BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
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SB 1015 (Romero) 5
As Amended July 1, 2005
Hearing date: July 12, 2005
Government Code; Penal Code; Vehicle Code
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OFFICE OF HOMELAND SECURITY
HISTORY
Source: Administration
Prior Legislation: AB 2104 (Committee on Budget) - Ch. 702,
Stats. 2004
Support: California State Sheriffs' Association
Opposition:Attorney General (oppose unless amended - Comment #7,
below)
KEY ISSUES
SHOULD THE EXISTING POSITIONS OF "DIRECTOR - AND DEPUTY - OF
HOMELAND SECURITY" BE REPEALED AND A NEW OFFICE OF HOMELAND
SECURITY BE CREATED IN THE GOVERNOR'S OFFICE, AS SPECIFIED?
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(CONTINUED)
SHOULD THAT NEW OFFICE HAVE THE FOLLOWING STATUTORY SPECIFIED
DUTIES:
(A) COORDINATING HOMELAND SECURITY ACTIVITIES THROUGHOUT THE STATE?
(B) COORDINATING THE ACTIVITIES OF ALL STATE AGENCIES PERTAINING TO
HOMELAND SECURITY ISSUES, INCLUDING, BUT NOT LIMITED TO, ALL
LEGISLATIVE ISSUES, CONTACT WITH FEDERAL AND LOCAL AGENCIES,
TRAINING, EXERCISES, PUBLIC OUTR?ACH ACTIVITIES, CRITICAL
INFRASTRUCTURE PROTECTION, INFORMATION ANALYSIS AND THREAT
PROTECTION, AND PLANNING AND RESEARCH?
(C) COORDINATING AND APPROVING ALL ACTIVITIES BETWEEN STATE AGENCIES
AND FEDERAL AGENCIES ON TOPICS RELATED TO TERRORISM, INCLUDING
COORDINATING AND APPROVING ALL STATE REQUESTS FOR FEDERAL FUNDS
DESIGNATED FOR HOMELAND SECURITY ACTIVITIES, DEVELOPING GUIDELINES
FOR THOSE STATE REQUESTS, AND APPROVING THE DISTRIBUTION OF ANY
FEDERAL FUNDS ALLOCATED TO THE STATE?
(D) SERVING AS THE PRINCIPAL POINT OF CONTACT FOR AND TO THE
GOVERNOR WITH RESPECT TO THE FEDERAL DEPARTMENT OF HOMELAND SECURITY
AND ALL OTHER FEDERAL AND STATE AGENCIES AND THE LEGISLATURE, ON
MATTERS RELATING TO TERRORISM AND HOMELAND SECURITY?
(E) COORDINATING THE REVIEW AND ASSESSMENT OF THE CALIFORNIA
HOMELAND SECURITY STRATEGY, AND COORDINATING THE AMENDMENT AND
SUBMISSION OF THE PLAN TO THE GOVERNOR FOR APPROVAL?
(F) ASSIGNING SPECIFIC STATE SECURITY FUNCTIONS TO STATE AGENCIES
CONSISTENT WITH THE DUTIES AND RESPONSIBILITIES IDENTIFIED IN THE
CALIFORNIA HOMELAND SECURITY STRATEGY?
SHOULD ALL STATE AGENCIES BE REQUIRED TO ASSIST THE OFFICE OF
HOMELAND SECURITY AND THE DIRECTOR IN CARRYING OUT THE PURPOSES OF
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THIS CHAPTER AND THE FUNCTIONS OF THE OFFICE?
SHOULD NUMEROUS RELATED CHANGES IN LAW BE MADE?
PURPOSE
The purpose of this bill is to repeal the existing positions of
"Director - and Deputy - of Homeland Security" and to create a
new Office of Homeland Security in the Governor's office, as
specified.
Existing law provides that the Governor shall appoint, to serve
at his or her pleasure, an executive officer who shall be
Director of Homeland Security. The Director of Homeland
Security shall be in charge of homeland security and shall be
the state coordinator of all homeland security activities,
including, but not limited to, homeland security strategy,
information analysis related to terrorism, and protection of
critical infrastructure from terrorism. The Governor shall also
appoint one deputy director of homeland security who shall serve
at the pleasure of the director. (Government Code 12016.)
