BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2343|
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THIRD READING
Bill No: AB 2343
Author: Torres (D)
Amended: 8/13/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/12/12
AYES: Hancock, Anderson, Harman, Liu, Price, Steinberg
NO VOTE RECORDED: Calderon
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 74-0, 4/26/12 (Consent) - See last page
for vote
SUBJECT : Criminal history information
SOURCE : Office of the Attorney General
DIGEST : This bill makes changes to the law regarding
background checks to allow California to participate in the
FBI subsequent arrest program which is being created and to
allow the Attorney General to distribute disposition
information as a follow-up to subsequent arrest information
that has been sent to an entity that had requested a
background check.
Senate Floor Amendments of 8/13/12 avoid chaptering
problems with SB 1023 (Senate Budget and Fiscal Review
Committee), Chapter 43, Statutes of 2012, and makes
technical amendments.
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ANALYSIS : Existing law provides that the California
Department of Justice (DOJ) shall maintain state summary
criminal history information. "State summary criminal
history information" is defined as the master record of
information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such
as name, date of birth, physical description, fingerprints,
photographs, date of arrests, arresting agencies and
booking numbers, charges, dispositions, and similar data
about the person. "State summary criminal history
information" does not refer to records and data compiled by
criminal justice agencies other than the Attorney General,
nor does it refer to records of complaints to or
investigations conducted by, or records of intelligence
information or security procedures of, the office of the
Attorney General and the DOJ. (Penal Code Section
11105(a).)
Existing law states that the Attorney General shall furnish
state summary criminal history information to any of the
following, if needed in the course of their duties,
provided that when information is furnished to assist an
agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling
employment, certification, or licensing duties, Chapter
1321, Statutes of 1974, and Labor Code Section 432.7 shall
apply:
The courts of California;
Peace officers of California, as defined;
District attorneys of California;
Prosecuting city attorneys of any city within California;
City attorneys pursuing civil gang injunctions or drug
abatement actions;
Probation officers of California;
Parole officers of California;
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A public defender or attorney of record when representing
a person in proceedings upon a petition for a certificate
of rehabilitation and pardon;
A public defender or attorney of record when representing
a person in a criminal case, or parole revocation or
revocation extension proceeding, and if authorized access
by statutory or decisional law;
Any agency, officer, or official of the state if the
criminal history information is required to implement a
statute or regulation that expressly refers to specific
criminal conduct applicable to the subject person of the
state summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to
receive state summary criminal history information may
also transmit fingerprint images and related information
to DOJ to be transmitted to the FBI;
Any city or county, city and county, district, or any
officer or official thereof if access is needed in order
to assist that agency, officer, or official in fulfilling
employment, certification, or licensing duties, and if
the access is specifically authorized by the city
council, board of supervisors, or governing board of the
city, county, or district if the criminal history
information is required to implement a statute,
ordinance, or regulation that expressly refers to
specific criminal conduct applicable to the subject
person of the state summary criminal history information,
and contains requirements or exclusions, or both,
expressly based upon that specified criminal conduct.
The city or county, city and county, district, or the
officer or official thereof authorized by this paragraph
may also transmit fingerprint images and related
information to DOJ to be transmitted to the FBI;
The subject of the state summary criminal history
information;
Any person or entity when access is expressly authorized
by statute if the criminal history information is
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required to implement a statute or regulation that
expressly refers to specific criminal conduct applicable
to the subject person of the state summary criminal
history information, and contains requirements or
exclusions, or both, expressly based upon that specified
criminal conduct;
Health officers of a city, county, city and county, or
district when in the performance of their official duties
in the prevention of communicable diseases;
Any managing or supervising correctional officer of a
county jail or other county correctional facility;
Any humane society, or society for the prevention of
cruelty to animals, for the specific purpose of complying
with existing provisions of law relating to the
appointment of humane officers;
Local child support agencies. When a local child support
agency closes a support enforcement case containing
summary criminal history information, the agency shall
delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or
of which the parent has been arrested, charged, or
convicted, other than for offenses related to the
parent's having failed to provide support for minor
children;
County child welfare agency personnel who have been
delegated the authority of county probation officers to
access state summary criminal history information
pursuant to the Welfare and Institutions Code (WIC) for
the purposes of investigating child abuse, locating a
parent, or assessing the appropriateness and safety of a
child's placement. When an agency obtains records
obtained both on the basis of name checks and fingerprint
checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check;
The court of a tribe, or court of a consortium of tribes,
that has entered into an agreement with California for
the purposes of investigating child abuse, locating a
parent, or assessing the appropriateness and safety of a
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child's placement, and for tribal approval or tribal
licensing of foster care or adoptive homes;
An officer providing conservatorship investigations;
A court investigator providing investigations or reviews
in conservatorships;
A person authorized to conduct a guardianship
investigation; and
A humane officer for the purposes of performing his or
her duties. (Penal Code Section11105(b).)
Existing law provides that the state and federal summary
criminal history information furnished by the DOJ as the
result of an application by an authorized agency or
organization shall include convictions rendered against the
applicant, arrests for which the applicant is presently
awaiting trial, and every arrest or detention unless the
applicant was exonerated or completed diversion. If DOJ's
records do not contain a disposition for an arrest, the DOJ
shall first make a genuine effort to determine the
disposition of the arrest prior to dissemination. DOJ must
provide additional information for applications submitted
by specified authorized agencies. (Penal Code Section
11105(k), (l), (m), (n), (o) and (p).)
