BILL ANALYSIS Ó
AB 36
Page 1
Date of Hearing: March 12, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 36 (Dahle) - As Amended: February 26, 2013
SUMMARY : Changes the appointment and removal process of
probation officers to require the county board of supervisors,
in conjunction with the court, to appoint and remove probation
officers. Specifically, this bill :
1)States that the county board of supervisors, in conjunction
with the presiding judge, shall appoint and may remove for
good cause the adult probation officer.
2)Specifies that in a county where the superior court has more
than two judges, the county board of supervisors, in
conjunction with a majority of the judges, shall make the
appointment and may effect removal of the adult probation
officer.
3)States that the board of supervisors shall, by ordinance,
direct the manner in which a probation officer in any county
is nominated by the juvenile justice commission or regional
justice commission of the county.
4)Provides that the board of supervisors, in conjunction with
the judge of the juvenile court, shall appoint the probation
officer.
5)Provides that any deputy probation officer or assistant
probation officer shall not have the authority to act until
their appointments have been approved by a majority vote of
the members of the juvenile justice commission and by the
board of supervisors.
6)States that the term of office of each deputy or assistant
probation officer shall expire with the term of the probation
officer who appointed the deputy or assistant probation
officer.
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7)Deletes the provision in existing law that allows the
probation officer, in his or her discretion, to revoke and
terminate the appointment of any deputy or assistant probation
officer
with the written approval of a majority of the members of the
juvenile justice commission and of the judge of the juvenile
court.
8)Deletes the provision in existing law that authorizes the
judge of the juvenile court to remove probation officers at
any time for good cause, and grants this power to the board of
supervisors.
EXISTING LAW :
1)Provides that the adult probation officer shall be appointed
and may be removed for good cause by the presiding judge in a
county with two superior court judges. In the case of a
superior court of more than two judges, a majority of the
judges shall make the appointment, and may effect removal.
(Penal Code Section 1203.6.)
2)Requires the board of supervisors to establish the salary of
the probation officer. (Penal Code Section 1203.6.)
3)States that the adult probation officer shall appoint and may
remove all assistants, deputies, and other persons employed in
the officer's department, and their compensation shall be
established, according to the merit system or civil service
system provision of the county. If no merit or civil service
system exists in the county, the board of supervisors shall
provide for appointment, removal, and compensation of such
personnel. (Penal Code Section 1203.6.)
4)States that any of the duties of the probation officer may be
performed by a deputy probation officer and shall be performed
by him or her whenever detailed to perform those by the
probation officer; and it shall be the duty of the probation
officer to see that the deputy probation officer performs his
or her duties. The probation officer and each deputy
probation officer shall have, as to the person so committed to
the care of the probation officer or deputy probation officer,
the powers of a peace officer. The probation officers and
deputy probation officers shall serve as such probation
officers in all courts having original jurisdiction of
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criminal actions in this state. (Penal Code Section 1203.71.)
5)Provides that the probation officers, assistant probation
officers, and deputy probation officers appointed in
accordance with provisions of the Welfare and Institutions
Code shall be ex officio adult probation officers, assistant
adult probation officers, and deputy adult probation officers
except in any county or city and county whose charter provides
for the separate office of adult probation officer. When the
separate office of adult probation officer has been
established he or she shall perform all the duties of
probation officers except for matters under the jurisdiction
of the juvenile court. (Penal Code Section 1203.5.)
6)States that there shall be in county the offices of the
probation officer, assistant probation officer, and deputy
probation officer, except as specified. A probation officer
shall be appointed in every county. (Welfare and Institutions
Code Section 270.)
7)Requires probation officers in each county to be nominated by
the juvenile justice commission or the regional juvenile
justice commission of such county in such manner as the judge
of the juvenile court in that county shall direct, and shall
then be appointed by such judge. (Welfare and Institutions
Code Section 270.)
8)Authorizes the probation officer to appoint as many deputies
or assistant probation officers as the probation officer
desires; but such deputies or assistant probation officers
shall not have authority to act until their appointments have
been approved by a majority vote of the members of the
juvenile justice commission, and by the judge of the juvenile
court. The term of office of each such deputy or assistant
probation officer shall expire with the term of the probation
officer who appointed the deputy or assistant probation
officer, but the probation officer, with the written approval
of the majority of the members of the juvenile justice
commission and of the judge of the juvenile court, may, in the
probation officer's discretion, revoke and terminate any such
appointment at any time. (Welfare and Institutions Code
Section 270.)