Existing law requires that the Department of Justice maintain
state summary criminal history information and make that
information available to specified persons. (Penal Code
11105 - 11105.4.)
Existing law (the California Public Records Act) provides for
the public access to governmental records with exceptions which
include law enforcement records, as specified. (Government Code
5250 et seq.; law enforcement exceptions in Government Code
6254(f).)
Existing law creates the Commission on Peace Officer Standards
and Training (POST) which among other responsibilities sets
minimum selection and training standards for California law
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enforcement, as specified. (Penal Code 13500 et seq.)
Existing law creates the Office of Emergency Services (OES) in
the office of the Governor. Among other duties, during a state
of war emergency, a state of emergency, or a local emergency,
the director of OES shall coordinate the emergency activities of
all state agencies in connection with such emergency, and every
state agency and officer shall cooperate with the director in
rendering all possible assistance in carrying out the provisions
of this chapter. (Government Code 8585 et seq.)
Existing law provides that the OES Emergency Response Training
Advisory Committee shall be established and shall recommend the
criteria for terrorism awareness curriculum content to meet the
training needs of state and local emergency response personnel
and volunteers. (Government Code 8588.10.)
Existing law does the following:
Creates the California Department of Health Services and
Director of Health Services, as specified. (Health and Safety
Code 100100 et seq.)
Requires each of California's counties to provide public
health services. (Health and Safety Code 101000.) Each of
California's 58 counties and 3 large California cities have
Physician Health Officers. (See Health and Safety Code
101375 and 101460 relating to city health officers where a
city has not opted for county exercise of health officer
powers in a city.)
Grants specific authority to county health officers, including
(1) the authority to take any preventive measure that may be
necessary to protect and preserve the public health from any
public health hazard during any "state of war emergency,"
"state of emergency," or "local emergency," as defined by
Section 8558 of the Government Code, within his or her
jurisdiction; (2) defines "preventive measure" as abatement,
correction, removal or any other protective step that may be
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taken against any public health hazard that is caused by a
disaster and affects the public health; (3) the authority,
upon consent of the county board of supervisors or a city
governing body, to certify any public health hazard resulting
from any disaster condition if certification is required for
any federal or state disaster relief program. (Health and
Safety Code 101040.)
Provides that federal funding received by the State Department
of Health Services for bioterrorism preparedness and emergency
response is subject to appropriation in the annual Budget Act
commencing with the 2003-04 fiscal year. (Health and Safety
Code 101317.)
This bill does the following:
Repeals existing provision in statute added in 2004 requiring
the appointment of the Director of Homeland Security and the
deputy director.
Instead establishes the Office of Homeland Security in the
office of the Governor, with specified duties with regard to
the coordination and oversight of homeland security activities
in the state, under the direction of a Director of Homeland
Security appointed by the Governor (with Senate confirmation),
with specified authority and duties.
Provides that the mission of the office shall be to develop
and coordinate the implementation of a comprehensive state
strategy to coordinate security activities throughout the
state to prevent, deter, and mitigate acts of terrorism,
including, but not limited to, grants, operations, training
and exercises, information analysis, critical infrastructure
protection, and planning and research.
Defines "homeland security" to include all of the following:
(1) The prevention of terrorist attacks within the
state.
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(2) The reduction of the vulnerability of the state
to terrorism.
(3) Minimizing the damage to, and assisting in the
recovery of, the state from terrorist attacks that
occur within this state or the United States.
Provides that the director shall be the individual primarily
responsible for coordinating security efforts of all
departments and agencies in the state and shall be the
principal point of contact for and to the Governor with
respect to coordination of these efforts. The director shall
have the authority of a head of a department as provided by
law.
Provides that the new Office of Homeland Security shall have
all of the following responsibilities and duties:
(a) Coordinating homeland security activities throughout
the state.
(b) Coordinating the activities of all state agencies
pertaining to homeland security issues, including, but not
limited to, all legislative issues, contact with federal
and local agencies, training, exercises, public outreach
activities, critical infrastructure protection,
information analysis and threat protection, and planning
and research.
(c) Coordinating and approving all activities between state
agencies and federal agencies on topics related to
terrorism, including coordinating and approving all state
requests for federal funds designated for homeland
security activities, developing guidelines for those state
requests, and approving the distribution of any federal
funds allocated to the state.
