BILL NUMBER: AB 438 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 1, 2011
AMENDED IN ASSEMBLY MAY 27, 2011
AMENDED IN ASSEMBLY APRIL 4, 2011
AMENDED IN ASSEMBLY MARCH 29, 2011
AMENDED IN ASSEMBLY MARCH 16, 2011
INTRODUCED BY Assembly Member Williams
(Coauthor: Assembly Member Fuentes)
FEBRUARY 14, 2011
An act to amend Section 19106 Sections
19104 and 19116 of, and to add Sections 19106.2,
19106.5, and 19106.8 Section 19104.5 to, the
Education Code, relating to libraries.
LEGISLATIVE COUNSEL'S DIGEST
AB 438, as amended, Williams. County free libraries:
notice. withdrawal: use of private contractors.
Existing law provides that the county boards of supervisors may
establish and maintain, within their respective counties, county free
libraries pursuant to specified provisions of law. Existing law
requires provides that the board of
trustees, common council, or other legislative body of any city or
the board of trustees of any library district , before
giving notice to the county board of supervisors that the city or
library district desires to become a part of, or withdraw from, the
county free library system, to provide notice of the contemplated
action in a specified manner may, on or before January
1st of any year, notify the county board of supervisors that the
city or library district no longer desires to be a part of the county
free library system, as specified .
This bill would revise those notice requirements and would
additionally require that notice to be mailed or delivered to persons
requesting the notice at least 10 days prior to the public hearing
on the matter. The bill would authorize a city or library district to
charge a fee that is reasonably related to the costs of providing
this requested notice. The bill would prohibit a failure to receive
notice pursuant to these provisions from constituting grounds to
invalidate the actions of a city or library district for which notice
was not provided.
This bill would impose specified requirements if the board of
trustees, common council, or other legislative body of a city or the
board of trustees of a library district intends to withdraw from the
county free library system and operate the city's or library district'
s library or libraries with a private contractor that will employ
library staff to achieve cost savings. These requirements would
include, but not be limited to, publishing notice of the contemplated
action in a specified manner, clearly demonstrating that the
contract will result in actual overall cost savings to the city or
library district, prohibiting the contract from causing the
displacement of city or library district employees, and imposing
specified requirements on contracts for library services in excess of
$100,000 annually. The bill would also provide that its provisions
do not preclude a city, library district, or local government from
adopting more restrictive rules regarding the contracting of public
services.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 19104 of the
Education Code is amended to read:
19104. (a) The board of trustees, common
council, or other legislative body of any a
city or the board of trustees of any a
library district may , on or before January
1st 1 of any year, notify the county
board of supervisors that the city or library district no longer
desires to be a part of the county free library system. The notice
shall be accompanied by a statement complying with the requirements
of Chapter 8 (commencing with Section 54900) of Part 1 of Division 2
of Title 5 of the Government Code. The clerk of the board of
supervisors shall file the statement with the county assessor and the
State Board of Equalization. Thereafter the city or library district
shall cease to participate in the benefits of the county free
library system , and the property situated in the city or
library district shall not be liable to for
taxes for county free library purposes.
(b) If the board of trustees, common council, or other legislative
body of a city or the board of trustees of a library district
intends to withdraw from the county free library system and operate
the city's or the district's library or libraries with a private
contractor that will employ library staff to achieve cost savings,
the requirements of Section 19104.5 shall apply.
SEC. 2. Section 19104.5 is added to the
Education Code , to read:
19104.5. (a) If the board of trustees, common council, or other
legislative body of a city or the board of trustees of a library
district intends to withdraw from the county free library system and
operate the city's or the district's library or libraries with a
private contractor that will employ library staff to achieve cost
savings, all of the following requirements shall apply:
(1) At least once a week for four consecutive weeks prior to
taking any action, the board of trustees, common council, or other
legislative body of the city or the board of trustees of the library
district shall publish, in a newspaper designated by it and
circulated throughout the city or library district, notice of the
contemplated action, giving the date and place of the meeting at
which the contemplated action is proposed to be taken.
(2) The board of trustees, common council, or other legislative
body of a city or the board of trustees of a library district shall
clearly demonstrate that the contract will result in actual overall
cost savings to the city or library district, provided that, in
comparing costs, all of the following occur:
(A) The city or library district's additional cost of providing
the same services as proposed by the contract shall be included.
These additional costs shall include the salaries and benefits of
additional staff that would be needed and the cost of additional
space, equipment, and materials needed to perform the necessary
functions of the library.
