BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 813 (Fletcher)
          As Amended June 22, 2011
          Hearing Date: June 28, 2011
          Fiscal: Yes
          Urgency: No
          BCP  
                    

                                        SUBJECT
                                           
                              Sex Offenders: Punishment

                                      DESCRIPTION  

          The bill would provide good faith immunity for members of the 
          Sex Offender Management Board, and immunity from civil liability 
          for certified sex offender management professionals for any 
          criminal acts committed by a person who receives supervision or 
          treatment.

          This bill would additionally create an exception to the 
          Bagley-Keene Open Meeting Act to allow the board to discuss 
          matters pertaining to the application of a sex offender 
          treatment provider in a closed session.

          This bill would make other clarifying changes related to sex 
          offenders.  

                                      BACKGROUND  

          In 2006, AB 1015 (Chu & Spitzer, Chapter 338, Statutes of 2006) 
          created a 15 member California Sex Offender Management Board 
          (CASOMB) to serve as a resource for the Legislature and the 
          Governor.  CASOMB states that its vision is to "to decrease 
          sexual victimization and increase community safety" and that it 
          will accomplish that mission by "addressing issues, concerns and 
          problems related to community management of adult sex offenders 
          by identifying and developing recommendations to improve 
          policies and practices."  

          AB 1844 (Fletcher, Chapter 219, Statutes of 2010), the Chelsea 
                                                                (more)



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          King Child
          Predator Prevention Act of 2010, enacted numerous changes to 
          statutes relating to sex offenses and sex offenders.  Those 
          changes include requiring the CASOMB to develop standards for 
          certification of sex offender management professionals, and 
          required the board to certify management professionals according 
          to those standards. This bill seeks to "clean up" AB 1844 by 
          making numerous largely technical changes to issues relating to 
          the management of sex offenders, providing a limited immunity 
          for members of the CASOMB and certified sex offender management 
          professionals, and allowing CASOMB to conduct certain activities 
          in closed session, as specified.

          This bill was approved by the Senate Public Safety Committee on 
          June 21, 2011.

                                CHANGES TO EXISTING LAW
           
          1.    Existing law  establishes the Sex Offender Management Board 
            and requires the board to "address any issues, concerns, and 
            problems related to the community management of adult sex 
            offenders.  The main objective of the board, which shall be 
            used to guide the board in prioritizing resources and use of 
            time, is to achieve safer communities by reducing 
            victimization."  (Penal Code Sec. 9002.)

             This bill  would provide that members of the board shall be 
            immune from liability for good faith conduct in their duties, 
            and make clarifying changes.

          2.    Existing law  requires the board to develop and update 
            standards for certification of sex offender management 
            professionals on or before July 1, 2011, as specified.  (Penal 
            Code Sec. 9003.)  The board shall require any person who 
            applies for certification under this section to submit 
            information relevant to the applicant's fitness to provide sex 
            offender management services.  (Penal Code Sec. 9003(a)(2).)

             This bill  would provide that any person who knowingly provides 
            false information under this paragraph shall be subject to a 
            civil penalty in an amount up to $1,500 dollars, in addition 
            to any other remedies available to the board.  An action for a 
            civil penalty under this provision may be brought by any 
            public prosecutor in the name of the people of the State of 
            California.

                                                                      



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             This bill  would provide that certified sex offender management 
            professionals, who provide sex offender management programs 
            and risk assessments as specified shall not be held civilly 
            liable for any criminal acts committed by the persons on 
            parole, probation, or judicial commitment status who receive 
            supervision or treatment.  This waiver of liability would 
            apply to certified sex offender management professionals, 
            administrators of the programs provided by those 
            professionals, and to agencies or persons under contract to 
            those professionals who provide screening, clinical 
            evaluation, risk assessment, supervision, or treatment to sex 
            offender parolees, probationers, or persons on conditional 
            release, as specified.    
          
          3.    Existing law  provides that the people have the right of 
            access to information concerning the people's business and 
            requires meetings of public bodies and the writings of public 
            officials and agencies to be open to public scrutiny.  (Cal. 
            Const., art. I, sec. 3(b)(1).)

             Existing law  , the Bagley-Keene Open Meeting Act, provides 
            statutory requirements of state public bodies to keep the 
            public informed.  (Gov. Code Sec. 11120 et seq.)  

