Amended in Senate September 3, 2013

Amended in Senate July 9, 2013

Amended in Senate July 2, 2013

Amended in Senate June 15, 2013

Amended in Assembly May 24, 2013

Amended in Assembly April 15, 2013

Amended in Assembly April 2, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 566

Introduced by Assembly Member Wieckowski

(Coauthors: Assembly Members Alejo, Bocanegra, Chau, Dickinson, Garcia, Gomez, Jones-Sawyer, Muratsuchi, Perea, Rendon, Skinner, Stone, and Williams)

February 20, 2013

An act to add begin insert and repeal end insert Section 71621 begin delete to end delete begin insert of end insert the Government Code, relating to courts.

LEGISLATIVE COUNSEL’S DIGEST

AB 566, as amended, Wieckowski. Courts: personal services contracting.

The Trial Court Employment Protection and Governance Act establishes a trial court employee personnel system that provides authority to hire trial court personnel, regulates the classification and compensation of trial court employees, labor relations, and personnel files, and requires each trial court to establish a system of employment selection and advancement and an employment protection system.

Existing law authorizes state agencies to use personal services contracts to achieve cost savings if specified standards are satisfied, including, among other things, the contract does not cause the displacement of civil service employees and the contract is awarded through a publicized, competitive bidding process. The State Personnel Board is required to review a proposed contract upon the request of an employee organization for compliance with those standards.

This bill begin insert , until January 1, 2020, end insert would establish specified standards if a trial court intends to enter into a new contract, or renew or extend an existing contract, for any services that are currently or customarily performed by that trial court’s employees begin delete , or that were performed or customarily performed by that trial court’s employees as of July 1, 2012 end delete . Among other things, the bill would require the trial court to clearly demonstrate that the contract will result in actual overall cost savings to the trial court for the duration of the entire contract as compared with the trial court’s actual costs of providing the same services. The bill would require a contract for services in excess of $100,000 annually to include specific, measurable performance standards and provisions for audits on performance and cost savings, as specified.

This bill would provide that these standards apply to any contract entered into, renewed, or extended after the effective date of this measure. The bill would provide that its provisions do not apply to a contract under specified circumstances, including when services are incidental to a contract for the purchase or lease of real or personal property.

This bill would require each trial court to provide a report by February 1, 2014, to the chairperson of the Joint Legislative Budget Committee and the chairpersons of the Senate Judiciary Committee and the Assembly Judiciary Committee if the trial court entered into a contract between July 1, 2013, and the effective date of this measure for services that were provided or are customarily provided by its trial court employees if the contract has a term extending beyond March 31, 2014. This report would be required to include specified information relating to these contracts, including an analysis of whether the contract resulted in the displacement of trial court employees.

The bill would provide that its provisions are severable.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 71621 is added to the Government Code,
to read:

71621.  

(a) If a trial court intends to enter into a new contract,
or renew or extend an existing contract, for any services that are
currently or customarily performed by that trial court’s employees,
begin delete or that were performed or customarily performed by that trial
court’s employees as of July 1, 2012, end delete all of the following
requirements shall apply:

(1) The trial court shall clearly demonstrate that the contract
will result in actual overall cost savings to the trial court for the
duration of the entire contract as compared with the trial court’s
actual costs of providing the same services. In comparing costs,
all of the following shall occur:

(A) The trial court’s additional cost of providing the same
services as proposed by the contract shall be included. These
additional costs shall include the salaries and benefits of additional
staff that would be needed and the cost of additional space,
equipment, and materials needed to perform the services.

(B) The trial court’s indirect overhead costs shall not be included
unless those costs can be attributed solely to the function in
question and would not exist if that function was not performed
by the trial court. For the purposes of this subparagraph, “indirect
overhead costs” means the pro rata share of existing administrative
salaries and benefits, rent, equipment costs, utilities, and materials.

(C) The cost of a contractor providing a service for any
continuing trial court costs that would be directly associated with
the contracted function shall be included. Continuing trial court
costs shall include, but not be limited to, costs for inspection,
supervision, and monitoring.

(2) The contract shall not be approved solely on the basis that
savings will result from lower contractor pay rates or benefits.
Contracts shall be eligible for approval if the contractor’s wages
are at the industry’s level and do not begin insert significantly end insert undercut trial
court pay rates.

(3) The contract shall not cause an existing trial court employee
to incur a loss of his or her employment or employment seniority,
a reduction in wages, benefits, or hours, or an involuntary transfer
to a new location requiring a change in residence.

(4) The contract shall not be approved if, in light of the services
provided by trial courts and the special nature of the judicial
function, it would be inconsistent with the public interest to have
the services covered by the contract performed by a private entity.

(5) The contract shall be awarded through a publicized,
competitive bidding process.

(6) The contract shall include specific provisions pertaining to
the qualifications of the staff that will perform the work under the
contract, as well as assurances that the contractor’s hiring practices
meet applicable nondiscrimination standards.

(7) The contract shall provide that it may be terminated at any
time by the trial court without penalty if there is a material breach
of the contract and notice is provided within 30 days of termination.

(8) If the contract is for services in excess of one hundred
thousand dollars ($100,000) annually, all of the following shall
occur:

(A) The trial court shall require the contractor to disclose all of
the following information as part of its bid, application, or answer
to a request for proposal:

(i) A description of all charges, claims, or complaints filed
against the contractor with a federal, state, or local administrative
agency during the prior 10 years.

(ii) A description of all civil complaints filed against the
contractor in a state or federal court during the prior 10 years.

