BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 465
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          Date of Hearing:  April 9, 2013
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 465 (Maienschein) - As Amended:  April 4, 2013
           
           
           SUMMARY  :  Requires a volunteer or hired coach candidate of a  
          community youth athletic program to submit to a state- and  
          federal-level background check prior to contact with youths.   
          Specifically  this bill  :

          1)Defines "community youth athletic program" as an organization  
            having as its exclusive purpose the promotion or provision of  
            athletic activities for youth ages 18 and under.

          2)States that prior to contact with children through a community  
            youth athletic program, employed or volunteer coach applicants  
            shall submit to the state and federal level criminal offender  
            record information search and the community youth athletic  
            program shall make a suitability determination.

          3)Specifies that a violation of this requirement is not a crime.

          4)States that compliance with this provision does not remove or  
            limit the liability of a mandated reporter.

           EXISTING LAW  :

          1)Provides that the Department of Justice (DOJ) shall maintain  
            state summary criminal history information and authorizes DOJ  
            to furnish state summary criminal history information to  
            statutorily authorized entities.  (Penal Code Section  
            11105.6.)

          2)States that, notwithstanding any other law, a human resource  
            agency or an employer may request from DOJ records of all  
            convictions or any arrest pending adjudication involving the  
            offenses specified of a person who applies for a license,  
            employment, or volunteer position, in which he or she would  
            have supervisory or disciplinary power over a minor or any  
            person under his or her care.  DOJ shall furnish the  








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            information to the requesting employer and shall also send a  
            copy of the information to the applicant.  [Penal Code Section  
            11105.3(a).]

             a)   Provides that a request for these records shall include  
               the applicant's fingerprints, which may be taken by the  
               requester, and any other data specified by DOJ.  The  
               request shall be on a form approved by DOJ, and DOJ may  
               charge a fee to be paid by the employer, human resource  
               agency, or applicant for the actual cost of processing the  
               request.  However, no fee shall be charged to a nonprofit  
               organization.  Requests received by DOJ for federal level  
               criminal offender record information shall be forwarded to  
               the Federal Bureau of Investigation by DOJ to be searched  
               for any record of arrests or convictions.  [Penal Code  
               Section 11105.3(b).]

             b)   Requires the agency or employer to notify the parents or  
               guardians of any minor who will be supervised or  
               disciplined by the employee or volunteer where a request  
               pursuant to this section reveals that a prospective  
               employee or volunteer has been convicted of specified  
               offenses, and the agency or employer hires the prospective  
               employee or volunteer.  The notice shall be given to the  
               parents or guardians with whom the child resides, and shall  
               be given at least 10 days prior to the day that the  
               employee or volunteer begins his or her duties or tasks.   
               [Penal Code Section 11105.3(c)(1).]

             c)   States that the above notification requirement shall not  
               apply to a misdemeanor conviction for unlawful sexual  
               intercourse with a minor, or to a conviction for spousal  
               rape or domestic violence.  [Penal Code Section  
               11105.3(c)(2).]

             d)   Defines a "human resource agency" as a public or private  
               entity, excluding any agency responsible for licensing of  
               specified facilities, responsible for determining the  
               character and fitness of a person who is [Penal Code  
               Section 11105.3(g)]:

               i)     Applying for a license, employment, or as a  
                 volunteer within the human services field that involves  
                 the care and security of children, the elderly, the  
                 handicapped, or the mentally impaired.








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               ii)    Applying to be a volunteer who transports  
                 individuals impaired by drugs or alcohol.

               iii)   Applying to adopt a child or be a foster parent.

             e)   States that any criminal history information obtained  
               pursuant to this section is confidential and no recipient  
               shall disclose its contents other than for the purpose for  
               which it was acquired, except as specified.  [Penal Code  
               Section 11105.3(h).] 

          3)Authorizes DOJ to 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 DOJ or the FBI as the  
            result of an application for licensing, employment,  
            certification, or approval. Nothing in this section 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. When DOJ supplies  
            subsequent arrest or disposition notification to a receiving  
            entity, the entity shall, at the same time, expeditiously  
            furnish a copy of the information to the person to whom it  
            relates if the information is a basis for an adverse  
            employment, licensing, or certification decision. When  
            furnished other than in person, the copy shall be delivered to  
            the last contact information provided by the applicant.   
            [Penal Code Section 11105.2(a).]

