BILL ANALYSIS Ó
SB 445
Page 1
Date of Hearing: August 15, 2013
Consultant: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 445 (Hill) - As Amended: August 12, 2013
SUMMARY : Modifies the manner in which the Board of State and
Community Corrections (BSCC) awards project funds for the
construction of local county jails. Specifically, this bill :
1)Provides that jail construction funds allocated to a county
and thereafter relinquished by that county shall be
reallocated to a county that received a conditional award but
which never received funds.
2)Requires preference to be given to counties based on readiness
to proceed with construction on a project.
3)Provides that a county receiving jail construction funds is
not required to assist the state in siting reentry beds.
4)Allows the State Public Works Board (SPWB) to approve a
project to be funded after commencement of working drawings or
construction-phase activities.
5)Allows funds to be allocated to reimburse expenses incurred
after the board approves the project.
EXISTING LAW :
1)Authorizes the Department of Corrections and Rehabilitation
(CDCR), a participating county, and the SPWB to acquire,
design, and construct a local jail facility approved by the
Corrections Standards Authority (CSA, now the BSCC), as
specified, or a site or sites owned by, or subject to a lease
or option to purchase held by, a participating county. The
ownership interest of a participating county in the site or
sites for a local jail facility must be determined by the SPWB
to be adequate for purposes of its financing in order to be
eligible under this chapter. [Government Code Section
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15820.901(a).]
2)Authorizes CDCR, a participating county, and the SPWB to enter
into a construction agreement for these projects that shall
provide, at a minimum, performance expectations of the parties
related to the acquisition, design, construction, or
renovation of the local jail facility; guidelines and criteria
for use and application of the proceeds of revenue bonds,
notes, or bond anticipation notes issued by the SPWB to pay
for the cost of the approved local jail facility project; and
ongoing maintenance and staffing responsibilities for the term
of the financing. [Government Code Section 15820.901(c).]
3)Allows the SPWB and CDCR to borrow funds as specified for
project costs after the project has been certified and upon a
participating county's receipt of responsive construction
bids. (Government Code Section 15820.902.)
4)Authorizes the SPWB to issue up to $445.771 million in revenue
bonds, notes, or bond anticipation notes, as specified, to
finance the acquisition, design, or construction, and a
reasonable construction reserve, of approved local jail
facilities, as specified, and any additional amount to pay for
the cost of financing, as specified. Proceeds from the
revenue bonds, notes, or bond anticipation notes may be used
to reimburse a participating county for the costs of
acquisition, preliminary plans, working drawings, and
construction for approved projects. (Government Code Section
15820.903.)
5)Requires the CSA to adhere to its duly adopted regulations for
the approval or disapproval of local jail facilities.
[Government Code Section 15820.906(a).]
6)Prohibits state moneys from being encumbered in contracts let
by a participating county until either final architectural
plans and specifications have been approved by the CSA, and
subsequent construction bids have been received, or documents
prepared by a participating county as specified have been
approved by the CSA, and a design-build contract has been
awarded pursuant to that section. The review and approval of
plans, specifications, or other documents by the CSA are for
the purpose of ensuring proper administration of moneys and
determination of whether the project specifications comply
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with law and regulation. [Government Code Section
15820.906(a).]
7)States that participating county matching funds for projects
funded under the local jail facilities project shall be a
minimum of 25%. The CSA may reduce matching fund requirements
for participating counties with a general population below
200,000 upon petition by a participating county to the CSA
requesting a lower level of matching funds. [Government Code
Section 15820.907(a).]
8)Requires CDCR and CSA to give funding preference to counties
that assist the state in siting reentry facilities.
[Government Code Section 15820.907(b).]
9)Requires CDCR and CSA to give funding preference to counties
that assist the state in siting mental health day treatment
and crisis care, and to counties that provide a continuum of
care so that parolees with mental health and substance abuse
needs can continue to receive services at the conclusion of
their period of parole. [Government Code Section
15820.907(c).]
10)Allows a participating county that has received a conditional
award under this financing program to relinquish its
conditional award, provided that no state moneys have been
encumbered in contracts let by the county, and may reapply for
a conditional award under the financing program set forth in
this chapter. [Government Code Section 15820.910.]
