BILL ANALYSIS Ó
AB 465
Page 1
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
AB 465
Page 2
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.
AB 465
Page 3
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).]
AB 465
Page 4
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
AB 465
Page 5
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
AB 465
Page 6
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."
AB 465
Page 7
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."
AB 465
Page 8
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
AB 465
Page 9
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.
AB 465
Page 10
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