            Existing law  requires state public bodies to post notices and 
            agendas of state public body meetings.  (Gov. Code Secs. 
            11123, 11125, 11125.4, 11125.5, 11125.9, and 11126.)  Existing 
            law requires state public bodies to publicly report any action 
            taken in closed sessions.  (Gov. Code Secs. 11125.2, 11126, 
            and 11126.3.)

             This bill  would allow the California Sex Offender Management 
            Board to hold a closed session for the purpose of discussing 
            matters pertaining to the application of a sex offender 
            treatment provider for certification, as specified, and 
            provide that those matters may include review of an 
            applicant's qualifications for certification.

          4.    This bill  would make other clarifying changes related to 
          sex offenders.

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:
                                                                      



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            AB 813 will help the Sex Offender Management Board perform 
            its role in protecting public safety by providing technical 
            amendments and clarification within the Penal Code, and by 
            limiting legal liability for treatment providers and the 
            Board for good faith conduct performed pursuant to sex 
            offender management.

            The bill seeks to clean up some provisions of AB 1844 which 
            were overlooked in the original bill. Specifically, it would 
            codify some of the legal protections for treatment providers 
            and for the board for doing the tasks asked of them in AB 
            1844. The bill would provide an exemption to the 
            Bagley-Keene act when dealing with private personnel 
            matters. The bill would also make some technical language 
            changes. 
                 
          2.   Proposed immunities  

          This bill, sponsored by the California Sex Offender Management 
          Board, would enact two limited immunities that would address 
          concerns about liability arising as a result of obligations 
          imposed by AB 1844 (Fletcher, 2010).  Both of those immunities 
          are based upon similar provisions already in existing law.

          First, this bill would provide that members of the board shall 
          be immune from liability for good faith conduct.  The author 
          maintains that the immunity is necessary because:

            AB 1844 . . . expanded the Sex Offender Management Board's 
            role as a policy advisory board to include duties such as 
            developing certification standards for sex offender 
            management professionals and standards for sex offender 
            treatment programs; certifying that professionals and 
            programs meet the requirements of those standards; and 
            developing polygraph certification standards. Members of the 
            Board are not statutorily immune for good faith acts in 
            furtherance of this legislation, unlike members of the state 
            risk assessment committee.  

          The existing immunity referred to by the author applies to 
          members of the State-Authorized Risk Assessment Tool for Sex 
          Offenders (SARATSO) Review Committee.  That immunity, contained 
          in Penal Code Section 290.04 (g), similarly provides that the 
          committee shall be immune from liability for good faith conduct. 
           (For background, the SARATSO Review Committee select risk 
                                                                      



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          assessment instruments for the state of California, monitors 
          risk assessments, and sponsors trainings on scoring risk 
          assessment tools.)  Considering the related nature of the board 
          and the committee, the limited nature of the immunity, and 
          policy arguments in favor of encouraging individuals to serve on 
          the committee if those members act in "good faith," the proposed 
          immunity arguably appears appropriate.  The California Sex 
          Offender Management Board, in support, further asserts that this 
          bill will enable CASOMB to carry out AB 1844's mandate and to 
          better ensure public safety in California.

          Similarly, this bill would provide that certified sex offender 
          management professionals who provide sex offender management 
          programs and risk assessments "shall not be held civilly liable 
          for any criminal acts committed by the persons on parole, 
          probation, or judicial commitment status who receive supervision 
          or treatment."  That immunity would apply to the professionals, 
          administrators of programs administered by those professionals, 
          and to agencies or persons under contract with those 
          professionals who provide screening, clinical evaluation, risk 
          assessment, supervision, or treatment to sex offender parolees, 
          probationers, or persons on conditional release, as specified.  
          Staff notes that the proposed immunity is nearly identical to 
          the immunity currently provided to administrators, supervisors, 
          and treatment staff of the Forensic Conditional Release Program 
          (CONREP). (Penal Code Section 1618.)  CONREP itself is a program 
          for judicially committed persons that is described as follows:

            Virtually all patients judicially committed in the CONREP 
            program have experienced long court-directed state 
            hospitalizations. Once psychiatric symptoms have been 
            stabilized and they are considered no longer to be a danger, 
            eligible patients may be referred for outpatient treatment 
            under conditional release. MDO Patients, have met certain 
            criteria (including the use of force or violence in 
            committing a crime) are treated in the state hospital until 
            they are in remission and can be treated safely in CONREP. 

