For purposes of computing "taxable income of a nonresident or
part-year resident" under paragraph (1), the amount of any net
operating loss sustained in any taxable year during any part of which
the taxpayer was not a resident of this state shall be limited to
the sum of the following:
(A) The amount of the loss attributable to the part of the taxable
year in which the taxpayer was a resident.
(B) The amount of the loss that, during the part of the taxable
year the taxpayer is not a resident, is attributable to California
source income and deductions allowable in arriving at taxable income
of a nonresident or part-year resident.
(3) For purposes of computing "taxable income of a nonresident or
part-year resident" under paragraph (1), any carryover items,
deferred income, suspended losses, or suspended deductions shall only
be includible or allowable to the extent that the carryover item,
deferred income, suspended loss, or suspended deduction was derived
from sources within this state.
SEC. 281. Section 17052.2 of the Revenue and Taxation Code is
amended to read:
17052.2. (a) For each taxable year beginning on or after January
1, 2000, and before January 1, 2002, and for each taxable year
beginning on or after January 1, 2003, there shall be allowed as a
credit against the "net tax" (as defined by Section 17039) to a
credentialed teacher an amount equal to the amount determined in
subdivision (b).
(b) The amount of the credit shall be the lesser of the amounts
computed under paragraph (1) or (2):
(1) In the case of any credentialed teacher who has, as of the
last day of the taxable year:
(A) Completed at least four but less than six years of service as
a credentialed teacher, the credit shall be two hundred fifty dollars
($250).
(B) Completed at least six but less than 11 years of service as a
credentialed teacher, the credit shall be five hundred dollars
($500).
(C) Completed at least 11 but less than 20 years of service as a
credentialed teacher, the credit shall be one thousand dollars
($1,000).
(D) Completed 20 or more years of service as a credentialed
teacher, the credit shall be one thousand five hundred dollars
($1,500).
(E) For purposes of determining years of service, years of service
performed as a teacher in a qualifying educational institution,
which otherwise meets the criteria specified in paragraph (2) of
subdivision (c) except that the qualifying educational institution is
not located in this state, in another state shall qualify for each
year the teacher was credentialed by the public education agency in
that state.
(2) Fifty percent of the amount determined as follows:
(A) Divide the amount received by the taxpayer as wages and salary
for services as a credentialed teacher, as defined in paragraph (3)
of subdivision (c), by the taxpayer's total adjusted gross income
from all sources.
(B) Multiply the taxpayer's total tax, as defined in paragraph (4)
of subdivision (c), by a ratio, not to exceed 1.00, that is
otherwise equal to the ratio determined for the taxpayer under
subparagraph (A).
(c) For purposes of this section, all of the following definitions
apply:
(1) "Credentialed teacher" means a person who holds a preliminary
or professional clear credential as determined by the Commission on
Teacher Credentialing pursuant to Article 1 (commencing with Section
44200) of Chapter 2 of Part 25 of Division 2 of Title 2 of the
Education Code and who teaches at a qualifying educational
institution.
(2) "Qualifying educational institution" means any elementary,
secondary, or vocational-technical school located in this state
providing education for kindergarten, grades 1 to 12, inclusive, or
any part thereof. "Qualifying educational institution" includes an
agency or instrumentality of the federal government providing
education for kindergarten, grades 1 to 12, inclusive, or any part
thereof, at any location within this state, including an Indian
reservation or a military installation located within the
geographical borders of this state, where a credentialed teacher is
employed by the federal government or an agency or instrumentality
thereof. "Qualifying educational institution" includes any
elementary, secondary, or vocational-technical school located in
California, that files an affidavit pursuant to Sections 33190 and
33191 of the Education Code, and provides education for kindergarten
and grades 1 to 12, inclusive, or any part thereof.
(3) "Wages and salaries for services as a credentialed teacher"
includes only those amounts received with respect to services
performed as a credentialed teacher, but does not include pensions or
other deferred compensation.
(4) "Total tax" means the tax imposed under this part for the
taxable year, before the application under Section 19007 of any
payment of estimated tax or any installment thereof, less all credits
allowed for the taxable year except for the following:
(A) The credit allowed under this section.
(B) The credit allowed under Section 17061 (relating to refunds
under the Unemployment Insurance Code).
(C) The credit allowed under Section 19002 (relating to tax
withholding).
(D) Any refundable credit that is allowed under this part.
SEC. 282. Section 17052.6 of the Revenue and Taxation Code is
amended to read:
17052.6. (a) For each taxable year beginning on or after January
1, 2000, there shall be allowed as a credit against the "net tax" (as
defined in Section 17039) an amount determined in accordance with
Section 21 of the Internal Revenue Code, as modified by the Economic
Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-16),
except that the amount of the credit shall be a percentage, as
provided in subdivision (b) of the allowable federal credit without
taking into account whether there is a federal tax liability.
(b) For the purposes of subdivision (a), the percentage of the
allowable federal credit shall be determined as follows:
(1) For taxable years beginning before January 1, 2003:
The percentage of
If the California adjusted gross income is: credit is:
$40,000 or less ................................. 63%
Over $40,000 but not over $70,000................ 53%
Over $70,000 but not over $100,000............... 42%
Over $100,000 ................................... 0%
(2) For taxable years beginning on or after January 1, 2003:
The percentage of
If the California adjusted gross income is: credit is:
$40,000 or less ................................. 50%
Over $40,000 but not over $70,000................ 43%
Over $70,000 but not over $100,000............... 34%
Over $100,000 ................................... 0%
(c) In the case of a taxpayer whose credits provided under this
section exceed the taxpayer's tax liability computed under this part,
the excess shall be credited against other amounts due, if any, from
the taxpayer and the balance, if any, shall be paid from the Tax
Relief and Refund Account and refunded to the taxpayer.
(d) For purposes of this section, California adjusted gross income
means California adjusted gross income as computed for purposes of
Section 17041.
(e) The credit authorized by this section shall be limited to
those taxpayers who, during the taxable year, maintain a household,
within the meaning of Section 21(e)(1) of the Internal Revenue Code,
that is located within this state.
(f) For purposes of this section, Section 21(b)(1) of the Internal
Revenue Code, relating to a qualifying individual, is modified to
additionally provide that a child (as defined in Section 151(c)(3) of
the Internal Revenue Code) shall be treated, for purposes of Section
152 of the Internal Revenue Code (as applicable for purposes of this
section), as receiving over one-half of his or her support during
the calendar year from the parent having custody for a greater
portion of the calendar year, that parent shall be treated as a
"custodial parent" (within the meaning of Section 152(e) of the
Internal Revenue Code, as applicable for purposes of this section),
and the child shall be treated as a qualifying individual under
Section 21(b)(1) of the Internal Revenue Code, as applicable for
purposes of this section, if both of the following apply:
(1) The child receives over one-half of his or her support during
the calendar year from his or her parents who never married each
other and who lived apart at all times during the last six months of
the calendar year.
(2) The child is in the custody of one or both of his or her
parents for more than one-half of the calendar year.
(g) The amendments to this section made by the act adding this
subdivision shall apply only to taxable years beginning on or after
January 1, 2002.
SEC. 283. Section 17062 of the Revenue and Taxation Code is
amended to read:
17062. (a) In addition to the other taxes imposed by this part,
there is hereby imposed for each taxable year, a tax equal to the
excess, if any, of--
(1) The tentative minimum tax for the taxable year, over
(2) The regular tax for the taxable year.
(b) For purposes of this chapter, each of the following shall
apply:
(1) The tentative minimum tax shall be computed in accordance with
Sections 55 to 59, inclusive, of the Internal Revenue Code, except
as otherwise provided in this part.
(2) The regular tax shall be the amount of tax imposed by Section
17041 or 17048, before reduction for any credits against the tax,
less any amount imposed under paragraph (1) of subdivision (d) and
paragraph (1) of subdivision (e) of Section 17560.
(3) (A) The provisions of Section 55(b)(1) of the Internal Revenue
Code shall be modified to provide that the tentative minimum tax for
the taxable year shall be equal to the following percent of so much
of the alternative minimum taxable income for the taxable year as
exceeds the exemption amount, before reduction for any credits
against the tax:
(i) For any taxable year beginning on or after January 1, 1991,
and before January 1, 1996, 8.5 percent.
(ii) For any taxable year beginning on or after January 1, 1996, 7
percent.
(B) In the case of a nonresident or part-year resident, the
tentative minimum tax shall be computed by multiplying the
alternative minimum taxable income of the nonresident or part-year
resident, as defined in subparagraph (C), by a rate (expressed as a
percentage) equal to the tax computed under subdivision (b) on the
alternative minimum taxable income of the nonresident or part-year
resident as if the nonresident or part-year resident were a resident
of this state for the taxable year and as if the nonresident or
part-year resident were a resident of this state for all prior
taxable years for any carryover items, deferred income, suspended
losses, or suspended deductions, divided by the amount of that
income.
(C) For purposes of this section, the term "alternative minimum
taxable income of a nonresident or part-year resident" includes each
of the following:
(i) For any period during which the taxpayer was a resident of
this state (as defined by Section 17014), all items of alternative
minimum taxable income (as modified for purposes of this chapter),
regardless of source.
(ii) For any period during which the taxpayer was not a resident
of this state, alternative minimum taxable income (as modified for
purposes of this chapter) which were derived from sources within this
state, determined in accordance with Article 9 of Chapter 3
(commencing with Section
17301) and Chapter 11 (commencing with Section 17951).
(iii) For purposes of computing "alternative minimum taxable
income of a nonresident or part-year resident," any carryover items,
deferred income, suspended losses, or suspended deductions shall only
be allowable to the extent that the carryover item, suspended loss,
or suspended deduction was derived from sources within this state.
(4) The provisions of Section 55(b)(2) of the Internal Revenue
Code, relating to alternative minimum taxable income, shall be
modified to provide that alternative minimum taxable income shall not
include the income, adjustments, and items of tax preference
attributable to any trade or business of a qualified taxpayer.
(A) For purposes of this paragraph, "qualified taxpayer" means a
taxpayer who meets both of the following:
(i) Is the owner of, or has an ownership interest in, a trade or
business.
(ii) Has aggregate gross receipts, less returns and allowances, of
less than one million dollars ($1,000,000) during the taxable year
from all trades or businesses of which the taxpayer is the owner or
has an ownership interest, in the amount of that taxpayer's
proportionate interest in each trade or business.
(B) For purposes of this paragraph, "aggregate gross receipts,
less returns and allowances" means the sum of the gross receipts of
the trades or businesses that the taxpayer owns and the proportionate
interest of the gross receipts of the trades or businesses that the
taxpayer owns and of pass-through entities in which the taxpayer
holds an interest.
(C) For purposes of this paragraph, "gross receipts, less returns
and allowances" means the sum of the gross receipts from the
production of business income, as defined in subdivision (a) of
Section 25120, and the gross receipts from the production of
nonbusiness income, as defined in subdivision (d) of Section 25120.
(D) For purposes of this paragraph, "proportionate interest"
means:
(i) In the case of a pass-through entity that reports a profit for
the taxable year, the taxpayer's profit interest in the entity at
the end of the taxpayer's taxable year.
(ii) In the case of a pass-through entity that reports a loss for
the taxable year, the taxpayer's loss interest in the entity at the
end of the taxpayer's taxable year.
(iii) In the case of a pass-through entity that is sold or
liquidates during the taxable year, the taxpayer's capital account
interest in the entity at the time of the sale or liquidation.
(E) (i) For purposes of this paragraph, "proportionate interest"
includes an interest in a pass-through entity.
(ii) For purposes of this paragraph, "pass-through entity" means
any of the following:
(I) A partnership, as defined by Section 17008.
(II) An "S corporation," as provided in Chapter 4.5 (commencing
with Section 23800) of Part 11.
(III) A regulated investment company, as provided in Section
24871.
(IV) A real estate investment trust, as provided in Section 24872.
(V) A real estate mortgage investment conduit, as provided in
Section 24874.
(5) For taxable years beginning on or after January 1, 1998,
Section 55(d)(1) of the Internal Revenue Code, relating to exemption
amount for taxpayers other than corporations is modified, for
purposes of this part, to provide the following exemption amounts in
lieu of those contained therein:
(A) Fifty-seven thousand two hundred sixty dollars ($57,260) in
the case of either of the following:
(i) A joint return.
(ii) A surviving spouse.
(B) Forty-two thousand nine hundred forty-five dollars ($42,945)
in the case of an individual who is both of the following:
(i) Not a married individual.
(ii) Not a surviving spouse.
(C) Twenty-eight thousand six hundred thirty dollars ($28,630) in
the case of either of the following:
(i) A married individual who files a separate return.
(ii) An estate or trust.
(6) For taxable years beginning on or after January 1, 1998,
Section 55(d)(3) of the Internal Revenue Code, relating to the
phaseout of exemption amount for taxpayers other than corporations is
modified, for purposes of this part, to provide the following
phaseout of exemption amounts in lieu of those contained therein:
(A) Two hundred fourteen thousand seven hundred twenty-five
dollars ($214,725) in the case of a taxpayer described in
subparagraph (A) of paragraph (5).
(B) One hundred sixty-one thousand forty-four dollars ($161,044)
in the case of a taxpayer described in subparagraph (B) of paragraph
(5).
(C) One hundred seven thousand three hundred sixty-two dollars
($107,362) in the case of a taxpayer described in subparagraph (C) of
paragraph (5).
(7) For each taxable year beginning on or after January 1, 1999,
the Franchise Tax Board shall recompute the exemption amounts
prescribed in paragraph (5) and the phaseout of exemption amounts
prescribed in paragraph (6). Those computations shall be made as
follows:
(A) The California Department of Industrial Relations shall
transmit annually to the Franchise Tax Board the percentage change in
the California Consumer Price Index for all items from June of the
prior calendar year to June of the current calendar year, no later
than August 1 of the current calendar year.
(B) The Franchise Tax Board shall do both of the following:
(i) Compute an inflation adjustment factor by adding 100 percent
to the percentage change figure that is furnished pursuant to
subparagraph (A) and dividing the result by 100.
(ii) Multiply the preceding taxable year exemption amounts and the
phaseout of exemption amounts by the inflation adjustment factor
determined in clause (i) and round off the resulting products to the
nearest one dollar ($1).
(c) (1) (A) Section 56(a)(6) of the Internal Revenue Code as in
effect on January 1, 1997, relating to installment sales of certain
property, shall not apply to payments received in taxable years
beginning on or after January 1, 1997, with respect to dispositions
occurring in taxable years beginning after December 31, 1987.
(B) This paragraph shall not apply to taxable years beginning on
or after January 1, 1998.
(2) Section 56(b)(1)(E) of the Internal Revenue Code, relating to
standard deduction and deduction for personal exemptions not allowed,
is modified, for purposes of this part, to deny the standard
deduction allowed by Section 17073.5.
(3) Section 56(b)(3) of the Internal Revenue Code, relating to
treatment of incentive stock options, shall be modified to
additionally provide the following:
(A) Section 421 of the Internal Revenue Code shall not apply to
the transfer of stock acquired pursuant to the exercise of a
California qualified stock option under Section 17502.
(B) Section 422(c)(2) of the Internal Revenue Code shall apply in
any case where the disposition and inclusion of a California
qualified stock option for purposes of this chapter are within the
same taxable year and that section shall not apply in any other case.
(C) The adjusted basis of any stock acquired by the exercise of a
California qualified stock option shall be determined on the basis of
the treatment prescribed by this paragraph.
(d) The provisions of Section 57(a)(5) of the Internal Revenue
Code, relating to tax-exempt interest shall not apply.
(e) Section 57(a) of the Internal Revenue Code, relating to items
of tax preference, is modified to include as an item of tax
preference an amount equal to one-half of the amount excluded from
gross income for the taxable year under Section 18152.5.
(f) The provisions of Section 59(a) of the Internal Revenue Code,
relating to the alternative minimum tax foreign tax credit, shall not
apply.
SEC. 284. Section 17952.5 of the Revenue and Taxation Code is
amended to read:
17952.5. (a) For purposes of computing "taxable income of a
nonresident or part-year resident" under paragraph (1) of subdivision
(i) of Section 17041, gross income of a nonresident, as defined in
Section 17015, from sources within this state shall not include
"qualified retirement income" received on or after January 1, 1996,
for any part of the taxable year during which the taxpayer was not a
resident of this state.
(b) For purposes of this section, "qualified retirement income"
means income from any of the following:
(1) A qualified trust under Section 401(a) of the Internal Revenue
Code that is exempt under Section 501(a) of the Internal Revenue
Code from taxation.
(2) A simplified employee pension as defined in Section 408(k) of
the Internal Revenue Code.
(3) An annuity plan described in Section 403(a) of the Internal
Revenue Code.
(4) An annuity contract described in Section 403(b) of the
Internal Revenue Code.
(5) An individual retirement plan described in Section 7701(a)(37)
of the Internal Revenue Code.
(6) An eligible deferred compensation plan as defined in Section
457 of the Internal Revenue Code.
(7) A governmental plan as defined in Section 414(d) of the
Internal Revenue Code.
(8) A trust described in Section 501(c)(18) of the Internal
Revenue Code.
(9) Any plan, program, or arrangement described in Section 3121(v)
(2)(C) of the Internal Revenue Code, if that income is either of the
following:
(A) Part of a series of substantially equal periodic payments (not
less frequently than annually) made for either of the following:
(i) The life or the life expectancy of the recipient (or the joint
lives or joint life expectancies of the recipient and the designated
beneficiary of the recipient).
(ii) A period of not less than 10 years.
(B) A payment received after termination of employment, under a
plan, program, or arrangement to which that employment relates,
maintained solely for the purpose of providing retirement benefits
for employees in excess of the limitation imposed by Section 401(a)
(17), 401(k), 401(m), 402(g), 403(b), 408(k), or 415 of the Internal
Revenue Code, or any combination of those sections, or any other
limitation on contributions or benefits in the Internal Revenue Code
on plans to which any of those sections apply.
(10) Any retired or retainer pay of a member or former member of a
uniform service computed under Section 1401 and following of Title
10 of the United States Code.
(c) This section shall apply only to any taxable year, or portion
thereof, that the provisions of Section 114 of Title 4 of the United
States Code, relating to limitation on state income taxation of
certain pension income, are effective.
(d) References to the Internal Revenue Code are subject to
paragraph (1) of subdivision (a) of Section 17024.5, which
identifies, for each taxable year, the effective date of the
referenced provisions of the Internal Revenue Code.
SEC. 285. Section 18713 of the Revenue and Taxation Code is
amended to read:
18713. All money transferred to the State Children's Trust Fund,
upon appropriation by the Legislature, shall be allocated as follows:
(a) To the Franchise Tax Board and the Controller for
reimbursement of all costs incurred by the Franchise Tax Board and
the Controller in connection with their duties under this article.
(b) To the State Department of Social Services for innovative
child abuse and neglect prevention and intervention programs operated
by private nonprofit organizations or public institutions of higher
education with recognized expertise in fields related to child
welfare and for evaluation, research, or dissemination of information
concerning existing program models for the purpose of replication of
successful models as specified in Article 5 (commencing with Section
18969) of Chapter 11 of Part 6 of Division 10 of the Welfare and
Institutions Code.
SEC. 286. Section 18716 of the Revenue and Taxation Code is
amended to read:
18716. (a) This article shall remain in effect only until January
1, 2008, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2008, deletes or extends
that date.
(b) If, in any calendar year, the Franchise Tax Board estimates by
September 1 that contributions described in this article made on
returns filed in that calendar year will be less than two hundred
fifty thousand dollars ($250,000) for taxable years beginning in
2002, or the adjusted amount specified in subdivision (c), as may be
applicable, then this article is repealed with respect to taxable
years beginning on or after January 1 of that calendar year. The
Franchise Tax Board shall estimate the annual contribution amount by
September 1 of each year using the actual amounts known to be
contributed and an estimate of the remaining year's contributions.
(c) For each calendar year, beginning with calendar year 2003, the
Franchise Tax Board shall adjust, on or before September 1 of that
calendar year, the minimum estimated contribution amount specified in
subdivision (b) as follows:
(1) The minimum estimated contribution amount for the calendar
year shall be an amount equal to the product of the minimum estimated
contribution amount for the prior September 1 multiplied by the
inflation factor adjustment as specified in paragraph (2) of
subdivision (h) of Section 17041, rounded off to the nearest dollar.
(2) The inflation factor adjustment used for the calendar year
shall be based on the figures for the percentage change in the
California Consumer Price Index received on or before August 1 of the
calendar year pursuant to paragraph (1) of subdivision (h) of
Section 17041.
SEC. 287. Section 18831 of the Revenue and Taxation Code is
amended to read:
18831. (a) An individual may designate on the tax return that a
contribution in excess of the tax liability, if any, be made to the
Asthma and Lung Disease Research Fund established by Section 18832.
That designation is to be used as a voluntary contribution on the tax
return.
(b) The contributions shall be in full dollar amounts and may be
made individually by each signatory on a joint return.
(c) A designation shall be made for any taxable year on the
initial return for that taxable year and, once made, is irrevocable.
If payments and credits reported on the return, together with any
other credits associated with the taxpayer's account, do not exceed
the taxpayer's liability, the return shall be treated as though no
designation has been made. If no designee is specified, the
contribution shall be transferred to the General Fund after
reimbursement of the direct actual costs of the Franchise Tax Board
for the collection and administration of funds under this article.
(d) If an individual designates a contribution to more than one
account or fund listed on the tax return, and the amount available is
insufficient to satisfy the total amount designated, the
contribution shall be allocated among the designees on a pro rata
basis.
(e) The Franchise Tax Board shall revise the form of the return to
include a space labeled the "Asthma and Lung Disease Research Fund"
to allow for the designation permitted. The form shall also include
in the instructions information that the contribution may be in the
amount of one dollar ($1) or more and that the contribution shall be
used for asthma and lung disease research.
(f) Notwithstanding any other provision, a voluntary contribution
designation for the Asthma and Lung Disease Research Fund shall not
be added on the tax return until another voluntary contribution
designation is removed.
(g) A deduction shall be allowed under Article 6 (commencing with
Section 17201) of Chapter 3 of Part 10 for any contribution made
pursuant to subdivision (a).
SEC. 288. Section 19006 of the Revenue and Taxation Code is
amended to read:
19006. (a) The spouse who controls the disposition of or who
receives or spends community income as well as the spouse who is
taxable on the income is liable for the payment of the taxes imposed
by Part 10 (commencing with Section 17001) on that income.
(b) Whenever a joint return is filed by a husband and wife, the
liability for the tax on the aggregate income is joint and several.
The liability may be revised by a court in a proceeding for
dissolution of the marriage of the husband and wife, provided:
(1) The order revising tax liability may not relieve a spouse of
tax liability on income earned by or subject to the exclusive
management and control of the spouse. The liability of the spouse
for the tax, penalties, and interest due for the taxable year shall
be in the same ratio to total tax, penalties, and interest due for
the taxable year as the income earned by or subject to the management
and control of the spouse is to total gross income reportable on the
return.