11)States that, except as otherwise specified, no funds
appropriated for capital outlay may be expended by any state
agency until the Department of Finance (DOF) and the SPWB have
approved preliminary plans for the project to be funded from a
capital outlay appropriation. [Government Code Section
13332.11(a).]
12)Provides that any appropriated amounts for working drawings
or construction where the working drawings or construction
have been started by any state agency prior to approval of the
preliminary plans by the SPWB shall be reverted to the fund
from which the appropriation was made, as approved by the DOF.
[Government Code Section 13332.11(b).]
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13)States that no major project for which a capital outlay
appropriation is made shall be put out to bid until the
working drawings have been approved by the DOF. [Government
Code Section 13332.11(b).]
14)States that, except as otherwise provided, no funds
appropriated for a design-build project may be expended until
the Department of Finance and the State Public Works Board
have approved performance criteria or performance criteria and
concept drawings for the project. [Government Code Section
13332.19(b).]
15)Establishes the BSCC, abolishes the CSA, and states that
references in statute to the CSA shall now refer to the BSCC.
[Penal Code 6024(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "If a county
returns Phase 1 jail funding to the state, then those dollars
should be awarded to the next highest ranking county in Phase
1 that did not receive state funds in the initial round of
funding in 2008. This is an issue of fairness to all of the
counties involved in the Phase 1 application process.
"California has a prison overcrowding crisis which the AB 900
funding sought to improve. It's critical that limited state
resources from Phase 1 not only go to the highest ranking
county based on points, but also based on readiness to proceed
with construction of the project. This requirement will
ensure that the state benefits from increased capacity as soon
as possible."
2)Background : AB 900 (Solorio), Chapter 7, Statutes of 2007,
authorized $1.2 billion in state lease revenue bond funding
for the construction of local jail facilities. The original
legislation split the funding into two phases. The first
phase of funding was allocated as conditional awards in
November 2009 and approximately $620 million was awarded to
the following counties: San Bernardino, San Joaquin, Kern,
Santa Barbara, San Diego, San Luis Obispo, Solano, Madera,
Calaveras, Amador, and San Benito.
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Phase 1 originally included $750 million, but since only $620
million was awarded, the remaining funds were shifted to Phase
2 in AB 111 (Budget). AB 111 also removed requirements that
4,000 local jail beds and 2,000 reentry beds be constructed
prior to making the Phase 2 jail funds available. AB 111 also
changed the preferences for counties seeking jail construction
funding to the counties that have the largest percentage of
inmates in state prison in 2010. Previously, preference had
been given to counties that helped to site reentry facilities,
establish mental health day treatment and crisis care, and
establish continuum of care programs for parolees.
Subsequent legislation, AB 94 (Budget) Chapter 23, Statutes of
2011, allowed participating counties that received Phase 1
conditional awards to relinquish the awards and reapply,
provided that no state moneys have been encumbered. AB 94
also added a funding preference to counties that relinquish
their conditional awards, provided that those counties
continue to assist the state in siting reentry facilities.
Most recently, under SB 1022 (Budget), Chapter 42, Statutes of
2012, up to $500 million in financing authority is
conditionally available. SB 1022 specifies that funding
consideration be given to counties seeking to replace existing
compacted, outdated, or unsafe housing capacity, or those
seeking to renovate existing or build new facilities that
provide adequate space for the provision of treatment and
rehabilitation services, including mental health treatment.
SB 1022 also specifies that funding preference be given to
counties that are most prepared to proceed successfully with
this financing in a timely manner. The BSCC released a
request for proposals regarding use of SB 1022 jail
construction money in July 2013. (See SB 1022 - Request for
Proposals Background, <
http://www.bscc.ca.gov/programs-and-services/fso/services>.)
3)The San Mateo Problem : According to background information
provided by the author, San Mateo was conditionally awarded
$100 million in AB 900 Phase 1 funding in 2008. The county
board approved the project, a negative declaration was
approved, an architect and construction-management team were
retained. However, like several other counties, San Mateo
relinquished the award because it could not meet the reentry
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bed siting requirement.