(d) Serving as the principal point of contact for and to
the Governor with respect to the federal Department of
Homeland Security and all other federal and state agencies
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and the Legislature, on matters relating to terrorism and
homeland security.
(e) Coordinating the review and assessment of the
California Homeland Security Strategy, and coordinating
the amendment and submission of the plan to the Governor
for approval.
(f) Assigning specific state security functions to state
agencies consistent with the duties and responsibilities
identified in the California Homeland Security Strategy.
Requires that all state agencies shall assist the Office of
Homeland Security and the director in carrying out the
purposes of this chapter and the functions of the office.
Requires that the Office of Homeland Security shall submit an
annual report to the Legislature which shall be a public
record and shall be posted on the office's Web site, and which
shall include the following:
(1) A review of the activities of the office and of
state and local government agencies during the
previous year in the area of homeland security.
(2) A review of activities involving the activities
of the office in the area of homeland security
during the previous year that resulted in
complaints of violations of constitutional rights
of privacy, free speech and expression, equal
protection, or due process.
(3) A list of the state and local law enforcement
entities participating in Regional Threat
Assessment Centers, a review of the memoranda of
understanding signed by the office governing their
participation, and the costs of that participation.
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Requires that the Office of Homeland Security shall, in
collaboration with the State Department of Health Services,
annually report to the Chairperson of the Joint Legislative
Budget Committee, and the chairperson of the budget committees
of each house of the Legislature on or before January 10 its
expenditures of federal homeland security and bioterrorism
funds, as specified.
Specifies that persons employed within the Office of Homeland
Security whose duties and responsibilities require the
authority to access criminal history and other intelligence
information, and who have been cleared to do so by both the
state Department of Justice and the United States Department
of Homeland Security, are peace officers of the state for
these purposes so that they may have access to that
information.
Specifies that the Office of Homeland Security is a law
enforcement organization as required for receipt by employees
of the office of confidential intelligence information
pursuant to the California Public Records Act.
Makes related change changes and additions to law.
COMMENTS
1. Need for This Bill
The author's office indicates that:
The Governor's Office of Homeland Security (OHS)
was established on February 7, 2003, by Executive
Order D-67-03. The Office is responsible for
coordinating homeland security activities
throughout California and serves as the Governor's
chief advisor on all homeland security related
issues.
OHS functions are divided into six divisions, each
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of which is headed by a deputy director, aided by
an assistant deputy.
Information Analysis;
Critical Infrastructure Protection;
Local, External and Legislative Affairs;
Grants Management; and
Planning, Research and Emergency
Preparedness.
Training and Exercises
OHS has made real progress in its efforts to
secure California from terrorist attacks.
Regional Terrorism Threat Assessment Centers have
been established across the state. A State
Terrorism Threat Assessment Center has been
created in conjunction with the California Highway
Patrol and the Department of Justice.
Organizations from federal, state, and local
levels have participated in statewide training
exercises. Furthermore, representatives from OHS
have been working to evaluate and harden critical
infrastructure across California.
Establishing OHS in statute will essentially
formalize an established operational structure.
Moreover, the bill would provide budgetary
authority to streamline contractual services
necessary to facilitate its day-to-day operations.
And last, the measure would authorize OHS to
review criminal justice information, which is
essential to its grant programs and preparing
California for a terrorist attack.
2. Action of the Senate Budget Subcommittee #5
On May 19, 2005, the Senate Budget Subcommittee #5 had the
following agenda item:
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2. May Revise. Establish Office of Homeland Security
as a New Agency
May Revise Request. This Finance Letter proposal
consists of the following:
? $7.4 million in federal funds and 21 positions
for additional support of OHS activities.
? $22 million in federal funds for state
operations.
? $117 million in federal funds for local
assistance.
? Trailer bill language to establish OHS as a
separate department and various budget bill
provisions which would spilt the funding of OHS
activities between the OES (from 7/1/05 to 12/31/05)
and OHS (from 1/1/06 to 6/30/06).
Analyst's Recommendation. The LAO does not have any
issues with the proposed staffing and funding
increases. However, the LAO has raised concerns with
the proposed trailer bill language. First, the LAO
indicates that there are a number of significant
policy issues related to the authorization of OHS
which deserve policy consideration by the Legislature.