(2) The order revising tax liability:
(A) Must separately state the income tax liabilities for the
taxable years for which revision of tax liability is granted.
(B) Shall not revise a tax liability that has been fully paid
prior to the effective date of the order; however, any unpaid amount
may be revised.
(C) Shall become effective when the Franchise Tax Board is served
with or acknowledges receipt of the order.
(D) Shall not be effective if the gross income reportable on the
return exceeds one hundred fifty thousand dollars ($150,000) or the
amount of tax liability the spouse is relieved of exceeds seven
thousand five hundred dollars ($7,500), unless a tax revision
clearance certificate is obtained from the Franchise Tax Board and
filed with the court.
(c) Notwithstanding subdivisions (a) and (b), whenever a joint
return is filed by a husband and wife and the tax liability is not
fully paid, that liability, including interest and penalties, may be
revised by the Franchise Tax Board as to one spouse.
(1) However, the liability shall not be revised:
(A) To relieve a spouse of tax liability on income earned by or
subject to the exclusive management and control of the spouse. The
liability of the spouse for the tax, penalties, and interest due for
the taxable year shall be in the same ratio to total tax, penalties,
and interest due for the taxable year as the income earned by or
subject to the management and control of the spouse is to total gross
income reportable on the return.
(B) To relieve a spouse of liability below the amount actually
paid on the liability prior to the granting of relief, including
credit from any other taxable year available for application to the
liability.
(2) The liability may be revised only if the spouse whose
liability is to be revised establishes that he or she did not know
of, and had no reason to know of, the nonpayment at the time the
return was filed. For purposes of this paragraph, "reason to know"
means whether or not a reasonably prudent person would have had
reason to know of the nonpayment.
(3) For purposes of this section, the determination of the spouse
to whom items of gross income are attributable shall be made without
regard to community property laws.
(4) The determination of the Franchise Tax Board as to whether the
liability is to be revised as to one spouse shall be made not less
than 30 days after notification of the other spouse and shall be
based upon whether, under all of the facts and circumstances
surrounding the nonpayment, it would be inequitable to hold the
spouse requesting revision liable for the nonpayment. Any action
taken under this section shall be treated as though it were action on
a protest taken under Section 19044 and shall become final upon the
expiration of 30 days from the date that notice of the action is
mailed to both spouses, unless, within that 30-day period, one or
both spouses appeal the determination to the board as provided in
Section 19045.
(5) This subdivision shall apply to all taxable years subject to
the provisions of this part, but shall not apply to any taxable year
which has been closed by a statute of limitations, res judicata, or
otherwise.
SEC. 289. Section 20503 of the Revenue and Taxation Code is
amended to read:
20503. (a) "Income" means adjusted gross income as defined in
Section 17072 plus all of the following cash items:
(1) Public assistance and relief.
(2) Nontaxable amount of pensions and annuities.
(3) Social security benefits (except Medicare).
(4) Railroad retirement benefits.
(5) Unemployment insurance payments.
(6) Veterans' benefits.
(7) Exempt interest received from any source.
(8) Gifts and inheritances in excess of three hundred dollars
($300), other than transfers between members of the household. Gifts
and inheritances include noncash items.
(9) Amounts contributed on behalf of the contributor to a
tax-sheltered retirement plan or deferred compensation plan.
(10) Temporary workers' compensation payments.
(11) Sick leave payments.
(12) Nontaxable military compensation as defined in Section 112 of
the Internal Revenue Code.
(13) Nontaxable scholarship and fellowship grants as defined in
Section 117 of the Internal Revenue Code.
(14) Nontaxable gain from the sale of a residence as defined in
Section 121 of the Internal Revenue Code.
(15) Life insurance proceeds to the extent that the proceeds
exceed the expenses incurred for the last illness and funeral of the
deceased spouse of the claimant. "Expenses incurred for the last
illness" includes unreimbursed expenses paid or incurred during the
income calendar year and any expenses paid or incurred thereafter up
until the date the claim is filed. For purposes of this paragraph,
funeral expenses shall not exceed five thousand dollars ($5,000).
(16) If an alternative minimum tax is required to be paid pursuant
to Chapter 2.1 (commencing with Section 17062) of Part 10, the
amount of alternative minimum taxable income (whether or not cash) in
excess of the regular taxable income.
(17) Annual winnings from the California Lottery in excess of six
hundred dollars ($600) for the current year.
(b) For purposes of this chapter, total income shall be determined
for the calendar year (or approved fiscal year ending within that
calendar year) which ends within the fiscal year for which assistance
is claimed.
(c) For purposes of Chapter 2 (commencing with Section 20581),
Chapter 3 (commencing with Section 20625), and Chapter 3.5
(commencing with Section 20640), total income shall be determined for
the calendar year ending immediately prior to the commencement of
the fiscal year for which postponement is claimed.
SEC. 290. Section 20563 of the Revenue and Taxation Code is
amended to read:
20563. (a) The claim on which the assistance is based shall be
filed after June 30 of the fiscal year for which assistance is
claimed but on or before October 15 of the fiscal year succeeding the
fiscal year for which assistance is claimed. The Franchise Tax
Board may thereafter accept claims through June 30 of the fiscal year
succeeding the fiscal year for which assistance is claimed.
(b) The state shall assist the claimant after July 15 and before
November 15 of the calendar year in which the claim is filed, except
that if the claim is defective, assistance shall be made as promptly
as is practicable after the claim has been perfected.
(c) A claimant who, because of a medical incapacity, is prevented
from filing a timely claim, may file a claim within six months after
the end of his or her medical incapacity or three years succeeding
the end of the fiscal year for which assistance is claimed, whichever
date is earlier.
SEC. 291. Section 23701t of the Revenue and Taxation Code is
amended to read:
23701t. (a) A homeowners' association organized and operated to
provide for the acquisition, construction, management, maintenance,
and care of residential association property if all of the following
apply:
(1) Sixty percent or more of the gross income of the organization
for the taxable year consists solely of amounts received as
membership dues, fees, and assessments from either of the following:
(A) Tenant-stockholders or owners of residential units,
residences, or lots.
(B) Owners of time-share rights to use, or time-share ownership
interests in, association property in the case of a time-share
association.
(2) Ninety percent or more of the expenditures of the organization
for the taxable year are expenditures for the acquisition,
construction, management, maintenance, and care of association
property and, in the case of a time-share association, for activities
provided to or on behalf of members of the association.
(3) No part of the net earnings inures (other than by providing
management, maintenance, and care of association property or by a
rebate of excess membership dues, fees, or assessments) to the
benefit of any private shareholder or individual.
(4) Amounts received as membership dues, fees, and assessments not
expended for association purposes during the taxable year are
transferred to and held in trust to provide for the management,
maintenance, and care of association property and common areas.
(b) The term "association property" means:
(1) Property held by the organization.
(2) Property held in common by the members of the organization.
(3) Property within the organization privately held by the members
of the organization.
In the case of a time-share association, "association property"
includes property in which the time-share association, or members of
the association, have rights arising out of recorded easements,
covenants, or other recorded instruments to use property related to
the time-share project.
(c) A homeowners' association shall be subject to tax under this
part with respect to its "homeowners' association taxable income,"
and that income shall be subject to tax as provided by Chapter 3
(commencing with Section 23501).
(1) For purposes of this section, the term "homeowners'
association taxable income" of any organization for any taxable year
means an amount equal to the excess over one hundred dollars ($100)
(if any) of--
(A) The gross income for the taxable year (excluding any exempt
function income), over
(B) The deductions allowed by this part which are directly
connected with the production of the gross income (excluding exempt
function income).
(2) For purposes of this section, the term "exempt function income"
means any amount received as membership fees, dues, and assessments
from tenant-shareholders or owners of residential units, residences,
or lots, or owners of time-share rights to use, or time-share
ownership interests in, association property in the case of a
time-share association.
(d) The term "homeowners' association" includes a condominium
management association, a residential real estate management
association, a time-share association, and a cooperative housing
corporation.
(e) "Cooperative housing corporation" includes, but is not limited
to, a limited-equity housing cooperative, as defined in Section
33007.5 of the Health and Safety Code, organized either as a
nonprofit public benefit corporation pursuant to Part 2 (commencing
with Section 5110) of Division 2 of Title 1 of the Corporations Code,
or a nonprofit mutual benefit corporation pursuant to Part 3
(commencing with Section 7110) of Division 2 of Title 1 of the
Corporations Code.
(f) The term "time-share association" means any organization
(other than a condominium management association) organized and
operated to provide for the acquisition, construction, management,
maintenance, and care of association property if any member thereof
holds a time-share right to use, or a time-share ownership interest
in, real property constituting association property.
(g) The amendments made to this section by the act adding this
subdivision shall apply to taxable years beginning on or after
January 1, 1998.
SEC. 292. Section 60361.5 of the Revenue and Taxation Code is
amended to read:
60361.5. (a) Except in the case of a qualified highway vehicle
operator, the backup tax imposed under Section 60058 and any
applicable penalties and interest shall be immediately due and
payable. The board shall forthwith ascertain as best it may the
amount of diesel fuel sold, or delivered into the fuel tank of a
diesel fuel-powered highway vehicle, or sold and delivered into the
fuel tank of a diesel fuel-powered highway vehicle, and shall
determine immediately the tax on the amount and shall give the
highway vehicle operator/fueler notice of this determination as
prescribed by Section 60340. The determination shall include
interest at the modified adjusted rate per month, or fraction
thereof, established pursuant to Section 6591.5, from the last day of
the month following the date the backup tax applies until the date
of remittance to the state. The provisions of Sections 60331 and
60332 shall be applicable with respect to the finality of the
determination and the right of the highway vehicle operator/fueler to
petition for a redetermination.
(b) A penalty of 25 percent of the amount of tax or five hundred
dollars ($500), whichever is greater, shall be added to the tax.
(c) If more than one of the penalties specified in this section
and Section 60105, 60106.3, or 60503.2 is otherwise applicable, only
the penalty totaling the greatest amount shall be imposed, and the
penalty specified in this section may be imposed only if the amount
of penalty exceeds any other applicable penalty.
(d) Where the board determines that the sale, delivery into the
fuel tank of a diesel fuel-powered highway vehicle, or sale and
delivery into the fuel tank of a diesel fuel-powered highway vehicle
of untaxed diesel fuel was due to reasonable cause and circumstances
beyond the person's control, and occurred notwithstanding the
exercise of ordinary care and the absence of willful neglect, the
person may be relieved of the penalty. A person seeking to be
relieved of the penalty shall file with the board a statement under
penalty of perjury setting forth the facts upon which the request for
relief is based.
(e) All administrative provisions contained in this part that
apply to a supplier shall also be applicable to a highway vehicle
operator/fueler.
SEC. 293. Section 60401 of the Revenue and Taxation Code is
amended to read:
60401. The board, whenever it deems it necessary to ensure
compliance with this part or any rule or regulation adopted under
this part, may require any person to deposit with it any security as
it may determine appropriate. The amount of the security shall be
fixed by the board but shall not be more than three times the
estimated average monthly tax liability of the person. The total
amount of security shall not be in excess of one million dollars
($1,000,000) where the person has established to the satisfaction of
the board that this security, together with property to which the
lien imposed by Section 60445 attaches, is sufficient security to
ensure payment of taxes equivalent to three times the estimated
average monthly tax liability of the person. The amount of the
security may be increased or decreased by the board at any time. Any
security in the form of cash or insured deposits in banks and
savings and loan institutions shall be held by the board in trust to
be used solely in the manner provided for in this section and Section
60406. Any security in the form of a bond or bonds shall be duly
executed by an admitted surety insurer, payable to the state,
conditioned upon faithful performance of all the requirements of this
part, and expressly providing for the payment of all taxes,
penalties, and other obligations of the person arising out of this
part. Security held by the board shall be released after a
three-year period in which the person has filed all returns and paid
all tax to the state or any amount of tax required to be collected
and paid to the state within the time required.
SEC. 294. Section 216.5 of the Streets and Highways Code is
amended to read:
216.5. (a) The department shall construct at least one
demonstration noise attenuation barrier fabricated from rice straw
upon meeting the conditions and requirements of this section.
(b) Prior to construction of the barrier specified in subdivision
(a), the department shall identify an appropriate location, and shall
develop separate cost estimates for constructing a barrier at that
location using a standard noise attenuation barrier design and
constructing the barrier using the rice straw design.
(c) If a noise barrier system fabricated from rice straw appears
on the department's list of approved noise barrier systems, the
department shall, within one year, identify a suitable regularly
programmed transportation project that includes a noise barrier
element for construction of the demonstration noise barrier system.
In making its project selection, the department shall consider
projected completion schedules for potential candidate projects with
the intent of completing the demonstration project expeditiously.
(d) The department shall not be required to construct the rice
straw barrier specified in subdivision (a) until all the following
have occurred:
(1) A noise barrier system fabricated from rice straw is approved
by the department and appears on the department's list of approved
noise barrier systems.
(2) Funding has been secured and made available by the
manufacturer of the selected rice straw system to offset any
additional costs incurred by the department in using the rice straw
barrier design based on the cost estimates prepared pursuant to
subdivision (b).
(3) A location has been identified for construction of the rice
straw barrier system that meets safety, environmental, and related
project requirements, and sufficient funding has been programmed and
is available for construction of the barrier based on the cost
estimate for the standard noise barrier design.
(e) The department may select any approved rice straw barrier
system for use in the demonstration project as long as the
manufacturer of the selected system secures and provides the required
funding specified in paragraph (2) of subdivision (d). If no
manufacturer of an approved rice straw barrier system provides the
required funding, the department shall not be required to complete
the demonstration project.
(f) The department shall, on or before January 1, 2005, transmit
to the Legislature a report regarding the implementation of this
section.
SEC. 295. Section 390 of the Streets and Highways Code is amended
to read:
390. (a) Route 90 is from Route 1 northwest of the Los Angeles
International Airport to Route 91 in Santa Ana Canyon passing near La
Habra.
(b) (1) Notwithstanding subdivision (a), the commission may
relinquish to the City of Yorba Linda the portion of Route 90 that is
located within the city limits of that city, upon terms and
conditions the commission finds to be in the best interests of the
state.
(2) A relinquishment under this subdivision shall become effective
immediately following the recordation by the county recorder of the
relinquishment resolution containing the commission's approval of the
terms and conditions of the relinquishment.
(3) On and after the effective date of the relinquishment, both of
the following shall occur:
(A) The portion of Route 90 relinquished under this subdivision
shall cease to be a state highway.
(B) The portion of Route 90 relinquished under this subdivision
may not be considered for future adoption under Section 81.
(c) The City of Yorba Linda shall ensure the continuity of traffic
flow on the relinquished portion of Route 90, including any traffic
signal progression.
(d) For relinquished portions of Route 90, the City of Yorba Linda
shall maintain signs directing motorists to the continuation of
Route 90.
SEC. 296. Section 27322 of the Streets and Highways Code is
amended to read:
27322. If the board consents to the annexation after any bonded
debt of this district has been authorized, the board of supervisors
so applying for annexation shall call an election at which the
proposition to join the district and assume the obligation of the
bonds of the district along with the territory already included
therein, shall be submitted to the electors of the county or portion
thereof as one proposition. Unless the proposition receives
two-thirds of the votes cast at the election the county or part
thereof shall not be annexed to the district. If the proposition
carries by two-thirds or more of the votes cast at the election the
result of the election shall be certified to the Secretary of State
by the county elections official and thereupon the Secretary of State
shall give notice and call for protests in the same manner as upon
the original incorporation of the district.
SEC. 297. Section 411 of the Unemployment Insurance Code is
amended to read:
411. The appeals board, acting as a whole, may promulgate rules
or amend or rescind rules pertaining to hearing appeals and other
matters falling within its jurisdiction. All these rules, amendments
thereto, or repeals thereof, shall be made in accordance with the
provisions of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
SEC. 298. Section 15051 of the Unemployment Insurance Code is
amended to read:
15051. The department shall establish rules, regulations, and
procedures necessary to govern the administration of the provisions
of this division and to ensure that its legislative purposes and
intent are carried out. These regulations shall include to the
extent permitted by federal law:
(a) Standards and criteria for determining eligibility and
services priorities pursuant to Section 15011. These shall include,
but are not limited to, standards for ensuring that a service
delivery area plan gives appropriate priority to public assistance
recipients.
(b) Standards for determining appropriate and allowable services
and training activities, and entities providing services and
training. These shall include, but are not limited to, ensuring that
all occupational skill training corresponds to area labor market
demand, ensuring that any training entity providing services has a
demonstrated record of past performances in training and placing
persons in unsubsidized private sector employment or offers
reasonable assurance that services provided will result in these
placements, and prohibiting contracting with entities whose officers
have been convicted of fraud or misappropriation of funds within the
last two years.
(c) Standards and criteria to be used in developing plans. These
shall include, but are not limited to, appropriate placement goals
and requirements for adequate public notice and opportunity for
public involvement in the development of service delivery area plans.
(d) Standards, criteria, and procedures to be used by the
department in evaluating and approving service delivery area plans.
(e) Standards for ensuring adequate, efficient service delivery
area administration including standards for ensuring efficient
service delivery area management information and financial accounting
systems.
(f) Standards and criteria for ensuring effective coordination and
linkages with other agencies that deliver training and
employment-related services.
(g) Standards and criteria for ensuring that no participant shall
be employed or that no job opening shall be filled:
(1) When any other individual is on layoff from the same or any
substantially equivalent job.
(2) When the employer has terminated the employment of any regular
employee or otherwise reduced its workforce with the intention of
filling the vacancy so created by hiring a participant whose wages
are subsidized by the Workforce Investment Act of 1998 (P.L.
105-220), the successor to the Job Training Partnership Act.
(3) When the employer has not rehired a seasonal employee who has
a history of regular seasonal employment with the employer. This
paragraph shall only apply to the construction industry.
SEC. 299. Section 5068 of the Vehicle Code is amended to read:
5068. (a) (1) Any veterans' organization may apply either
individually or with other veterans' organizations to meet the 7,500
application threshold set forth in Section 5060 for special interest
plates. An organization that meets the 7,500 minimum application
requirement by applying with other organizations pursuant to this
subdivision shall be issued a regular license plate bearing a
distinctive design or decal approved pursuant to subdivision (a) of
Section 5060.
(2) Special interest plates issued pursuant to this section may be
issued in a combination of numbers or letters, or both, requested by
the owner or lessee of the vehicle, to be displayed in addition to
the design or decal authorized under paragraph (1), subject to
Section 5105.
(b) In addition to the regular fees for an original registration,
a renewal of registration, or a transfer of registration, the
following fees shall be paid by individuals applying for a veterans'
organization special interest license plate or decal:
(1) Thirty dollars ($30) for the initial issuance of the plates
and decals. The plates shall be permanent and shall not be required
to be replaced.
(2) Thirty dollars ($30) for each renewal of registration which
includes the continued display of the plates or decals.
(3) Fifteen dollars ($15) for transfer of the plates to another
vehicle.
(4) Thirty-five dollars ($35) for replacement plates, if they
become damaged or unserviceable.
(5) Ten dollars ($10) for replacement decals, if they become
damaged or unserviceable.
(6) Forty dollars ($40) for the personalization of the plates, as
authorized under paragraph (2) of subdivision (a).
(c) This section shall become operative on July 1, 2002.
SEC. 300. Section 9250.19 of the Vehicle Code is amended to read:
9250.19. (a) (1) In addition to any other fees specified in this
code and the Revenue and Taxation Code, upon the adoption of a
resolution pursuant to this subdivision by any county board of
supervisors, a fee of one dollar ($1) shall be paid at the time of
registration, renewal, or supplemental application for apportioned
registration pursuant to Article 4 (commencing with Section 8050) of
Chapter 4 of every vehicle, except vehicles described in subdivision
(a) of Section 5014.1, registered to an address within that county
except those expressly exempted from payment of registration fees.
The fees, after deduction of the administrative costs incurred by the
department in carrying out this section, shall be paid quarterly to
the Controller.
(2) In addition to the one dollar ($1) service fee, and upon the
implementation of the permanent trailer identification plate program,
and as part of the Commercial Vehicle Registration Act of 2001, all
commercial motor vehicles subject to Section 9400.1 registered to an
owner with an address in the county that established a service
authority under this section, shall pay an additional service fee of
two dollars ($2).
(3) A resolution adopted pursuant to paragraph (1) shall include
findings as to the purpose of, and the need for, imposing the
additional registration fee, and shall identify the date after which
the fee shall no longer be imposed.
(b) Notwithstanding Section 13340 of the Government Code, the
money paid to the Controller pursuant to subdivision (a) is
continuously appropriated, without regard to fiscal years, for
disbursement by the Controller to each county that has adopted a
resolution pursuant to subdivision (a), based upon the number of
vehicles registered, or whose registration is renewed, to an address
within that county, or supplemental application for apportioned
registration, and, upon appropriation by the Legislature, for the
administrative costs of the Controller incurred under this section.
(c) Money allocated to a county pursuant to subdivision (b) shall
be expended exclusively to fund programs that enhance the capacity of
local law enforcement to provide automated mobile and fixed location
fingerprint identification of individuals who may be involved in
driving under the influence of alcohol or drugs in violation of
Section 23152 or 23153, or vehicular manslaughter in violation of
Section 191.5 of the Penal Code or subdivision (c) of Section 192 of
the Penal Code, or any combination of those and other vehicle-related
crimes, and other crimes committed while operating a motor vehicle.
(d) The data from any program funded pursuant to subdivision (c)
shall be made available by the local law enforcement agency to any
local public agency that is required by law to obtain a criminal
history background of persons as a condition of employment with that
local public agency. A local law enforcement agency that provides
the data may charge a fee to cover its actual costs in providing that
data.
(e) (1) No money collected pursuant to this section shall be used
to offset a reduction in any other source of funds for the purposes
authorized under this section.
(2) Funds collected pursuant to this section, upon recommendation
of local or regional Remote Access Network Boards to the Board of
Supervisors, shall be used exclusively for the purchase, by
competitive bidding procedures, and the operation of equipment which
is compatible with the Department of Justice's Cal-ID master plan, as
described in Section 11112.2 of the Penal Code, and the equipment
shall interface in a manner that is in compliance with the
requirement described in the Criminal Justice Information Services,
Electronic Fingerprint Transmission Specification, prepared by the
Federal Bureau of Investigation and dated August 24, 1995.
(f) Every county that has authorized the collection of the fee
pursuant to subdivision (a) shall issue a fiscal yearend report to
the Controller on or before November 1 of each year, summarizing all
of the following with respect to those fees:
(1) The total revenues received by the county for the fiscal year.
(2) The total expenditures and encumbered funds by the county for
the fiscal year. For purposes of this subdivision, "encumbered funds"
means funding that is scheduled to be spent pursuant to a determined
schedule and for an identified purchase consistent with this
section.
(3) Any unexpended or unencumbered fee revenues for the county for
the fiscal year.
