BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          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?"




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                                       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 




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               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, 




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               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 




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          "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.  







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          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 




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               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 











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               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.

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