For example, the administration is proposing
establishing OHS as a separate standalone department.
The LAO notes that the Legislature may wish to
consider other alternatives such as authorizing OHS to
be over OES (which would be similar to the federal
Department of Homeland Security model) or continuing
to have OHS as a part of OES (which would be
consistent with the current situation). In addition,
the LAO indicates that the proposed trailer language
contains some significant policy issues such as
allowing OHS to (1) issue search warrants and (2) be
exempt from the entire Administrative Procedure Act.
In the view of the LAO, both of these policy issues
require significant legislative input which is not
typically provided through the budget committee
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process. For these reasons, the LAO recommends that
the Legislature reject the proposed trailer bill and
direct the administration to seek approval of the
language through a policy bill.
The Budget Subcommittee did suggest that the Administration
sponsor a separate bill in the normal - not "trailer bill" -
process. There were staff positions funded in the 2005-06 State
Budget for the existing "Office of Homeland Security."
In addition, the language in this bill does not include any new
"search warrant" authority nor does it involve an exemption from
the Administrative Procedures Act.
3. Some of the Issues Possibly Raised by This Bill
Mission of the OHS
This bill states that the mission of the OHS is ". . . to
develop and coordinate the implementation of a comprehensive
state strategy to coordinate security activities throughout the
state to prevent, deter, and mitigate acts of terrorism,
including, but not limited to, grants, operations, training and
exercises, information analysis, critical infrastructure
protection, and planning and research." The first part of the
mission appears to be one of "coordination" while the second
part appears to contemplate a more active role including
"information analysis" which does not specifically include
"information gathering."
WOULD THIS MISSION INCLUDE "INFORMATION GATHERING" IN ADDITION
TO INFORMATION ANALYSIS? IF SO, IS THAT AN APPROPRIATE OR
NECESSARY ROLE OF THE OSH?
Executive Order D-67-03 (see Comment #6, below) includes the
following "mission" of the Office of Homeland Security created
in February of 2003:
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The mission of the Office of Homeland Security
shall be to develop and coordinate the
implementation of a comprehensive state strategy
to coordinate security activities throughout
California, and to highlight the extraordinary
technological capabilities of California's private
industry to help protect all Americans.
IS THE EXPANDED MISSION IN THIS BILL APPROPRIATE AND NECESSARY?
Definition of homeland security
This bill defines homeland security as:
(1) The prevention of terrorist attacks within
the state.
(2) The reduction of the vulnerability of the
state to terrorism.
(3) Minimizing the damage to, and assisting in
the recovery of, the state from terrorist
attacks that occur within this state or the
United States.
While that definition embodies public safety goals which may be
appropriate, is it expected that the Office of Homeland Security
itself should be directly involved in each of those efforts.
For example, that definition does not indicate "assist local and
state law enforcement" with the prevention of terrorist attacks.
IS THAT AN APPROPRIATE DEFINITION OF HOMELAND SECURITY FOR
PURPOSES OF THE FUNCTION OF THE OFFICE OF HOMELAND SECURITY?
Coordinating security efforts
This bill provides the OSH Director ". . . shall be the
individual primarily responsible for coordinating security
efforts of all departments and agencies in the state" which
would appear to be an all-encompassing obligation for the
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Director. Executive Order D-67-03 does include somewhat similar
language. It may be that "coordinating" would involve the
Director and the OSH in aspects of law enforcement statewide.
IS THAT AN APPROPRIATE FUNCTION FOR THE OSH DIRECTOR?
OSH duties and responsibilities
This bill enumerates the "duties and responsibilities" of the
OSH including "coordinating" a number of activities including
"the activities of all state agencies pertaining to homeland
security issues, including, but not limited to, all legislative
issues, contact with federal and local agencies, training,
exercises, public outreach activities, critical infrastructure
protection, information analysis and threat protection, and
planning and research." Some of that language is included in
Executive Order D-67-03.
IS IT APPROPRIATE TO ENACT IN STATUTE THE "DUTIES AND
RESPONSIBILITIES" OF THE OSH PERTAING TO ALL STATE AGENCIES AS
PROPOSED IN THIS BILL?