(4) The estimated annual cost of the purchase, operation, and
maintenance of automated mobile and fixed location fingerprint
equipment, related infrastructure, law enforcement enhancement
programs, and personnel created or utilized in accordance with this
section for the fiscal year. The listing shall detail the make and
model number of the equipment, and include a succinct description of
the related infrastructure items, law enforcement enhancement
programs, and the classification or title of any personnel.
(5) How the use of the funds benefits the motoring public.
(g) For each county that fails to submit the report required
pursuant to subdivision (f) by November 1 of each year, the
Controller shall notify the Department of Motor Vehicles to suspend
the fee for that county imposed pursuant to subdivision (a) for one
year.
(h) If any funds received by a county pursuant to subdivision (a)
are not expended or encumbered in accordance with this section by the
close of the fiscal year in which the funds were received, the
Controller shall notify the Department of Motor Vehicles to suspend
the fee for that county imposed pursuant to subdivision (a) for one
year. For purposes of this subdivision, "encumbered funds" means
funding that is scheduled to be spent pursuant to a determined
schedule and for an identified purchase consistent with this section.
(i) On or before January 1, 2004, and on January 1 annually
thereafter, the Controller shall prepare and submit to the
Legislature a revenue and expenditure summary based on the
information provided pursuant to paragraphs (1) to (3), inclusive, of
subdivision (f), for each county that has authorized the collection
of the fee pursuant to subdivision (a). The Controller shall attach
to the revenue and expenditure summary the documents provided by each
county pursuant to paragraphs (4) and (5) of subdivision (f).
(j) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date. No fee imposed pursuant to this section may be collected
beyond that date.
SEC. 301. Section 9554 of the Vehicle Code is amended to read:
9554. (a) (1) The penalty shall be computed as provided in
Sections 9406 and 9559 and shall be collected with the fee, except
that the penalty for delinquency with respect to any transfer is ten
dollars ($10) and applies only to the last transfer.
(2) A penalty shall be added on any application for renewal of
registration made later than midnight of the date of expiration or on
or after the date penalties become due. The penalty shall be
computed after the registration and weight fees have been combined
with the license fee specified in Section 10751 of the Revenue and
Taxation Code, as follows:
(A) For a delinquency period of 10 days or less, the penalty is 10
percent of the fee.
(B) For a delinquency period of more than 10 days to and including
30 days, the penalty is 20 percent of the fee.
(C) For a delinquency period of more than 30 days to and including
one year, the penalty is 60 percent of the fee.
(D) For a delinquency period of more than one year to and
including two years, the penalty is 80 percent of the fee.
(E) For a delinquency period of more than two years, the penalty
is 160 percent of the fee.
(3) This subdivision applies to the renewal of registration for
vehicles with expiration dates on or before December 31, 2002.
(b) Penalties specified in paragraphs (1), (2), and (3) of this
subdivision shall be computed as provided in Section 9559 and shall
be collected with the fee, except that the penalty for delinquency
with respect to any transfer is ten dollars ($10) and applies only to
the last transfer. A penalty shall be added on any application for
a renewal of registration made later than midnight of the date of
expiration or on or after the date penalties become due.
(1) (A) For a delinquency period of 10 days or less, the penalty
is ten dollars ($10).
(B) For a delinquency period of more than 10 days, to and
including 30 days, the penalty is fifteen dollars ($15).
(C) For a delinquency period of more than 30 days, to and
including one year, the penalty is thirty dollars ($30).
(D) For a delinquency period of more than one year, to and
including two years, the penalty is fifty dollars ($50).
(E) For a delinquency period of more than two years, the penalty
is one hundred dollars ($100).
(2) The penalty on the weight fee and the vehicle license fee
shall be computed after the weight fee as provided in Section 9400 or
9400.1 plus the vehicle license fee specified in Section 10751 of
the Revenue and Taxation Code have been added together as follows:
(A) For a delinquency period of 10 days or less, the penalty is 10
percent of the fee.
(B) For a delinquency period exceeding 10 days, to and including
30 days, the penalty is 20 percent of the fee.
(C) For a delinquency period of more than 30 days, to and
including one year, the penalty is 60 percent of the fee.
(D) For a delinquency period of more than one year, to and
including two years, the penalty is 80 percent of the fee.
(E) For a delinquency period of more than two years, the penalty
is 160 percent of the fee.
(3) Weight fees not reported and not paid within 20 days, as
required by Section 9406, shall be assessed a penalty on the
difference in the weight fee, as follows:
(A) For a delinquency period of 10 days or less, the penalty is 10
percent of the fee.
(B) For a delinquency period exceeding 10 days, to and including
30 days, the penalty is 20 percent of the fee.
(C) For a delinquency period of more than 30 days, to and
including one year, the penalty is 60 percent of the fee.
(D) For a delinquency period of more than one year, to and
including two years, the penalty is 80 percent of the fee.
(E) For a delinquency period of more than two years, the penalty
is 160 percent of the fee.
(4) This subdivision applies to the renewal of registration for
vehicles with expiration dates on or after January 1, 2003.
SEC. 302. Section 11614.1 of the Vehicle Code is amended to read:
11614.1. No lessor-retailer licensed under this chapter may do
any of the following in connection with any activity for which this
license is required:
(a) Use a picture in connection with any advertisement of the
price of a specific vehicle or class of vehicles, unless the picture
is of the year, make, and model being offered for sale. The picture
may not depict a vehicle with optional equipment or a design not
actually offered at the advertised price.
(b) Advertise a vehicle for sale that was used by the selling
lessor-retailer in its business as a demonstrator, executive vehicle,
service vehicle,
rental, loaner, or lease vehicle, unless the advertisement clearly
and conspicuously discloses the previous use made by that licensee of
the vehicle. An advertisement may not describe any of those
vehicles as "new."
(c) Advertise any used vehicle of the current or prior model-year
without expressly disclosing the vehicle as "used," "previously
owned," or a similar term that indicates that the vehicle is used, as
defined in this code.
(d) Use the terms "on approved credit" or "on credit approval" in
an advertisement for the sale of a vehicle unless those terms are
clearly and conspicuously disclosed and unabbreviated.
(e) Advertise an amount described by terms such as "unpaid balance"
or "balance can be financed" unless the total sale price is clearly
and conspicuously disclosed and is in close proximity to the
advertised balance.
(f) Advertise credit terms that fail to comply with the disclosure
requirements of Section 226.24 of Title 12 of the Code of Federal
Regulations. Advertisements of terms that include escalated
payments, balloon payments, or deferred downpayments shall clearly
and conspicuously identify those payments as to amounts and time due.
(g) Advertise claims such as "everyone financed," "no credit
rejected," or similar claims unless the dealer is willing to extend
credit to any person under any and all circumstances.
(h) Advertise the amount of any downpayment unless it represents
the total payment required of a purchaser prior to delivery of the
vehicle, including any payment for sales tax or license. A statement
such as "$____ delivers," is an example of an advertised
downpayment.
(i) Fail to clearly and conspicuously disclose in an advertisement
for the sale of a vehicle any disclosure required by this code or
any qualifying term used in conjunction with advertised credit terms.
Unless otherwise provided by statute, the specific size of
disclosures or qualifying terms is not prescribed.
SEC. 303. Section 11701 of the Vehicle Code is amended to read:
11701. Every manufacturer, manufacturer branch, remanufacturer,
remanufacturer branch, distributor, distributor branch, transporter,
or dealer of vehicles of a type subject to registration, or
snowmobiles, motorcycles, or trailers of a type subject to
identification, shall make application to the department for a
license containing a general distinguishing number. The applicant
shall submit proof of his or her status as a bona fide manufacturer,
manufacturer branch, remanufacturer, remanufacturer branch,
distributor, distributor branch, transporter, or dealer as may
reasonably be required by the department.
SEC. 304. Section 11711.3 of the Vehicle Code is amended to read:
11711.3. A person acting as a dealer, who was not licensed as a
dealer as required by this article, or a person acting as a
lessor-retailer, who was not licensed as a lessor-retailer as
required by Chapter 3.5 (commencing with Section 11600), may not
enforce any security interest or bring or maintain any action in law
or equity to recover any money or property or obtain other relief
from the purchaser or lessee of a vehicle in connection with a
transaction in which the person was, at the time of the transaction,
required to be licensed as a dealer or a lessor-retailer.
SEC. 305. Section 12509 of the Vehicle Code is amended to read:
12509. (a) Except as otherwise provided in subdivision (f) of
Section 12514, the department, for good cause, may issue an
instruction permit to any physically and mentally qualified person
who meets one of the following requirements and who applies to the
department for an instruction permit:
(1) Is age 15 years and 6 months or over and has successfully
completed approved courses in automobile driver education and driver
training as provided in paragraph (3) of subdivision (a) of Section
12814.6.
(2) Is age 15 years and 6 months or over, has successfully
completed an approved course in automobile driver education, and is
taking driver training as provided in paragraph (3) of subdivision
(a) of Section 12814.6.
(3) Is age 15 years or over, is enrolled in an approved driver
education course, and is at the same time or during the same semester
enrolled in an approved driver training course.
(4) Is over the age of 17 years and 6 months.
(5) Is over the age of 16 years and is applying for a restricted
driver's license pursuant to Section 12814.7.
(b) The applicant shall qualify for and be issued an instruction
permit within 12 months from the date of the application.
(c) An instruction permit issued pursuant to subdivision (a) shall
entitle the applicant to operate a vehicle, subject to the
limitations imposed by this section and any other provisions of law,
upon the highways for a period not exceeding 24 months from the date
of the application.
(d) Except as provided in Section 12814.6, any person, while
having in his or her immediate possession a valid permit issued
pursuant to paragraphs (1) to (4), inclusive, of subdivision (a), may
operate a motor vehicle, other than a motorcycle or a motorized
bicycle, when accompanied by, and under the immediate supervision of,
a California licensed driver with a valid license of the appropriate
class, 18 years of age or over whose driving privilege is not on
probation. Except as provided in subdivision (e), an accompanying
licensed driver at all times shall occupy a position within the
driver's compartment that would enable the accompanying licensed
driver to assist the person in controlling the vehicle as may be
necessary to avoid a collision and to provide immediate guidance in
the safe operation of the vehicle.
(e) Any person, while having in his or her immediate possession a
valid permit issued pursuant to paragraphs (1) to (4), inclusive, of
subdivision (a), who is age 15 years and 6 months or over and who has
successfully completed approved courses in automobile education and
driver training as provided in paragraph (3) of subdivision (a) of
Section 12814.6, and any person, while having in his or her immediate
possession a valid permit issued pursuant to subdivision (a), who is
age 17 years and 6 months or over, may, in addition to operating a
motor vehicle pursuant to subdivision (d), also operate a motorcycle
or a motorized bicycle, except that the person shall not operate a
motorcycle or a motorized bicycle during hours of darkness, shall
stay off any freeways that have full control of access and no
crossings at grade and shall not carry any passenger except an
instructor licensed under Chapter 1 (commencing with Section 11100)
of Division 5 of this code or a qualified instructor as defined in
Section 18252.2 of the Education Code.
(f) Any person having in his or her immediate possession a valid
permit issued pursuant to paragraph (5) of subdivision (a) may only
operate a government-owned motor vehicle, other than a motorcycle or
a motorized bicycle, when taking the driver training instruction
administered by the California National Guard as required by
paragraph (2) of subdivision (a) of Section 21814.7.
(g) The department may also issue an instruction permit to a
person who has been issued a valid driver's license to authorize the
person to obtain driver training instruction and to practice that
instruction in order to obtain another class of driver's license or
an endorsement.
(h) The department may further restrict permits issued under
subdivision (a) as it may determine to be appropriate to assure the
safe operation of a motor vehicle by the permittee.
SEC. 306. Section 21228 of the Vehicle Code is amended to read:
21228. Any person operating a motorized scooter upon a highway at
a speed less than the normal speed of traffic moving in the same
direction at that time shall ride as close as practicable to the
right-hand curb or right edge of the roadway, except under the
following situations:
(a) When overtaking and passing another vehicle proceeding in the
same direction.
(b) When preparing for a left turn, the operator shall stop and
dismount as close as practicable to the right-hand curb or right edge
of the roadway and complete the turn by crossing the roadway on
foot, subject to the restrictions placed on pedestrians in Chapter 5
(commencing with Section 21950).
(c) (1) When reasonably necessary to avoid conditions, including,
but not limited to, fixed or moving objects, vehicles, bicycles,
pedestrians, animals, surface hazards, or substandard width lanes,
which make it unsafe to continue along the right-hand curb or right
edge of the roadway, subject to Section 21656.
(2) For the purposes of paragraph (1), a "substandard width lane"
is a lane that is too narrow for a motorized scooter and another
vehicle to travel safely side by side within the lane.
(d) Any person operating a motorized scooter upon a highway that
carries traffic in one direction only and has two or more marked
traffic lanes may operate the motorized scooter as near the left-hand
curb or left edge of that roadway as practicable.
However, when preparing for a right turn, the operator shall stop
and dismount as close as practicable to the left-hand curb or left
edge of the highway and complete the turn by crossing the roadway on
foot, subject to the restrictions placed on pedestrians in Chapter 5
(commencing with Section 21950).
SEC. 307. Section 21655.3 of the Vehicle Code is amended to read:
21655.3. (a) A high-occupancy vehicle lane on a state highway
that has been given permanent operational status as a high-occupancy
lane by the department on or after January 1, 1987, but before
December 31, 1987, in conjunction with a transportation planning
agency, and that is operated as a high-occupancy vehicle lane on a
24-hour basis after that date, shall be separated from adjacent
mixed-flow lanes by a buffer area of at least four feet in width.
(b) The transportation planning agency having within its area of
jurisdiction a high-occupancy vehicle lane meeting the operational
requirements of subdivision (a) and having no buffer or a buffer less
than four feet in width shall, by July 1, 1988, do one of the
following:
(1) Enter into an agreement with the department to provide a
four-foot buffer between the high-occupancy vehicle lane and the
adjacent lanes and agree to pay any costs for the buffer not
programmed by the department.
(2) Submit to the department a written request that the
high-occupancy vehicle lane be changed to a mixed-flow lane.
(c) Upon receipt of notification by the transportation planning
agency of its request that the high-occupancy vehicle lane become a
mixed-flow lane, the department shall proceed with the work necessary
to change the high-occupancy lane to a mixed-flow lane.
(d) The width of a buffer between a high-occupancy vehicle lane
and adjacent lanes may be less than four feet at locations where a
four-foot buffer would require the removal, relocation, or
reconstruction of any existing bridge support structures or where
part of the buffer space is required for enforcement refuge areas.
SEC. 308. Section 23109.2 of the Vehicle Code, as amended by
Section 2 of Chapter 411 of the Statutes of 2002, is amended to read:
23109.2. (a) (1) Whenever a peace officer determines that a
person was engaged in any of the activities set forth in paragraph
(2), the peace officer may immediately arrest and take into custody
that person and may cause the removal and seizure of the motor
vehicle used in that contest in accordance with Chapter 10
(commencing with Section 22650). A motor vehicle so seized may be
impounded for not more than 30 days.
(2) (A) A motor vehicle speed contest, as described in subdivision
(a) of Section 23109.
(B) Reckless driving on a highway, as described in subdivision (a)
of Section 23103.
(C) Reckless driving in any offstreet parking facility, as
described in subdivision (b) of Section 23103.
(D) Exhibition of speed on a highway, as described in subdivision
(c) of Section 23109.
(b) The registered and legal owner of a vehicle that is removed
and seized under subdivision (a) or their agents shall be provided
the opportunity for a storage hearing to determine the validity of
the storage in accordance with Section 22852.
(c) (1) Notwithstanding Chapter 10 (commencing with Section 22650)
or any other provision of law, an impounding agency shall release a
motor vehicle to the registered owner or his or her agent prior to
the conclusion of the impoundment period described in subdivision (a)
under any of the following circumstances:
(A) If the vehicle is a stolen vehicle.
(B) If the person alleged to have been engaged in the motor
vehicle speed contest, as described in subdivision (a), was not
authorized by the registered owner of the motor vehicle to operate
the motor vehicle at the time of the commission of the offense.
(C) If the registered owner of the vehicle was neither the driver
nor a passenger of the vehicle at the time of the alleged violation
pursuant to subdivision (a), or was unaware that the driver was using
the vehicle to engage in any of the activities described in
subdivision (a).
(D) If the legal owner or registered owner of the vehicle is a
rental car agency.
(E) If, prior to the conclusion of the impoundment period, a
citation or notice is dismissed under Section 40500, criminal charges
are not filed by the district attorney because of a lack of
evidence, or the charges are otherwise dismissed by the court.
(2) A vehicle shall be released pursuant to this subdivision only
if the registered owner or his or her agent presents a currently
valid driver's license to operate the vehicle and proof of current
vehicle registration, or if ordered by a court.
(3) If, pursuant to subparagraph (E) of paragraph (1) a motor
vehicle is released prior to the conclusion of the impoundment
period, neither the person charged with a violation of subdivision
(a) of Section 23109 nor the registered owner of the motor vehicle is
responsible for towing and storage charges nor shall the motor
vehicle be sold to satisfy those charges.
(d) A vehicle seized and removed under subdivision (a) shall be
released to the legal owner of the vehicle, or the legal owner's
agent, on or before the 30th day of impoundment if all of the
following conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state, or is another person, not the
registered owner, holding a security interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the impoundment of the vehicle. No lien
sale processing fees shall be charged to a legal owner who redeems
the vehicle on or before the 15th day of impoundment.
(3) The legal owner or the legal owner's agent presents
foreclosure documents or an affidavit of repossession for the
vehicle.
(e) (1) The registered owner or his or her agent is responsible
for all towing and storage charges related to the impoundment, and
any administrative charges authorized under Section 22850.5.
(2) Notwithstanding paragraph (1), if the person convicted of
engaging in the activities set forth in paragraph (2) of subdivision
(a) was not authorized by the registered owner of the motor vehicle
to operate the motor vehicle at the time of the commission of the
offense, the court shall order the convicted person to reimburse the
registered owner for any towing and storage charges related to the
impoundment, and any administrative charges authorized under Section
22850.5 incurred by the registered owner to obtain possession of the
vehicle, unless the court finds that the person convicted does not
have the ability to pay all or part of those charges.
(3) If the vehicle is a rental vehicle, the rental car agency may
require the person to whom the vehicle was rented to pay all towing
and storage charges related to the impoundment and any administrative
charges authorized under Section 22850.5 that were incurred by the
rental car agency in connection with obtaining possession of the
vehicle.
(4) The owner is not liable for any towing and storage charges
related to the impoundment if acquittal or dismissal occurs.
(5) The vehicle may not be sold prior to the defendant's
conviction.
(6) The impounding agency is responsible for the actual costs
incurred by the towing agency as a result of the impoundment should
the registered owner be absolved of liability for those charges
pursuant to paragraph (3) of subdivision (c) of Section 23109.2.
Notwithstanding this provision, nothing shall prohibit impounding
agencies from making prior payment arrangements to satisfy this
requirement.
(f) Any period in which a vehicle is subjected to storage under
this section shall be included as part of the period of impoundment
ordered by the court under subdivision (h) of Section 23109.
(g) This section shall remain in effect only until January 1,
2007, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2007, deletes or extends
that date.
SEC. 309. Section 42011 of the Vehicle Code is amended to read:
42011. (a) For any offense specified in subdivision (b) that is
committed by the driver of a vehicle under either of the following
conditions, the fine in a misdemeanor case shall be double the base
amount otherwise prescribed, not including any penalty assessments or
other fees or additions, and in an infraction case, the fine shall
be one category higher than the penalty otherwise prescribed by the
uniform traffic penalty schedule established pursuant to Section
40310, not including any penalty assessments or other fees or
additions:
(1) When passing a school building or the grounds thereof, if the
building or grounds are contiguous to a highway and posted with a
standard "SCHOOL" warning sign and an accompanying sign notifying
motorists that increased penalties apply for traffic violations that
are committed within that school zone, and children are going to or
leaving the school either during school hours or during the noon
recess period.
(2) When passing any school grounds that are not separated from
the highway by a fence, gate, or other physical barrier while the
grounds are in use by children, and the highway is posted with a
standard "SCHOOL" warning sign and an accompanying sign notifying
motorists that increased penalties apply for traffic violations that
are committed within that school zone.
(b) A violation of any of the following provisions is an offense
that is subject to subdivision (a):
(1) Article 3 (commencing with Section 21450) of Chapter 2 of
Division 11, relating to obedience to traffic devices.
(2) Chapter 3 (commencing with Section 21650) of Division 11,
relating to driving, overtaking, and passing.
(3) Chapter 4 (commencing with Section 21800) of Division 11,
relating to yielding the right-of-way.
(4) Chapter 6 (commencing with Section 22100) of Division 11,
relating to turning and stopping and turn signals.
(5) Chapter 7 (commencing with Section 22348) of Division 11,
relating to speed limits.
(6) Chapter 8 (commencing with Section 22450) of Division 11,
relating to special traffic stops.
(7) Section 23103, relating to reckless driving.
(8) Section 23104, relating to reckless driving which results in
bodily injury to another.
(9) Section 23109, relating to speed contests.
(10) Section 23152, relating to driving under the influence of
alcohol or a controlled substance, or a violation of Section 23103,
as specified in Section 23103.5, relating to alcohol-related reckless
driving.
(11) Section 23153, relating to driving under the influence of
alcohol or a controlled substance, which results in bodily injury to
another.
(12) Section 23220, relating to drinking while driving.
(13) Section 23221, relating to drinking in a motor vehicle while
on the highway.
(14) Section 23222, relating to driving while possessing marijuana
or an open alcoholic beverage container.
(15) Section 23223, relating to being in a vehicle on the highway
while possessing an open alcoholic beverage container.
(16) Section 23224, relating to being a driver or passenger under
the age of 21 years possessing an open alcoholic beverage container.
(17) Section 23225, relating to being the owner or driver of a
vehicle in which there is an open alcoholic beverage container.
(18) Section 23226, relating to being a passenger in a vehicle in
which there is an open alcoholic beverage container.
(c) (1) This section applies only in Alameda County, Santa Barbara
County, Ventura County, or in a city in any of these counties, and
only if that jurisdiction has adopted this section by a vote of the
city council or county board of supervisors, as appropriate.
(2) The increased fines authorized by subdivision (a) may only be
imposed and collected once per offense notwithstanding the fact that
the offense occurred within more than one jurisdiction all of which
have adopted this section. Furthermore, no increased fine shall be
imposed if an increased fine is imposed under Section 42009 or 42010
because the offense occurred within a highway construction or
maintenance area or safety enhancement area.
(d) Any city or county that adopts this section shall promptly
notify the California Highway Patrol and the law enforcement agency
having the primary traffic investigative authority of that fact.
(e) This section shall remain in effect only until January 1,
2007, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2007, deletes or extends
that date.
SEC. 310. Section 1013 of the Water Code is amended to read:
1013. (a) The Imperial Irrigation District, acting under a
contract with the United States for diversion and use of Colorado
River water or pursuant to the California Constitution or to this
chapter, or complying with an order of the Secretary of the Interior,
a court, or the board, to reduce through conservation measures, the
volume of the flow of water directly or indirectly into the Salton
Sea, shall not be held liable for any effects to the Salton Sea or
its bordering area resulting from the conservation measures.
