BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 8 0 1 AB 801 (Swanson) As Amended January 11, 2012 Hearing date: June 26, 2012 Penal Code SM:mc CODE ENFORCEMENT OFFICERS HISTORY Source: California Association of Code Enforcement Officers Prior Legislation: AB 1688 (Niello) - Chapter 267, Statutes of 2006 Support: California Correctional Supervisors Association; California Police Chiefs Association; Laborers' Locals 777 and 792 Opposition:None known Assembly Floor Vote: Ayes 67 - Noes 0 (NOTE: The author intends to offer amendments in Committee. See Comment 2.) KEY ISSUE SHOULD THE CODE SECTION GRANTING LIMITED ARREST POWERS TO "ILLEGAL DUMPING ENFORCEMENT OFFICERS" BE AMENDED TO REPLACE THAT TERM WITH THE TERM "CODE ENFORCEMENT OFFICER?" (More) AB 801 (Swanson) Page 2 PURPOSE The purpose of this bill is to amend the code section granting limited arrest powers to illegal dumping enforcement officers and replace that term with the term "code enforcement officer." Current law provides that the following persons are not peace officers, but may exercise the powers of arrest of a peace officer as specified in Section 836 during the course and within the scope of their employment, if they successfully complete a course in the exercise of those powers pursuant to Section 832: Persons designated by a cemetery authority pursuant to Section 8325 of the Health and Safety Code. Persons regularly employed as security officers for independent institutions of higher education, recognized under subdivision (b) of Section 66010 of the Education Code, if the institution has concluded a memorandum of understanding, permitting the exercise of that authority, with the sheriff or the chief of police within whose jurisdiction the institution lies. Persons regularly employed as security officers for health facilities, as defined in Section 1250 of the Health and Safety Code, that are owned and operated by cities, counties, and cities and counties, if the facility has concluded a memorandum of understanding, permitting the exercise of that authority, with the sheriff or the chief of police within whose jurisdiction the facility lies. Employees or classes of employees of the California Department of Forestry and Fire Protection designated by the Director of Forestry and Fire Protection, provided that the primary duty of the employee shall be the enforcement of the law as that duty is set forth in Section 4156 of the Public Resources Code. Persons regularly employed as inspectors, supervisors, or security officers for transit districts, as defined in Section 99213 of the Public Utilities Code, if the district (More) AB 801 (Swanson) Page 3 has concluded a memorandum of understanding permitting the exercise of that authority, with, as applicable, the sheriff, the chief of police, or the Department of the California Highway Patrol within whose jurisdiction the district lies. For the purposes of this subdivision, the exercise of peace officer authority may include the authority to remove a vehicle from a railroad right-of-way as set forth in Section 22656 of the Vehicle Code. Nonpeace officers regularly employed as county parole officers pursuant to Section 3089. Persons appointed by the Executive Director of the California Science Center pursuant to Section 4108 of the Food and Agricultural Code. Persons regularly employed as investigators by the Department of Transportation for the City of Los Angeles and designated by local ordinance as public officers to the extent necessary to enforce laws related to public transportations and authorized by a memorandum of understanding with the chief of police, permitting the exercise of that authority. For the purposes of this subdivision, "investigator" means an employee defined in Section 53075.61 of the Government Code authorized by local ordinance to enforce laws related to public transportation. Transportation investigators authorized by this section shall not be deemed "peace officers" for purposes of Sections 241 and 243. Persons regularly employed by any department of the City of Los Angeles who are designated as security officers and authorized by local ordinance to enforce laws related to the preservation of peace in or about the properties owned, controlled, operated, or administered by any department of the City of Los Angeles and authorized by a memorandum of understanding with the Chief of Police of the City of Los Angeles permitting the exercise of that authority. Security officers authorized pursuant to this subdivision shall not be deemed peace officers for purposes of Sections 241 and 243. Illegal dumping enforcement officers to the extent necessary to enforce laws related to illegal waste dumping, (More) AB 801 (Swanson) Page 4 or littering, and authorized by a memorandum of understanding with, as applicable, the sheriff or chief of police within whose jurisdiction the person is employed permitting the exercise of that authority. An "illegal dumping enforcement officer" is defined, for purposes of this section, as a person employed full-time, part-time, or as a volunteer after completing training prescribed by law, by a city, county, or city and county, whose duties include illegal dumping enforcement and is designated by local ordinance as a public officer. An illegal dumping control officer may also be a person who is not regularly employed by a city, county, or city and county, but who has met all training requirements and is directly supervised by a regularly employed dumping control officer. This person shall not have the power of arrest or access to summary criminal history information. No person may be appointed as an illegal dumping enforcement officer if that person is disqualified pursuant to the criteria set forth in Section 1029 of the Government Code. Persons regularly employed by a city, county, or city and county designated pursuant to this subdivision may be furnished state summary criminal history information upon a showing of compelling need pursuant to subdivision (c) of Section 11105. (Penal Code § 830.7.) This bill would amend the above language referencing illegal dumping enforcement officer and replace that term with the term "code enforcement officer." RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for (More) AB 801 (Swanson) Page 5 "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of limitations for felonies or constricting statutory parole standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. (More) On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California's 33 prisons must be no more than the following: 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and 137.5 percent by June 27, 2013. This bill does not aggravate the prison overcrowding crisis described above under ROCA. COMMENTS 1. Need for This Bill According to the author: AB 801 updates the Penal Code by replacing the outdated term, "illegal dumping officer," with the more appropriate term, "code enforcement officer." Local Governments and law enforcement do not use the term, "illegal dumping officer" in their day-to-day (More) AB 801 (Swanson) Page 7 operations - they use "code enforcement officers." All Code Enforcement Officers engage in illegal dumping enforcement, so it makes sense to amend current law to reflect this reality and use the more generic term. 2. Effect of the Bill and Proposed Author's Amendment As the bill currently reads, the effect of this bill would be to grant all code enforcement officers with the limited arrest powers which current law grants only to code enforcement officers engaged in enforcement of laws related to illegal waste dumping and littering. Current law also requires that, before these powers are granted, a memorandum of understanding must be signed with the local sheriff or police chief and other requirements apply. The author has indicated that he will propose author's amendments in Committee to clarify that the purpose of the bill is merely to replace the term "illegal dumping enforcement officer" with "code enforcement officer" while effecting no substantive change in the law. The amendments will read as follows and will comprise the entirety of the bill: Amendment One: Delete Section 1 of the bill. Amendment Two: Amend Subdivision (j) of Penal Code section 830.7 to read: Code Enforcement Officers, to the extent necessary to enforce laws related to illegal waste dumping, or littering, and authorized by a memorandum of understanding with, as applicable, the sheriff or chief of police within whose jurisdiction the person is employed, permitting the exercise of that authority. A "Code Enforcement Officer" is defined, for purposes of this section, as a person employed AB 801 (Swanson) Page 8 full-time, part-time, or as a volunteer after completing training prescribed by law, by a city, county, or city and county, whose duties include illegal dumping enforcement and is designated by local ordinance as a public officer. A Code Enforcement Officer may also be a person who is not regularly employed by a city, county, or city and county, but who has met all training requirements and is directly supervised by a regularly employed Code Enforcement Officer conducting illegal dumping enforcement. This person shall not have the power of arrest or access to summary criminal history information. No person may be appointed as a Code Enforcement Officer if that person is disqualified pursuant to the criteria set forth in Section 1029 of the Government Code. Persons regularly employed by a city, county, or city and county designated pursuant to this subdivision may be furnished state summary criminal history information upon a showing of compelling need pursuant to subdivision (c) of Section 11105. ***************