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