            Patients must agree to follow a treatment plan designed by 
            the outpatient supervisor and approved by the committing 
            court. The treatment plan includes provisions for 
            involuntary outpatient services. In order to protect the 
            public, patients who do not comply with treatment may be 
            returned, upon court (or Board of Prison Terms) approval, to 
            inpatient status and treated at state expense. 

                                                                      



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            CONREP patients have direct access to a full range of mental 
            health services during their period of outpatient treatment. 
            These services include individual and group therapies, 
            collateral contacts, home visits, substance abuse screenings 
            and psychological assessments. 

            The Department of Mental Health (DMH) has developed 
            performance standards for these services which set minimum 
            treatment and supervision levels for all CONREP patients. 
            Pre-placement evaluations and assessments are done during 
            the period of state hospitalization, upon entry into the 
            community and throughout CONREP treatment. In addition, 
            CONREP staff participate in state hospital and court liaison 
            activities. Specialized forensic mental health clinicians 
            are essential to the effective management of CONREP patients 
            in the community.  
            (  http://www.dmh.ca.gov/services_and_programs/forensic_service
            s/conrep/default.asp  .)

          Similar to the second proposed immunity, existing law acts to 
          protect CONREP treatment providers from civil liability for 
          the acts of persons who receive supervision or treatment.  
          Prior to the enactment of AB 1844, treatment providers for sex 
          offenders who were under CONREP supervision received immunity 
          under Section 1618.  AB 1844 subsequently required all 
          registered sex offenders to participate in an approved sex 
          offender management program while on parole or formal 
          supervised probation, as specified, thus, this bill would 
          apply a nearly identical immunity to the certified sex 
          offender management professionals that provide sex offender 
          management programs and risk assessments.  The author, in 
          support of the provision, additionally highlights that it 
          would not insulate individuals from claims involving 
          malpractice.

          Staff additionally notes that as of the writing of this 
          analysis, the Committee has received no opposition to those 
          proposed immunities and that the Consumer Attorneys of 
          California are neutral on the bill.

          3.   Bagley-Keene Open Meeting Act
           
          It is the policy of the State of California that public agencies 
          exist to aid in the conduct of the people's business and that 
          the proceedings of public agencies are conducted openly so that 
          the public may remain informed.  Implementing that policy, the 
                                                                      



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          Bagley-Keene Open Meetings Act generally requires state public 
          bodies to provide adequate notice of meetings to be held, 
          provide an opportunity for public comment, and to conduct 
          meetings in an open session.  There are exceptions to the 
          requirements of Bagley-Keene, including numerous instances in 
          which a public body may hold a closed session.  

          This bill would additionally allow CASOMB to hold a closed 
          session for the purpose of discussing matters pertaining to the 
          application of a sex offender treatment provider for 
          certification, including review of an applicant's qualifications 
          for certification.  The author maintains that this exception is 
          important because the discussion concerns sensitive personal 
          issues, and notes that it is similar to other existing 
          exceptions in Bagley-Keene regarding personnel issues.  For 
          example, Section 11126 of the Government Code already allows 
          closed door sessions for advisory bodies that administer 
          licensing for purposes of discussing matters that, if discussed 
          in an open meeting, would constitute an unwarranted invasion of 
          privacy of a licensee or applicant, and the review of an 
          applicant's qualifications is within that exception.  
          Considering the potentially sensitive nature of discussing 
          applications in a public forum, the exemption from Bagley-Keen 
          would appear to help protect sensitive information about 
          applicants and not unduly undermine the principle of open 
          meetings.

          4.  Remaining provisions 

           This bill would additionally provide that an applicant for 
          certification who knowingly provides false information to the 
          board shall be subject to a civil penalty of up to $1,500, as 
          specified, and make clarifying changes to clean up provisions of 
          AB 1844.  Those provisions were approved by the Senate Public 
          Safety Committee on June 21, 2011.


           Support  :  California Probation Parole and Correctional 
          Association; Chief Probation Officers of California

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California Sex Offender Management Board

                                                                      



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           Related Pending Legislation  :  None Known

           Prior Legislation  :  AB 1844 (Fletcher, Chapter 219, Statutes of 
          2010) See Background.

           Prior Vote  :

          Senate Public Safety Committee (Ayes 6, Noes 0)
          Assembly Floor (Ayes 75, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Judiciary Committee (Ayes 9, Noes 0)
          Assembly Public Safety Committee (Ayes 7, Noes 0)

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