(B) The city or library district's indirect overhead costs shall
not be included unless those costs can be attributed solely to the
function in question and would not exist if that function was not
performed by the city or library district. For purposes of this
subparagraph, "indirect overhead costs" means the pro rata share of
existing administrative salaries and benefits, rent, equipment costs,
utilities, and materials.
(C) The cost of a contractor providing a service for any
continuing city or library district costs that would be directly
associated with the contracted function shall be included. Continuing
city or library district costs shall include, but not be limited to,
costs for inspection, supervision, and monitoring.
(3) The contract shall not be approved solely on the basis that
savings will result from lower contractor pay rates or benefits.
Contracts shall be eligible for approval if the contractor's wages
are at the industry's level and do not undercut city or library
district pay rates.
(4) The contract shall not cause the displacement of city or
library district employees. Displacement includes layoff, demotion,
involuntary transfer to a new classification, involuntary transfer to
a new location requiring a change of residence, and time base
reductions. Displacement does not include changes in shifts or days
off, nor does it include reassignment to other positions within the
same classification and general location or employment with the
contractor, so long as wages and benefits are comparable to those
paid by the city or library district.
(5) The overall cost savings of the contract shall be large enough
to ensure that the savings will not be eliminated by private sector
and city or library district cost fluctuations that could normally be
expected during the contracting period.
(6) The amount of the overall cost savings of the contract shall
clearly justify the scope and duration of the contract.
(7) The contract shall be awarded through a publicized,
competitive bidding process.
(8) The contract shall include specific provisions pertaining to
the qualifications of the staff that will perform the work under the
contract, as well as assurances that the contractor's hiring
practices meet applicable nondiscrimination standards.
(9) The potential for future economic risk to the city or library
district from potential contractor rate increases shall be minimal.
(10) The contract shall be with a firm. For purposes of this
paragraph, a "firm" means a corporation, limited liability company,
partnership, nonprofit organization, or sole proprietorship.
(11) The contract shall provide that it may be terminated at any
time by the city or library district without penalty if notice is
provided within 30 days of termination.
(12) The potential economic advantage of the contract shall not be
outweighed by the public's interest in having a particular function
performed directly by the city or library district.
(13) If the contract is for library services in excess of one
hundred thousand dollars ($100,000) annually, all of the following
shall occur:
(A) The city or library district shall require the contractor to
disclose all of the following information as part of its bid,
application, or answer to a request for proposal:
(i) A description of all charges, claims, or complaints filed
against the contractor with any federal, state, or local
administrative agency during the prior 10 years.
(ii) A description of all civil complaints filed against the
contractor in any state or federal court during the prior 10 years.
(iii) A description all state or federal criminal complaints or
indictments filed against the contractor, or any of its officers,
directors, or managers, at any time.
(iv) A description of any debarments of the contractor by any
public agency or licensing body at any time.
(B) The city or library district shall include in the contract
specific, measurable performance standards and provisions for a
performance audit by the city or library district, or an independent
auditor approved by the city or library district, to determine
whether the performance standards are being met and whether the
contractor is in compliance with applicable laws and regulations. The
city or library district shall not renew or extend the contract
prior to receiving and considering the audit report.
(C) The contract shall include provisions for an audit by the city
or library district, or an independent auditor approved by the city
or library district, to determine whether and to what extent the
anticipated cost savings have actually been realized. The city or
library district shall not renew or extend the contract prior to
receiving and considering the audit report.
(b) This section does not preclude a city, library district, or
local government from adopting more restrictive rules regarding the
contracting of public services.
SEC. 3. Section 19116 of the Education
Code is amended to read:
19116. (a) (1) Sections 19104 and 19105 are
not applicable to the withdrawal of a city or library district from
the county free library system in Los Angeles County or Riverside
County. The legislative body of any a
city or the board of trustees of any a
library district, whose jurisdiction is within the County of Los
Angeles or the County of Riverside, may notify the board of
supervisors for Los Angeles County or Riverside County, as
appropriate, that the city or library district no longer desires to
be a part of the county free library system. The notice shall state
whether the city or library district intends to acquire property
pursuant to subdivision (c). The board of supervisors shall transmit
a copy of the notice to the Los Angeles County Assessor or Riverside
County Assessor, as appropriate, the Los Angeles County Auditor or
Riverside County Auditor, as appropriate, and the State Board of
Equalization.
(2) If the city's legislative body or the library district's board
of trustees intends to withdraw from the county free library system
and operate the city's or the district's library or libraries with a
private contractor that will employ library staff to achieve cost
savings, the requirements of Section 19104.5 shall also apply.