(b) For the purposes of this section, and during the term of the
Quantification Settlement Agreement as defined in subdivision (a) of
Section 1 of Chapter 617 of the Statutes of 2002, "land fallowing
conservation measures" means the generation of water to be made
available for transfer or for environmental mitigation purposes by
fallowing land or removing land from agricultural production
regardless of whether the fallowing or removal from agricultural
production is temporary or long term, and regardless of whether it
occurs in the course of normal and customary agricultural production,
if both of the following apply:
(1) The measure is part of a land fallowing conservation plan that
includes mitigation provisions adopted by the Board of Directors of
the Imperial Irrigation District.
(2) Before the Imperial Irrigation District adopts a land
fallowing conservation plan, the district shall consult with the
Board of Supervisors of the County of Imperial and obtain the board's
assessment of whether the proposed land fallowing conservation plan
includes adequate measures to avoid or mitigate unreasonable economic
or environmental impacts in the County of Imperial.
(c) In order to minimize impacts on the environment, during the
term of the Quantification Settlement Agreement and for six years
thereafter, in any evaluation or assessment of the Imperial
Irrigation District's use of water, it shall be conclusively presumed
that any water conserved, or used for mitigation purposes, through
land fallowing conservation measures has been conserved in the same
volume as if conserved by efficiency improvements, such as by
reducing canal seepage, canal spills, or surface or subsurface runoff
from irrigation fields.
(d) If a party to the Quantification Settlement Agreement engages
in water efficiency conservation measures or land fallowing
conservation measures to carry out a Quantification Settlement
Agreement transfer or to mitigate the environmental impacts of a
Quantification Settlement Agreement transfer, there may be no
forfeiture, diminution, or impairment of the right of that party to
use of the water conserved.
(e) During the period that the Quantification Settlement Agreement
is in effect and the Imperial Irrigation District is meeting its
water delivery obligations under the Quantification Settlement
Agreement, if the Imperial Irrigation District utilizes land
fallowing conservation measures that ensure compliance with the
criteria of subdivision (c) of Section 2081.7 of the Fish and Game
Code for the environmental impacts of a water transfer to implement
the Quantification Settlement Agreement, no person or local agency,
as defined in Section 21062 of the Public Resources Code, may seek to
obtain additional conserved Colorado River water from the district,
voluntarily or involuntarily, until the district has adopted a
resolution offering to make conserved Colorado River water available.
(f) Subdivisions (c), (d), and (e) shall not become operative
unless the parties have executed the Quantification Settlement
Agreement on or before December 31, 2002.
(g) This section may not be construed to exempt the Imperial
Irrigation District from any requirement established under the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code).
SEC. 311. Section 12949.6 of the Water Code is amended to read:
12949.6. (a) Not later than July 1, 2004, the department shall
report to the Legislature on potential opportunities for the use of
seawater and brackish water desalination in California. The report
shall evaluate impediments to the use of desalination technology and
shall examine what role, if any, the state should play in furthering
the use of desalination in California.
(b) The department shall convene a task force, to be known as the
Water Desalination Task Force, to advise the department in
implementation of subdivision (a), including making recommendations
to the Legislature regarding the following:
(1) The need for research, development, and demonstration projects
for more cost effective and technologically efficient desalination
processes.
(2) The environmental impacts of brine disposal, energy use
related to desalination, and large-scale ocean water desalination.
(3) An evaluation of the current regulatory framework of state and
local rules, regulations, ordinances, and permits to identify the
obstacles and methods to creating an efficient siting and permitting
system.
(4) Determining a relationship between existing electricity
generation facilities and potential desalination facilities,
including an examination of issues related to the amounts of
electricity required to maintain a desalination facility.
(5) Ensuring desalinated water meets state water quality
standards.
(6) Impediments or constraints, other than water rights, to
increasing the use of desalinated water both in coastal and inland
regions.
(7) The economic impact and potential impacts of the desalination
industry on state revenues.
(8) The role that the state should play in furthering the use of
desalination technology in California.
(9) An evaluation of a potential relationship between desalination
technology and alternative energy sources, including photovoltaic
energy and desalination.
(c) (1) The task force shall be convened by the department and be
comprised of one representative from each of the following agencies:
(A) The department.
(B) The California Coastal Commission.
(C) The State Energy Resources Conservation and Development
Commission.
(D) The California Environmental Protection Agency.
(E) The State Department of Health Services.
(F) The Resources Agency.
(G) The State Water Resources Control Board.
(H) The CALFED Bay-Delta Program.
(I) The Department of Food and Agriculture.
(J) The University of California.
(K) The United States Department of Interior, if that agency
wishes to participate.
(2) The task force shall also include, as determined by the
department, one representative from a recognized environmental
advocacy group, one representative from a consumer advocacy group,
one representative of local agency health officers, one
representative of a municipal water supply agency, one representative
of urban water wholesalers, one representative from a regional water
control board, one representative from a groundwater management
entity, one representative of water districts, one representative
from a nonprofit association of public and private members created to
further the use of desalinated water, one representative of land
development, and one representative of industrial interests.
(d) The sum of one hundred thousand dollars ($100,000) is hereby
appropriated from the Bosco-Keene Renewable Resources Investment Fund
to the department for the purpose of establishing the task force and
preparing the report required in subdivision (a).
SEC. 312. Section 12994 of the Water Code is amended to read:
12994. (a) The Legislature finds and declares all of the
following:
(1) The CALFED Bay-Delta Program has identified as a core action
the need for emergency levee management planning for delta levees to
improve system reliability.
(2) Even with active levee maintenance, the threat of delta levee
failures from earthquake, flood, or poor levee foundation, will
continue to exist.
(3) Because of this threat of failure, and the potential need to
mobilize people and equipment in an emergency to protect delta levees
and public benefits, the department needs authority that will enable
it to act quickly.
(b) The department may do all of the following:
(1) In an emergency, as defined by Section 21060.3 of the Public
Resources Code, that requires immediate levee work to protect public
benefits in the delta, the department may use funds pursuant to this
part without prior approval of a plan by the board or the Department
of Fish and Game, in which case the requirements of Sections 12314
and 12987, and the memorandum of understanding pursuant to Section
12307, shall be carried out as soon as possible.
(A) The amount of funds that may be expended each year on
emergency levee work under this section shall not be greater than two
hundred thousand dollars ($200,000) and the amount that may be
expended per emergency levee site shall not be greater than fifty
thousand dollars ($50,000). The local agency shall fund 25 percent
of the total costs of the emergency repair at a site or shall fund an
appropriate share of the costs as approved by the board and based
upon information of the local agency's ability to pay for the
repairs.
(B) Department contracts executed for emergency levee work under
this section shall be exempted from Department of General Services
approval required under the Public Contract Code.
(C) As soon as feasible after the emergency repair, the department
shall submit a report to the board describing the levee work, costs
incurred, and plans for future work at the site, including any
necessary mitigation.
(D) This section is intended to supplement emergency services
provided by the state or the United States. Nothing in this section
overrides or supersedes the authority of the Director of the Office
of Emergency Services under the California Emergency Services Act
(Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of
the Government Code) or the Disaster Assistance Act (Chapter 7.5
(commencing with Section 8680) of Division 1 of Title 2 of the
Government Code).
(2) Prepare and submit to the board for adoption a delta emergency
response plan for levee failures. The plan is exempt from Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code. The plan may include recommendations of
the multiagency response team established pursuant to paragraph (3)
and may include, but not be limited to, the following:
(A) Standardized contracts for emergency levee work to be executed
by the department, local agencies, or other appropriate entities.
(B) Criteria for eligible emergency levee work.
(C) Definition of an emergency levee site.
(D) Documentation requirements.
(E) Proposals for complying with the federal Endangered Species
Act of 1973 (16 U.S.C. Sec. 1531 et seq.) and the California
Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of
Division 3 of the Fish and Game Code) in an emergency.
(F) Stages of emergency response that may occur in various
situations.
(3) Establish a multiagency emergency response team, consisting of
representatives from the department, the board, the Department of
Fish and Game, the California Conservation Corps, the Office of
Emergency Services, the Federal Emergency Management Agency, the
United States Army Corps of Engineers, and the United States Fish and
Wildlife Service to advise on methods to ensure that levee
emergencies will be resolved as quickly and safely as possible.
SEC. 313. Section 13307.1 of the Water Code is amended to read:
13307.1. (a) The state board and the regional boards shall not
consider cleanup or site closure proposals from the primary or active
responsible discharger, issue a closure letter, or make a
determination that no further action is required with respect to a
site subject to a cleanup or abatement order pursuant to Section
13304, unless all current record owners of fee title to the site of
the proposed action have been notified of the proposed action by the
state board or regional board.
(b) The state board and regional boards shall take all reasonable
steps necessary to accommodate responsible landowner participation in
the cleanup or site closure process and shall consider all input and
recommendations from any responsible landowner wishing to
participate.
(c) In addition to the requirements of subdivision (a), if the
state board or the regional board finds that the property is not
suitable for unrestricted use and that a land use restriction is
necessary for the protection of public health, safety, or the
environment, then the state board and the regional boards may not
issue a closure letter, or make a determination that no further
action is required, with respect to a site that is subject to a
cleanup or abatement order pursuant to Section 13304 and that is not
an underground storage tank site, unless a land use restriction is
recorded or required to be recorded pursuant to Section 1471 of the
Civil Code.
SEC. 314. Section 22762 of the Water Code is amended to read:
22762. An action to determine the validity of the Quantification
Settlement Agreement defined in subdivision (a) of Section 1 of
Chapter 617 of the Statutes of 2002, or any action regarding a
contract entered into that implements, or is referenced in, that
Quantification Settlement Agreement, may be brought pursuant to
Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the
Code of Civil Procedure.
SEC. 315. The heading of Article 1 (commencing with Section 71660)
of Chapter 3 of Part 5 of Division 20 of the Water Code is amended
to read:
Article 1. Recreation and Electrical Power
SEC. 316. Section 75480 of the Water Code is amended to read:
75480. (a) The North San Joaquin Water Conservation District, in
addition to its other powers, may levy assessments as provided in
this chapter.
(b) "District," for the purposes of this chapter, means the North
San Joaquin Water Conservation District.
(c) "Collected water" and "water that is collected," for the
purposes of this chapter, means the net acre-feet of water caused to
be deposited onto land by the district. In determining the amount of
collected water, both the amount of water entering the water system
and the amount of water leaving the water system, having not been
applied, shall be measured. The amount of water that leaves the
system, having not been applied, shall be subtracted from the amount
of water that enters the system. The difference shall be reduced by
the amount of water lost due to evaporation and further reduced for
water subject to export from the district. The sum difference is the
amount of collected water.
(d) "Applied," for the purposes of this chapter, means that the
water has been used for irrigation, recharge, in lieu of flooding,
deposited into an area for storage, or held in an area for
percolation purposes.
(e) "System," for the purposes of this chapter, means all of the
physical apparatus owned, operated, or maintained by the district for
the purpose of moving or holding water.
SEC. 317. Section 79420 of the Water Code, as added by Chapter 955
of the Statutes of 2002, is amended to read:
79420. (a) The authority may exercise all of the following
powers:
(1) Sue or be sued.
(2) Delegate administrative functions to the staff of the
authority.
(3) Request reports from state, federal, and local government
agencies on issues related to the implementation of the California
Bay-Delta Program.
(4) Receive funds, including funds from private and local
government sources, and contributions from public and private
sources, as well as state and federal appropriations.
(5) Enter into contracts consistent with existing contracting
practices of the Department of General Services.
(6) Disburse funds through grants, public assistance, loans, and
contracts to entities, including federally recognized Indian tribes,
within the Bay-Delta Program regions, as described in subdivision (e)
of Section 79401, to carry out the Bay-Delta Program goals and
objectives.
(7) Employ the services of other public, nonprofit, or private
entities.
(8) Employ its own legal staff or contract with other state or
federal agencies for legal services, or both. The authority may
employ special legal counsel with the approval of the Attorney
General.
(9) Adopt regulations as needed for the implementation of this
division. A federal representative may decline to participate in
actions described in this subdivision if he or she identifies a
constitutional or statutory limitation on that participation. The
authority granted by this paragraph does not extend to the adoption
of regulations to implement the program elements described in
subdivisions (a) to (f), inclusive, and subdivision (h) of Section
79441.
(10) Obtain and hold regulatory permits and prepare environmental
documents.
(11) Pursuant to Section 78684.8, the authority is hereby
designated the successor to the Secretary of the Resources Agency for
the purpose of carrying out the balancing and related procedures
established pursuant to Section 78684.12.
(b) This section shall become operative only if this bill and
Senate Bill 1653 of the 2001-02 Regular Session are both chaptered
and become effective on or before January 1, 2003, and this bill is
chaptered last, in which case this section shall prevail over Section
79420, as added by Senate Bill 1653.
SEC. 318. Section 79460 of the Water Code is amended to read:
79460. (a) The authority shall provide administrative support for
the Bay-Delta Public Advisory Committee.
(b) The authority shall take any administrative actions necessary
to maintain the Bay-Delta Public Advisory Committee's status as an
advisory committee under the Federal Advisory Committee Act (P.L.
92-463, as amended).
(c) The authority shall provide assistance to the Governor and
Secretary of the Interior to ensure that the candidates for
appointment to the Bay-Delta Public Advisory Committee are
representatives of federally recognized Indian tribes or "stakeholder"
groups, reflect a geographic diversity and diversity of interests
affected by the health of the bay-delta, and have expertise in the
relevant fields as specified in the committee's federal charter.
Appointment shall be made to ensure that the committee as a whole is
both balanced and diverse.
(d) The Bay-Delta Public Advisory Committee shall advise and make
recommendations to the authority and director on issues related to
the California Bay-Delta Program and any of the processes, projects,
or programs required by this division.
(e) The members of the Bay-Delta Public Advisory Committee may
receive reimbursement for necessary travel expenses incurred by the
members in the performance of the members' duties, consistent with
state per diem rates.
SEC. 319. Section 225.05 of the Welfare and Institutions Code is
amended to read:
225.05. (a) The Department of the Youth Authority shall convene a
task force to identify and recommend methods of achieving better
coordination of, and savings in, the continuum of correctional,
rehabilitative, and preventive services for youthful offenders,
including status offenders adjudicated pursuant to Section 601 and
delinquents adjudicated pursuant to Sections 602 and 707. The
department shall report on the findings and recommendations of the
task force to the Legislature no later than January 15, 1992.
(b) The task force shall develop recommendations for achieving the
following:
(1) The use of local community corrections options, including
innovative methods of providing delinquency prevention and treatment
programs.
(2) Innovative, intensive programs for wards committed to the
Department of the Youth Authority facilities.
(3) Coordination with state and local programs which provide
treatment and services to youthful offenders.
(4) Restructuring current state and local juvenile justice funding
mechanisms in order to provide fiscal and program incentives for the
utilization of local juvenile justice treatment and services,
including, but not limited to, the utilization of a negotiated net
amount or rate model pursuant to Article 3 (commencing with Section
5700) of Chapter 2 of Part 1, for payment of costs associated with
commitment of wards to the Department of the Youth Authority
facilities.
(5) (A) Appropriate funding of juvenile justice programs contained
in county realignment under Section 17602, including all of the
following provisions:
(i) Article 25.4 (commencing with Section 894) of Chapter 2 of
Division 2.
(ii) Article 5.5 (commencing with Section 1790) of Chapter 1 of
Division 2.5.
(iii) Article 7 (commencing with Section 1805) of Chapter 1 of
Division 2.5.
(iv) Article 10 (commencing with Section 1900) of Chapter 1 of
Division 2.5.
(B) The task force shall recommend both short-term and long-term
funding solutions for the programs specified in subparagraph (A),
including recommendations for appropriate state and local agency
responsibility for determining funding levels, program
administration, oversight, and evaluation.
(c) The task force shall be composed of persons knowledgeable in
delinquency prevention programs, juvenile justice issues, and
alternative juvenile justice models, including representatives of the
Department of the Youth Authority, the State Department of Social
Services, the Chief Probation Officers Association, the County
Supervisors Association of California, the County Welfare Directors
Association, the Juvenile Court Judges of California, and county and
private nonprofit agencies involved with juvenile justice services.
In developing its recommendations, the task force shall consult with
representatives of providers of group home care for delinquent
minors.
SEC. 320. Section 366.4 of the Welfare and Institutions Code is
amended to read:
366.4. (a) Any minor for whom a guardianship has been established
resulting from the selection or implementation of a permanency plan
pursuant to Section 366.26 is within the jurisdiction of the juvenile
court. For those minors, Part 2 (commencing with Section 1500) of
Division 4 of the Probate Code, relating to guardianship, shall not
apply. If no specific provision of this code or the California Rules
of Court is applicable, the provisions applicable to the
administration of estates under Part 4 (commencing with Section 2100)
of Division 4 of the Probate Code govern so far as they are
applicable to like situations.
(b) Nonrelated legal guardians of the person of a minor
established as a result of a permanency plan selected pursuant to
Section 366.26 shall be exempt from the provisions of Sections 2850
and 2851 of the Probate Code.
SEC. 321. Section 1719 of the Welfare and Institutions Code is
amended to read:
1719. The following powers and duties shall be exercised and
performed by the Youthful Offender Parole Board, or may be delegated
to a panel, member, or case hearing representative as provided in
Section 1721: return of persons to the court of commitment for
redisposition by the court, discharge of commitment, orders to parole
and conditions thereof, revocation or suspension of parole,
recommendation for treatment program, determination of the date of
next appearance, and return of nonresident persons to the
jurisdiction of the state of legal residence.
SEC. 322. Section 4015 of the Welfare and Institutions Code is
amended to read:
4015. (a) The State Department of Mental Health shall, in
coordination with the task force described in subdivision (c) and
with other state entities, including, but not limited to, the
Department of General Services, the State Department of Developmental
Services, the Secretary of State, and the California State Library,
do all of the following:
(1) Conduct and complete inventories of all of the following:
(A) All materials and records necessary to create the most
complete record of persons who died while residing at any state
hospital as defined in Section 7200, or any developmental center as
defined in Section 4440.
(B) Within existing resources, identify the location of all
gravesites at existing state hospitals and developmental center lands
and of gravesites not located on state lands but designated by the
state for burial of state hospital or developmental center residents.
This shall include the location of remains that may have been moved
from their original burial site and the location of grave markers
that may have been moved from gravesites.
(C) Within existing resources, identify the names of patients
whose remains were donated for medical research, the entity to which
the remains were donated, and the final disposition of those remains.
(2) Assist and cooperate with the California Memorial Project in
conducting research regarding the records of deaths and burials of
persons at state hospitals and developmental centers and cemeteries
based on the grounds of these facilities. This assistance shall,
subject to paragraph (3), include the granting of access to those
state records as necessary to perform the inventories described in
this section.
(3) Notwithstanding Sections 4514 and 5328 or any other provision
of law regarding confidentiality of patient records, the information
described in this section shall be limited to the name, date of
birth, date of death, and photographic images of any person who died
while in residency at any state hospital or developmental center and
shall be made available for the purposes of the implementation of
this section. The exportation and use of these records or
photographic images from state facilities shall be limited to the
information delineated within, and the purposes of, this section.
(4) Assist the California Memorial Project in developing a plan
for the restoration of gravesites and cemeteries at state hospitals
and developmental centers and gravesites not located on state lands
but designated by the state for burial of state hospital or
developmental center residents.
(5) Develop a protocol for the future interment of patients who
die while residing at a state hospital or developmental center and
are unclaimed by a family member.
(b) The department may develop a protocol to coordinate the
efforts of the state entities described in subdivision (a).
(c) (1) The department shall establish a task force to provide
leadership and direction in carrying out the activities described in
this section. The task force shall consist of representatives
selected by each of the following entities:
(A) The Peer Self-Advocacy Unit of Protection and Advocacy, Inc.
(B) California Network of Mental Health Clients.
(C) Capitol People First.
(2) To the extent that funding is available, task force members
shall be reimbursed for necessary travel expenses associated with
serving on the task force. When requested by a task force member
with a disability, the state shall pay the cost of a facilitator
chosen by the task force member.
(d) In implementing this section, the state shall make no
structural changes to existing gravesites on state hospital or
developmental center lands prior to the submission of, and which do
not conform with, the restoration plan described in paragraph (4) of
subdivision (a).
(e) The department shall submit a status update on the
implementation of this section, including a description of barriers,
if any, to conducting the activities described in this section, to
the Legislature by January 31, 2004.
SEC. 323. Section 4094 of the Welfare and Institutions Code is
amended to read:
4094. (a) The State Department of Mental Health shall establish,
by regulations adopted at the earliest possible date, but no later
than December 31, 1994, program standards for any facility licensed
as a community treatment facility. This section shall apply only to
community treatment facilities described in this subdivision.
(b) A certification of compliance issued by the State Department
of Mental Health shall be a condition of licensure for the community
treatment facility by the State Department of Social Services. The
department may, upon the request of a county, delegate the
certification and supervision of a community treatment facility to
the county department of mental health.
(c) The State Department of Mental Health shall adopt regulations
to include, but not be limited to, the following:
(1) Procedures by which the Director of Mental Health shall
certify that a facility requesting licensure as a community treatment
facility pursuant to Section 1502 of the Health and Safety Code is
in compliance with program standards established pursuant to this
section.
(2) Procedures by which the Director of Mental Health shall deny a
certification to a facility or decertify a facility licensed as a
community treatment facility pursuant to Section 1502 of the Health
and Safety Code, but no longer complying with program standards
established pursuant to this section, in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code.
(3) Provisions for site visits by the State Department of Mental
Health for the purpose of reviewing a facility's compliance with
program standards established pursuant to this section.
(4) Provisions for the community care licensing staff of the State
Department of Social Services to report to the State Department of
Mental Health when there is reasonable cause to believe that a
community treatment facility is not in compliance with program
standards established pursuant to this section.
(5) Provisions for the State Department of Mental Health to
provide consultation and documentation to the State Department of
Social Services in any administrative proceeding regarding denial,
suspension, or revocation of a community treatment facility license.
(d) The standards adopted by regulations pursuant to subdivision
(a) shall include, but not be limited to, standards for treatment
staffing and for the use of psychotropic medication, discipline, and
restraints in the facilities. The standards shall also meet the
requirements of Section 4094.5.
(e) During the initial public comment period for the adoption of
the regulations required by this section, the community care facility
licensing regulations proposed by the State Department of Social
Services and the program standards proposed by the State Department
of Mental Health shall be presented simultaneously.
(f) A minor shall be admitted to a community treatment facility
only if the requirements of Section 4094.5 and either of the
following conditions is met:
(1) The minor is within the jurisdiction of the juvenile court,
and has made voluntary application for mental health services
pursuant to Section 6552.
(2) Informed consent is given by a parent, guardian, conservator,
or other person having custody of the minor.