When Phase 2 funding became available, San Mateo expressed
interest in the funding since the re-entry facility
requirement was deleted. However, San Mateo ultimately could
not complete because of the new state prisoner commitment
preference. In other words, because San Mateo County
successfully uses alternatives to incarceration and does not
send as many inmates to prison, the county was at a
disadvantage to qualify for this funding.
Under the most recent phase of funding (SB 1022), San Mateo
would appear to be in a competitive position due to a
"readiness to proceed" preference. However, San Mateo may
ultimately be disqualified because the county has entered into
contracts without the prior approval required under current
statutes. As a result, this bill allows the SPWB to approve a
project after commencement of working drawings or
construction-phase activities and limit the use of project
funding to expenses incurred post-approval. This would apply
to both AB 900 Phase 1 funding and SB 1022 funding.
4)Jail Construction Funding Awards : San Joaquin County recently
relinquished an award of $80 million. Information provided by
the BSCC indicates that because Monterey County only received
a partial award (approximately $36 million of the $80 million
requested), that project would be next in line for funding.
Yolo, Sonoma, and Placer Counties follow Monterey in ranking
preference. (See AB 900 Phase 2 Awards, updated September 13,
2012, listed on BSCC's Web site
http://www.bscc.ca.gov/resources.)
5)Practical Considerations : Will multiple counties be able to
fairly compete under the new preferences or does this bill
work to the advantage of a single county? If this bill
passes, does it set a precedent for allowing other counties to
change the rules if they do not receive an award by the BSCC,
thereby undermining the BSCC? Does this bill undermine the
lease-revenue financing process?
6)Argument in Support : According to the San Mateo County Board
of Supervisors (the sponsor of this bill), "Over the years, a
series of lease revenue bond programs have been made available
to counties for the construction of new jail facilities,
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including Assembly Bill 900, phases 1 and 2, and most
recently, Senate Bill 1022. Unfortunately, no new facilities
have been built as a direct result of these programs at a time
when public safety realignment (AB 109) has increased
pressures on counties like San Mateo to house offenders and
provide the newly realigned population with programming.
"In order to respond to existing county pressures and allow
counties like San Mateo that are ready to proceed with the
construction of new facilities, SB 445 would allow AB 900
phase construction dollars awarded to a county but then
returned to the Board of State and Community Corrections
(BSCC) to be awarded to the next highest ranking county in
Phase 1 that has not received funding from Phase 1 or Phase 2,
and that is also most prepared to proceed with construction.
The bill would also align the requirements of Phase 1 with
those of Phase 2 by deleting the reentry bed requirement in
Phase 1. But most importantly, SB 445 would allow the State
Public Works Board to certify a jail project after
commencement of construction so projects that are underway,
such as San Mateo's, can still be eligible for state funding."
7)Argument in Opposition : The American Civil Liberties Union
writes, "According to the Board of State and Community
Corrections (hereinafter 'BSCC'), San Mateo County may not
currently be eligible for SB 1022 funds because its project is
currently underway. Both the current Request for Proposal,
released to counties by the BSCC, and the plain meaning of
Government Code sections 15820.92, et seq., state that funding
is only available for counties who have not started
construction. However, if San Mateo believes that such a
finding is in error, the venue to address that error is not
the Legislature, but rather the BSCC.
"Since San Mateo may not eligible for SB 1022 funds, it appears
that they now seek to allocate the eighty million ($80)
dollars in AB 900 Phase I money recently returned to the BSCC
by San Joaquin County. Said allocation is unfair and a
violation of both statutory and regulatory process. San Mateo
is a large county, meaning any request for funds through the
BSCC requires them to adhere to processes based on need
pertaining to other large counties. San Joaquin, on the other
hand, was a medium-sized county, and hence, BSCC process
requires those funds, if distributed at all, be awarded to
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another medium-sized county. A process is currently underway
before the BSCC to determine which county should be awarded
the returned funds, if any. Once that determination is made
by the BSCC, the Legislature may be called upon to authorize
said reallocation of the relinquished funds. BSCC intends to
address this matter in September.