(iii) A description of all state or federal criminal complaints or
indictments filed against the contractor, or any of its officers,
directors, or managers, at any time.

(iv) A description of any debarments of the contractor by a
public agency or licensing body at any time.

(B) The trial court shall include in the contract specific,
measurable performance standards and provisions for a
performance audit by the trial court, or an independent auditor
approved by the trial court, to determine whether the performance
standards are being met and whether the contractor is in compliance
with applicable laws and regulations. The trial court shall not renew
or extend the contract prior to receiving and considering the audit
report.

(C) The contract shall include provisions for an audit by the
trial court, or an independent auditor approved by the trial court,
to determine whether and to what extent the anticipated cost
savings have actually been realized. The trial court shall not renew
or extend the contract before receiving and considering the audit
report.

begin delete

(9) The term of the contract shall not be more than five years
from the date on which the trial court approves the contract.

end delete begin insert

(9) The contract shall be awarded only if the amount of savings
clearly justifies the size and duration of the contracting agreement.

end insert

(b) This section does not preclude a trial court or the Judicial
Council from adopting more restrictive rules regarding the
contracting of court services.

(c) This section does not apply to a contract in any of the
following circumstances:

(1) The contract is between a trial court and another trial court
or a begin delete local end delete government entity for services to be performed by
employees of the other trial court or employees of the begin delete local end delete
government entity.

(2) The contract is for a new trial court function and the
Legislature has specifically mandated or authorized the
performance of the services by independent contractors.

(3) The services contracted for are of such a highly specialized
or technical nature that the necessary expert knowledge, experience,
and ability begin delete cannot be obtained end delete begin insert are not available end insert from the court’s
trial court employees.

(4) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts described in this
paragraph, known as “service agreements,” shall include, but not
be limited to, agreements to service or maintain office equipment
or computers that are leased or rented. begin delete Contracts described in this
paragraph shall not include agreements to operate equipment or
computers. end delete

(5) The legislative, administrative, or legal goals and purposes
cannot be accomplished through the utilization of trial court
employees because of the need to protect against a conflict of
interest or to ensure independent and unbiased findings in situations
where there is a clear need for an independent, outside perspective.

(6) Due to an emergency, a contract is necessary for the
immediate preservation of the public health, welfare, or safety.

(7) The contractor will conduct training courses for which
appropriately qualified trial court employee instructors are not
available from the court, provided that permanent instructor
positions shall be filled through the process for hiring trial court
employees.

(8) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation through
the process for hiring trial court employees would frustrate their
very purpose. This paragraph shall not apply to the services of
official court begin delete reporters end delete begin insert reporters, but individual official reporters
pro tempore may be used by a trial court when the criteria of this
paragraph are satisfied end insert .

(9) The contract is a personal services contract developed
pursuant to rehabilitation programs in accordance with Sections
19403 and 19404 of the Welfare and Institutions Code, pursuant
to habilitation programs in accordance with Chapter 13
(commencing with Section 4850) of Division 4.5 of the Welfare
and Institutions Code, or pursuant to a program vendored or
contracted through a regional center or the State Department of
Developmental Services in accordance with the Lanterman
Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500) of the Welfare and Institutions
Code), and the contract will not cause an existing trial court
employee to incur a loss of his or her employment or employment
seniority; a reduction in wages, benefits, or hours; or an involuntary
transfer to a new location requiring a change in residence.

begin insert

(10) The contract is for the services of any court interpreter.
Contracts for the services of any court interpreter, and restrictions
on contracting out interpreter services, shall be governed by the
Trial Court Interpreter Employment and Labor Relations Act
(Chapter 7.5 (commencing with Section 71800)) and any
memorandum of understanding or agreement entered into pursuant
to that act, or by the other provisions of this chapter, the Trial
Court Employment Protection and Governance Act, and any
memorandum of understanding or agreement entered into pursuant
to that act, as applicable.

end insert begin insert

(11) The contractor will provide equipment, materials, facilities,
or support services that could not feasibly be provided by the court
in the location where the services are to be performed. This
paragraph shall not apply to services contracted in order to open
closed courthouses if those services were performed by trial court
employees before the closure.

end insert begin insert

(d) This section shall remain in effect only until January 1, 2020,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2020, deletes or extends that date.

end insert

SEC. 2.  

Section 71621 of the Government Code, as added by
Section 1 of this act, shall apply to any contract entered into,
renewed, or extended after the effective date of this act.

SEC. 3.  

(a) Each trial court shall provide a report by no later
than February 1, 2014, to the chairperson of the Joint Legislative
Budget Committee and the chairpersons of the Senate Judiciary
Committee and Assembly Judiciary Committee if the trial court
entered into a contract between July 1, 2013, and the effective date
of this act, for services that were provided or are customarily
provided by its trial court employees and that contract has a term
extending beyond March 31, 2014. The report shall provide the
following information for each of these contracts:

(1) A copy of the contract.

(2) An analysis of whether the contract would have been
permissible under the standards set forth in Section 71621 of the
Government Code, as added by Section 1 of this act.

(3) An analysis of whether the contract resulted in the
displacement of trial court employees.

(4) An analysis of whether the contract involves the use of
contractors to perform the type of services that were customarily
performed by trial court employees.

(b) It is the intent of the Legislature to consider the reduction
of future budget appropriations to each trial court by the amount
of any contract analyzed pursuant to subdivision (a) if the
Legislature concludes that the contract would not have been
permissible under the standards provided in Section 71621 of the
Government Code, as added by Section 1 of this act.

SEC. 4.  

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.