WOULD THIS BILL REQUIRE THAT STATE AGENCIES "COORDINATE" WITH
THE OSH ON ALL LEGISLATIVE MATTERS RELATED TO TERRORISM,
INCLUDING RESPONSES TO INQUIRIES FROM LEGISLATIVE OFFICES, FOR
EXAMPLE FOR INFORMATION ABOUT LEGISLATION FOR POSSIBLE
INTRODUCTION? WOULD THIS DUTY EXTEND TO STATE AGENCIES HEADED
BY CONSTITUTIONALLY CREATED ELECTED OFFICE HOLDERS?
IS THE TRAINING COORDINATION CONTEMPLATED BY THIS BILL
CONSISTENT WITH THE STATUTORY RESPONSIBILITIES OF THE COMMISSION
ON PEACE OFFICER STANDARDS AND TRAINING?
Definition of "state" agencies
This bill uses the term "state agencies" but does not define
that term. The Government Code includes a number of definitions
of state agencies, including, for example:
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Government Code Section 11000. (a) As used in
this title, "state agency" includes every state
office, officer, department, division, bureau,
board, and commission. As used in any section of
this title that is added or amended effective on
or after January 1, 1997, "state agency" does not
include the California State University unless the
section explicitly provides that it applies to the
university. (State ethics training)
Government Code Section 8548. For purposes of
this article, "state agency" means every state
office, officer, department, division, bureau,
board, and commission, including the California
State University and the University of California.
(regarding "whistleblower" act)
Government Code Section 19994.30. As used in this
chapter: . . . (b) "State" or "state agency"
means a state agency, as defined pursuant to
Section 11000, the Legislature, the Supreme Court
and the courts of appeal, and each California
Community College campus and each campus of the
California State University and the University of
California. (pertaining to smoking regulations)
It is unclear to Committee staff whether or not this bill
contemplates that state agency will or should include local
agencies or not. In proposed new Government Code Section
8402(a) this bill indicates "activities throughout the state"
without any restriction to "state agencies" but in 8402(b) there
is a delineation between "state agencies" and federal and local
agencies.
GIVEN THE NUMBER OF DEFINITIONS OF "STATE AGENCIES" IN THE
GOVERNMENT CODE, SHOULD THIS BILL INCLUDE A DEFINITION OF THAT
TERM FOR PURPOSES OF THE OSH?
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Assigning specific state security functions to state agencies
This bill includes among the OSH duties and responsibilities:
Assigning specific state security functions to
state agencies consistent with the duties and
responsibilities identified in the California
Homeland Security Strategy. These assignments may
be made by administrative order issued by the
director.
That language is also in Executive Order D-67-03. However, this
bill would enact that language in statute. While that language
does condition the assignment of consistency with the specified
strategy, it is not clear to Committee staff whether that
strategy implies prior agreement with any given agency. For
example, if the definition of state agencies in this bill
includes the Legislature, would this bill give the Director of
the OSH authority over the Sergeant-of-Arms of the Senate and
Assembly? Assuming that the Department of Justice or the
Treasurer's office is a state agency, would this bill give the
Director of the OSH authority of those agencies run by elected
constitutional officers?
IS THAT "ASSIGNMENT" OF STATE SECURITY FUNCTIONS APPROPRIATE AND
NECESSARY AS PROPOSED IN THIS BILL?
4. Furnishing State Summary Criminal History Information; and, an
Exemption to the Public Records Act
This bill proposes to authorize specified employees of the new
Office of Homeland Security by adding a new Penal Code Section
830.11 in Chapter 4.5, commencing with Section 830, of the
Penal Code pertaining to both peace officers and persons who
are not peace officers but who are granted some limited peace
officer powers, such as the power to service warrants and make
arrests. Some of those persons who are not peace officers but
who are granted those limited powers may also have access to
summary criminal information pursuant to Penal Code Section
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11105. However, Section 11105 access itself is not found in
those code sections as the sole grant of authority; it is
always part of a section which itself grants some limited
peace officer powers. For example, Penal Code Section 830.11
grants a number of state employees who are not peace officers
the power to make arrests and serve warrants and also includes
summary criminal history access. Any persons added to Article
4.5 of the Penal Code pertaining to peace officers and peace
officer powers also trigger cross-referenced sections
pertaining to those persons, as well.
