California Legislature—2013–14 Regular Session

Assembly Bill No. 971

Introduced by Assembly Member Garcia

February 22, 2013

An act to amend Section 15975 of the Government Code, and to amend Section 432.7 of the Labor Code, relating to public employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 971, as introduced, Garcia. Contracts and applications for employment: paratransit services.

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, except as specified. Existing law authorizes a health care facility, as defined, to ask an applicant for employment to disclose an arrest for specified offenses, including offenses specified in the sex offender registration statute.

Existing law requires the Attorney General to furnish state summary criminal history information to a city, county, city and county, or district, or an officer or official thereof, when that information is needed in fulfilling employment, certification, or licensing duties, as specified, subject to specified restrictions as to arrests or detentions that did not result in a conviction. Other provisions of existing law authorize the Attorney General to provide summary criminal history information to specified persons or entities for specified purposes. Existing law provides a similar provision with respect to authorizing a local public entity to receive local criminal history information.

This bill would authorize a specified social services paratransit agency to require its service contractors, as specified, to ask applicants for employment with regular access to persons with disabilities to disclose arrests for offenses specified in the sex offender registration statute. The bill would also authorize that agency to receive specified state and local criminal history information. The bill would, in addition, authorize a service contractor of a paratransit agency, as specified, to ask applicants for employment with regular access to persons with disabilities to disclose arrests for offenses specified in the sex offender registration statute, if required by the paratransit agency to do so. The bill would further make technical, nonsubstantive, and conforming changes.

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

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

SECTION 1.  

Section 15975 of the Government Code is
amended to read:

15975.  

begin insert (a) end insert begin insert   end insert The transportation planning agencies and the county
transportation commissions shall prepare and adopt an action plan
that describes in detail the steps required to accomplish the
consolidation of social service transportation services. Funding
for the action plan shall be provided from local transportation funds
made available under Chapter 4 (commencing with Section 99200)
of Part 11 of Division 10 of the Public Utilities Code. The action
plan shall substantiate that one or more of the benefits indicated
in Sections 15951 and 15952 are feasible for the services in a given
geographic area. The action plan shall include, but not be limited
to, the following:

begin delete

(a)

end delete

begin insert (1) end insert  The designation of consolidated transportation service
agencies within the geographic area of jurisdiction of the
transportation planning agency or county transportation
commission. The action plan may designate more than a single
agency or multiple agencies as consolidated transportation service
agencies, if improved coordination of all services is demonstrated
within the geographic area. In Ventura County, the county
transportation commission is the consolidated transportation service
agency.

The action plan may also specify that the consolidation of some
services and the coordination of other services is the most feasible
approach, at the time the action plan is submitted, which will
provide improved efficiency and effectiveness of those services.

begin delete

(b)

end delete

begin insert (2) end insert  The identification of the social service recipients to be
served, of funds available for use by the consolidated or
coordinated services, and of an orderly strategy and schedule
detailing the steps required to develop the financial program and
management structure necessary to implement consolidated or
coordinated services.

begin delete

(c)

end delete

begin insert (3) end insert  Measures to coordinate the services provided under
begin delete subdivision (a) end delete begin insert paragraph (1) end insert with existing fixed route service
provided by public and private transportation providers.

begin delete

(d)

end delete

begin insert (4) end insert  Measures for the effective coordination of specialized
transportation service from one provider service area to another.

begin delete

(e)

end delete

begin insert (5) end insert  Measures to ensure that the objectives of the action plan are
consistent with the legislative intent declared in Section 15951.

begin delete

(f)

end delete

begin insert (b) end insert  An entity formed by the regional transportation planning
authority as a nonprofit public benefit corporation, designated as
a consolidated transportation services agency under this section
and charged with administering a countywide coordinated
paratransit plan adopted pursuant to Section 37.141 of Chapter 49
of the Code of Federal Regulations shall, for the purposes of
paragraph (2) of subdivision (e) of Section 14055 and Part 1
(commencing with Section 810) and Part 2 (commencing with
Section 814) of Division 3.6 begin insert , end insert be deemed a “public agency” within
the meaning of “public entity,” as defined in Section 811.2.

SEC. 2.  

Section 432.7 of the Labor Code is amended to read:

432.7.  