          4)Provides that any entity that submits the fingerprints of an  
            applicant for employment, licensing, certification, or  
            approval to DOJ for the purpose of establishing a record at  
            DOJ or the FBI to receive notification of subsequent arrest or  
            disposition shall immediately notify the department if the  
            applicant is not subsequently employed, or if the applicant is  
            denied licensing certification, or approval.  [Penal Code  
            Section 11105.2(f).]









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          5)States that no person who is required to register as a sex  
            offender  because of a conviction for a crime where the victim  
            was a minor under 16 years of age shall be an employer,  
            employee, independent contractor, or act as a volunteer with  
            any person, group or organization in a capacity in which the  
            registrant would be working directly and in an unaccompanied  
            setting with minor children on more than an incidental and  
            occasional basis or have supervision or disciplinary power  
            over minor children.  [Penal Code Section 290.95(c).]

             a)   Includes within the definition of "working directly in  
               an unaccompanied setting" providing goods or services to  
               minors.  [Penal Code Section 290.95(d).]

             b)   Provides that a violation of this section is a  
               misdemeanor punishable by imprisonment in a county jail for  
               not exceeding six months, by a fine not exceeding $1,000,  
               or by both that imprisonment and fine, and a violation of  
               this section shall not constitute a continuing offense.   
               [Penal Code Section 290.95(e).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Currently in  
            California, sports coaches working in public schools are  
            required to go through a background check process - however,  
            this same safety requirement does not apply to youth sports  
            leagues outside of a school setting.  But as many of you with  
            children know, most of our kids also join private youth sports  
            leagues in the community such as soccer, or traveling club  
            teams when they get older. These coaches often spend more time  
            with kids by driving them to tournaments, taking them home  
            after practice, or waiting with them for their parents to pick  
            them up.  This access to children has the potential to draw  
            predators to seek jobs in coaching. 

          "Requiring all youth sports leagues to conduct background checks  
            on the coaches they hire is an important step in protecting  
            our children. The US Department of Health and Human Services  
            reported that in 2011, there were 4,890 children in California  
            who were victims of sexual abuse.  However, according to the  
            group Darkness to Light, 73% of child victims do not tell  
            anyone about the abuse for at least a year, meaning that the  








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            number of children in this state sexually abused in 2011 could  
            be upward of 18,000.  Finally, it is estimated that 90% of  
            children who are sexually abused know their perpetrator-often  
            times family members, family friends, or authority figures  
            such as teachers and coaches.  Any measure that would help  
            keep predators away from our children should and must be  
            taken.

          "As a coach myself, I know that most of us want to do all we can  
            to provide a positive, fun, and safe experience to the kids on  
            our team.  But more importantly, as a father, I know our  
            children are the most vulnerable members of our communities.  
            We worry about them every time they are away from us at a  
            friend's house, school, or practice, and we will do anything  
            it takes to make sure they are safe.  AB 465 would create a  
            consistent background check policy for all youth sports  
            leagues, while assuring parents that extensive steps are being  
            taken to protect their children." 

           2)Existing Provisions of Law on Background Checks  :  Under  
            current law, organizations may request a background check on  
            any prospective employee or volunteer if the position would  
            require the applicant to have supervisory or disciplinary  
            power over a minor or any person under his or her care.   
            [Penal Code Section 11105.3(a).]  Additionally, these  
            organizations may request subsequent arrest and disposition  
            notification for these individuals which the organization  
            would continue to receive until the organization notifies DOJ  
            that the individual is no longer with the organization.   
            [Penal Code Section 11105.2(a) and (f).]

          This bill mandates all organizations that fall under the  
            definition of a "community youth athletics program" to request  
            background checks on hired or volunteer coach candidates, and  
            to make a suitability determination based on the background  
            check before allowing these candidates to coach or volunteer  
            with the organization.  Considering that organizations are  
            already authorized to request this type of background check  
            from DOJ, is it necessary to require that all organizations  
            that fall under this definition to do so? 