This bill would grant those OHS employees only access to summary
criminal information - as well as a new exemption from the
Public Records Act exemption which itself is not a "peace
officer power" - in the new proposed Penal Code Section 830.11
which then goes on to add that those employees may not make
arrests nor serve warrants when those powers are not otherwise
granted. To the extent that this section denies peace officer
powers to those persons, there is no reason that they must be
added to Chapter 4.5 of the Penal Code to achieve the goals of
this bill.
For example, there are a number of persons (not otherwise peace
officers) who are granted access to summary criminal history
information who are included in Penal Code Section 11105 itself
or in another section in that area of the Penal Code.
As an alternative to the new proposed Section 830.15, it would
be possible to put the exemption for the Public Records Act in a
new Government Code section with the other Government Code
provisions of this bill and to add a new Penal Code Section
11105.06 as follows:
11105.06. In addition to furnishing state summary
criminal history information to the persons and
entities set forth in Section 11105 and subject to
the requirements and conditions set forth in that
section, the Attorney General shall furnish state
summary criminal history information to persons
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employed within the Office of Homeland Security whose
duties and responsibilities require the authority to
access criminal history and other intelligence
information, and who have been cleared to do so by
both the state Department of Justice and the United
States Department of Homeland Security. These
persons shall be furnished with that information on
the same basis as persons designated in paragraph (2)
of subdivision (c) of Section 11105.
A new Government Code Section 8404.1 could also be added, as
follows:
8404.1. The Office of Homeland Security shall be
considered a law enforcement organization as
required for receipt of confidential intelligence
information pursuant to subdivision (f) of Section
6254 of the Government Code by persons employed
within the Office of Homeland Security whose
duties and responsibilities require the authority
to access criminal history and other intelligence
information, and who have been cleared to do so by
both the state Department of Justice and the
United States Department of Homeland Security
SHOULD THOSE TWO NEW SECTIONS BE ADDED TO THIS BILL IN LIEU OF
THE PROPOSED NEW PENAL CODE SECTION 830.15?
5. Recommendations of the Legislative Analyst
The LAO 2005-06 analysis of the Governor's proposed budget
includes "General Government" which notes the following (pages
F-13 to F-25):
California has received almost $900 million in
federal homeland security funds, which has helped
the state start addressing homeland security
needs. The state, however, lacks a unified
strategic approach to homeland security. In
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addition, only 31 percent of the state's homeland
security funds have been spent to date. We make a
number of recommendations on how to address these
problems in the state's homeland security
approach.
***
Many State and Local Agencies Involved in Homeland
Security. Many agencies - at both the state and
local levels - are involved in California's
homeland security activities. At the state level,
the primary agencies are OHS, DHS, Emergency
Medical Services Authority (EMSA), California
Highway Patrol (CHP), Military Department, and the
Departments of Transportation, and Forestry and
Fire Protection. The OHS and DHS regularly meet
with these departments to coordinate the state's
antiterrorism activities. At the local level, the
primary agencies are the sheriffs, police, public
health, fire, emergency medical services,
hospitals, and other health-related agencies. At
the local level, the emphasis has been on updating
emergency response plans, conducting exercises,
training first responders (people who are the
first on the scene of an event), and purchasing
personal protective equipment (PPE) and medical
supplies. In addition, since 2001, state and
local agencies have been involved in a number of
joint homeland security related activities. For
example, the Military Department, in collaboration
with several different state and local agencies,
has trained over 100,000 first responders on what
to do in the event of a terrorist attack. The
OHS, through the collaboration of various law
enforcement agencies, has established the state
terrorism threat assessment and early warning
centers to gather intelligence and share
information statewide among federal, state, and
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local law enforcement agencies. In addition, DHS
has been able to design a statewide disease
reporting system and develop a statewide network
that alerts public health officials of
bioterrorism events.
***
Legislative Direction Needed
Our review found that legislative policy direction
of the state's homeland security efforts is
needed.
Lack of Statutory Framework for OHS. To date, the
state's homeland security efforts have been
directed through executive orders and budget
requests. The authority for OHS has been
primarily provided through broader emergency
authority under the Emergency Services Act (ESA).
Our review, however, found that OHS and some of
its specific duties (in particular the prevention
of disasters) are not delineated in the ESA.
Without specific statutory authority, it could be
difficult for OHS to prioritize and accomplish
some of its activities. For example, OHS
currently relies on local agencies' cooperation to
coordinate activities. There may, however, be
occasions when some local agencies do not wish to
participate or coordinate their activities.