(b) When a city or library district files a notice pursuant to
subdivision (a), it shall remain a member of the county free library
system until July 1 of the base year or the date on which property is
transferred pursuant to subdivision (c), whichever date is later.
Upon ceasing to be a member of the county free library system, the
city or library district shall not participate in any benefits of the
county free library system, and shall assume the responsibility for
the provision of library services within its jurisdiction. Unless
otherwise agreed by July 1 of the base year in writing by the Board
of Supervisors of Los Angeles County or the Board of Supervisors of
Riverside County, as appropriate, and the withdrawing city or library
district, an amount of property tax revenue equal to the property
tax revenues allocated to the county free library pursuant to Article
2 (commencing with Section 96) of Chapter 6 of Part 0.5 of Division
1 of the Revenue and Taxation Code in the fiscal year prior to the
base year and that were derived from property situated within the
boundaries of the withdrawing entity shall be allocated to and used
to maintain library services by the withdrawing entity in the base
year and, adjusted forward, in each fiscal year thereafter at the
same time allocations are made pursuant to Article 2 (commencing with
Section 96) of Chapter 6 of Part 0.5 of Division 1 of the Revenue
and Taxation Code. This subdivision shall not apply to property tax
revenues that have been pledged to repay bonded indebtedness of the
county free library system .
(c) If there are one or more county library facilities within the
territorial boundaries of the withdrawing entity at the time the
withdrawing entity provides notice pursuant to subdivision (a), the
withdrawing entity shall have the right to acquire any or all of
those facilities from the county and the county shall, no later than
July 1 of the base year, transfer to the withdrawing entity each
facility to be acquired and the personal property therein related to
the provision of library services. If the facility or personal
property was purchased with bond proceeds or other forms of
indebtedness, acquisition shall only take place if the withdrawing
entity assumes any remaining indebtedness and in no way impairs the
repayment thereof. If the withdrawing entity opts not to acquire any
facilities or personal property, the county at its discretion may
dispose of the facilities or personal property or convert the use of
those facilities or personal property, including transferring
collections and other personal property to other sites and converting
facilities to other purposes. If the withdrawing entity opts to
acquire any facilities or personal property, the acquisition prices
shall be as follows unless otherwise provided for by statute or
contract:
(1) Each county library facility which, for the purposes of this
section, shall include the real property upon which the facility is
located and any fixtures therein and shall not include computer
systems and software, shall be transferred for the lesser of:
(A) No cost, if the facility was donated to the county by the
withdrawing entity.
(B) The price paid to the withdrawing entity by the county for the
facility, if the county bought the facility from the withdrawing
entity. However, if the county constructed capital improvements to
the facility after it was bought from the withdrawing entity, the
county's total out-of-pocket costs for the capital improvement
excluding any costs for routine repairs, restoration or maintenance,
shall be added to the price.
(C) The fair market value of the facility. However, if any portion
of the facility was donated to the county by the withdrawing entity
or if any moneys were donated by the withdrawing entity towards the
county's construction or acquisition of the facility or any portion
thereof, the value of the donation shall be subtracted from the fair
market value.
(2) Any personal property within the facility related to the
provision of library services, including books and resource
materials, computer systems and software, furniture, and furnishings,
shall be transferred for the lesser of:
(A) No cost, if the property was donated to the county by the
withdrawing entity.
(B) The fair market value of the personal property. However, on or
before the March 1 preceding the July 1 of the base year, the county
librarian may designate collections of resource books and materials
that are unique in, and integral to, the county free library system
to be special collections. The special collections shall be acquired
by the withdrawing entity only upon mutually agreeable terms and
conditions.
(d) If a facility transferred pursuant to subdivision (c) serves
residents of surrounding jurisdictions, the board of supervisors
governing the county free library system may require, as a condition
of transferring the facility, that the library services provided by
the withdrawing entity to its residents also be available on the same
basis to the residents of the surrounding jurisdictions. However, if
the withdrawing entity contributes to the provision of library
services from other city funds, or through taxes, assessments, or
fees of its residents, the withdrawing entity may provide additional
services to its residents. If the requirement to provide regional
services is imposed and, unless otherwise agreed in writing by the
county and the withdrawing entity by July 1 of the base year, an
amount of property tax revenues equal to the property tax revenues
derived from property situated in the surrounding jurisdictions which
were, in the fiscal year prior to the base year, allocated to the
county free library system pursuant to Article 2 (commencing with
Section 96) of Chapter 6 of Part 0.5 of Division 1 of the Revenue and
Taxation Code shall be allocated to and used to maintain library
services by the withdrawing entity in the base year and, adjusted
forward, in each fiscal year thereafter at the same time other
allocations are made pursuant to Article 2 (commencing with Section
96) of Chapter 6 of Part 0.5 of Division 1 of the Revenue and
Taxation Code. This subdivision shall not apply to property tax
revenues that have been pledged to repay bonded indebtedness. If a
surrounding jurisdiction subsequently provides notice of its intent
to withdraw from the county free library system pursuant to
subdivision (a), on the date the surrounding jurisdiction ceases to
participate in the benefits of the county free library system
pursuant to subdivision (b), the withdrawing entity shall no longer
be required to make library services available to the residents of
the surrounding jurisdiction and property tax revenues derived from
property situated in the surrounding jurisdiction shall no longer be
allocated to the withdrawing entity pursuant to this subdivision.
