BILL ANALYSIS Ó 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 (More) AB 465 (Bonilla) PageB 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).) (More) AB 465 (Bonilla) PageC 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).) (More) AB 465 (Bonilla) PageD 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. (More) AB 465 (Bonilla) PageE 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 (More) AB 465 (Bonilla) PageF 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. (More) 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 (More) AB 465 (Bonilla) PageH 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. AB 465 (Bonilla) PageI 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. *************** AB 465 (Bonilla) PageJ