Currently, OHS lacks the statutory authority to
require local agencies to participate in those
activities.
Legislative Funding Priorities Have Not Been
Identified. Both OHS and DHS approve state and
local grant proposals. The OHS grant funding
decisions are based on (1) priorities set by the
administration and (2) federal government
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restrictions on the use of the funds. Typically,
the administration has requested appropriation
authority for OHS funds from the Legislature after
making grant funding decisions. A better process
would allow the Legislature to provide input prior
to making the funding decisions. The DHS grant
funding decisions are based on priorities set by
the administration and state constituency groups.
In previous years, the Legislature has
appropriated a portion of the grant funding
through both the budget and other statutes to
allow more time for DHS to work with the relevant
groups to determine how funds would be spent.
Since the state's homeland security efforts lack a
statutory framework, the Legislature has never
established its priorities for the use of the
grant funds. For this reason, there may be some
legislative priorities on the use of these funds
that are not being addressed. For example, the
Legislature may consider evaluating communication
systems or assessing vulnerabilities in public
buildings a higher priority than some of the
administration's funding priorities.
Alternatively, it could decide to dedicate a
larger or smaller portion of the CDC grant funds
to local jurisdictions. (As noted earlier, CDC
does not require a certain split of funding.)
WHILE THIS BILL DOES PROVIDE A STATUTORY FRAMEWORK FOR THE
OFFICE OF HOMELAND SECURITY AND DOES RESPOND TO SOME OF THE
OVERALL CONCERNS RAISED BY THE LAO, DOES THIS BILL PROVIDE THE
LEGISLATIVE PRIORITIES MENTIONED BY THE LAO AND ADDRESS ALL OF
THE ISSUES RAISED BY THE LAO?
6. Executive Order D-67-03 (February 7, 2003)
Executive Order D-67-03 first mentions the following:
WHEREAS, in 1999, the Governor's Office of Emergency
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Services joined with federal, state and local agencies
to establish an inter-disciplinary committee known as
the State Strategic Committee on Terrorism to plan for
and develop programs to address terrorist threats; and
WHEREAS, the California Anti-Terrorism Information
Center was established on September 25, 2001 to
coordinate the exchange and assessment of information
between state and local law enforcement agencies
regarding terrorism within California. . .
That order also includes the following:
IT IS ORDERED that the State of California Office of
Homeland Security is established in the Office of the
Governor. The mission of the Office of Homeland
Security shall be to develop and coordinate the
implementation of a comprehensive state strategy to
coordinate security activities throughout California,
and to highlight the extraordinary technological
capabilities of California's private industry to help
protect all Americans.
IT IS FURTHER ORDERED that the Office of Homeland
Security shall be headed by a Director, who shall be
appointed by, and who shall serve at the pleasure of,
the Governor. The Director of the Office of Homeland
Security shall be the individual primarily responsible
for coordinating state security efforts of all
departments and agencies in the State of California and
shall be the principal point of contact for and to the
Governor with respect to coordination of such efforts.
IT IS FURTHER ORDERED that the duties and
responsibilities of the Office of Homeland Security
shall include the following:
1. Coordinating security activities throughout
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California.
2. Coordinating the activities of all state agencies
pertaining to terrorism-related issues, including, but not
limited to, all legislative issues, contact with federal and
local agencies, training, and public outreach activities.
3. Coordinating and approving all activities between
state agencies and federal agencies on topics related to
terrorism, including coordinating and approving all state
requests for federal funds designated for terrorism-related
activities, developing guidelines for all such state
requests, and approving the distribution of any federal
funds allocated to the state.
4. Serving as the principal point of contact for and to
the Governor with respect to the federal Department of
Homeland Security and all other federal and state agencies,
and legislators, on matters relating to terrorism and state
security.
5. Coordinating the review and assessment of the State of
California Emergency Plan and the California Terrorism
Response Plan, and coordinating the amendment and the
submission of those plans, through the California Emergency
Council, to the Governor for approval.
6. Assigning specific state security functions to
state agencies consistent with the duties and
responsibilities identified in the California Emergency
Plan and the California Terrorism Response Plan. Such
assignments will be made by Administrative Order issued
by the Director of the Office of Homeland Security.