(g) Any minor admitted to a community treatment facility shall
have the same due process rights afforded to a minor who may be
admitted to a state hospital, pursuant to the holding in In re Roger
S. (1977) 19 Cal. 3d 921. Minors who are wards or dependents of the
court and to whom this subdivision
applies shall be afforded due process in accordance with
Section 6552 and related case law, including In re Michael E. (1975)
15 Cal. 3d 183. Regulations adopted pursuant to Section 4094 shall
specify the procedures for ensuring these rights, including
provisions for notification of rights and the time and place of
hearings.
(h) Notwithstanding Section 13340 of the Government Code, the sum
of forty-five thousand dollars ($45,000) is hereby appropriated
annually from the General Fund to the State Department of Mental
Health for one personnel year to carry out the provisions of this
section.
SEC. 324. Section 4503 of the Welfare and Institutions Code is
amended to read:
4503. Each person with developmental disabilities who has been
admitted or committed to a state hospital, community care facility as
defined in Section 1502 of the Health and Safety Code, or a health
facility as defined in Section 1250 of the Health and Safety Code
shall have the following rights, a list of which shall be prominently
posted in English, Spanish, and other appropriate languages, in all
facilities providing those services and otherwise brought to his or
her attention by any additional means as the Director of
Developmental Services may designate by regulation:
(a) To wear his or her own clothes, to keep and use his or her own
personal possessions including his or her toilet articles, and to
keep and be allowed to spend a reasonable sum of his or her own money
for canteen expenses and small purchases.
(b) To have access to individual storage space for his or her
private use.
(c) To see visitors each day.
(d) To have reasonable access to telephones, both to make and
receive confidential calls.
(e) To have ready access to letterwriting materials, including
stamps, and to mail and receive unopened correspondence.
(f) To refuse electroconvulsive therapy.
(g) To refuse behavior modification techniques which cause pain or
trauma.
(h) To refuse psychosurgery notwithstanding the provisions of
Sections 5325, 5326, and 5326.3. Psychosurgery means those
operations currently referred to as lobotomy, psychiatric surgery,
and behavioral surgery and all other forms of brain surgery if the
surgery is performed for any of the following purposes:
(1) Modification or control of thoughts, feelings, actions, or
behavior rather than the treatment of a known and diagnosed physical
disease of the brain.
(2) Modification of normal brain function or normal brain tissue
in order to control thoughts, feelings, action, or behavior.
(3) Treatment of abnormal brain function or abnormal brain tissue
in order to modify thoughts, feelings, actions, or behavior when the
abnormality is not an established cause for those thoughts, feelings,
actions, or behavior.
(i) To make choices in areas including, but not limited to, his or
her daily living routines, choice of companions, leisure and social
activities, and program planning and implementation.
(j) Other rights, as specified by regulation.
SEC. 325. Section 5205 of the Welfare and Institutions Code is
amended to read:
5205. The petition shall be in substantially the following form:
In the Superior Court of the State of California
for the County of ____________
__________________________________________
The People of the State of California No. ________
Concerning Petition for
__________________________________ and Evaluation
______________________________________
Respondents
__________________________________________
__________, residing at ________ (tel. ______), being duly
sworn, alleges: That there is now in the county, in the City
or Town of ____, a person named _____, who resides at ______,
and who is, as a result of mental disorder:
(1) A danger to others.
(2) A danger to himself or herself.
(3) Gravely disabled as defined in subdivision (h) of
Section 5008 of the Welfare and Institutions Code (Strike
out all inapplicable classifications).
That the person is ______ years of age; that __ the
person is ____ (sex); and that __ the person is ____
(single, married, widowed, or divorced); and that ____
occupation is ____.
That the facts upon which the allegations of the petition
are based are as follows: That __ the person, at ____
in the county, on the ____ day of ____, 20__, ___________
____________________________________________________________
____________________________________________________________
That petitioner's interest in the case is _______________
____________________________________________________________
That the person responsible for the care, support, and
maintenance of the person, and their relationship to the
person are, so far as known to the petitioner, as follows:
(Give names, addresses, and relationship of persons named as
respondents)
Wherefore, petitioner prays that evaluation be made to
determine the condition of __________, alleged, as a result
of mental disorder, to be a danger to others, or to himself
or herself, or to be gravely disabled.
________________________________
Petitioner
Subscribed and sworn to before me this ____ day of ______
20__.
_____________________, Clerk of
the Court
By ________________________ Deputy
SEC. 326. Section 5346 of the Welfare and Institutions Code is
amended to read:
5346. (a) In any county in which services are available as
provided in Section 5348, a court may order a person who is the
subject of a petition filed pursuant to this section to obtain
assisted outpatient treatment if the court finds, by clear and
convincing evidence, that the facts stated in the verified petition
filed in accordance with this section are true and establish that all
of the requisite criteria set forth in this section are met,
including, but not limited to, each of the following:
(1) The person is 18 years of age or older.
(2) The person is suffering from a mental illness as defined in
paragraphs (2) and (3) of subdivision (b) of Section 5600.3.
(3) There has been a clinical determination that the person is
unlikely to survive safely in the community without supervision.
(4) The person has a history of lack of compliance with treatment
for his or her mental illness, in that at least one of the following
is true:
(A) The person's mental illness has, at least twice within the
last 36 months, been a substantial factor in necessitating
hospitalization, or receipt of services in a forensic or other mental
health unit of a state correctional facility or local correctional
facility, not including any period during which the person was
hospitalized or incarcerated immediately preceding the filing of the
petition.
(B) The person's mental illness has resulted in one or more acts
of serious and violent behavior toward himself or herself or another,
or threats, or attempts to cause serious physical harm to himself or
herself or another within the last 48 months, not including any
period in which the person was hospitalized or incarcerated
immediately preceding the filing of the petition.
(5) The person has been offered an opportunity to participate in a
treatment plan by the director of the local mental health
department, or his or her designee, provided the treatment plan
includes all of the services described in Section 5348, and the
person continues to fail to engage in treatment.
(6) The person's condition is substantially deteriorating.
(7) Participation in the assisted outpatient treatment program
would be the least restrictive placement necessary to ensure the
person's recovery and stability.
(8) In view of the person's treatment history and current
behavior, the person is in need of assisted outpatient treatment in
order to prevent a relapse or deterioration that would be likely to
result in grave disability or serious harm to himself or herself, or
to others, as defined in Section 5150.
(9) It is likely that the person will benefit from assisted
outpatient treatment.
(b) (1) A petition for an order authorizing assisted outpatient
treatment may be filed by the county mental health director, or his
or her designee, in the superior court in the county in which the
person who is the subject of the petition is present or reasonably
believed to be present.
(2) A request may be made only by any of the following persons to
the county mental health department for the filing of a petition to
obtain an order authorizing assisted outpatient treatment:
(A) Any person 18 years of age or older with whom the person who
is the subject of the petition resides.
(B) Any person who is the parent, spouse, or sibling or child 18
years of age or older of the person who is the subject of the
petition.
(C) The director of any public or private agency, treatment
facility, charitable organization, or licensed residential care
facility providing mental health services to the person who is the
subject of the petition in whose institution the subject of the
petition resides.
(D) The director of a hospital in which the person who is the
subject of the petition is hospitalized.
(E) A licensed mental health treatment provider who is either
supervising the treatment of, or treating for a mental illness, the
person who is the subject of the petition.
(F) A peace officer, parole officer, or probation officer assigned
to supervise the person who is the subject of the petition.
(3) Upon receiving a request pursuant to paragraph (2), the county
mental health director shall conduct an investigation into the
appropriateness of the filing of the petition. The director shall
file the petition only if he or she determines that there is a
reasonable likelihood that all the necessary elements to sustain the
petition can be proven in a court of law by clear and convincing
evidence.
(4) The petition shall state all of the following:
(A) Each of the criteria for assisted outpatient treatment as set
forth in subdivision (a).
(B) Facts that support the petitioner's belief that the person who
is the subject of the petition meets each criterion, provided that
the hearing on the petition shall be limited to the stated facts in
the verified petition, and the petition contains all the grounds on
which the petition is based, in order to ensure adequate notice to
the person who is the subject of the petition and his or her counsel.
(C) That the person who is the subject of the petition is present,
or is reasonably believed to be present, within the county where the
petition is filed.
(D) That the person who is the subject of the petition has the
right to be represented by counsel in all stages of the proceeding
under the petition, in accordance with subdivision (c).
(5) The petition shall be accompanied by an affidavit of a
licensed mental health treatment provider designated by the local
mental health director who shall state, if applicable, either of the
following:
(A) That the licensed mental health treatment provider has
personally examined the person who is the subject of the petition no
more than 10 days prior to the submission of the petition, the facts
and reasons why the person who is the subject of the petition meets
the criteria in subdivision (a), that the licensed mental health
treatment provider recommends assisted outpatient treatment for the
person who is the subject of the petition, and that the licensed
mental health treatment provider is willing and able to testify at
the hearing on the petition.
(B) That no more than 10 days prior to the filing of the petition,
the licensed mental health treatment provider, or his or her
designee, has made appropriate attempts to elicit the cooperation of
the person who is the subject of the petition, but has not been
successful in persuading that person to submit to an examination,
that the licensed mental health treatment provider has reason to
believe that the person who is the subject of the petition meets the
criteria for assisted outpatient treatment, and that the licensed
mental health treatment provider is willing and able to examine the
person who is the subject of the petition and testify at the hearing
on the petition.
(c) The person who is the subject of the petition shall have the
right to be represented by counsel at all stages of a proceeding
commenced under this section. If the person so elects, the court
shall immediately appoint the public defender or other attorney to
assist the person in all stages of the proceedings. The person shall
pay the cost of the legal services if he or she is able.
(d) (1) Upon receipt by the court of a petition submitted pursuant
to subdivision (b), the court shall fix the date for a hearing at a
time not later than five days from the date the petition is received
by the court, excluding Saturdays, Sundays, and holidays. The
petitioner shall promptly cause service of a copy of the petition,
together with written notice of the hearing date, to be made
personally on the person who is the subject of the petition, and
shall send a copy of the petition and notice to the county office of
patient rights, and to the current health care provider appointed for
the person who is the subject of the petition, if any such provider
is known to the petitioner. Continuances shall be permitted only for
good cause shown. In granting continuances, the court shall
consider the need for further examination by a physician or the
potential need to provide expeditiously assisted outpatient
treatment. Upon the hearing date, or upon any other date or dates to
which the proceeding may be continued, the court shall hear
testimony. If it is deemed advisable by the court, and if the person
who is the subject of the petition is available and has received
notice pursuant to this section, the court may examine in or out of
court the person who is the subject of the petition who is alleged to
be in need of assisted outpatient treatment. If the person who is
the subject of the petition does not appear at the hearing, and
appropriate attempts to elicit the attendance of the person have
failed, the court may conduct the hearing in the person's absence.
If the hearing is conducted without the person present, the court
shall set forth the factual basis for conducting the hearing without
the person's presence.
(2) The court shall not order assisted outpatient treatment unless
an examining licensed mental health treatment provider, who has
personally examined, and has reviewed the available treatment history
of, the person who is the subject of the petition within the time
period commencing 10 days before the filing of the petition,
testifies in person at the hearing.
(3) If the person who is the subject of the petition has refused
to be examined by a licensed mental health treatment provider, the
court may request that the person consent to an examination by a
licensed mental health treatment provider appointed by the court. If
the person who is the subject of the petition does not consent and
the court finds reasonable cause to believe that the allegations in
the petition are true, the court may order any person designated
under Section 5150 to take into custody the person who is the subject
of the petition and transport him or her, or cause him or her to be
transported, to a hospital for examination by a licensed mental
health treatment provider as soon as is practicable. Detention of
the person who is the subject of the petition under the order may not
exceed 72 hours. If the examination is performed by another
licensed mental health treatment provider, the examining licensed
mental health treatment provider may consult with the licensed mental
health treatment provider whose affirmation or affidavit accompanied
the petition regarding the issues of whether the allegations in the
petition are true and whether the person meets the criteria for
assisted outpatient treatment.
(4) The person who is the subject of the petition shall have all
of the following rights:
(A) To adequate notice of the hearings to the person who is the
subject of the petition, as well as to parties designated by the
person who is the subject of the petition.
(B) To receive a copy of the court-ordered evaluation.
(C) To counsel. If the person has not retained counsel, the court
shall appoint a public defender.
(D) To be informed of his or her right to judicial review by
habeas corpus.
(E) To be present at the hearing unless he or she waives the right
to be present.
(F) To present evidence.
(G) To call witnesses on his or her behalf.
(H) To cross-examine witnesses.
(I) To appeal decisions, and to be informed of his or her right to
appeal.
(5) (A) If after hearing all relevant evidence, the court finds
that the person who is the subject of the petition does not meet the
criteria for assisted outpatient treatment, the court shall dismiss
the petition.
(B) If after hearing all relevant evidence, the court finds that
the person who is the subject of the petition meets the criteria for
assisted outpatient treatment, and there is no appropriate and
feasible less restrictive alternative, the court may order the person
who is the subject of the petition to receive assisted outpatient
treatment for an initial period not to exceed six months. In
fashioning the order, the court shall specify that the proposed
treatment is the least restrictive treatment appropriate and feasible
for the person who is the subject of the petition. The order shall
state the categories of assisted outpatient treatment, as set forth
in Section 5348, that the person who is the subject of the petition
is to receive, and the court may not order treatment that has not
been recommended by the examining licensed mental health treatment
provider and included in the written treatment plan for assisted
outpatient treatment as required by subdivision (e). If the person
has executed an advance health care directive pursuant to Chapter 2
(commencing with Section 4650) of Part 1 of Division 4.7 of the
Probate Code, any directions included in the advance health care
directive shall be considered in formulating the written treatment
plan.
(6) If the person who is the subject of a petition for an order
for assisted outpatient treatment pursuant to subparagraph (B) of
paragraph (5) of subdivision (d) refuses to participate in the
assisted outpatient treatment program, the court may order the person
to meet with the assisted outpatient treatment team designated by
the director of the assisted outpatient treatment program. The
treatment team shall attempt to gain the person's cooperation with
treatment ordered by the court. The person may be subject to a
72-hour hold pursuant to subdivision (f) only after the treatment
team has attempted to gain the person's cooperation with treatment
ordered by the court, and has been unable to do so.
(e) Assisted outpatient treatment shall not be ordered unless the
licensed mental health treatment provider recommending assisted
outpatient treatment to the court has submitted to the court a
written treatment plan that includes services as set forth in Section
5348, and the court finds, in consultation with the county mental
health director, or his or her designee, all of the following:
(1) That the services are available from the county, or a provider
approved by the county, for the duration of the court order.
(2) That the services have been offered to the person by the local
director of mental health, or his or her designee, and the person
has been given an opportunity to participate on a voluntary basis,
and the person has failed to engage in, or has refused, treatment.
(3) That all of the elements of the petition required by this
article have been met.
(4) That the treatment plan will be delivered to the county
director of mental health, or to his or her appropriate designee.
(f) If, in the clinical judgment of a licensed mental health
treatment provider, the person who is the subject of the petition has
failed or has refused to comply with the treatment ordered by the
court, and, in the clinical judgment of the licensed mental health
treatment provider, efforts were made to solicit compliance, and, in
the clinical judgment of the licensed mental health treatment
provider, the person may be in need of involuntary admission to a
hospital for evaluation, the provider may request that persons
designated under Section 5150 take into custody the person who is the
subject of the petition and transport him or her, or cause him or
her to be transported, to a hospital, to be held up to 72 hours for
examination by a licensed mental health treatment provider to
determine if the person is in need of treatment pursuant to Section
5150. Any continued involuntary retention in a hospital beyond the
initial 72-hour period shall be pursuant to Section 5150. If at any
time during the 72-hour period the person is determined not to meet
the criteria of Section 5150, and does not agree to stay in the
hospital as a voluntary patient, he or she shall be released and any
subsequent involuntary detention in a hospital shall be pursuant to
Section 5150. Failure to comply with an order of assisted outpatient
treatment alone may not be grounds for involuntary civil commitment
or a finding that the person who is the subject of the petition is in
contempt of court.
(g) If the director of the assisted outpatient treatment program
determines that the condition of the patient requires further
assisted outpatient treatment, the director shall apply to the court,
prior to the expiration of the period of the initial assisted
outpatient treatment order, for an order authorizing continued
assisted outpatient treatment for a period not to exceed 180 days
from the date of the order. The procedures for obtaining any order
pursuant to this subdivision shall be in accordance with subdivisions
(a) to (f), inclusive. The period for further involuntary
outpatient treatment authorized by any subsequent order under this
subdivision may not exceed 180 days from the date of the order.
(h) At intervals of not less than 60 days during an assisted
outpatient treatment order, the director of the outpatient treatment
program shall file an affidavit with the court that ordered the
outpatient treatment affirming that the person who is the subject of
the order continues to meet the criteria for assisted outpatient
treatment. At these times, the person who is the subject of the
order shall have the right to a hearing on whether or not he or she
still meets the criteria for assisted outpatient treatment if he or
she disagrees with the director's affidavit. The burden of proof
shall be on the director.
(i) During each 60-day period specified in subdivision (h), if the
person who is the subject of the order believes that he or she is
being wrongfully retained in the assisted outpatient treatment
program against his or her wishes, he or she may file a petition for
a writ of habeas corpus, thus requiring the director of the assisted
outpatient treatment program to prove that the person who is the
subject of the order continues to meet the criteria for assisted
outpatient treatment.
(j) Any person ordered to undergo assisted outpatient treatment
pursuant to this article, who was not present at the hearing at which
the order was issued, may immediately petition the court for a writ
of habeas corpus. Treatment under the order for assisted outpatient
treatment may not commence until the resolution of that petition.
SEC. 327. Section 5405 of the Welfare and Institutions Code is
amended to read:
5405. (a) This section shall apply to each facility licensed by
the State Department of Mental Health, or its delegated agent, on or
after January 1, 2003. For purposes of this section, "facility"
includes psychiatric health facilities, as defined in Section 1250.2
of the Health and Safety Code, licensed pursuant to Chapter 9
(commencing with Section 77001) of Division 5 of Title 22 of the
California Code of Regulations and mental health rehabilitation
centers licensed pursuant to Chapter 3.5 (commencing with Section
781.00) of Division 1 of Title 9 of the California Code of
Regulations.
(b) (1) (A) Prior to the initial licensure or first renewal of a
license on or after January 1, 2003, of any person to operate or
manage a facility specified in subdivision (a), the department shall
submit fingerprint images and related information pertaining to the
applicant or licensee to the Department of Justice for purposes of a
criminal record check, as specified in paragraph (2), at the expense
of the applicant or licensee. The Department of Justice shall
provide the results of the criminal record check to the department.
The department shall determine whether the applicant or licensee has
ever been convicted of a crime specified in subdivision (c). The
department shall submit fingerprint images and related information
each time the position of administrator, manager, program director,
or fiscal officer of a facility is filled and prior to actual
employment for initial licensure or an individual who is initially
hired on or after January 1, 2003. For purposes of this subdivision,
"applicant" and "licensee" include the administrator, manager,
program director, or fiscal officer of a facility.
(B) Commencing January 1, 2003, upon the employment of any direct
care staff the department shall submit fingerprint images and related
information pertaining to the direct care staff person to the
Department of Justice for purposes of a criminal record check, as
specified in paragraph (2), at the expense of the direct care staff
person or licensee. The Department of Justice shall provide the
results of the criminal record check to the department. The
department shall determine whether the direct care staff person has
ever been convicted of a crime specified in subdivision (c). The
department shall notify the licensee of these results.
(C) Commencing January 1, 2003, any contract for services provided
directly to patients or residents shall contain provisions to ensure
that the direct services contractor submits to the department
fingerprint images and related
information pertaining to the direct services contractor for
submission to the Department of Justice for purposes of a criminal
record check, as specified in paragraph (2), at the expense of the
direct services contractor or licensee. The Department of Justice
shall provide the results of the criminal record check to the
department. The department shall determine whether the direct
services contractor has ever been convicted of a crime specified in
subdivision (c). The department shall notify the licensee of these
results.
(2) If the applicant, licensee, direct care staff person, or
direct services contractor specified in paragraph (1) has resided in
California for at least the previous seven years, the department
shall only require the submission of one set of fingerprint images
and related information. The Department of Justice shall charge a
fee sufficient to cover the reasonable cost of processing the
fingerprint submission. Fingerprints submitted pursuant to this
subdivision include fingerprints taken by the use of live scan
technology. When requested, the Department of Justice shall forward
one set of fingerprint images to the Federal Bureau of Investigation
for the purpose of obtaining any record of previous convictions or
arrests pending adjudication of the applicant, licensee, direct care
staff person, or direct services contractor. The results of a
criminal record check provided by the Department of Justice shall
contain every conviction rendered against an applicant, licensee,
direct care staff person, or direct services contractor, and every
offense for which the applicant, licensee, direct care staff person,
or direct services contractor is presently awaiting trial, whether
the person is incarcerated or has been released on bail or on his or
her own recognizance pending trial. The department shall request
subsequent arrest notification from the Department of Justice
pursuant to Section 11105.2 of the Penal Code.
(c) (1) The department shall deny any application for any license,
suspend or revoke any existing license, and disapprove or revoke any
employment or contract for direct services, if the applicant,
licensee, employee, or direct services contractor has been convicted
of, or incarcerated for, a felony defined in subdivision (c) of
Section 667.5 of, or subdivision (c) of Section 1192.7 of, the Penal
Code, within the preceding 10 years.
(2) The application for licensure or renewal of any license shall
be denied, and any employment or contract to provide direct services
shall be disapproved or revoked, if the criminal record of the person
includes a conviction in another jurisdiction for an offense that,
if committed or attempted in this state, would have been punishable
as one or more of the offenses referred to in paragraph (1).
(d) (1) The department may approve an application for, or renewal
of, a license, or continue any employment or contract for direct
services, if the person has been convicted of a misdemeanor offense
that is not a crime upon the person of another, the nature of which
has no bearing upon the duties for which the person will perform as a
licensee, direct care staff person, or direct services contractor.
In determining whether to approve the application, employment, or
contract for direct services, the department shall take into
consideration the factors enumerated in paragraph (2).
(2) Notwithstanding subdivision (c), if the criminal record of a
person indicates any conviction other than a minor traffic violation,
the department may deny the application for license or renewal, and
may disapprove or revoke any employment or contract for direct
services. In determining whether or not to deny the application for
licensure or renewal, or to disapprove or revoke any employment or
contract for direct services, the department shall take into
consideration the following factors:
(A) The nature and seriousness of the offense under consideration
and its relationship to the person's employment, duties, and
responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense and the number of offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any rehabilitation evidence, including character references,
submitted by the person.
(F) Employment history and current employer recommendations.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(I) A certificate of rehabilitation from a superior court.
(e) Denial, suspension, or revocation of a license, or disapproval
or revocation of any employment or contract for direct services
specified in subdivision (c) and paragraph (2) of subdivision (d) are
not subject to appeal, except as provided in subdivision (f).
