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 SB 445 Page 2 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 SB 445 Page 3 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).] SB 445 Page 4 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. SB 445 Page 5 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 SB 445 Page 6 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, SB 445 Page 7 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 SB 445 Page 8 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 SB 445 Page 9 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 SB 445 Page 10 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