BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 971 (Garcia)
As Amended April 18, 2013
Hearing date: June 25, 2013
Government Code; Penal Code
MK:mc
PUBLIC AGENCY EMPLOYERS: PARATRANSIT PROVIDERS
CRIMINAL HISTORY INFORMATION
HISTORY
Source: Access Services
Prior Legislation: None
Support: Unknown
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 74- Noes 0
KEY ISSUE
SHOULD A PARATRANSIT AGENCY BE PERMITTED TO RECEIVE CRIMINAL HISTORY
INFORMATION WITH RESPECT TO CONTRACTED SERVICE PROVIDERS?
PURPOSE
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The purpose of this bill is to authorize a paratransit agency to
receive criminal history information with respect to contracted
service providers for the purpose of oversight and enforcement of
the agency's policies.
Existing law states legislative intent to improve transportation
service required by social service recipients by promoting the
consolidation of social service transportation services.
(Government Code § 15951.)
Existing law requires the transportation planning agencies and
the county transportation commissions to prepare and adopt an
action plan that describes in detail the steps required to
accomplish the consolidation of social service transportation
services. (Government Code
§ 15957.)
Existing law states that an entity formed by the regional
transportation planning authority as a nonprofit public benefit
corporation charged with administering a countywide coordinated
paratransit plan adopted under federal law is a public entity.
(Government Code § 19575(f).)
Existing law requires the Department of Justice (DOJ) to
maintain state summary criminal history information. (Penal
Code § 11105(a).)
Existing law authorizes DOJ to furnish state summary criminal
history information to the following specified entities:
the courts of California;
peace officers, as defined;
district attorneys of California;
prosecuting city attorneys;
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city attorneys pursuing civil gang injunctions or drug
abatement actions;
probation officers of California;
parole officers of California;
a public defender or attorney of record when
representing a person in proceedings upon a petition for a
certificate of rehabilitation and pardon;
a public defender or attorney of record when
representing a person in a criminal case, or a parole,
mandatory supervision, or postrelease community supervision
revocation or revocation extension proceeding, and if
authorized access by statutory or decisional law;
any agency, officer, or official of the state if the
criminal history information is required to implement a
statute or regulation that expressly refers to specific
criminal conduct applicable to the subject person of the
state summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon
that specified criminal conduct;
any city or county, city and county, district, or any
officer or official thereof if access is needed in order to
assist that agency, officer, or official in fulfilling
employment, certification, or licensing duties, and if the
access is specifically authorized by the city council,
board of supervisors, or governing board of the city,
county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation
that expressly refers to specific criminal conduct
applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified
criminal conduct;
the subject of the state summary criminal history
information;
any person or entity when access is expressly authorized
by statute if the criminal history information is required
to implement a statute or regulation that expressly refers
to specific criminal conduct applicable to the subject
person of the state summary criminal history information,
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and contains requirements or exclusions, or both, expressly
based upon that specified criminal conduct;
Health officers of a city, county, city and county, or
district when in the performance of their official duties
preventing the spread of communicable diseases;
any managing or supervising correctional officer of a
county jail or other county correctional facility;
any humane society, or society for the prevention of
cruelty to animals for the appointment of humane officers;
local child support agencies;
county child welfare agency personnel who have been
delegated the authority of county probation officers to
access state summary criminal history information for the
specified purposes;
the court of a tribe, or court of a consortium of
tribes, that has entered into an agreement with the state
as specified;
child welfare agency personnel of a tribe or consortium
of tribes that has entered into an agreement with the state
as specified;
an officer providing conservatorship investigations;
a person authorized to conduct a guardianship
investigation; and,
a humane officer for the purposes of performing his or
her duties. (Penal Code § 11105 (b).)
Existing law states that DOJ may furnish state summary criminal
history information, when specifically authorized, and
federal-level criminal history information upon a showing of
compelling need to any of the specified agencies, provided that
when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any
other entity in fulfilling employment, certification, or
licensing duties, the employer must follow restrictions listed
in the Labor Code. (Penal Code § 11105(c).)
Existing law states, 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
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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. Requires DOJ to furnish the information
to the requesting employer and also send a copy of the
information to the applicant. (Penal Code § 11105.3(a).)
Existing law authorizes any local criminal justice agency as
defined to compile local summary criminal history information
and requires the local criminal justice agency to furnish this
information to any of the specified entities. (Penal Code §
13300.)
Existing law provides that no employer, whether a public agency
or private individual or corporation, shall 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
program, nor shall any employer seek from any source whatsoever,
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. (Labor Code § 432.7(a).)
Existing federal law , the Americans with Disability Act,
requires comparable transportation service for individuals with
disabilities who are unable to use fixed route transportation
systems. (49 Code of Federal Regulations Part 37 (2007).)
This bill authorizes a paratransit agency to receive criminal
history information with respect to contracted service providers
for the purpose of oversight and enforcement of the agency's
policies.
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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,
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continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
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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.
COMMENTS
1. Need for This Bill
According to the sponsor:
As proposed, AB 971 amends the Labor Code and
Government Code to explicitly permit/clarify in statute
Access Services ability to conduct background checks on
the drivers who transport disabled customers.
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Current law limits by time and type the information
that can be requested of applicants for employment.
However it creates exceptions to these rules where
health and safety are of primary concern or the person
will be working with particularly vulnerable
individuals in connection with the employment. Since
Access Services facilitates complementary ADA
paratransit services in Los Angeles County for persons
with disabilities, it is imperative that the agency
unambiguously have the right to conduct background
checks on its drivers.
While Access and its providers currently do background
checks, the existing statutes are ambiguous as to
whether Access falls within one of the exceptions.
This minor change would explicitly clarify Access'
ability to conduct background checks just like any
other transit agency in California.
2. Background Check
A "paratransit agency" is an entity formed by the regional
transportation planning authority as a nonprofit public benefit
corporation charged with administering a countywide coordinated
paratransit plan adopted under federal law. Existing state law
provides that such entities are deemed "public agencies."
(Government Code § 15975(f).)
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. Existing law provides a similar
provision with respect to authorizing a local public entity to
receive local criminal history information.
This bill is sponsored by Access Services, who states that it is
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responsible for the administration of the mandated paratransit
transportation program for the County of Los Angeles and is
tasked with improving the mobility on public transit of persons
with disabilities. Access (and other similar paratransit
agencies) often contracts with other entities to provide the
transportation services.
This bill would authorize Access Services, the paratransit
service provider for Los Angeles County to get a background
check of a contract provider for purposes of oversight and
enforcement policies. Access believes existing law is ambiguous
as to whether they can obtain background checks of their
contractors. This bill would amend the law to clarify that
paratransit agencies may obtain the criminal history information
for the purposes of oversight and enforcement of their policies
with respect to contracted providers of service.
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