BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 1055 (Ashburn)                                          5
          As Introduced February 16, 2010
          Hearing date: April 13, 2010
          Government Code                                 VOTE ONLY  
          MK:dl


                           STATE CHIEF INFORMATION OFFICER: 

                            FINGERPRINTS CRIMINAL HISTORY  


                                       HISTORY

          Source:  Office of the State Chief Information Officer

          Prior Legislation: None

          Support: Unknown

          Opposition:California Teamsters Public Affairs Council;  
                   California Conference of Machinists; International  
                   Longshore and Warehouse Union; UNITE-HERE; California  
                   Conference Board of the Amalgamated Transit Union;  
                   United Food and Commercial Workers Western States  
                   Council; Professional and Technical Engineers, Local  
                   21,  IFPTE, AFL-CIO;  Engineers & Scientists of  
                   California, Local 20, IFPTE, AFL-CIO; Legal Services  
                   for Prisoners with Children; American Civil Liberties  
                   Union







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                                                          SB 1055 (Ashburn)
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                                       KEY ISSUE
           
          SHOULD THE STATE CHIEF INFORMATION OFFICER BE PERMITTED TO  
          REQUIRE CRIMINAL BACKGROUND CHECKS OF AN EMPLOYEE, PROSPECTIVE  
          EMPLOYEE, CONTRACTOR, SUBCONTRACTOR, VOLUNTEER OR VENDOR WHOSE  
          DUTIES INCLUDE ACCESS TO CONFIDENTIAL OR SENSITIVE INFORMATION?


                                          

                                       PURPOSE

          The purpose of this bill is to provide for criminal background  
          checks by the State Chief Information Officer for employees,  
          contractors, volunteers and vendors.
          
           Existing law  provides that criminal offender record information  
          shall be disseminated, whether directly or through an  
          intermediary, only to such agencies as are, or may subsequently  
          be, authorized access to such record by statute.  (Penal Code   
          11076)

          Existing law  provides that the Attorney General is responsible  
          for the security of criminal offender record information.   
          (Penal Code  11077)

           Existing law  provides that the Attorney General shall maintain  
          summary criminal history information and shall furnish the  
          information regarding an employee or applicant including  
          specified organizations to whom the Attorney General shall  
          supply information regarding every conviction rendered against  
          the applicant as well as every arrest for which the applicant is  
          presently awaiting trial.  (Penal Code  11105(p))

           Existing law  provides that there is in state government the  
          office of the State Chief Information Officer. The State Chief  
          Information Officer shall be appointed by, and serve at the  
          pleasure of, the Governor, subject to Senate confirmation. The  
          State Chief Information Officer shall be a member of the  
          Governor's cabinet. (Government Code 11545)




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                                                          SB 1055 (Ashburn)
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           This bill  provides that the State Chief Information Officer may  
          require fingerprint images and associated information from an  
          employee, prospective employee, contractor, subcontractor,  
          volunteer, or vendor whose duties include, or would include,  
          access to confidential or sensitive information.

           This bill  provides that the fingerprint images and associated  
          information may be furnished to the Department of Justice for  
          the purposes of obtaining information as to the existence and  
          nature of a record of state or federal convictions and the  
          existence and nature of state or federal arrests for which the  
          person is free on bail or on his own recognizance pending trial  
          or appeal.  Requests for federal criminal offender record  
          information received by the Department of Justice pursuant to  
          this section shall be forwarded to the Federal Bureau of  
          Investigation by the Department of Justice.

           This bill  provides that the Department of Justice may charge a  
          fee and shall respond to the State Chief Information Officer  
          with information as provided under Penal Code Section 1105(p).

                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  




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                                                          SB 1055 (Ashburn)
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               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The




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                                                          SB 1055 (Ashburn)
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               state of emergency declared by Governor Schwarzenegger  
               almost three years ago continues to this day,  
               California's prisons remain severely overcrowded, and  
               inmates in the California prison system continue to  
               languish without constitutionally adequate medical and  
               mental health care.<1>

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS




















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                             ---------------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).