(f) After a review of the record, the director may grant an
exemption from denial, suspension, or revocation of any license, or
disapproval of any employment or contract for direct services, if the
crime for which the person was convicted was a property crime that
did not involve injury to any person and the director has substantial
and convincing evidence to support a reasonable belief that the
person is of such good character as to justify issuance or renewal of
the license or approval of the employment or contract.
(g) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the meaning of
this section. The department may deny any application, or deny,
suspend, or revoke a license, or disapprove or revoke any employment
or contract for direct services based on a conviction specified in
subdivision (c) when the judgment of conviction is entered or when an
order granting probation is made suspending the imposition of
sentence.
(h) (1) For purposes of this section, "direct care staff" means
any person who is an employee, contractor, or volunteer who has
contact with other patients or residents in the provision of
services. Administrative and licensed personnel shall be considered
direct care staff when directly providing program services to
participants.
(2) An additional background check shall not be required pursuant
to this section if the direct care staff or licensee has received a
prior criminal history background check while working in a mental
health rehabilitation center or psychiatric health facility licensed
by the department, and provided the department has maintained
continuous subsequent arrest notification on the individual from the
Department of Justice since the prior criminal background check was
initiated.
(3) When an application is denied on the basis of a conviction
pursuant to this section, the department shall provide the individual
whose application was denied with notice, in writing, of the
specific grounds for the proposed denial.
SEC. 328. Section 11450 of the Welfare and Institutions Code is
amended to read:
11450. (a) (1) Aid shall be paid for each needy family, which
shall include all eligible brothers and sisters of each eligible
applicant or recipient child and the parents of the children, but
shall not include unborn children, or recipients of aid under Chapter
3 (commencing with Section 12000), qualified for aid under this
chapter. In determining the amount of aid paid, and notwithstanding
the minimum basic standards of adequate care specified in Section
11452, the family's income, exclusive of any amounts considered
exempt as income or paid pursuant to subdivision (e) or Section
11453.1, averaged for the prospective quarter pursuant to Sections
11265.2 and 11265.3, and then calculated pursuant to Section 11451.5,
shall be deducted from the sum specified in the following table, as
adjusted for cost-of-living increases pursuant to Section 11453 and
paragraph (2). In no case shall the amount of aid paid for each
month exceed the sum specified in the following table, as adjusted
for cost-of-living increases pursuant to Section 11453 and paragraph
(2), plus any special needs, as specified in subdivisions (c), (e),
and (f):
Number of
eligible needy
persons in Maximum
the same home aid
1 ............................... $ 326
2 ............................... 535
3 ............................... 663
4 ............................... 788
5 ............................... 899
6 ............................... 1,010
7 ............................... 1,109
8 ............................... 1,209
9 ............................... 1,306
10 or more ....................... 1,403
If, when, and during such times as the United States government
increases or decreases its contributions in assistance of needy
children in this state above or below the amount paid on July 1,
1972, the amounts specified in the above table shall be increased or
decreased by an amount equal to that increase or decrease by the
United States government, provided that no increase or decrease shall
be subject to subsequent adjustment pursuant to Section 11453.
(2) The sums specified in paragraph (1) shall not be adjusted for
cost of living for the 1990-91, 1991-92, 1992-93, 1993-94, 1994-95,
1995-96, 1996-97, and 1997-98 fiscal years, and through October 31,
1998, nor shall that amount be included in the base for calculating
any cost-of-living increases for any fiscal year thereafter.
Elimination of the cost-of-living adjustment pursuant to this
paragraph shall satisfy the requirements of Section 11453.05, and no
further reduction shall be made pursuant to that section.
(b) When the family does not include a needy child qualified for
aid under this chapter, aid shall be paid to a pregnant mother for
the month in which the birth is anticipated and for the three-month
period immediately prior to the month in which the birth is
anticipated in the amount that would otherwise be paid to one person,
as specified in subdivision (a), if the mother, and child, if born,
would have qualified for aid under this chapter. Verification of
pregnancy shall be required as a condition of eligibility for aid
under this subdivision. Aid shall also be paid to a pregnant woman
with no other children in the amount which would otherwise be paid to
one person under subdivision (a) at any time after verification of
pregnancy if the pregnant woman is also eligible for the Cal-Learn
Program described in Article 3.5 (commencing with Section 11331) and
if the mother, and child, if born, would have qualified for aid under
this chapter.
(c) The amount of forty-seven dollars ($47) per month shall be
paid to pregnant mothers qualified for aid under subdivision (a) or
(b) to meet special needs resulting from pregnancy if the mother, and
child, if born, would have qualified for aid under this chapter.
County welfare departments shall refer all recipients of aid under
this subdivision to a local provider of the Women, Infants and
Children program. If that payment to pregnant mothers qualified for
aid under subdivision (a) is considered income under federal law in
the first five months of pregnancy, payments under this subdivision
shall not apply to persons eligible under subdivision (a), except for
the month in which birth is anticipated and for the three-month
period immediately prior to the month in which delivery is
anticipated, if the mother, and the child, if born, would have
qualified for aid under this chapter.
(d) For children receiving AFDC-FC under this chapter, there shall
be paid, exclusive of any amount considered exempt as income, an
amount of aid each month which, when added to the child's income, is
equal to the rate specified in Section 11460, 11461, 11462, 11462.1,
or 11463. In addition, the child shall be eligible for special
needs, as specified in departmental regulations.
(e) In addition to the amounts payable under subdivision (a) and
Section 11453.1, a family shall be entitled to receive an allowance
for recurring special needs not common to a majority of recipients.
These recurring special needs shall include, but not be limited to,
special diets upon the recommendation of a physician for
circumstances other than pregnancy, and unusual costs of
transportation, laundry, housekeeping service, telephone, and
utilities. The recurring special needs allowance for each family per
month shall not exceed that amount resulting from multiplying the
sum of ten dollars ($10) by the number of recipients in the family
who are eligible for assistance.
(f) After a family has used all available liquid resources, both
exempt and nonexempt, in excess of one hundred dollars ($100), the
family shall also be entitled to receive an allowance for
nonrecurring special needs.
(1) An allowance for nonrecurring special needs shall be granted
for replacement of clothing and household equipment and for emergency
housing needs other than those needs addressed by paragraph (2).
These needs shall be caused by sudden and unusual circumstances
beyond the control of the needy family. The department shall
establish the allowance for each of the nonrecurring special need
items. The sum of all nonrecurring special needs provided by this
subdivision shall not exceed six hundred dollars ($600) per event.
(2) Homeless assistance is available to a homeless family seeking
shelter when the family is eligible for aid under this chapter.
Homeless assistance for temporary shelter is also available to
homeless families which are apparently eligible for aid under this
chapter. Apparent eligibility exists when evidence presented by the
applicant or which is otherwise available to the county welfare
department and the information provided on the application documents
indicate that there would be eligibility for aid under this chapter
if the evidence and information were verified. However, an alien
applicant who does not provide verification of his or her eligible
alien status, or a woman with no eligible children who does not
provide medical verification of pregnancy, is not apparently eligible
for purposes of this section.
A family is considered homeless, for the purpose of this section,
when the family lacks a fixed and regular nighttime residence; or the
family has a primary nighttime residence that is a supervised
publicly or privately operated shelter designed to provide temporary
living accommodations; or the family is residing in a public or
private place not designed for, or ordinarily used as, a regular
sleeping accommodation for human beings.
(A) (i) A nonrecurring special need of forty dollars ($40) a day
shall be available to families for the costs of temporary shelter,
subject to the requirements of this paragraph. County welfare
departments may increase the daily amount available for temporary
shelter to large families as necessary to secure the additional bed
space needed by the family.
(ii) This special need shall be granted or denied immediately upon
the family's application for homeless assistance, and benefits shall
be available for up to three working days. The county welfare
department shall verify the family's homelessness within the first
three working days and if the family meets the criteria of
questionable homelessness established by the department, the county
welfare department shall refer the family to its early fraud
prevention and detection unit, if the county has such a unit, for
assistance in the verification of homelessness within this period.
(iii) After homelessness has been verified, the three-day limit
shall be extended for a period of time which, when added to the
initial benefits provided, does not exceed a total of 16 calendar
days. This extension of benefits shall be done in increments of one
week and shall be based upon searching for permanent housing which
shall be documented on a housing search form; good cause; or other
circumstances defined by the department. Documentation of housing
search shall be required for the initial extension of benefits beyond
the three-day limit and on a weekly basis thereafter as long as the
family is receiving temporary shelter benefits. Good cause shall
include, but is not limited to, situations in which the county
welfare department has determined that the family, to the extent it
is capable, has made a good faith but unsuccessful effort to secure
permanent housing while receiving temporary shelter benefits.
(B) A nonrecurring special need for permanent housing assistance
is available to pay for last month's rent and security deposits when
these payments are reasonable conditions of securing a residence.
The last month's rent portion of the payment (1) shall not exceed
80 percent of the family's maximum aid payment without special needs
for a family of that size and (2) shall only be made to families that
have found permanent housing costing no more than 80 percent of the
family's maximum aid payment without special needs for a family of
that size, in accordance with the maximum aid schedule specified in
subdivision (a).
However, if the county welfare department determines that a family
intends to reside with individuals who will be sharing housing
costs, the county welfare department shall, in appropriate
circumstances, set aside the condition specified in clause (2) of the
preceding paragraph.
(C) The nonrecurring special need for permanent housing assistance
is also available to cover the standard costs of deposits for
utilities which are necessary for the health and safety of the
family.
(D) A payment for or denial of permanent housing assistance shall
be issued no later than one working day from the time that a family
presents evidence of the availability of permanent housing. If an
applicant family provides evidence of the availability of permanent
housing before the county welfare department has established
eligibility for aid under this chapter, the county welfare department
shall complete the eligibility determination so that the denial of
or payment for permanent housing assistance is issued within one
working day from the submission of evidence of the availability of
permanent housing, unless the family has failed to provide all of the
verification necessary to establish eligibility for aid under this
chapter.
(E) (i) Except as provided in clauses (ii) and (iii), eligibility
for the temporary shelter assistance and the permanent housing
assistance pursuant to this paragraph shall be limited to one period
of up to 16 consecutive calendar days of temporary assistance and one
payment of permanent assistance. Any family that includes a parent
or nonparent caretaker relative living in the home who has previously
received temporary or permanent homeless assistance at any time on
behalf of an eligible child shall not be eligible for further
homeless assistance. Any person who applies for homeless assistance
benefits shall be informed that the temporary shelter benefit of up
to 16 consecutive days is available only once in a lifetime, with
certain exceptions, and that a break in the consecutive use of the
benefit constitutes permanent exhaustion of the temporary benefit.
(ii) A family that becomes homeless as a direct and primary result
of a state or federally declared natural disaster shall be eligible
for temporary and permanent homeless assistance.
(iii) A family shall be eligible for temporary and permanent
homeless assistance when homelessness is a direct result of domestic
violence by a spouse, partner, or roommate; physical or mental
illness that is medically verified that shall not include a diagnosis
of alcoholism, drug addiction, or psychological stress; or, the
uninhabitability of the former residence caused by sudden and unusual
circumstances beyond the control of the family including natural
catastrophe, fire, or condemnation. These circumstances shall be
verified by a third-party governmental or private health and human
services agency and homeless assistance payments based on these
specific circumstances may not be received more often than once in
any 12-month period. A county may require that a recipient of
homeless assistance benefits who qualifies under this paragraph for a
second time in a 24-month period participate in a homelessness
avoidance case plan as a condition of eligibility for homeless
assistance benefits.
(iv) The county welfare department shall report to the department
through a statewide homeless assistance payment indicator system,
necessary data, as requested by the department, regarding all
recipients of aid under this paragraph.
(F) The county welfare departments, and all other entities
participating in the costs of the AFDC program, have the right in
their share to any refunds resulting from payment of the permanent
housing. However, if an emergency requires the family to move within
the 12-month period specified in subparagraph (E), the family shall
be allowed to use any refunds received from its deposits to meet the
costs of moving to another residence.
(G) Payments to providers for temporary shelter and permanent
housing and utilities shall be made on behalf of families requesting
these payments.
(H) The daily amount for the temporary shelter special need for
homeless assistance may be increased if authorized by the current
year's Budget Act by specifying a different daily allowance and
appropriating the funds therefor.
(I) No payment shall be made pursuant to this paragraph unless the
provider of housing is a commercial establishment, shelter, or
person in the business of renting properties who has a history of
renting properties.
(g) The department shall establish rules and regulations assuring
the uniform application statewide of this subdivision.
(h) The department shall notify all applicants and recipients of
aid through the standardized application form that these benefits are
available and shall provide an opportunity for recipients to apply
for the funds quickly and efficiently.
(i) Except for the purposes of Section 15200, the amounts payable
to recipients pursuant to Section 11453.1 shall not constitute part
of the payment schedule set forth in subdivision (a).
The amounts payable to recipients pursuant to Section 11453.1
shall not constitute income to recipients of aid under this section.
(j) For children receiving Kin-GAP pursuant to Article 4.5
(commencing with Section 11360) of Chapter 2, there shall be paid,
exclusive of any amount considered exempt as income, an amount of aid
each month, which, when added to the child's income, is equal to the
rate specified in Section 11364.
SEC. 329. Section 11451.5 of the Welfare and Institutions Code is
amended to read:
11451.5. (a) Except as provided by subdivision (f) of Section
11322.6, the following income, averaged over the quarter pursuant to
Sections 11265.2 and 11265.3, shall be exempt from the calculation of
the income of the family for purposes of subdivision (a) of Section
11450:
(1) If disability-based unearned income does not exceed two
hundred twenty-five dollars ($225), both of the following amounts:
(A) All disability-based unearned income plus any amount of not
otherwise exempt earned income equal to the amount of the difference
between the amount of disability-based unearned income and two
hundred twenty-five dollars ($225).
(B) Fifty percent of all not otherwise exempt earned income in
excess of the amount applied to meet the differential applied in
subparagraph (A).
(2) If disability-based unearned income exceeds two hundred
twenty-five dollars ($225), both of the following amounts:
(A) All of the first two hundred twenty-five dollars ($225) in
disability-based unearned income.
(B) Fifty percent of all earned income.
(b) For purposes of this section:
(1) Earned income means gross income received as wages, salary,
employer provided sick leave benefits, commissions, or profits from
activities such as a business enterprise or farming in which the
recipient is engaged as a self-employed individual or as an employee.
(2) Disability-based unearned income means state disability
insurance benefits, private disability insurance benefits, temporary
workers' compensation benefits, and social security disability
benefits.
(3) Unearned income means any income not described in paragraph
(1) or (2).
SEC. 330. Section 11462 of the Welfare and Institutions Code is
amended to read:
11462. (a) (1) Effective July 1, 1990, foster care providers
licensed as group homes, as defined in departmental regulations,
including public child care institutions, as defined in Section
11402.5, shall have rates established by classifying each group home
program and applying the standardized schedule of rates. The
department shall collect information from group providers beginning
January 1, 1990, in order to classify each group home program.
(2) Notwithstanding paragraph (1), foster care providers licensed
as group homes shall have rates established only if the group home is
organized and operated on a nonprofit basis as required under
subdivision (h) of Section 11400. The department shall terminate the
rate effective January 1, 1993, of any group home not organized and
operated on a nonprofit basis as required under subdivision (h) of
Section 11400.
(b) A group home program shall be initially classified, for
purposes of emergency regulations, according to the level of care and
services to be provided using a point system developed by the
department and described in the report, "The Classification of Group
Home Programs under the Standardized Schedule of Rates System,"
prepared by the State Department of Social Services, August 30, 1989.
(c) The rate for each rate classification level (RCL) has been
determined by the department with data from the AFDC-FC Group Home
Rate Classification Pilot Study. The rates effective July 1, 1990,
were developed using 1985 calendar year costs and reflect adjustments
to the costs for each fiscal year, starting with the 1986-87 fiscal
year, by the amount of the California Necessities Index computed
pursuant to the methodology described in Section 11453. The data
obtained by the department using 1985 calendar year costs shall be
updated and revised by January 1, 1993.
(d) As used in this section,
"standardized schedule of rates" means a listing of the 14 rate
classification levels, and the single rate established for each RCL.
(e) Except as specified in paragraph (1), the department shall
determine the RCL for each group home program on a prospective basis,
according to the level of care and services that the group home
operator projects will be provided during the period of time for
which the rate is being established.
(1) (A) For new and existing providers requesting the
establishment of an RCL, and for existing group home programs
requesting an RCL increase, the department shall determine the RCL no
later than 13 months after the effective date of the provisional
rate. The determination of the RCL shall be based on a program audit
of documentation and other information that verifies the level of
care and supervision provided by the group home program during a
period of the two full calendar months or 60 consecutive days,
whichever is longer, preceding the date of the program audit, unless
the group home program requests a lower RCL. The program audit shall
not cover the first six months of operation under the provisional
rate. Pending the department's issuance of the program audit report
that determines the RCL for the group home program, the group home
program shall be eligible to receive a provisional rate that shall be
based on the level of care and service that the group home program
proposes it will provide. The group home program shall be eligible
to receive only the RCL determined by the department during the
pendency of any appeal of the department's RCL determination.
(B) A group home program may apply for an increase in its RCL no
earlier than two years from the date the department has determined
the group home program's rate, unless the host county, the primary
placing county, or a regional consortium of counties submits to the
department in writing that the program is needed in that county, that
the provider is capable of effectively and efficiently operating the
proposed program, and that the provider is willing and able to
accept AFDC-FC children for placement who are determined by the
placing agency to need the level of care and services that will be
provided by the program.
(C) To ensure efficient administration of the department's audit
responsibilities, and to avoid the fraudulent creation of records,
group home programs shall make records that are relevant to the RCL
determination available to the department in a timely manner. Except
as provided in this section, the department may refuse to consider,
for purposes of determining the rate, any documents that are relevant
to the determination of the RCL that are not made available by the
group home provider by the date the group home provider requests a
hearing on the department's RCL determination. The department may
refuse to consider for purposes of determining the rate, the
following records, unless the group home provider makes the records
available to the department during the field work portion of the
department's program audit:
(i) Records of each employee's full name, home address,
occupation, and social security number.
(ii) Time records showing when the employee begins and ends each
work period, meal periods, split shift intervals, and total daily
hours worked.
(iii) Total wages paid each payroll period.
(iv) Records required to be maintained by licensed group home
providers under the provisions of Title 22 of the California Code of
Regulations that are relevant to the RCL determination.
(D) To minimize financial abuse in the startup of group home
programs, when the department's RCL determination is more than three
levels lower than the RCL level proposed by the group home provider,
and the group home provider does not appeal the department's RCL
determination, the department shall terminate the rate of a group
home program 45 days after issuance of its program audit report.
When the group home provider requests a hearing on the department's
RCL determination, and the RCL determined by the director under
subparagraph (E) is more than three levels lower than the RCL level
proposed by the group home provider, the department shall terminate
the rate of a group home program within 30 days of issuance of the
director's decision. Notwithstanding the reapplication provisions in
subparagraph (B), the department shall deny any request for a new or
increased RCL from a group home provider whose RCL is terminated
pursuant to this subparagraph, for a period of no greater than two
years from the effective date of the RCL termination.
(E) A group home provider may request a hearing of the department'
s RCL determination under subparagraph (A) no later than 30 days
after the date the department issues its RCL determination. The
department's RCL determination shall be final if the group home
provider does not request a hearing within the prescribed time.
Within 60 days of receipt of the request for hearing, the department
shall conduct a hearing on the RCL determination. The standard of
proof shall be the preponderance of the evidence and the burden of
proof shall be on the department. The hearing officer shall issue
the proposed decision within 45 days of the close of the evidentiary
record. The director shall adopt, reject, or modify the proposed
decision, or refer the matter back to the hearing officer for
additional evidence or findings within 100 days of issuance of the
proposed decision. If the director takes no action on the proposed
decision within the prescribed time, the proposed decision shall take
effect by operation of law.
(2) Group home programs that fail to maintain at least the level
of care and services associated with the RCL upon which their rate
was established shall inform the department. The department shall
develop regulations specifying procedures to be applied when a group
home fails to maintain the level of services projected, including,
but not limited to, rate reduction and recovery of overpayments.
(3) The department shall not reduce the rate, establish an
overpayment, or take other actions pursuant to paragraph (2) for any
period that a group home program maintains the level of care and
services associated with the RCL for children actually residing in
the facility. Determinations of levels of care and services shall be
made in the same way as modifications of overpayments are made
pursuant to paragraph (2) of subdivision (b) of Section 11466.2.
(4) A group home program that substantially changes its staffing
pattern from that reported in the group home program statement shall
provide notification of this change to all counties that have placed
children currently in care. This notification shall be provided
whether or not the RCL for the program may change as a result of the
change in staffing pattern.
(f) (1) The standardized schedule of rates for fiscal year 2002-03
is:
Rate Point Ranges FY 2002-03
Classification Standard
Level Rate
1 Under 60 $1,454
2 60- 89 1,835
3 90-119 2,210
4 120-149 2,589
5 150-179 2,966
6 180-209 3,344
7 210-239 3,723
8 240-269 4,102
9 270-299 4,479
10 300-329 4,858
11 330-359 5,234
12 360-389 5,613
13 390-419 5,994
14 420 & Up 6,371
(2) (A) For group home programs that receive AFDC-FC payments for
services performed during the 2002-03 fiscal year, the adjusted RCL
point ranges below shall be used in performing program audits and in
determining any resulting rate reduction, overpayment assessment, or
other actions pursuant to paragraph (2) of subdivision (e):
Rate Adjusted
Classification Point Ranges
Level for 2002-03
1 Under 54
2 54-81
3 82-110
4 111-138
5 139-167
6 168-195
7 196-224
8 225-253
9 254-281
10 282-310
11 311-338
12 339-367
13 368-395
14 396 & Up
(B) Notwithstanding subparagraph (A), foster care providers
operating group homes during the 2002-03 fiscal year shall remain
responsible for ensuring the health and safety of the children placed
in their programs in accordance with existing applicable provisions
of the Health and Safety Code and community care licensing
regulations, as contained in Title 22 of the California Code of
Regulations.
(C) Subparagraph (A) shall not apply to program audits of group
home programs with provisional rates established pursuant to
paragraph (1) of subdivision (e). For those program audits, the RCL
point ranges in paragraph (1) shall be used.
(g) (1) (A) For the 1999-2000 fiscal year, the standardized rate
for each RCL shall be adjusted by an amount equal to the California
Necessities Index computed pursuant to the methodology described in
Section 11453. The resultant amounts shall constitute the new
standardized schedule of rates, subject to further adjustment
pursuant to subparagraph (B).
(B) In addition to the adjustment in subparagraph (A), commencing
January 1, 2000, the standardized rate for each RCL shall be
increased by 2.36 percent, rounded to the nearest dollar. The
resultant amounts shall constitute the new standardized schedule of
rates.
(2) Beginning with the 2000-01 fiscal year, the standardized
schedule of rates shall be adjusted annually by an amount equal to
the CNI computed pursuant to Section 11453, subject to the
availability of funds. The resultant amounts shall constitute the
new standardized schedule of rates.