Existing law states that DOJ may provide subsequent arrest
notification to any agency authorized by Penal Code Section
11105 to receive state summary criminal history information
to assist in fulfilling employment, licensing,
certification duties, or the duties of approving relative
caregivers and nonrelative extended family members, upon
the arrest of any person whose fingerprints are maintained
on file at the DOJ as the result of an application for
licensing, employment, certification, or approval. The
notification shall consist of a current copy of the
person's state summary criminal history transcript. (Penal
Code Section 11105.2(a).)
Existing law provides that any agency which submits the
fingerprints of an applicant for employment, licensing,
certification, or approval to the DOJ for the purpose of
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establishing a record at the DOJ to receive notification of
subsequent arrest shall immediately notify the DOJ if the
applicant is not subsequently employed, or if the applicant
is denied licensing certification, or approval. (Penal
Code Section 11105.2(f).)
Existing law prohibits an employer, whether a public agency
or private individual or corporation, from asking an
applicant for employment to disclose, through any written
form or verbally, information concerning an arrest or
detention that did not result in conviction, or information
concerning a referral to, and participation in, any
pretrial or post-trial diversion program. An employer
shall not seek from any source whatsoever, or utilize, as a
factor in determining any condition of employment including
hiring, promotion, termination, or any apprenticeship
training program or any other training program leading to
employment, any record of arrest or detention that did not
result in conviction, or any record regarding a referral
to, and participation in, any pretrial or post-trial
diversion program. As used in this section, a conviction
shall include a plea, verdict, or finding of guilt
regardless of whether sentence is imposed by the court.
Nothing in this section shall prevent an employer from
asking an employee or applicant for employment about an
arrest for which the employee or applicant is out on bail
or on his or her own recognizance pending trial.
Exceptions are as follows:
This section does not prohibit the disclosure of the
information authorized for release under existing
provisions of law to a government agency employing a
peace officer. However, the employer shall not determine
any condition of employment other than paid
administrative leave based solely on an arrest report.
The information contained in an arrest report may be used
as the starting point for an independent, internal
investigation of a peace officer;
Persons seeking employment or persons already employed as
peace officers or persons seeking employment for
positions in the DOJ or other criminal justice agencies
as defined are not covered by this section;
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This section does not prohibit an employer at a health
facility, as defined, from asking an applicant for
employment either of the following:
o With regard to an applicant for a position with
regular access to patients, to disclose an arrest for
a registerable sex offense, or
o With regard to an applicant for a position with
access to drugs and medication, to disclose an arrest
for a registerable offense involving controlled
substances. (Labor Code Section 432.7(a), (b), (e)
and (f).)
This bill clarifies that the state and federal summary
criminal history information initially furnished by the
Department of Justice (DOJ) as the result of an application
by an authorized agency or organization shall include
certain specified information as required under existing
provisions of law.
This bill requires whenever state or federal summary
criminal history information is furnished by the DOJ as the
result of an application by an authorized agency,
organization, or individual as defined, and the information
is to be used for employment, licensing, or certification
purposes, the authorized agency, organization, or
individual to expeditiously furnish a copy of the
information to the person to whom the information relates
if the information is a basis for an adverse employment,
licensing, or certification decision.
This bill states that the DOJ may provide subsequent state
or federal arrest or disposition notification to any entity
authorized by state or federal law to receive state or
federal summary criminal history information to assist in
fulfilling employment, licensing, certification duties, or
the duties of approving relative caregivers and nonrelative
extended family members, upon the arrest or disposition of
any person whose fingerprints are maintained on file at the
DOJ or the Federal Bureau of Investigations (FBI) as the
result of an application for licensing, employment,
certification, or approval.
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This bill provides that when the DOJ supplies subsequent
arrest or disposition notification to a receiving entity,
the entity, at the same time, shall expeditiously furnish a
copy of the information to the person to whom it relates if
the information is the basis for an adverse employment,
licensing, or certification decision.
This bill states that nothing in the provisions of this
bill shall authorize the notification of a subsequent
disposition pertaining to a disposition that does not
result in a conviction, unless DOJ has previously received
notification of the arrest and has previously lawfully
notified a receiving entity of the pending status of that
arrest.
This bill declares legislative intent that this act is not
intended to and does not overrule the decisions, orders, or
judgments in Central Valley v. Younger (1989) 214
Cal.App.3d 145, or the related case of Gresher v.
Deukmejian (Alameda Superior Court No. 524298-6), including
the verification provisions of the judgments in those
cases. In addition, nothing in this act shall be construed
as an implied amendment or lessen the protections provided
in existing provisions of the Labor Code.
This bill makes other technical, non-substantive changes.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/13/12)
Office of the Attorney General (source)
Ventura County Board of Supervisors
ARGUMENTS IN SUPPORT : According to the author:
Under current law, employing and licensing entities in
California face a laborious process to find out the
disposition of a subsequent arrest of a person whom
they have already employed or licensed.
Assembly Bill (AB) 2343 has two intentions: provide
subsequent disposition information to California
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regulatory entities and provide authority to
participate in the Federal Bureau of Investigation's
(FBI) subsequent notification service offering for
regulatory entities.
ASSEMBLY FLOOR : 74-0, 4/26/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove,
Hagman, Hall, Hayashi, Roger Hernández, Hill, Huber,
Hueso, Huffman, Jeffries, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan,
Perea, V. Manuel Pérez, Portantino, Silva, Skinner,
Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Cedillo, Furutani, Halderman, Harkey,
Jones, Smyth
RJG:n 8/13/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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