BILL NUMBER: SB 252 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Vargas
FEBRUARY 10, 2011
An act to add Article 4.5 (commencing with Section 19135) to
Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code,
relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 252, as introduced, Vargas. Public contracts: personal
services.
The California Constitution provides that the civil service
includes every officer and employee of the state, except as otherwise
provided. The California courts have interpreted the California
Constitution as generally restricting the contracting out of state
activities or tasks to the private sector, if those activities or
tasks may be adequately and competently performed by state employees.
Existing statutory law codifies certain judicially created
exceptions to that constitutional provision, and authorizes the state
to enter into personal services contracts when specified conditions
are met.
The California Public Records Act requires each state and local
agency to make its records available for public inspection during
office hours and, upon request of any person, to make copies
available upon payment of fees, unless the records are exempt by law
from disclosure.
This bill would enact the Government Oversight and Fiscal
Accountability Review Act of 2010. The bill would require a state
agency that enters into a privatization contract, as defined, to
report to the Secretary of State regarding those privatization
contracts, and would require the Secretary of State to compile,
publish, and make these reports available for public inspection. The
bill would also provide that a subcontract executed under a
privatization contract is a public record, and would require the
contractor to submit these subcontracts to the contracting agency,
which would in turn be required to make the records available to the
public pursuant to the California Public Records Act. State agencies
would also be required to prepare, as part of their budget requests,
a document that contains specified information relating to their use
of private contractors. The bill also makes privatization contracts
subject to audit or review by the Bureau of State Audits, at the
discretion of the State Auditor.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that using private
contractors to provide public services normally provided by public
employees does not always promote the public interest. To ensure that
citizens of this state receive high quality public services at low
costs, with due regard for the taxpayers of this state and the
service recipients, the Legislature finds it necessary to ensure that
access to public information guaranteed by the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code) is not in any way hindered when
public services are provided by private contractors.
SEC. 2. Article 4.5 (commencing with Section 19135) is added to
Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code,
to read:
Article 4.5. Government Oversight and Fiscal Accountability
Review
19135. This article shall be known, and may be cited, as the
Government Oversight and Fiscal Accountability Review Act of 2010.
19136. For purposes of this article:
(a) "Agency" includes any executive office, department, division,
board, commission, or other office or officer in the executive branch
of the government.
(b) "Person" includes an individual, institution, federal, state,
or local government entity, or any other public or private entity.
(c) "Privatization contract" means an agreement or combination or
series of agreements, including, but not limited to, a personal
services contract, by which a privatization contractor agrees with an
agency to provide services valued at one hundred thousand dollars
($100,000) or more, that are substantially similar to, and in lieu
of, services provided, in whole or in part, by civil service
employees of the agency.
(d) "Privatization contractor" means any contractor, consultant,
subcontractor, independent contractor, or private business owner that
contracts with an agency to perform services that are substantially
similar to, and in lieu of, services provided, in whole or in part,
by civil service employees of the agency.
(e) "Privatization contractor employee" includes a worker directly
employed by a privatization contractor, as well as an employee of a
subcontractor or an independent contractor that provides supplies or
services to a privatization contractor.
(f) "Services" includes, with respect to a privatization
contractor, all aspects of the provision of services provided by a
privatization contractor pursuant to a privatization contract, or any
services provided by a subcontractor of a privatization contractor
under the privatization contract.
19137. (a) A privatization contractor shall file with the
contracting agency a copy of each subcontract or amendment to a
subcontract executed under a privatization contract. The agency shall
maintain the subcontract or amendment to the subcontract as a public
record, as defined in the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).
(b) A privatization contract shall include language that provides
for public access to the completed contract.
(c) As part of the budgetary process, an agency shall provide an
addendum to its submitted budget request that includes all of the
following information:
(1) The name of each privatization contractor or subcontractor
that has entered into a privatization contract with the agency during
that year, the duration of that privatization contract, and the
services provided pursuant to that contract.
(2) The total cost of each privatization contract for the prior
year.
(3) The projected number of privatization contracts for the
current and upcoming year and the estimated cost of each contract for
the current and upcoming year.
(4) For each privatization contract, the number of privatization
contractor employees and consultants, reflected as full-time
equivalent positions, and their hourly wage rates for the current and
previous fiscal year.
(d) The addendum provided pursuant to subdivision (c) shall be a
public record.
(e) A privatization contract shall be subject to audit or review,
as defined by the American Institute of Certified Public Accountants,
by the Bureau of State Audits at the discretion of the State
Auditor. An audit or review shall be conducted in compliance with
generally accepted auditing standards.
19138. (a) An agency that enters into a privatization contract
shall prepare and submit to the Secretary of State on a quarterly
basis a report containing both of the following:
(1) The name of any person who performed legal, medical,
accounting, engineering, or any other professional, technical, or
consultant service for the agency on a contractual basis during the
previous quarter.
(2) The amount of compensation received by each person for the
services described in paragraph (1) during the previous quarter.
(b) An agency that enters into a privatization contract shall
prepare and submit to the Secretary of State on an annual basis a
report containing both of the following:
(1) A copy of each privatization contract for that year.
(2) A budget analysis of each privatization contract reported
pursuant to paragraph (1) that contains all of the following:
(A) The cost of each privatization contract for the prior,
current, and next year.
(B) The number of privatization contractor employees, reflected as
full-time equivalent positions, and their hourly wage rates.
(C) The cost of benefits paid by the agency for each privatization
employee for the current and previous year.
(3) The Secretary of State shall compile, publish, and make
available for public inspection all contracting reports he or she has
received in accordance with this article.