BILL ANALYSIS Ó 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) AB 813 (Fletcher) Page 2 of ? 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. AB 813 (Fletcher) Page 3 of ? 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: AB 813 (Fletcher) Page 4 of ? 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 AB 813 (Fletcher) Page 5 of ? 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. AB 813 (Fletcher) Page 6 of ? 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 AB 813 (Fletcher) Page 7 of ? 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 AB 813 (Fletcher) Page 8 of ? 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) **************