7. Coordinating efforts to ensure that all state
departments and agencies that have intelligence
collection responsibilities have sufficient
technological capabilities and resources to collect
intelligence and data relating to terrorist activities
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SB 1015 (Romero)
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or possible terrorist acts within the State of
California.
7. Recommendations of the California Performance Review
The Report of the California Performance Review includes a
number recommendations pertaining to Homeland Security (starting
on page 302) including the following:
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ISSUE
In California, authority and responsibility for public
safety - law enforcement, fire and emergency
management, homeland security, and victim services are
divided among more than 80 separate state entities.
This creates confusing command structures and causes
miscommunication and inoperability between entities.
SOLUTIONS
Consolidate state government entities responsible
for public safety into a single Department of Public
Safety and Homeland Security.
There are numerous other related recommendations in the CPR
report.
8. Opposition to This Bill
The Attorney General letter dated July 8, 2005, in opposition to
this bill unless amended includes the following:
The Attorney General's Office respectfully opposes your
measure, SB 1015, unless amended. . . . While our office
supports coordinating the efforts of local, state, and
federal agencies to prevent terrorist attacks within
California, we have several concerns. First, our primary
concern is that your measure provides that the OHS will be
"responsible for coordinating efforts of all departments
and agencies" and shall "approv[e] all activities between
state agencies and federal agencies." Without a clear
definition of "agency" or "department," this language
could be interpreted as requiring the Department of
Justice to seek approval from the OHS before engaging in
law enforcement or investigative activities remotely
related to terrorism. Consequently, we believe that your
measure, as currently drafted, may violate Article V,
Section 13 of the California Constitution, which provides
that the Attorney General "shall be the chief law officer
of the State" with supervision over other law enforcement
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SB 1015 (Romero)
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officers in all matters. We suggest that SB 1015 be
amended to exclude the Department of Justice from (1)
being required to seek approval from the OHS before
engaging in activities related to investigating terrorism,
(2) needing approval to seek federal funds, and (3) being
subject to security assignments by administrative order by
the director. Moreover, in order to avoid constitutional
problems involving the separation of powers (Cal. Const.
art. III, 3), our office suggests that all
constitutional officers, the Legislature, and the
judiciary should be exempted from being subject to the
above provisions as well as Section 8404, which mandates
that all state agencies assist with furthering the
purposes of the OHS.
While we believe it is imperative to allow the Department
of Justice to continue to operate independently, our
office welcomes the opportunity to be a partner in the
coordination of the state's antiterrorism efforts with the
Governor's Office. Our office has the resources,
experience, and operating capacity to prevent terrorist
attacks and can assist in reducing the vulnerability of
the state to terrorism. Consequently, we urge amendments
that include the Department of Justice in the efforts to
prevent terrorist attacks, reduce the vulnerability of the
state to terrorism, and develop the California Homeland
Security Strategy. We believe that partnership between
the OHS and the Department of Justice will provide the
most effective means to protect our state.
In addition to our concerns regarding the grant of powers
to the OHS, we are equally concerned with the provisions
of Section 8405 of SB 1015 dealing with the public
disclosure of information. We believe that the public
disclosure of information concerning "the activities of
the office and of state and local government agencies . .
. in the area of homeland security" could jeopardize
criminal investigations and put the citizenry of the state
at greater risk. Indeed, since the definition of
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"homeland security" as provided in Section 8400 is so
broad, information on any criminal investigation could
potentially be subject to publication. Moreover, we are
concerned with how the OHS could review "activities . . .
of state and local government agencies" without creating a
mandate upon local and state agencies to disclose such
information that would otherwise be confidential.
Finally, we believe that the creation of an office with
powers as broad as the OHS should be subject to thoughtful
debate and deliberation by the Legislature. We firmly
believe that the issue of homeland security is of the
utmost importance to the citizens of California. However,
before an entirely new state agency is created that may
make redundant or interfere with the efforts of other
state agencies, including the Department of Justice, we
strongly urge you to delay the passage of this measure.
In addition, we fear that the passage of such a measure
without adequate reflection may unintentionally weaken
homeland security while negatively impacting civil
liberties by consolidating power within one agency with
little oversight. Consequently, we must respectfully
oppose your measure at this time. We look forward to
working with you.
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