"Moreover, SB 445 authorizes reimbursement for work that has
already begun in San Mateo. This is an option that is not
available to any other county. According to the San Mateo
Sheriff's testimony before the BSCC on several separate
occasions, San Mateo has already spent millions of dollars on
plans, and other construction-related activities. It seems a
poor use of additional state dollars to reimburse San Mateo
for proceeding without state funding, and outside the existing
statutory process. If San Mateo were able to successfully
circumvent the BSCC process, it would create a dangerous
precedent for any county who does not receive funding to seek
redress in the Legislature. For instance, since Monterey
County appears to be the next in line to receive the returned
San Joaquin County funds, should Monterey be compensated for
the money that may have otherwise gone to them? Given the
complex intersection between state public works funding and
jail construction, the BSCC is in the best position to make
these decisions, and should retain its authority to decide how
best to allocate jail construction funds.?
"In July 2012, the BSCC was tasked with determining how best to
allocate funds pursuant to SB 1022 and AB 900, and has devoted
significant state resources in doing so. We respectfully
request that the Legislature honor that responsibility and let
the BSCC decide how best to serve the needs of requesting
counties."
8)Prior Legislation :
a) Assembly Bill 900 (Committee on Budget), Chapter 7,
Statutes of 2007, authorized $1.2 billion in state lease
revenue bond funding for the construction of local jail
facilities.
b) AB 1768 (Solorio), of the 2009-10 Legislative Session,
would have modified local government eligibility and
competition for county jail construction bond funding under
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phase II of AB 900, (Solorio), Chapter 7, Statutes of 2007,
to give equal consideration to counties providing county
jail beds for use as state reentry beds as to counties
providing stand-alone sites for new state reentry
facilities. AB 1768 was held on the Assembly
Appropriations Committee's Suspense File.
c) AB 320 (Solorio), of the 2009-10 Legislative Session,
would have modified the conditions for the funding of
reentry facilities under AB 900, (Solorio), Chapter 7,
Statutes of 2007, and would have allowed counties to meet
the modified requirements with existing jail beds, future
jail beds to be constructed with funding made available
through the provisions of this bill, or a combination
thereof. AB 320 was vetoed.
d) AB 94 (Committee on Budget), Chapter 23, Statutes of
2011, modified the manner in which funds are awarded for
local jail costs. Specifically, AB 94 allows participating
counties that received Phase 1 conditional awards to
relinquish the awards and reapply, provided that no state
moneys have been encumbered, adds a funding preference to
counties that relinquish their conditional awards, provided
that those counties continue to assist the state in siting
reentry facilities, reduces county contribution of project
costs from 25% to 10%, and specifies that participating
counties shall not receive awards greater than $100
million.
e) AB 111 (Committee on Budget), Chapter 16, Statutes of
2011, moved uncommitted jail construction funding, removed
reentry siting requirements for accessing Phase 2 funding,
removed benchmark requirements for accessing Phase 2
funding, and added preference for counties that committed
the largest percentage of inmates to state custody in
relation to the total state inmate population in 2010.
f) SB 1022 (Committee on Budget and Fiscal Review), Chapter
42, Statutes of 2012, among other provisions, authorized up
to $500 million in revenue bonds, notes, or bond
anticipation notes to fund the acquisition, design,
construction, and renovation of approved adult local
criminal justice facilities and authorized the shift of
$171 million in AB 900 funding from Phase 1 of the program
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to Phase 2 of the program.
g) AB 2102 (Hill), of the 2011-12 Legislative Session,
would have modified the process by which the State Public
Works Board distributes funds for construction of local
jail facilities. AB 2012 was held on the Assembly
Appropriations Committee's Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
San Mateo County Board of Supervisors (Sponsor)
State Building and Construction Trades Council of California
Opposition
All of Us or None
American Civil Liberties Union
American Friends Service Committee
California Attorneys for Criminal Justice
California Prison Focus
Californians United for a Responsible Budget
Friends Committee on Legislation
Justice Now
Legal Services for Prisoners with Children
Life Support Alliance
Prison Activist Resource Center
Transgender, GenderVariant, Intersex Justice Project
Women's Foundation
Youth Justice Coalition
One private individual
Analysis Prepared by : Sandy Uribe/ PUB. S. / (916) 319-3744