9)States that probation officers may at any time be removed by
the judge of the juvenile court for good cause shown; and the
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judge of the juvenile court may in the judge's discretion at
any time remove any such probation officer with the written
approval of a majority of the members of the juvenile justice
commission. (Welfare and Institutions Code Section 270.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently, the
appointment and removal of County Chief Probation Officers is
done at the sole discretion of the courts. Since these
officers work for and on behalf of the county this process
seems unfair. This bill would allow for the County Board of
Supervisors to take over these duties with input from the
courts."
2)Probation Governance : In 2003, the Judicial Council and the
California State Association of Counties released findings and
recommendations of the "Probation Services Task Force."
[Probation Services Task Force, Final Report (June 2003),
http://www2.courtinfo.ca.gov/
probation/documents/new/fullreport.pdf.] The report, in part,
discusses the governance of probation and describes the
substantial variation within the 58 counties on the
appointment and removal of chief probation officers (CPOs).
According to the report, "[t]he governance of probation rests at
the local level and is shared between the judicial and
executive branches of local government. One of the principal
functions of probation departments is to carry out orders of
the court, and, in most counties, the CPO is appointed by the
court. The task force learned through its outreach efforts
that the prevailing opinion is that probation clearly aligns
itself with the court and that probation officers clearly view
themselves as an arm of the court. However, probation is a
county department, with the CPO serving as a county department
head, and the executive branch ultimately has budgetary,
management, and fiscal responsibility for the operations of
the probation department.
"California's bifurcated governance model places pressures on
the system. Anecdotally, task force members learned that the
CPO could be presented with conflicts owing to the 'two
masters' structure. The court, for example, could request
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that the probation department provide a higher level of
service than the county is able to fund. Or the county could
be unable or unwilling to fund the probation department at a
level sufficient to provide a service requested by the court.
Another potential byproduct of the governance structure is
that a CPO who reports to two entities may also have a sense
that neither entity can actively champion the cause of
probation. There is a broad sense among stakeholders that
retaining maximum local flexibility in the area of governance
is optimal. However, the task force concluded that the
current governance structure is unsatisfactory in many
respects. While members were able to arrive at this conclusion
with relative ease, the next step-identifying an alternative
to the existing structure-proved to be the biggest challenge
facing the task force. The task force went to extraordinary
efforts to outline a new model for probation in California
that would ensure effective services, establish clear lines of
responsibility, encourage collaboration among justice system
partners, and secure adequate and stable funding." (Probation
Services Task Force, pp. 61-62.)
The task force proposed the transfer of responsibility for
probation from the county to the state. The report reasoned
that "a reconfiguration of existing resources under a state
model would alleviate the difficult circumstance that exists
now for probation departments owing to a bifurcated governance
system. The task force has established that the California
probation system, although funded through the counties, is to
a great extent closely aligned with the courts on both
programmatic and functional levels. Further, it has been
demonstrated that probation departments receive their funding
and are administered as a county department, while their
workload and costs are primarily driven by factors-
legislative mandate and court orders-over which the county has
no control. Counties bear the responsibility for all costs
associated with probation, including those associated with
activities that are not traditional court operations such as
detention, prevention, and intervention." (Probation Services
Task Force, p. 71.)
The task force recognized that realigning probation with the
states could take many years, and recommended, in the
meantime, increased collaboration between courts and counties.
(Probation Services Task Force, p. 73.) As a result of the
task force, a Memorandum of Understanding (MOU) model for use
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by counties and courts was developed and reportedly is being
used now in many counties.
Although this bill states that the board of supervisors shall
appoint and remove the CPO in conjunction with the presiding
judge, it is clear that the board of supervisors would
ultimately be the decision-makers, rather than the court.
Considering that probation is so closely aligned with the
courts, should the court's power to appoint and remove CPOs be
transferred to the board of supervisors?
3)Arguments in Support :
a) According to the Los Angeles County Probation Officers
Union , "Some county's Chief of Probation Officer is the
Presiding Judge's responsibility, others it is the Board of
Supervisors' responsibility. This makes no sense in that
it does not recognize the historical and significant
evolution of probation departments that have been brought
about by AB 109.