(a)  begin delete No end delete begin insert An end insert employer, whether a public agency or private
individual or corporation, begin delete shall end delete begin insert may not end insert ask an applicant for
employment to disclose, through any written form or verbally,
information concerning an arrest or detention that did not result
in conviction, or information concerning a referral to, and
participation in, any pretrial or posttrial diversion begin delete program, nor
shall any end delete begin insert program. An end insert employer begin insert may not end insert seek from any source
begin delete whatsoever end delete , or utilize, as a factor in determining any condition of
employment including hiring, promotion, termination, or any
apprenticeship training program or any other training program
leading to employment, any record of arrest or detention that did
not result in conviction, or any record regarding a referral to, and
participation in, any pretrial or posttrial diversion program. As
used in this section, a conviction shall include a plea, verdict, or
finding of guilt regardless of whether sentence is imposed by the
court. Nothing in this section shall prevent an employer from
asking an employee or applicant for employment about an arrest
for which the employee or applicant is out on bail or on his or her
own recognizance pending trial.

(b) Nothing in this section shall prohibit the disclosure of the
information authorized for release under Sections 13203 and 13300
of the Penal Code, to a government agency employing a peace
officer. However, the employer shall not determine any condition
of employment other than paid administrative leave based solely
on an arrest report. The information contained in an arrest report
may be used as the starting point for an independent, internal
investigation of a peace officer in accordance with Chapter 9.7
(commencing with Section 3300) of Division 4 of Title 1 of the
Government Code.

(c) In any case where a person violates this section, or Article
6 (commencing with Section 11140) of Chapter 1 of Title 1 of Part
4 of the Penal Code, the applicant may bring an action to recover
from that person actual damages or two hundred dollars ($200),
whichever is greater, plus costs, and reasonable attorney’s fees.
An intentional violation of this section shall entitle the applicant
to treble actual damages, or five hundred dollars ($500), whichever
is greater, plus costs, and reasonable attorney’s fees. An intentional
violation of this section is a misdemeanor punishable by a fine not
to exceed five hundred dollars ($500).

(d) The remedies under this section shall be in addition to and
not in derogation of all other rights and remedies that an applicant
may have under any other law.

(e) Persons seeking employment or persons already employed
as peace officers or persons seeking employment for positions in
the Department of Justice or other criminal justice agencies as
defined in Section 13101 of the Penal Code are not covered by
this section.

(f) Nothing in this section shall prohibit an employer at a health
facility, as defined in Section 1250 of the Health and Safety Code,
from asking an applicant for employment either of the following:

(1) With regard to an applicant for a position with regular access
to patients, to disclose an arrest under any section specified in
Section 290 of the Penal Code.

(2) With regard to an applicant for a position with access to
drugs and medication, to disclose an arrest under any section
specified in Section 11590 of the Health and Safety Code.

(g) (1)  begin delete No end delete begin insert A end insert peace officer or employee of a law enforcement
agency with access to criminal offender record information
maintained by a local law enforcement criminal justice agency
begin delete shall end delete begin insert may not end insert knowingly disclose, with intent to affect a person’s
employment, any information contained therein pertaining to an
arrest or detention or proceeding that did not result in a conviction,
including information pertaining to a referral to, and participation
in, any pretrial or posttrial diversion program, to any person not
authorized by law to receive that information.

(2)  begin delete No other end delete begin insert A end insert person authorized by law to receive criminal
offender record information maintained by a local law enforcement
criminal justice agency begin delete shall end delete begin insert may not end insert knowingly disclose any
information received therefrom pertaining to an arrest or detention
or proceeding that did not result in a conviction, including
information pertaining to a referral to, and participation in, any
pretrial or posttrial diversion program, to any person not authorized
by law to receive that information.

(3)  begin delete No end delete begin insert A end insert person, except those specifically referred to in Section
1070 of the Evidence Code, begin delete who end delete knowing he or she is not begin insert a person end insert
authorized by law to receive begin delete or possess end delete criminal begin delete justice records end delete
begin insert offender record end insert information maintained by a local law enforcement
criminal justice agency, pertaining to an arrest or other proceeding
that did not result in a conviction, including information pertaining
to a referral to, and participation in, any pretrial or posttrial
diversion program, begin delete shall end delete begin insert may not end insert receive or possess that
information.

(h) “A person authorized by law to receive begin delete that end delete begin insert criminal offender
record end insert information,” for purposes of this section, means any person
or public agency authorized by a court, statute, or decisional law
to receive information contained in criminal offender records
maintained by a local law enforcement criminal justice agency,
and includes, but is not limited to, those persons set forth in Section
11105 of the Penal Code, and any person employed by a law
enforcement criminal justice agency who is required by that
employment to receive, analyze, or process criminal offender
record information.