(3) Effective January 1, 2001, the amount included in the standard
rate for each Rate Classification Level for the salaries, wages, and
benefits for staff providing child care and supervision or
performing social work activities, or both, shall be increased by 10
percent. This additional funding shall be used by group home
programs solely to supplement staffing, salaries, wages, and benefit
levels of staff specified in this paragraph. The standard rate for
each RCL shall be recomputed using this adjusted amount and the
resultant rates shall constitute the new standardized schedule of
rates. The department may require a group home receiving this
additional funding to certify that the funding was utilized in
accordance with the provisions of this section.
(h) The standardized schedule of rates pursuant to subdivisions
(f) and (g) shall be implemented as follows:
(1) Any group home program which received an AFDC-FC rate in the
prior fiscal year at or above the standard rate for the RCL in the
current fiscal year shall continue to receive that rate.
(2) Any group home program which received an AFDC-FC rate in the
prior fiscal year below the standard rate for the RCL in the current
fiscal year shall receive the RCL rate for the current year.
(i) (1) The department shall not establish a rate for a new
program of a new or existing provider unless the provider submits a
recommendation from the host county, the primary placing county, or a
regional consortium of counties that the program is needed in that
county; that the provider is capable of effectively and efficiently
operating the program; and that the provider is willing and able to
accept AFDC-FC children for placement who are determined by the
placing agency to need the level of care and services that will be
provided by the program.
(2) The department shall encourage the establishment of consortia
of county placing agencies on a regional basis for the purpose of
making decisions and recommendations about the need for, and use of,
group home programs and other foster care providers within the
regions.
(3) The department shall annually conduct a county-by-county
survey to determine the unmet placement needs of children placed
pursuant to Section 300 and Section 601 or 602, and shall publish its
findings by November 1 of each year.
(j) The department shall develop regulations specifying
ratesetting procedures for program expansions, reductions, or
modifications, including increases or decreases in licensed capacity,
or increases or decreases in level of care or services.
(k) (1) For the purpose of this subdivision, "program change"
means any alteration to an existing group home program planned by a
provider that will increase the RCL or AFDC-FC rate. An increase in
the licensed capacity or other alteration to an existing group home
program that does not increase the RCL or AFDC-FC rate shall not
constitute a program change.
(2) For the 1998-99, 1999-2000, and 2000-01 fiscal years, the rate
for a group home program shall not increase, as the result of a
program change, from the rate established for the program effective
July 1, 2000, and as adjusted pursuant to subparagraph (B) of
paragraph (1) of subdivision (g), except as provided in paragraph
(3).
(3) (A) For the 1998-99, 1999-2000, and 2000-01 fiscal years, the
department shall not establish a rate for a new program of a new or
existing provider or approve a program change for an existing
provider that either increases the program's RCL or AFDC-FC rate, or
increases the licensed capacity of the program as a result of
decreases in another program with a lower RCL or lower AFDC-FC rate
that is operated by that provider, unless both of the conditions
specified in this paragraph are met.
(i) The licensee obtains a letter of recommendation from the host
county, primary placing county, or regional consortium of counties
regarding the proposed program change or new program.
(ii) The county determines that there is no increased cost to the
General Fund.
(B) Notwithstanding subparagraph (A), the department may grant a
request for a new program or program change, not to exceed 25 beds,
statewide, if (i) the licensee obtains a letter of recommendation
from the host county, primary placing county, or regional consortium
of counties regarding the proposed program change or new program, and
(ii) the new program or program change will result in a reduction of
referrals to state hospitals during the 1998-99 fiscal year.
(l) General unrestricted or undesignated private charitable
donations and contributions made to charitable or nonprofit
organizations shall not be deducted from the cost of providing
services pursuant to this section. The donations and contributions
shall not be considered in any determination of maximum expenditures
made by the department.
(m) The department shall, by October 1 of each year, commencing
October 1, 1992, provide the Joint Legislative Budget Committee with
a list of any new departmental requirements established during the
previous fiscal year concerning the operation of group homes, and of
any unusual, industrywide increase in costs associated with the
provision of group care which may have significant fiscal impact on
providers of group home care. The committee may, in fiscal year
1993-94 and beyond, use the list to determine whether an
appropriation for rate adjustments is needed in the subsequent fiscal
year.
SEC. 331. Section 14105.95 of the Welfare and Institutions Code is
amended to read:
14105.95. (a) Each eligible facility, as described in subdivision
(b), may, in addition to the rate of payment that the facility would
otherwise receive for adult day health services, receive
supplemental Medi-Cal reimbursement to the extent provided in this
section.
(b) A facility shall be eligible for supplemental reimbursement
only if the facility has all of the following characteristics
continuously during a state fiscal year commencing with the 2002
fiscal year, and thereafter:
(1) Provides services to Medi-Cal beneficiaries.
(2) Is an adult day health center, licensed pursuant to Chapter
3.3 (commencing with Section 1570) of Division 2 of the Health and
Safety Code.
(3) Is owned or operated by a county, city, city and county, or
health care district organized pursuant to Chapter 1 (commencing with
Section 32000) of Division 23 of the Health and Safety Code.
(c) An eligible facility's supplemental reimbursement pursuant to
this section shall be calculated and paid as follows:
(1) The supplemental reimbursement to an eligible facility, as
described in subdivision (b), shall be equal to the amount of federal
financial participation received as a result of the claims submitted
pursuant to paragraph (2) of subdivision (g).
(2) In no instance shall the amount certified pursuant to
paragraph (1) of subdivision (e), when combined with the amount
received from all other sources of reimbursement from the Medi-Cal
program, exceed 100 percent of projected costs, as determined
pursuant to the Medi-Cal State Plan, for adult day health services at
each facility.
(3) The supplemental Medi-Cal reimbursement provided by this
section shall be distributed under a payment methodology based on
adult day health services provided to Medi-Cal patients at the
eligible facility, either on a per-visit basis or any other federally
permissible basis. The department shall seek approval from the
federal Centers for Medicare and Medicaid Services for the payment
methodology to be utilized, and may not make any payment pursuant to
this section prior to obtaining that approval.
(d) (1) It is the Legislature's intent in enacting this section to
provide the supplemental reimbursement described in this section
without any expenditure from the General Fund.
(2) The state share of the supplemental reimbursement submitted to
the federal Centers for Medicare and Medicaid Services for purposes
of claiming federal financial participation shall be paid only with
funds from the governmental entities described in paragraph (3) of
subdivision (b) and certified to the state as provided in subdivision
(e).
(e) A particular governmental entity described in paragraph (3) of
subdivision (b), on behalf of any eligible facility owned or
operated by the entity shall do all of the following:
(1) Certify, in conformity with the requirements of Section 433.51
of Title 42 of the Code of Federal Regulations, that the claimed
expenditures for outpatient services are eligible for federal
financial participation.
(2) Provide evidence supporting the certification as specified by
the department.
(3) Submit data as specified by the department to determine the
appropriate amounts to claim as expenditures qualifying for federal
financial participation.
(4) Keep, maintain, and have readily retrievable, any records
specified by the department to fully disclose reimbursement amounts
to which the eligible facility is entitled, and any other records
required by the federal Centers for Medicare and Medicaid Services.
(f) An eligible facility as described in subdivision (b), as a
condition of receiving supplemental reimbursement under this section,
shall enter into, and maintain, a contract with the department for
the purpose of implementing this section, and to reimburse the
department for its administrative costs of implementing this section.
(g) (1) The department shall promptly seek any necessary federal
approvals for the implementation of this section. If necessary to
obtain federal approval, the department may limit the program to
those costs that are allowable expenditures under Title XIX of the
federal Social Security Act (Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code). If
federal approval is not obtained for implementation of this section,
this section shall become inoperative.
(2) The department shall submit claims for federal financial
participation for the expenditures for the services described in
subdivision (e) that are allowable expenditures under federal law.
(3) The department shall, on an annual basis, submit any necessary
materials to the federal government to provide assurances that
claims for federal financial participation will include only those
expenditures that are allowable under federal law.
(h) All funds expended pursuant to this section are subject to
review and audit by the department.
(i) This section shall become inoperative in the event, and on the
date, of a final judicial determination by any court of appellate
jurisdiction or a final determination by the administrator of the
federal Centers for Medicare and Medicaid Services that the
supplemental reimbursement provided in this section must be made to
any facility not described in this section.
SEC. 332. Section 14105.96 of the Welfare and Institutions Code is
amended to read:
14105.96. (a) Each eligible facility, as described in subdivision
(b), may, in addition to the rate of payment that the facility would
otherwise receive for Medi-Cal outpatient services, receive
supplemental Medi-Cal reimbursement to the extent provided in this
section.
(b) A facility shall be eligible for supplemental reimbursement
only if the facility has all of the following characteristics
continuously during a state fiscal year commencing with the 2002
fiscal year, and thereafter:
(1) Provides services to Medi-Cal beneficiaries.
(2) Is an acute care hospital providing outpatient hospital
services. For purposes of this paragraph, "acute care hospital"
means the facilities described by subdivision (a) or (b), or both, of
Section 1250 of the Health and Safety Code.
(3) Is owned or operated by a county, city, city and county, the
University of California, or health care district organized pursuant
to Division 23 (commencing with Section 32000) of the Health and
Safety Code.
(c) An eligible facility's supplemental reimbursement pursuant to
this section shall be calculated and paid as follows:
(1) The supplemental reimbursement to an eligible facility, as
described in subdivision (b), shall be equal to the amount of federal
financial participation received as a result of the claims submitted
pursuant to paragraph (2) of subdivision (g).
(2) In no instance shall the amount certified pursuant to
paragraph (1) of subdivision (e), when combined with the amount
received from all other sources of reimbursement from the Medi-Cal
program, exceed 100 percent of projected costs, as determined
pursuant to the Medi-Cal State Plan, for outpatient services at each
facility.
(3) The supplemental Medi-Cal reimbursement provided by this
section shall be distributed under a payment methodology based on
outpatient services provided to Medi-Cal patients at the eligible
facility, either on a per-visit basis, per-procedure basis, or any
other federally permissible basis. The department shall seek
approval from the federal Centers for Medicare and Medicaid Services
for the payment methodology to be utilized, and may not make any
payment pursuant to this section prior to obtaining that approval.
(d) (1) It is the Legislature's intent in enacting this section to
provide the supplemental reimbursement described in this section
without any expenditure from the General Fund.
(2) The state share of the supplemental reimbursement submitted to
the federal Centers for Medicare and Medicaid Services for purposes
of claiming federal financial participation shall be paid only with
funds from the governmental entities described in paragraph (3) of
subdivision (b) and certified to the state as provided in subdivision
(e).
(e) A particular governmental entity, described in paragraph (3)
of subdivision (b), on behalf of any eligible facility owned or
operated by the entity, shall do all of the following:
(1) Certify, in conformity with the requirements of Section 433.51
of Title 42 of the Code of Federal Regulations, that the claimed
expenditures for the outpatient services are eligible for federal
financial participation.
(2) Provide evidence supporting the certification as specified by
the department.
(3) Submit data as specified by the department to determine the
appropriate amounts to claim as expenditures qualifying for federal
financial participation.
(4) Keep, maintain, and have readily retrievable, any records
specified by the department to fully disclose reimbursement amounts
to which the eligible facility is entitled, and any other records
required by the federal Centers for Medicare and Medicaid Services.
(f) An eligible facility as described in subdivision (b), as a
condition of receiving supplemental reimbursement under this section,
shall enter into and maintain a contract with the department for the
purpose of implementing this section, and to reimburse the
department for its administrative costs of operating this program.
(g) (1) The department shall promptly seek any necessary federal
approvals for the implementation of this section. If necessary to
obtain federal approval, the department may limit the program to
those costs that are allowable expenditures under Title XIX of the
federal Social Security Act (Subchapter 19 (commencing with Section
1396) of Chapter 7 of Title 42 of the United States Code). If
federal approval is not obtained for implementation of this section,
this section shall become inoperative.
(2) The department shall submit claims for federal financial
participation for the expenditures for the services described in
subdivision (e) that are allowable expenditures under federal law.
(3) The department shall, on an annual basis, submit any necessary
materials to the federal government to provide assurances that
claims for federal financial participation will include only those
expenditures that are allowable under federal law.
(h) This section shall become inoperative in the event, and on the
date, of a final judicial determination by any court of appellate
jurisdiction or a final determination by the administrator of the
federal Centers for Medicare and Medicaid Services
that the supplemental reimbursement provided
in this section must be made to any facility not described in this
section.
SEC. 333. Section 14172 of the Welfare and Institutions Code is
amended to read:
14172. (a) Except as provided in subdivision (b), if any amount
is due and payable and unpaid as the result of an overpayment to a
provider of health care services, durable medical equipment, or
incontinence supplies identified through an audit or examination
conducted by or on behalf of the director, and the findings of the
audit or examination are completed and no appeal is taken or the
director has issued a final decision on the appeal pursuant to
Section 14171, and 90 days have elapsed from the completion of that
audit or examination or issuance of that final decision on appeal,
the director may, not later than three years after the payment became
due and owing, file in the office of the Clerk of the Superior Court
of Sacramento County, and with the clerk of the superior court of
the county in which the provider has its principal place of business,
a certificate containing the following:
(1) Interest, as prescribed by Section 14171.
(2) A statement that the director has complied with this article
prior to the filing of the certificate.
(3) A request that judgment be entered against the provider in the
amount set forth in the certificate.
The clerk immediately upon the filing of the certificate shall
enter a judgment for the State of California against the provider in
the amount set forth in the certificate. The judgment may be filed
by the clerk in a looseleaf book entitled "Health Care Overpayment
Recovery Judgments."
(b) If the provider seeks judicial review of the final decision of
the director pursuant to subdivision (k) of Section 14171 and notice
of that action is properly served on the director within 90 days of
the issuance of the final decision of the director, the director
shall not file any certificate as provided in subdivision (a).
If the provider does not seek judicial review of the final
decision of the director pursuant to subdivision (k) of Section 14171
and does not properly serve notice within 90 days from the date of
the final decision of the director, the director may file the
certificate provided in subdivision (a). If the provider seeks
judicial review of the final decision of the director more than 90
days from the date of the decision in accordance with subdivision (k)
of Section 14171, the director shall within 10 days after receiving
notice of that action release any lien imposed pursuant to this
article and any judgment entered is for all purposes null and void.
SEC. 334. Section 15610.37 of the Welfare and Institutions Code is
amended to read:
15610.37. "Health practitioner" means a physician and surgeon,
psychiatrist, psychologist, dentist, resident, intern, podiatrist,
chiropractor, licensed nurse, dental hygienist, licensed clinical
social worker or associate clinical social worker, marriage, family,
and child counselor, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code, any emergency medical technician I or II,
paramedic, or person certified pursuant to Division 2.5 (commencing
with Section 1797) of the Health and Safety Code, a psychological
assistant registered pursuant to Section 2913 of the Business and
Professions Code, a marriage, family, and child counselor trainee, as
defined in subdivision (c) of Section 4980.03 of the Business and
Professions Code, or an unlicensed marriage, family, and child
counselor intern registered under Section 4980.44 of the Business and
Professions Code, state or county public health or social service
employee who treats an elder or a dependent adult for any condition,
or a coroner.
SEC. 335. Section 18969 of the Welfare and Institutions Code is
amended to read:
18969. (a) There is hereby created in the State Treasury a fund
which shall be known as the State Children's Trust Fund. The fund
shall consist of funds received from a county pursuant to Section
18968, funds collected by the state and transferred to the fund
pursuant to subdivision (b) of Section 103625 of the Health and
Safety Code and Article 2 (commencing with Section 18711) of Chapter
3 of Part 10.2 of Division 2 of the Revenue and Taxation Code,
grants, gifts, or bequests made to the state from private sources to
be used for innovative and distinctive child abuse and neglect
prevention and intervention projects and money appropriated to the
fund for this purpose by the Legislature. The State Registrar may
retain a percentage of the fees collected pursuant to Section 10605
of the Health and Safety Code, not to exceed 10 percent, in order to
defray the costs of collection.
(b) Money in the State Children's Trust Fund, upon appropriation
by the Legislature, shall be allocated to the State Department of
Social Services for the purpose of funding child abuse and neglect
prevention and intervention programs. The department may not
supplant any federal, state, or county funds with any funds made
available through the State Children's Trust Fund.
(c) The department may establish positions as needed for the
purpose of implementing and administering child abuse and neglect
prevention and intervention programs that are funded by the State
Children's Trust Fund. However, the department shall use no more
than 5 percent of the funds appropriated pursuant to this section for
administrative costs.
(d) No State Children's Trust Fund money shall be used to supplant
state General Fund money for any purpose.
(e) It is the intent of the Legislature that the State Children's
Trust Fund provide for all of the following:
(1) The development of a public-private partnership by encouraging
consistent outreach to the private foundation and corporate
community.
(2) Funds for large-scale dissemination of information that will
promote public awareness regarding the nature and incidence of child
abuse and the availability of services for intervention. These
public awareness activities shall include, but not be limited to, the
production of public service announcements, well designed posters,
pamphlets, booklets, videos, and other media tools.
(3) Research and demonstration projects that explore the nature
and incidence and the development of long-term solutions to the
problem of child abuse.
(4) The development of a mechanism to provide ongoing public
awareness through activities that will promote the charitable tax
deduction for the trust fund and seek continued contributions. These
activities may include convening a philanthropic roundtable,
developing literature for use by the State Bar for dissemination, and
whatever other activities are deemed necessary and appropriate to
promote the trust fund.
SEC. 336. Section 12.5 of Chapter 1449 of the Statutes of 1951 is
amended to read:
Sec. 12.5. (a) Whenever the board initiates a project for single
zone or a joint project for two or more zones, the board may appoint,
for each zone, at the time of the adoption of its resolution of
intent, an advisory committee of three persons who are property
owners residing in the zone for which they are appointed, to
represent before the board the residents and property owners of that
zone. If the project involves property located within the
jurisdiction of a city within the district, any advisory committee
appointed pursuant to this section shall include at least one
representative from the city appointed by the governing board of the
city unless after notice to the city, the governing board of the city
declines to be so represented.
(b) Vacancies in any advisory committee appointed pursuant to this
section shall be filled by appointment by the board or, in the case
of city representatives, by the city. The board shall comply with
the requirements of Chapter 11 (commencing with Section 54970) of
Part 1 of Division 2 of Title 5 of the Government Code in connection
with appointments to the advisory committees.
(c) An advisory committee appointed pursuant to this section shall
cease to exist if the zone project is not approved by the board, if
the project is disapproved by the qualified electors of the zone, or
if all zones involved with the project are dissolved in accordance
with Section 37.
SEC. 337. Section 13 of Chapter 1449 of the Statutes of 1951 is
amended to read:
Sec. 13. The board shall have all of the following powers, in any
year:
(a) Subject to Article XIII A and Article XIII C of the California
Constitution, to levy special taxes pursuant to Article 3.5
(commencing with Section 50075) of Chapter 1 of Part 1 of Division 1
of Title 5 of the Government Code, in each or any of the zones and
participating zones to pay the cost and expenses of carrying out,
constructing, maintaining, operating, extending, repairing or
otherwise improving, carrying out, or completing any project
established or to be established within or on behalf of the
respective zones.
(b) Subject to Article XIII A and Article XIII C of the California
Constitution, if as part of cooperation with any of the governmental
bodies, as authorized in paragraph (7) of Section 5, a contract is
entered into with any governmental body for the purposes set forth in
that paragraph by the terms of which a project or any portion
thereof is agreed to be performed by any governmental body in any
specified zone or participating zones for the particular benefit
thereof and in the contract it is agreed that the district is to pay
the governmental body a sum of money for the performance of the
project by the governmental body, the board may levy and collect a
special tax pursuant to Article 3.5 (commencing with Section 50075)
of Chapter 1 of Part 1 of Division 1 of Title 5 of the Government
Code, including a special tax upon the property in the zone or
participating zones to raise funds to enable the district to make the
payment, in addition to any other taxes or assessments authorized by
this act.
(c) (1) Subject to Article XIII D of the California Constitution,
to levy assessments pursuant to Section 53753 of the Government Code,
upon all property in each or any zones, according to the benefits
derived or to be derived by the specific properties assessed, to pay
the cost and expenses of a project or projects carrying out any of
the objects or purposes of this act of particular benefit to the zone
or zones.
(2) For purposes of this subdivision, all of the following apply:
(A) The particular benefit conferred by drainage or flood control
projects, including the maintenance thereof on the property so
assessed as compared to all property within the district may be
determined, in the discretion of the board in regard to each project
and affected zone, by any reasonable method including, but not
limited to, the proportionate stormwater runoff from the assessed
property in light of the actual use and state of improvement of the
property at the time of the assessment. However, no assessment based
solely on proportionate stormwater runoff shall be levied on any
property which exists and is used only as unimproved open space. If
the project provides protection against flooding in a floodway or
floodplain designated in a general or specific plan of the County of
Napa or any city therein or a floodplain area or flood-risk zone
established by the Secretary of Housing and Urban Development of the
United States pursuant to Section 4101, et seq. of Title 42 of the
United States Code, the fact that a lot or parcel of property is
located within the floodway, floodplain, or flood-risk area shall be
conclusive evidence that it will derive special benefit from the
project as compared to properties in participating zones which are
not located in those areas. Assessments based on the special benefit
may be levied on lots and parcels of property in the specially
benefited zone, in addition to assessments determined on the basis of
proportionate stormwater runoff that may be levied in each of the
participating zones.
(B) (i) The power of the board to levy assessments under this
subdivision expressly includes, but is not limited to, the power to
levy assessments in accordance with the Improvement Act of 1911
(Division 7 (commencing with Section 5000) of the Streets and
Highways Code) and the Municipal Improvement Act of 1913 (Division 12
(commencing with Section 10000) of the Streets and Highways Code)
and to issue bonds under the Improvement Act of 1911 (Division 7
(commencing with Section 5000) of the Streets and Highways Code) and
the Improvement Bond Act of 1915 (Division 10 (commencing with
Section 8500) of the Streets and Highways Code). Those acts, or any
of them, may be used in the discretion of the board to generate
revenue to pay for the costs, including financing and interest costs,
of any project under this act, and for the issuance of bonds to pay
for the costs of that project.
(ii) Division 4 (commencing with Section 2800) and Division 4.5
(commencing with Section 3100) of the Streets and Highways Code do
not apply to proceedings taken by the district under this
subparagraph, except that Division 4.5 may be applied to any
proceedings in the discretion of the board.
(iii) Any diagram prepared for purposes of any action taken under
the acts described in this subparagraph may refer to the county
assessor's maps for a detailed description of the lines and
dimensions of any lots or parcels, in which case, those maps shall
govern for all details concerning the lines and dimensions of those
lots or parcels.
(C) Assessments levied to pay the annual costs of nonbonded
obligations of the district for specific zone projects or for
maintenance of joint projects whose construction was funded by bonds
issued by another participating governmental entity shall be levied
only in accordance with Section 13.5.