(e) For purposes of this section, the following terms are defined
as follows:
(1) "Base year" means the fiscal year commencing on the July 1
following the December 2 following the date of the notice given
pursuant to subdivision (a) of this section.
(2) "Fair market value" means:
(A) Any value agreed upon by the withdrawing entity and the
county.
(B) If no agreement as to value is reached by the March 1
preceding the July 1 of the base year, the value assigned by an
appraiser agreed upon by the withdrawing entity and the county.
(C) If no agreement as to the appointment of an appraiser is
reached pursuant to subparagraph (B) by the April 1 preceding the
July 1 of the base year, the value assigned by an appraiser agreed
upon between the withdrawing entity's appraiser and the county's
appraiser.
(D) If no agreement as to the appointment of an appraiser is
reached pursuant to subparagraph (C) by the May 1 preceding the July
1 of the base year, the value assigned by a state certified appraiser
designated by the withdrawing entity. The designated appraiser shall
provide the appraisal in writing to the county no later than the
June 1 preceding the July 1 of the base year.
(E) The withdrawing entity shall reimburse the county for any
appraisal costs the county incurs in determining the fair market
value pursuant to this section.
(3) "Surrounding jurisdictions" means cities and library districts
that are adjacent to the withdrawing entity and tax rate areas in
unincorporated areas of the county which tax rate areas
that are wholly or partially within the
withdrawing entity's sphere of influence, which cities,
libraries, and tax rate areas that are within
the county free library system , and that have
no facility within their territorial boundaries providing library
services at the time the withdrawing entity provides notice pursuant
to subdivision (a).
SECTION 1. Section 19106 of the Education Code
is amended to read:
19106. (a) Before any board of trustees, common council, or other
legislative body of any city, or the board of trustees of any
library district, gives notice that the city or library district
desires to become a part of the county free library system, or gives
notice of withdrawal from the system, the board of trustees, common
council, or other legislative body of the city or the board of
trustees of the library district shall publish a notice of the
contemplated action in all of the following manners:
(1) At least once a week for four successive weeks in at least one
newspaper of general circulation within the jurisdiction of the city
or library district.
(2) At the entrance of each library in the city or library
district for at least 30 days prior to providing notice to the county
board of supervisors.
(3) At the entrance of the city hall or the library district
headquarters for at least 30 days prior to providing notice to the
county board of supervisors.
(b) The notice of the contemplated action shall include the date,
time, and place of the public hearing at which the contemplated
action will be discussed, the identity of the hearing body or
officer, and a general explanation of the action to be contemplated.
(c) In addition to the notice required by this section, the board
of trustees, common council, or other legislative body of the city or
the board of trustees of the library district may give notice of the
public hearing at which the contemplated action will be discussed in
any other manner it deems necessary or desirable.
SEC. 2. Section 19106.2 is added to the
Education Code, to read:
19106.2. (a) The notice required pursuant to Section 19106 shall
be mailed or delivered at least 10 days prior to the public hearing
to any person who has filed a written request for notice with either
the clerk of the governing body of the city or library district, or
with any other person designated by the governing body to receive
these requests. A city or library district may require each request
for notice to be annually renewed.
(b) A city or library district may charge a fee that is reasonably
related to the costs of providing notice by mail or delivery
pursuant to subdivision (a).
SEC. 3. Section 19106.5 is added to the
Education Code, to read:
19106.5. If the need arises, a public hearing conducted pursuant
to Section 19106 may be continued for multiple days or time periods
and the city or library district shall not be required to provide new
notice for each additional day or time period that the hearing is
continued.
SEC. 4. Section 19106.8 is added to the
Education Code, to read:
19106.8. Failure to receive notice pursuant to Section 19106 or
19106.2 shall not constitute grounds to invalidate the actions of a
city or library district for which notice was not provided.