           3)Chilling Effect on Volunteers  :  Youth sports leagues rely  
            heavily on volunteers, many being parents of minors  
            participating in the league.  This bill requires both hired  
            coaches and volunteers to undergo a state- and federal-level  








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            background check.  DOJ informed this Committee that the  
            current cost of the state-level background check is $32 for a  
            for-profit organization, and may be waived for a non-profit  
            organization.  The federal-level background check is $17 for  
            employees, and $15 for volunteers.  In addition, there is a  
            "rolling fee" that each applicant must pay for having his or  
            her fingerprints rolled or scanned.  The rolling fee varies  
            from $10 to $15.  While these fees may not pose a huge burden  
            on families with middle to high incomes, it may be difficult  
            for many families to afford these fees, in addition to all of  
            the existing fees for participating in the league such as  
            registration fees and the cost of uniforms.

          Also, at times organizations may have to find a volunteer to  
            assist last minute if a coach is sick or cannot make it to  
            practice.  This bill precludes the use of last-minute  
            replacement volunteers, even parents, if they have not gone  
            through a background check in advance, increasing the chance  
            that a last-minute, no-show coach would require cancellation  
            of scheduled practices or games.

           4)Electronic Fingerprinting  :  While the law requires applicant  
            fingerprints to be captured and submitted electronically via  
            Live Scan, DOJ does have limited statutory authority to issue  
            an exemption to this mandate if an electronic transmission  
            site is regionally unavailable or internal processing  
            procedures dictate a need.  If an individual cannot submit his  
            or her fingerprints electronically, the individual (not the  
            employing or regulatory entity) must submit a separate form to  
            DOJ along with a fingerprint card.  [See DOJ Web site  
             (as of April 4,  
            2013).]

           5)Arguments in Support  :  

             a)   The  California State Sheriffs' Association  states,  
               "California already has established standards to prevent  
               individuals with a criminal background from being employed  
               by school districts, or from being involved with any sports  
               teams that are administered by schools.  Unfortunately,  
               this requirement does not extend to all private youth  
               sports organizations, and the lack of consistency in  
               performing and obtaining accurate background checks  
               jeopardizes the safety of our children."









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             b)   The  California Police Chiefs Association  believes, "This  
               bill would require the department to provide state summary  
               criminal history information to the director of a community  
               youth athletics program, or his or her designee, for the  
               purpose of screening volunteer or hired coaches and would  
               prohibit a person from having access to minors as a coach  
               or volunteer until the community youth athletics program  
               has received and received the state summary criminal  
               history information.  This bill would state that performing  
               the required background check does not remove or limit the  
               liability of a mandated reporter."

           6)Arguments in Opposition  :  

             a)   The  American Civil Liberties Union  argues, "Existing law  
               already prohibits anyone required to register as a sex  
               offender from working as a volunteer with any children.   
               (Cal. Penal Code  290.95, subd. (c).)  Current law also  
               prohibits persons required to register as a sex offender  
               from being on school property without permission, and  
               California's public internet of persons required to  
               register as a sex offender allows searches without use of a  
               Department of Justice criminal background check.  (See Cal.  
               Penal Code  626.8, subd. (a); Cal. Penal Code  3003.5,  
               subd. (b); Cal. Penal Code  3003, subd. (g); Cal. Penal  
               Code  290.46.)  Finally, existing law also allows  
               community organizations, like athletic departments, to  
               request a criminal history from the Department of Justice  
               for any person asking to volunteer with children.  (Cal.  
               Penal Code  11105.3, subd. (a).)

             "AB 465 would require that a person submit to a Department of  
               Justice background check before helping coach their child's  
               soccer team or dance squad.  Although this bill does not  
               per se prohibit persons with criminal records from  
               volunteering, it substantially increases the likelihood  
               that participation will be denied.  Current law seems more  
               than sufficient without adding new requirements for  
               background checks.  California should not undertake to  
               further drive a wedge between formerly incarcerated persons  
               and the communities they wish to serve.  Rehabilitation  
               should include some form of service, and often, people who  
               have made the wrong choices in the past are the most  
               persuasive to young people from the same community on the  
               precipice of similar decisions."