          1.  Need for This Bill  

          According to the author:

              The Office of the State Chief Information Officer (OCIO)  
              is engaged in an IT infrastructure consolidation effort  
              that will achieve ongoing GF savings, increase the  
              reliability of the state's IT infrastructure, and  
              bolster the security of confidential information.  This  
              initiative adheres to the principles found within the  
              Legislature approved GRP 1 (2009) and the Governor's  
              Executive Order S-03-10.  This initiative cannot be  
              completed without the ability to consolidate various  
              state agencies' IT infrastructure within the state's  
              data center.  To date, the data center maintenance and  
              operations is completed with non-background checked  
              personnel.  Without the statutory authority to ensure  
              current and future employees adhere to a required level  
              of background check verification, the OCIO will be  
              unable to consolidate departments such as CDCR, HHSA,  
              the CA State Lottery, FTB, DMV or any other agency that  
              is bound by federal or state background check  
              regulations.  This legislation seeks to provide this  
              authority for those positions that would have access to  
              confidential information, approximately 400 employees  
              out of 1300 OCIO wide.   

          2.   The Office of the State Chief Information Officer  


          According to the website for the Office of the State Chief  
          Information Officer:


              The Office of the State Chief Information Officer (OCIO)  
              - The OCIO is a cabinet-level agency, responsible for  
              establishing and enforcing information technology (IT)  
              strategic plans, policies, standards and enterprise  
              architecture, and the IT project review, approval, and  




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              oversight program.


              The Office of Information Security (OIS) - The OIS is an  
              Office within the OCIO and is responsible for the  
              promotion and protection of consumer privacy, and the  
              creation, issuance, and maintenance of information  
              security and privacy policies, standards, and procedures  
              directing state agencies to effectively manage security  
              and risk, as defined in Section 11549.3 of the  
              Government Code.


          3.   Background Check for Employees and Contractors of the Office  
          of the State Chief Information Officer  

          This bill provides that the State Chief Information Officer may  
          require an employee, prospective employee, contractor,  
          subcontractor, volunteer or vendor whose duties include access  
          to confidential or sensitive information.   The background check  
          information received by the Office of the State Chief  
          Information Officer from the Department of Justice would include  
          every conviction and every arrest for which the applicant is  
          awaiting trial.  The bill does not expressly prohibit the hiring  
          of a person or contractor convicted of a crime.

          4.   Appropriate Level of Background Check  

          Under existing law, over a period of many years, the Legislature  
          has created different categories of what criminal background  
          check information can be released based on the employment,  
          licensing or volunteer position the person is applying for.  The  
          question for the Committee is whether the level of background  
          check in this bill is appropriate for the employees and  
          contractors of the Office of the State Chief Information  
          Officer.
            
          The persons contemplated to be required to get background checks  
          under this bill would have access to confidential or sensitive  
          information. The question is whether this type of position  












                                                          SB 1055 (Ashburn)
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          requires that an employer know the person had an old conviction  
          for something like a DUI, or whether these positions are more  
          analogous to financial institution positions where background  
          checks include a narrower list of offenses related to financial  
          crimes.  When an employee of a bank or similar institution has a  
          criminal background check, the convictions that are returned to  
          the employer are the commission or attempted commission of a  
          crime involving robbery, burglary, theft, embezzlement, fraud,  
          forgery, bookmaking, receiving stolen property, counterfeiting,  
          or involving checks or credit cards or using computers. (Penal  
          Code  11105(o) and Financial Code  550)

          The opposition to this bill is concerned about the increasing  
          number of fingerprints that the State of California will collect  
          under this bill, and the privacy rights that this infringes.   
          Perhaps a narrower release of information tailored more closely  
          to the requirements of the job would help alleviate some of  
          their concerns, assuming it can still comply with the goals of  
          the stated need for this legislation.

          WHAT IS THE APPROPRIATE LEVEL OF BACKGROUND CHECK FOR AN  
          EMPLOYEE OR CONTRACTOR OF THE STATE CHIEF INFORMATION OFFICER?

           

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