(d) Subject to Article XIII D of the California Constitution, to
fix by resolution and to collect fees or charges for any services
that the district is authorized to provide under this act that
specifically benefit the person, entity, or property charged. These
services include, but are not limited to, investigations or studies
conducted in connection with the processing by any public entity of a
public or private development project or land division, or for
copies of any public records. However, the fees or charges shall not
exceed the reasonable cost to the district of providing the service
and the service shall be provided by the district either upon request
by the person, entity, or property owner charged or shall be
provided to, and at the request of, a public entity, other than the
district, for use in connection with the evaluation by that public
entity of a request for development or other entitlement for use of
land that has been made by the person, entity, or property owner that
is charged the fee or charge.
(e) All special taxes and assessments shall be levied and
collected together with, and not separately from, taxes for county
purposes, and the revenues derived from the special taxes or
assessments shall be paid into the county treasury to the credit of
the district, or the respective zones thereof, and the board shall
have the power to control and order the expenditure thereof for those
purposes. However, no revenues, or portions thereof, derived in any
of the several zones from the special taxes or assessments shall be
expended for projects located in, or conferring benefit upon, any
other zone, except in the case of joint projects, or for projects
authorized or established outside the zone, or zones, but for the
benefit thereof.
SEC. 338. Section 13.5 of Chapter 1449 of the Statutes of 1951 is
amended to read:
Sec. 13.5. (a) All assessments levied to fund the nonbonded
portion of any project that has been approved for a zone or
participating zones in accordance with Section 12 shall be levied
annually in accordance with the following procedures, if the
assessment and methodology were approved prior to July 1, 1997:
(1) For each fiscal year in which an assessment is to be imposed
under this section, the board shall first cause a written report to
be prepared in compliance with Section 10 and filed with the
secretary of the district for submission to the board for approval.
(2) Upon receipt, the secretary of the district shall cause notice
of the filing of the report and of a time, date, and place of
hearing thereon to be published pursuant to Section 6066 of the
Government Code, posted in at least three public places within the
affected zones and participating zones, and mailed or otherwise
delivered to any city located within or partially within the zones
and participating zones.
(3) Following the public hearing on the report, the board shall
approve, approve with modifications, or reject the report. If the
report is rejected, the board may, in its discretion, abandon the
assessment process for that fiscal year or may return the report to
the engineer or district staff for further work.
(4) After approval of the report, either as filed or as modified,
the board shall adopt a resolution of intention to levy assessments
under this section. The resolution of intention shall include all of
the following:
(A) Declare the intention of the board to levy and collect
assessments within the designated zones for the fiscal year therein
stated, except that it shall not impose an assessment upon a federal
or state governmental agency or another local agency except with the
consent of that agency.
(B) Generally describe the project. If the project was previously
approved by the board, existing components shall be described.
(C) Refer to the affected zone or participating zones by their
distinctive designations and indicate the general location of the
zone or zones.
(D) Refer to the report of the engineer prepared and filed under
this section for a full and detailed description of the project, the
location of the benefitted zones, and the proposed assessments on
assessable property within the district.
(E) Set the date, time, and place for hearing by the board on the
levy of the proposed assessments and, if the assessments are to be
increased from the previous year. Also set the date, time, and place
for a public meeting to be held on the proposed assessments prior to
the public hearing.
(F) If the assessment is for an existing project, state whether
the assessment will be increased from the previous year.
(5) Notice of the hearing on the levy of the assessments shall
include a copy of the resolution of intention and shall indicate the
right of registered voters residing within and landowners owning
assessable property within the affected zones to file written
protests prior to or at the hearing. The notice shall be given as
follows:
(A) If the assessments are to be levied in the same or lesser
amounts than in any previous year, the secretary of the district
shall give notice of the hearing by causing the resolution of
intention to be published pursuant to Section 6061 of the Government
Code.
(B) If assessments are to be increased from the previous year,
notice of the public meeting and public hearing required by Section
54954.6 of the Government Code shall be mailed as provided in
subdivision (c) of that section.
(C) If the projects for which the assessments are to be levied or
any of the assessable property is located within a city or town
within the district, notice of the public hearing and, if applicable,
the public meeting held under subdivision (c) of Section 54954.6 of
the Government Code, shall also be mailed or personally delivered to
the chief administrative officer of the city at least 10 days prior
to the public hearing.
(6) (A) If, at the conclusion of the public hearing, the board
finds that written protests filed at or before the time of the
hearing are signed by more than 25 percent of the registered voters
residing within the affected zone or the owners of more than 25
percent of the area of land subject to assessment located in each
affected zone, based upon those acreages shown on the latest county
assessment records, and the protests have not been withdrawn prior to
the time of closure of the public hearing so as to reduce the
protest in each zone below that percentage, then the board shall
either abandon the proceedings, or by duly adopted resolution, submit
the proposed assessments to the qualified electors in the zone from
which the protest was received and not so reduced. The board shall
not proceed further with the proceedings as to that zone unless a
majority of the votes cast at the election in the zone are in favor
of the levy of the assessments. The election shall be held in
accordance with the Uniform District Election Law (Part 4 (commencing
with Section 10500) of Division 10 of the Elections Code).
(B) The board may approve the assessment unless the board finds
that written protests filed at or before the time of the hearing are
signed by more than 25 percent of the registered voters residing
within the affected zone, or the owners of more than 25 percent of
the real property subject to assessment located in the affected zone,
based upon those averages shown on the latest county assessment
records, and those protests have not been withdrawn prior to the time
of closure of the public hearing so as to reduce the protest in each
zone below that percentage. If a protest is received and not
withdrawn, the assessment shall be withdrawn. The board may, at its
discretion, reduce the amount of the assessments or abandon the
proceedings.
(7) If the board abandons the proceedings rather than call an
election, or if the proposition fails passage, the board shall not
initiate similar proceedings within a period of six months from the
date of adoption of the resolution ordering abandonment or the date
of the election.
(8) If the proposed levy is not abandoned by the board
voluntarily, or, as a result of receipt of a qualified 25 percent
protest under paragraph (6), or, if the matter is set for election,
by receipt of less than majority approval by the voters, the board
shall, by resolution adopted following the public hearing or, if the
proposition is approved at an election, by resolution adopted by the
board upon certification of the election results, approve, impose,
and levy the assessments for the next fiscal year.
(9) Following the approval of the resolution levying the
assessments, the board may order any particular assessment levied
under this section to be corrected, canceled, or refunded if the
assessment was imposed in error and the nature of the error could not
have been reasonably ascertained by the board or the property owner
prior to the action of the board imposing the assessment.
Application for correction, cancellation, or refund under this
paragraph shall be made in accordance with those procedures for
appeal prescribed by resolution of the board, except that the time
period prescribed by that resolution for filing a notice of appeal
shall commence to run no earlier than the first date when the
property owner reasonably could have known that the assessment was
imposed in error.
(b) The imposition of an assessment pursuant to a methodology
approved on or after July 1, 1997, for the purpose of funding a
project pursuant to Section 12 shall be approved in accordance with
Article XIII D of the California Constitution, and Section 53753 of
the Government Code.
SEC. 339. Section 14 of Chapter 1449 of the Statutes of 1951 is
amended to read:
Sec. 14. (a) Whenever the board determines that a bonded
indebtedness should be incurred to pay the cost of any project in any
zone or zones, and the board does not choose to finance the project
in accordance with the procedures set forth in any of the acts, the
board may by resolution determine and declare the respective amounts
of bonds necessary to be issued in each zone in order to raise the
amount of money necessary for each project and the denomination and
maximum rate of interest of the bonds. The board shall cause a copy
of the resolution, duly certified by the clerk, to be filed for
record in the office of the recorder of Napa County within five days
after its issuance.
(b) After the filing for record of the certified copy of the
resolution specified in subdivision (a), the board may call a special
bond election in the zone or participating zones at which shall be
submitted to the qualified electors of the zone or participating
zones the question whether or not bonds shall be issued in the amount
or amounts determined in the resolution and for the purpose or
purposes therein stated. The bonds and the interest thereon shall be
paid from revenue derived from taxes levied as provided in this act.
(c) The board shall call the special bond election by ordinance
and submit to the qualified electors of the zone or participating
zones the preparation of incurring a bonded debt in the zone or
participating zones in the amount and for the purposes stated in the
resolution and shall recite therein the objects and purposes for
which the indebtedness is proposed to be incurred. It shall be
sufficient to give a brief, general description of the objects and
purposes and refer to the recorded copy of the resolution for
particulars. The ordinance shall also state the estimated cost of
the proposed project, the amount of the principal of the indebtedness
to be incurred therefor, and the maximum rate of interest to be paid
on the indebtedness, and shall fix the date on which the election
shall be held and the form and contents of the ballot to be used.
For the purposes of the election, the board shall in the ordinance
establish special bond election precincts within the boundaries of
each zone and participating zones and may form election precincts by
consolidating the precincts established for general elections in the
district to a number not exceeding six general precincts for each
special bond election precinct, and shall designate a polling place
and appoint one inspector, one judge, and one clerk for each of the
special bond election precincts.
(d) In all particulars not recited in the ordinance, the bond
election shall be held as nearly as practicable in accordance with
the Uniformed District Election Law (Part 4 (commencing with Section
10500) of Division 10 of the Elections Code).
(e) The board shall cause a map or maps to be prepared generally
describing the project and showing the location of the proposed
project and area to be benefited thereby and shall cause the map to
be posted in a prominent public place in the county seat of the
County of Napa for public
inspection for at least 30 days before the date fixed for the
election.
(f) The ordinance calling for the bond election shall, prior to
the date set for the election, be published pursuant to Section 6066
of the Government Code in a newspaper of general circulation
circulated in each zone and participating zones affected. The last
publication of the ordinance shall be at least 14 days before the
election. If there is no newspaper, then the ordinance shall be
posted in five public places designated by the board in each zone and
participating zones for at least 30 days before the date fixed for
the election.
(g) Any defect or irregularity in the proceedings prior to the
calling of the special bond election shall not affect the validity of
the bonds authorized by the election. Where a project affects a
single zone only, if at the election two-thirds of the votes cast in
the zone on the proposition of incurring a bonded indebtedness are in
favor thereof, then bonds for the zone for the amounts stated in the
proceedings shall be issued and sold as provided in this act. Where
the incurring of a bonded indebtedness by participating zones is to
be determined at the election, no bonds for any of the participating
zones shall be issued or sold unless two-thirds of the votes cast on
the proposition in each participating zone are in favor of incurring
a bonded indebtedness to be undertaken by the zone.
SEC. 340. Section 1 of Chapter 483 of the Statutes of 2002 is
amended to read:
Section 1. (a) The Legislature finds and declares all of the
following:
(1) Many different state, district, city, county, municipal, and
public agency governmental entities purchase prescription drugs for
individuals served by those entities.
(2) Currently, the Department of General Services uses the bid
process to develop contracts with drug manufacturers on behalf of
some state, local, and public agencies. However, many state,
district, county, city, municipal, and public agencies are not
included in this current purchasing process.
(3) The Department of General Services does not have sufficient
direction from the Legislature to maximize savings.
(4) By better coordinating bulk purchasing contracts and providing
purchasing procedures and options, the Department of General
Services may be able to negotiate better prices for drugs on behalf
of participating governmental entities.
(b) It is the intent of the Legislature in enacting this act to
coordinate bulk purchasing of prescription drugs, and authorize the
Department of General Services to investigate and implement other
options and strategies to achieve the greatest savings on
prescription drugs with prescription drug manufacturers and
wholesalers.
SEC. 341. Section 1 of Chapter 575 of the Statutes of 2002 is
amended to read:
Section 1. The Legislature finds and declares all of the
following:
(a) It is the policy of the state to protect human health and
environmental well-being.
(b) The purpose of environmentally preferable purchasing is to
protect human health and environmental well-being by reducing the
procurement of goods and services that result in larger volumes of
waste and pollutants.
(c) Goods and services that result in reduced volumes of waste and
pollutants have additional value when considering future
environmental and health costs.
(d) The state, through environmentally preferable purchasing, has
the ability to protect human health and environmental well-being by
promoting goods and services that result in reduced waste and
pollutants.
(e) The Legislature declares that the responsibility of
environmentally preferable purchasing shall be that of any agency
that does procuring on behalf of the state.
(f) It is the intent of the Legislature, whenever economically
feasible and as markets allow, to continually expand the policies of
environmentally preferable purchasing in the daily operations of the
state.
SEC. 342. Section 1 of Chapter 583 of the Statutes of 2002 is
amended to read:
Section 1. The sum of one million three hundred sixty thousand
seven hundred two dollars and seventy-four cents ($1,360,702.74) is
hereby appropriated from the General Fund to the Attorney General for
allocation to pay the following judgments and settlement claims
pursuant to the following schedule:
(a) Nine hundred ninety-nine thousand eighty-five dollars and
forty-five cents ($999,085.45) for the judgment in the case of Jesus
Doe, et al. v. Regents of the University of California, et al. (San
Francisco Superior Court No. 965090).
(b) Three hundred sixty-one thousand six hundred seventeen dollars
and twenty-nine cents ($361,617.29) for the judgment in the case of
Gregorio T., et al. v. Wilson, et al. and Ayala, et al. v. Wilson, et
al. (D.C., C.D. Cal. No. 94-7652 MRP).
SEC. 343. Section 1 of Chapter 697 of the Statutes of 2002 is
amended to read:
Section 1. (a) In light of the events of September 11, 2001, it is
very clear that a high-speed passenger train network as described in
the High-Speed Rail Authority's Business Plan is essential for the
transportation needs of the growing population and economic activity
of this state.
(b) The initial high-speed train network linking San Francisco and
the Bay Area to Los Angeles will serve as the backbone of what will
become an extensive 700-mile system that will link all of the state's
major population centers, including Sacramento, the Bay Area, the
Central Valley, Los Angeles, the Inland Empire, Orange County, and
San Diego, and address the needs of the state.
(c) The initial network from San Francisco and the Bay Area to
Southern California could be in limited operation by 2008.
(d) The high-speed passenger train bond funds are intended to
encourage the federal government and the private sector to make a
significant contribution toward the construction of the high-speed
train network.
(e) The initial segments shall be built in a manner that yields
maximum benefit consistent with available revenues.
(f) After the initial investment from the state, operating
revenues from the initial segments and funds from the federal
government and the private sector will be used to pay for expansion
of the system. It is the intent of the Legislature that the entire
high-speed train system shall be constructed as quickly as possible
in order to maximize ridership and the mobility of Californians.
(g) At a minimum, the entire 700-mile system described in the
High-Speed Rail Authority's Business Plan should be constructed and
in revenue service by 2020.
SEC. 344. Section 5 of Chapter 1020 of the Statutes of 2002 is
amended to read:
Sec. 5. (a) The funds appropriated by Schedule (4) of Item
6110-123-0001 of Section 2.00 of the Budget Act of 2002 for purposes
of corrective actions undertaken at schools in need of improvement,
and the amount of twenty-nine million eighty-six thousand dollars
($29,086,000), from the funds appropriated by Schedule (1) of Item
6110-136-0890 of Section 2.00 of the Budget Act of 2002 for purposes
of Title I of the Elementary and Secondary Education Act of 1965 (20
U.S.C. Sec. 6301 et seq.), shall be allocated by the State Department
of Education, to school districts and county offices of education
for expenditure during the 2002-03 fiscal year, as follows:
(1) The amount of one hundred fifty dollars ($150) per pupil for
each pupil in a school that is required to enter into a contract with
a school assistance and intervention team pursuant to subdivision
(a) of Section 52055.51 of the Education Code, for purposes of
implementing any recommendations made by the school assistance and
intervention team in the report prepared by the team pursuant to
subdivision (d) of Section 52055.51 of the Education Code. School
districts that receive funds under this paragraph shall provide an
in-kind match of services, or a match of school district funds in an
amount equal to the amount received by the local education agency
pursuant to this paragraph.
(2) (A) The amount of one hundred fifty dollars ($150) per pupil
for each pupil in a school that is managed in accordance with
paragraph (3) of subdivision (b) of Section 52055.5 of the Education
Code, for purposes of improving the academic performance of that
school. School districts that receive funds under this paragraph
shall provide an in-kind match of services, or a match of school
district funds in an amount equal to the amount received by the local
education agency pursuant to this paragraph.
(B) The Department of Finance and the State Department of
Education shall provide funding for the support of each entity that
is assigned to manage a school pursuant to paragraph (3) of
subdivision (b) of Section 52055.5 of the Education Code.
(3) Funding for the support of each school assistance and
intervention team that enters into a contract with a school district
pursuant to subdivision (a) of Section 52055.51 of the Education Code
shall be allocated as follows:
(A) Seventy-five thousand dollars ($75,000) for each school
assistance and intervention team assigned to an elementary or middle
school.
(B) One hundred thousand dollars ($100,000) for each school
assistance and intervention team assigned to a high school.
(C) If a school district determines that it needs more than the
amounts specified in subparagraph (A) or (B), the school district may
apply to the State Department of Education for additional funding.
The application shall include justification for the requested
increase. The State Department of Education and the Department of
Finance shall review any applications and may provide funding up to a
total funding level of one hundred twenty-five thousand dollars
($125,000), including the amount provided pursuant to subparagraph
(A) or (B).
(D) As a condition of receipt of funds, a school district shall
provide an in-kind match of services, or a match of school district
funds, in an amount equal to one dollar ($1) for every two dollars
($2) provided pursuant to subparagraph (A), (B), or (C).
(4) The amount of seven million five hundred thousand dollars
($7,500,000) shall be available for use by the State Department of
Education for the purposes of the Statewide System of School Support
established by Article 4.2 (commencing with Section 52059) of Chapter
6.1 of Part 28 of the Education Code.
(5) The State Department of Education shall provide seventy-five
thousand dollars ($75,000) to each regional consortium that has at
least one school that has been identified as being in need of
corrective action pursuant to subsection (b) of Section 6316 of Title
20 of the United States Code. These funds shall be used to
establish a team to assist these schools improve pupil performance.
Team members shall possess a high degree of knowledge and skills in
the areas of school leadership, curriculum, and instruction aligned
to state academic content and performance standards, classroom
management and discipline, academic assessment, parent-school
relations, and evaluation and research-based reform strategies, and
shall have proven successful expertise specific to the challenges
inherent in improving the performance of schools. A consortium with
many schools identified as being in need of corrective action may
apply to the State Department of Education for additional funding for
the establishment of a team. The State Department of Education and
the Department of Finance shall review any applications for
additional funding and may provide up to an additional fifty thousand
dollars ($50,000) to a consortium that justifies the need.
(b) Of the funds appropriated in Schedule (1) of Item
6110-123-0890 of Section 2.00 of the Budget Act of 2002, up to one
million five hundred thousand dollars ($1,500,000) shall be
transferred to Item 6110-001-0890 of Section 2.00 of the Budget Act
of 2002 for state operations costs related to this measure, based on
the expenditure plan jointly developed by the Department of Finance
and the State Department of Education.
(c) Funding for the purposes described in this section shall only
be provided for three years.
(d) The Department of Finance and the Superintendent of Public
Instruction shall review and recommend any changes to the funding
allocated pursuant to subdivision (a) to the Governor and the
Legislature by no later than April 15, 2004.
(e) The State Board of Education and the Superintendent of Public
Instruction shall notify the chairs of the fiscal and policy
committees that consider education and appropriations in each house
of the Legislature of any plan for the expenditure of funds pursuant
to subdivision (a), within 30 days of adopting the plan.
SEC. 345. Section 1 of Chapter 1060 of the Statutes of 2002 is
amended to read:
Section 1. The Legislature finds and declares all of the
following:
(a) The year 2002 marks the 30th anniversary of the enactment of
Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et
seq.), a federal statute that prohibits sex discrimination in schools
and other educational programs receiving federal funds. Title IX
applies to all aspects of educational opportunities, but is
especially well known for its success in opening the door to
athletics for women and girls.
(b) Title IX requires affected schools and programs to do the
following: offer male and female students equal opportunities to
play sports; treat male and female athletes fairly; and give male and
female athletes their fair share of athletic scholarship money.
(c) Prior to the enactment of Title IX, only one in 27 girls
participated in high school sports, compared to one in two boys.
(d) In 2000-01, 2,784,154 girls or 41.5 percent of the total
number of participants and 3,921,069 boys or 58.5 percent of the
total number of participants played high school sports in this
country according to the National Federation of State High School
Associations. In 1972, there were only 294,015 girls participating
on athletic teams in the whole country.
(e) In California, there were 271,203 girls or 41.3 percent of the
total number of participants and 386,037 boys or 58.7 percent of the
total number of participants competing in interscholastic sports in
2000-01.
(f) At California's 103 community colleges with athletic programs,
there were 7,623 female athletes or 36 percent of the total number
of participants and 13,529 male athletes or 64 percent of the total
number of participants in 2000-01 according to the Commission on
Athletics.
(g) In 1972, there were only 31,852 women on athletic teams at the
college level in the whole country. By 2002, that number had jumped
to 146,617. In 1972, no women received athletic scholarships. By
2002, one hundred eighty million dollars ($180,000,000) was received
by women athletes, according to the National Collegiate Athletic
Association.
(h) An athletic program can be considered gender equitable when
the participants in both the men's and women's sports programs would
accept as fair and equitable the overall program of the other gender.
(i) The benefits of athletic activity for girls and women are
irrefutable. High school girls who play sports are less likely to be
involved in an unwanted pregnancy, may reduce a teenage girl's risk
of breast cancer by 60 percent, and helps to strengthen bone mass,
thereby reducing the risk of osteoporosis. Girls and women who play
sports have higher levels of confidence, lower levels of depression,
a more positive body image, and experience a higher state of
psychological well-being. Athletics also teaches girls and women
teamwork, goal-setting, and the pursuit of excellence.
(j) While many educational institutions have made a conscientious
effort to provide an athletic program that is equitable to both male
and female students, others have not exhibited the same level of
effort or have intentionally chosen to continue discriminatory
practices.
(k) In late January 2002, the Orange County Register ran a series
of articles following an extensive investigation of athletic equity
issues at California's community colleges. Many areas of concern
were brought to light in that series. In response, some colleges are
taking their responsibilities regarding athletic equity much more
seriously.
(l) While significant progress has been made since the passage of
Title IX in 1972, the numbers indicate that female athletes are still
not provided equal athletic opportunity at many high schools,
colleges, and universities throughout the state. A survey report,
pinpointing areas of weakness and recommending strategies to improve
the various components of athletic equity, will allow California to
assume a leadership role in compliance with this 30-year-old federal
statute.
(m) As used in this act, "Title IX" refers to Title IX of the
Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.).
SEC. 346. Any section of any act enacted by the Legislature during
the 2003 calendar year that takes effect on or before January 1,
2004, and that amends, amends and renumbers, adds, repeals and adds,
or repeals a section that is amended, amended and renumbered, added,
repealed and added, or repealed by this act, shall prevail over this
act, whether that act is enacted prior to, or subsequent to, the
enactment of this act. The repeal, or repeal and addition, of any
article, chapter, part, title, or division of any code by this act
shall not become operative if any section of any other act that is
enacted by the Legislature during the 2003 calendar year and takes
effect on or before January 1, 2004, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.