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             b)   The  California Public Defenders Association  writes "This  
               bill would expose a person's summary criminal history to  
               his or her friends and neighbors with no stated limitation.  
                It would permit one neighbor to know that another one had  
               a prior drunk driving or petty theft conviction, that is  
               maybe years old.  This seems guaranteed to discourage local  
               parents from participation, for fear that their friends and  
               neighbors will become aware with no limitations, of their  
               past criminal record, no matter how remote or how minor.

             "Youth sports are heavily dependent on parent coaches.   
               Parents play a critical role as head coach, assistance  
               coach, team parent, referee, and linespersons.  Without  
               such volunteers, the volunteer based youth sports  
               organizations would be decimated.  Volunteer applicants are  
               currently subjected to scrutiny requiring volunteers to  
               provide a great deal of personal identifying information.   
               Volunteer parents, many of whom are employed full-time,  
               take scarce time out of their own schedules to lead  
               practices during the week and then sacrifice their weekends  
               in order to help their child's team have a fulfilling  
               athletic experience.  Implementation of this measure will  
               likely have the unintended chilling effect of immediately  
               decreasing parent participation."

           7)Related Legislation  :  AB 1027 (Bonilla) authorizes a community  
            youth athletics program to require volunteers or hired coach  
            candidates to submit to a state- and federal-level background  
            check prior to contact with youths.  AB 1027 will be heard by  
            this Committee today.

           8)Prior Legislation  :  

             a)   AB 1435 (Dickinson), Chapter 520, Statutes of 2012,  
               makes athletic coaches, athletic administrators, and  
               athletic directors employed by any public or private school  
               that provides any combination of instruction for  
               kindergarten, or grades 1 to 12, inclusive, mandated  
               reporters for the purposes of the Child Abuse and Neglect  
               Reporting Act (CANRA). 

             b)   AB 1564 (Lara), of the 2011-12 Legislative Session,  
               would have made volunteers of public and private  
               organizations, including non-profits, mandated reporters  








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               under CANRA, and would have revoked a non-profit's tax  
               exempt status if an employee or volunteer failed to report  
               an instance of known or suspected child abuse.  AB 1564 was  
               never heard by this Committee.

             c)   AB 1628 (Beall), of the 2011-12 Legislative Session,  
               among other provisions, would have required a private  
               entity doing business in the state that rents, leases, or  
               uses public property and has an employee, member, agent,  
               licensee, or representative who will access the property  
               and who has duties involving close interaction with  
               children on a regular basis to perform an enhanced  
               background check, as specified, on the employee, member,  
               agent, licensee, or representative.  AB 1628 failed passage  
               in the Committee on Appropriations.

             d)   AB 1025 (Conway), Chapter 379, Statues of 2009, requires  
               a non-certificated candidate, commencing on July 1, 2010,  
               prior to assuming a paid or volunteer position to  
               supervise, direct, or coach a pupil activity program  
               sponsored by, or affiliated with, a school district, to  
               obtain from the Commission on Teacher Credentialing an  
               Activity Supervisor Clearance Certificate issued by the  
               commission upon verification of the candidate's personal  
               identification and verification that he or she meets  
               specified requirements.  AB 1025 requires the commission to  
               submit information relating to applicants to DOJ to obtain  
               state and federal criminal history information prior to the  
               issuance of a certificate.

             e)   AB 1593 (Blakeslee), of the 2008-09 Legislative Session,  
               would have required school districts that use nonteaching  
               volunteer aides to adopt a screening policy for those  
               volunteers and would have required, as a minimum criminal  
               background check, that districts utilize the Department of  
               Justice's "Megan's Law" website, which tracks registered  
               sex offenders in California.  AB 1593 was held in the  
               Senate Committee on Appropriations' Suspense File.

             f)   SB 2161 (Schiff), Chapter 421, Statutes of 2000,  
               requires DOJ and local criminal justice agencies to furnish  
               the state summary criminal history information to county  
               child welfare agency personnel who have been delegated the  
               authority of county probation officers pursuant to these  
               provisions.








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           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Police Chiefs Association
          California State Sheriffs' Association
          Child Abuse Prevention Center

           Opposition 
           
          American Civil Liberties Union of California
          California Public Defenders Association  


          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744