"AB 109 shifted massive police safety responsibilities to
counties and, in doing so, cast the Chief Probation
Officer, head of the Community Corrective Partnership, as
the central figure in managing the shift in realignment of
responsibility for public safety. Accordingly, it follows
that, going forward, the appointment of the Chief Probation
officer should now become a county responsibility."
b) According to the Sacramento County Board of Supervisors ,
"Currently, the superior court has sole authority in
Sacramento County to appoint and remove the chief probation
officer. The Sacramento County Board of Supervisors is
responsible for approving the Probation Department budget
and ensuring that funds are used for the programs intended.
Changing the appointment process for probation chiefs in
AB 36 will promote greater accountability to the board of
supervisors in the same way as other department heads are
currently held accountable."
4)Arguments in Opposition :
a) According to the California Judges Association ,
"Existing law provides that the chief adult probation
officer be appointed by a majority of superior court
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judges, except if otherwise provided for in a charter
county. Existing law also provides a similar process to
appoint the juvenile probation officer.
"The judges of the superior courts work with their county
probation departments on a daily basis. It is unclear
whether the board of supervisors is able to provide the
necessary oversight as to how probation departments are
implementing recent changes to California's complex
sentencing provisions. Furthermore, our members are
trained and experienced in court management and best
practices as they relate to the rehabilitation of adult and
juvenile offenders and thus are uniquely qualified to
recruit, select, and evaluate the chief probation officer.
Additionally, at least a few calendar courts have full-time
probation officers in the courtroom."
b) According to the California Probation Officers of
California , "The issue has a long history as the Chief
Probation Officer plays a critical role within county
government and the courts. Due to this important function
many counties have worked with their local courts to strike
a balance in the appointment and removal function. The
probation system in general was studied in depth
culminating in years of review and discussion by the
Probation Task Force in a report published in June of 2003.
This esteemed group brought the parties together to make
recommendations to the state. One of the issues that took
signification amount of discussion was the appointment of
the Chief Probation Officer. The conclusion did not result
in a recommendation for any legislative changes of the
appointment process but instead encouraged courts and
counties to identify ways to collaborate on the process.
Many counties and courts do so through an MOU process or
other formal or informal procedures. We so no reason to
change this process by legislative intervention, especially
without revisiting this complex issue with the Probation
Services Task Force or some similar entity.
"While the link between the county supervisors and the county
chief probation officer is very important, the link between
county probation and the courts is also crucial. Probation
officers are officers of the court and often the linchpin
to every stakeholder taking part in the judicial process.
Due to that relationship, the ties to the court are
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important to maintain the integrity of their role within
the judicial process."
5)Prior Legislation :
a) SB 858 (Gaines), of the 2011-12 Legislative Session,
would have authorized the Board of Supervisors of Nevada
County instead of the court to appoint and remove the
Nevada County CPO over adult and juvenile probation. SB
858 failed passage in the Senate Public Safety Committee.
b) SB 1361 (Brulte), of the 2001-02 Legislative Session,
would have required that the CPOs in Riverside and San
Bernardino Counties be appointed and subject to removal for
good cause, by their respective county board of supervisors
instead of the court. SB 1361 failed passage in the Senate
Public Safety Committee.
c) AB 765 (Maddox), of the 2001-02 Legislative Session,
would have required, except in specified counties, that the
CPO be appointed by a majority of a selection committee
made up of specified representatives from the probation
department, the county board of supervisors, the county
juvenile justice commission, a community-based
organization, and the presiding judges of the superior and
juvenile courts. AB 765 was never heard by this Committee.
d) AB 1519 (Floyd), of the 1999-2000 Legislative Session,
would have required, except in specified counties, that the
chief probation officer be appointed by a majority of a
selection committee made up of specified representatives
from the probation department, the county board of
supervisors, the county juvenile justice commission, a
community-based organization, and the presiding judges of
the superior and juvenile courts. AB 1519 failed passage
in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
County of Lassen
County of Sacramento
Los Angeles County Probation Officers Union
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Opposition
Californians for Safety and Justice
California Judges Association
Chief Probation Officers of California
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744