BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
4
6
AB 465 (Bonilla) 5
As Amended April 18, 2013
Hearing date: June 11, 2013
Penal Code
MK:mc
YOUTH SPORTS:
CRIMINAL BACKGROUND CHECK
HISTORY
Source: Author
Prior Legislation: None
Support: California State Sheriffs' Association; California
Police Chiefs Association; Solano County Sheriff's
Office; Child Abuse Prevention Center; Crime Victims
United of California; California Catholic Conference
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
(ANALYSIS REFLECTS AUTHOR'S AMENDMENT IN COMMENT 3.)
KEY ISSUE
SHOULD THE LAW CLEARLY PROVIDE THAT A COMMUNITY YOUTH ATHLETIC
PROGRAM CAN REQUEST STATE AND FEDERAL LEVEL CRIMINAL HISTORY
INFORMATION FROM THE DEPARTMENT OF JUSTICE FOR A VOLUNTEER OR PAID
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COACH?
PURPOSE
The purpose of this bill is to clearly provide that a community
youth athletic program can request state and federal level
criminal history information from Department of Justice for a
volunteer or paid coach.
Existing law 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 �
11105.6.)
Existing law 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 information to
the requesting employer and shall also send a copy of the
information to the applicant. (Penal Code � 11105.3(a).)
Existing law 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 (FBI)
by DOJ to be searched for any record of arrests or convictions.
(Penal Code � 11105.3(b).)
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Existing law 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 � 11105.3(c)(1).)
Existing law 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 � 11105.3(c)(2).)
Existing law 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:
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.
Applying to be a volunteer who transports individuals
impaired by drugs or alcohol.
Applying to adopt a child or be a foster parent. (Penal
Code � 11105.3(g).)
Existing law 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 �
11105.3(h).)
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Existing law 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 �
11105.2(a).)
Existing law 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 � 11105.2(f).)
This bill specifically provides that a community youth athletic
program may request state and federal level criminal history
information for a volunteer coach or hired coach candidate and
provides for the ability to request subsequent arrest
information.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
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court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for This Bill
According to the author:
Existing law requires anyone pursuing a position in a
public school district, whether employed or working as
a volunteer in a pupil activity program to submit
fingerprints electronically to the Department of
Justice. The Department performs the background check
through the Automated Criminal History System (ACHS) -
a centralized, automated system containing criminal
history summary information on persons arrested and
fingerprinted. The submission of scanned fingerprints
ensures a complete and accurate background check.
However, current law does not extend this requirement
to private youth organizations, creating an unequal
protection of our children. While the larger national
youth sports organizations such as the American Youth
Soccer Organization and Little League Baseball Inc.
already require volunteers who work with minor children
to undergo fingerprinted criminal background checks,
other youth organizations only require coaches to
self-report if they have a criminal history.
In California schools, all volunteers who work with
students in a pupil activity program are required to
acquire an Activity Supervisor Clearance Certificate.
Part of this process is a DOJ fingerprint background
check. Such volunteers work with students in
scholastic programs, interscholastic programs, and
extracurricular activities. According to the
California Interscholastic Federation, the following
sports qualify as interscholastic athletic programs:
basketball, cross country, football, golf, track and
field, volleyball, wrestling, soccer, tennis,
badminton, baseball, field hockey, gymnastics,
lacrosse, skiing, snowboarding, softball, swimming and
diving, and water polo. Scholastic programs include
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activities like the debate team and chess team, among
others. Coaches can either be hired by districts or
act as volunteer coaches for school sponsored
extra-curricular activities. These activities include
scholastic and interscholastic programs, but also
include other activities like cheer team, drill team,
dance team, color guard and marching band.
Studies show two thirds of sexually abused victims
never tell an adult because of feeling shame or a fear
of punishment.<1> Coaches often serve as role models to
children and are entrusted with authoritative duties.
This can leave a child particularly vulnerable to abuse
and manipulation. This bill would provide better
oversight protection of individuals left alone with
children by extending background checks to all youth
sports organizations.
In 2012, a Bay Area soccer coach pleaded guilty to
sexually abusing a thirteen year old girl who was also
a player on the team he coached. Had a thorough
criminal background check been administered, a prior
domestic violence charge would have been discovered on
the individual's record.<2>
To provide consistency and ensure all minors are
protected, it is necessary to require background checks
on all volunteer coaches in youth sports organizations.
The California Legislature has already established
standards to prevent individuals with abusive and
violent histories from being employed by school
districts or involved with any sports teams that are
administered by public schools.
-----------------------
<1>
http://www.naasca.org/2012-Resources/010812-StaisticsOfChildAbuse
.htm.
<2>
http://www.mercurynews.com/breaking-news/ci_22349162/san-jose-law
suit-alleges-soccer-league-failed-perform.
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AB 465 clarifies that all community youth athletic
programs in California are authorized to administer
criminal background checks on volunteer coaches and
also authorizes leagues to request subsequent arrest
notification from the Department of Justice. This
ensures that the most appropriate individuals work with
our children and any new offenses that may influence
hiring decisions are communicated to leagues. While
not precluding these individuals from serving as
coaches, AB 465 allows leagues to have access to this
information when making hiring decisions.
2.
Background Checks for Coaches
In order for an organization to have a criminal background check
done by the Department of Justice of their employees, it must be
authorized by statute. Under existing law, a human resource
agency or employer may request a background check of a person
who will have supervisory or disciplinary power over a minor.
This bill specifically provides that a community youth athletic
program may request a background check for any volunteer coach
or hired coach candidate and allows the community youth athletic
program to request subsequent arrest information. "Community
youth athletic program" means an employer having as its primary
purpose the promotion or provision of athletic activities for
youth under 18 years of age.
3. Author's Amendment
The author will amend the bill in Committee to delete "head"
from page 4, line 31.
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