BILL NUMBER: AB 438 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 18, 2011
AMENDED IN SENATE JULY 12, 2011
AMENDED IN SENATE JUNE 27, 2011
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 Sections 19104 and 19116 of, and to add and repeal
Section 19104.5 of, the Education Code, relating to libraries.
LEGISLATIVE COUNSEL'S DIGEST
AB 438, as amended, Williams. County free libraries: 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
provides that the board of trustees, common council, or other
legislative body of any city or the board of trustees of any library
district 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 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, unless the library or
libraries are funded only by the proceeds of a special tax imposed by
the city or library district. These requirements, until January 1,
2014 2019 , 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
for the duration of the entire contract, prohibiting the contract
from causing existing city or l ibrary district
employees to incur a loss of employment or
specified benefits or an involuntary transfer
, 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 a city or the board of trustees of a library
district may, on or before January 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 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, unless the library
or libraries are funded only by the proceeds of a special tax imposed
by the city or library district 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.
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 for the duration of
the entire contract , 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 an existing city or library
district employee to incur a loss of his or her employment or
employment seniority, a reduction in wages, benefits, or hours, or an
involuntary transfer to a new location requiring a change in
residence.
(3)
(5) The contract shall be awarded through a publicized,
competitive bidding process.
(4)
(6) 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.
(5)
(7) 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.
(6)
(8) The contract shall provide that it may be
terminated at any time by the city or library district without
penalty if the contractor fails to perform and notice is provided
within 30 days of termination.
(7)
(9) 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 of 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 before
receiving and considering the audit report.
(8)
(10) The term of the contract shall not be more than
two five years from the date on which
the board of trustees, common council, or other legislative body of a
city or the board of trustees of a library district approves the
contract.
(b) This section does not preclude a city, library district, or
local government from adopting more restrictive rules regarding the
contracting of public services.
(c) This section shall remain in effect only until January 1,
2014 2019 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2014 2019 , deletes or
extends that date.
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 a city or the board of trustees of 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, unless
the library or libraries are funded only by the proceeds of a
special tax imposed by the city or library district 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.
(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 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 toward 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 that
were, in the fiscal year before 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 that are wholly or partially
within the withdrawing entity's sphere of influence, 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).