(i) Nothing in this section shall require the Department of Justice
to remove entries relating to an arrest or detention not resulting in
conviction from summary criminal history records forwarded to
an employer pursuant to law.

(j) As used in this section, “pretrial or posttrial diversion
program” means any program under Chapter 2.5 (commencing
with Section 1000) or Chapter 2.7 (commencing with Section
1001) of Title 6 of Part 2 of the Penal Code, Section 13201 or
13352.5 of the Vehicle Code, or any other program expressly
authorized and described by statute as a diversion program.

(k) (1) Subdivision (a) shall not apply to any city, city and
county, county, or district, or any officer or official thereof, in
screening a prospective concessionaire, or the affiliates and
associates of a prospective concessionaire for purposes of
consenting to, or approving of, the prospective concessionaire’s
application for, or acquisition of, any beneficial interest in a
concession, lease, or other property interest.

(2) For purposes of this subdivision the following terms have
the following meanings:

(A) “Screening” means a written request for criminal history
information made to a local law enforcement agency.

(B) “Prospective concessionaire” means any individual, general
or limited partnership, corporation, trust, association, or other
entity that is applying for, or seeking to obtain, a public agency’s
consent to, or approval of, the acquisition by that individual or
entity of any beneficial ownership interest in any public agency’s
concession, lease, or other property right whether directly or
indirectly held. However, “prospective concessionaire” does not
include any of the following:

(i) A lender acquiring an interest solely as security for a bona
fide loan made in the ordinary course of the lender’s business and
not made for the purpose of acquisition.

(ii) A lender upon foreclosure or assignment in lieu of
foreclosure of the lender’s security.

(C) “Affiliate” means any individual or entity that controls, or
is controlled by, the prospective concessionaire, or who is under
common control with the prospective concessionaire.

(D) “Associate” means any individual or entity that shares a
common business purpose with the prospective concessionaire
with respect to the beneficial ownership interest that is subject to
the consent or approval of the city, county, city and county, or
district.

(E) “Control” means the possession, direct or indirect, of the
power to direct, or cause the direction of, the management or
policies of the controlled individual or entity.

(l) (1) Nothing in subdivision (a) shall prohibit a public agency,
or any officer or official thereof, from denying consent to, or
approval of, a prospective concessionaire’s application for, or
acquisition of, any beneficial interest in a concession, lease, or
other property interest based on the criminal history information
of the prospective concessionaire or the affiliates or associates of
the prospective concessionaire that show any criminal conviction
for offenses involving moral turpitude. Criminal history
information for purposes of this subdivision includes any criminal
history information obtained pursuant to Section 11105 or 13300
of the Penal Code.

(2) In considering criminal history information, a public agency
shall consider the crime for which the prospective concessionaire
or the affiliates or associates of the prospective concessionaire was
convicted only if that crime relates to the specific business that is
proposed to be conducted by the prospective concessionaire.

(3) Any prospective concessionaire whose application for
consent or approval to acquire a beneficial interest in a concession,
lease, or other property interest is denied based on criminal history
information shall be provided a written statement of the reason for
the denial.

(4) (A) If the prospective concessionaire submits a written
request to the public agency within 10 days of the date of the notice
of denial, the public agency shall review its decision with regard
to any corrected record or other evidence presented by the
prospective concessionaire as to the accuracy or incompleteness
of the criminal history information utilized by the public agency
in making its original decision.

(B) The prospective concessionaire shall submit the copy or the
corrected record of any other evidence to the public agency within
90 days of a request for review. The public agency shall render its
decision within 20 days of the submission of evidence by the
prospective concessionaire.

begin insert

(m) (1) Nothing in this section shall prohibit a public entity
described in subdivision (b) of Section 15975 of the Government
Code from doing any of the following:

end insert begin insert

(A) Requesting or requiring its service providers who have
contracted with the public entity to provide paratransit services
to ask an applicant for employment with regular access to persons
with disabilities to disclose an arrest under any section specified
in Section 290 of the Penal Code.

end insert begin insert

(B) Receiving the disclosure of information authorized for
release to a government agency under Section 13300 of the Penal
Code.

end insert begin insert

(C) Receiving the disclosure of information authorized for
release under Section 11105 of the Penal Code.

end insert begin insert

(2) Nothing in this section shall prohibit a service provider
described in subparagraph (A) of paragraph (1) from asking an
applicant for employment with regular access to persons with
disabilities to disclose an arrest under any section specified in
Section 290 of the Penal Code, if requested or required by the
public entity to do so.

end insert