BILL ANALYSIS
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|Hearing Date:April 20, 2009 |Bill No:SB |
| |202 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 202Author:Harman
As Introduced: February 23, 2009 Fiscal: Yes
SUBJECT: Private investigators: continuing education.
SUMMARY: Requires licensed private investigators, as a condition
of license renewal, to complete 12 hours of continuing education
(CE) in privacy rights, professional ethics, recent legal
developments relating to private investigators, and other subjects
related to private investigators. Requires the Private
Investigator (PI) to submit to the Bureau of Security and
Investigative Services a sworn statement of completion of the CE.
Requires retention of specified CE records by providers and
licensees and requires providers to follow certain specified
standards. Raises the license fee to $195 and the license renewal
fee to $145.
Existing law:
1)Provides for the licensure and regulation of Private
Investigators by the Bureau of Security and Investigative
Services (Bureau) within the Department of Consumer Affairs
(DCA).
2)Defines a "private investigator" as a person who, for any
consideration, provides protective (bodyguard) services or who
makes any investigation for the purpose of obtaining information
regarding specified types of information including crimes,
information about persons, the location of lost or stolen
property, the cause or responsibility for fires or damage or
injury to persons or property, securing evidence for judicial
proceedings, or information regarding employees' integrity,
honesty, breach of rules or other standards of job performance.
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3)Requires an applicant for licensure as a PI to:
a) Be 18 or older;
b) Undergo a criminal history background check through the
Department of Justice and the Federal Bureau of
Investigation;
c) Have three years (2,000 hours each year, totaling 6,000
hours) of compensated experience in investigative work; or a
law or police science degree plus two years (4,000 hours) of
experience; or an AA degree in police science, criminal law,
or justice and 2 years (5,000 hours) of experience. The
experience must be certified by the employer and have been
received while the applicant was employed as a sworn law
enforcement officer, military police officer, insurance
adjuster, employee of a licensed PI or repossessor, arson
investigator for a public fire suppression agency, or
employed by a public defender.
d) Pass a two-hour multiple choice examination covering laws
and regulations, terminology, civil and criminal liability,
evidence handling, undercover investigations and
surveillance.
e) Pay an application and examination fee not to exceed $50,
and a license fee not to exceed $175 (currently set through
regulation at the $175 statutory maximum).
4)Provides that a PI license is valid for two years and requires
the licensee to pay a renewal fee of not more than $125
(currently set through regulation at the $125 statutory
maximum).
5)Establishes the Private Investigator Fund (Fund), as a separate
"special fund" for the receipt of all revenue generated under
the PI licensing law. Requires that all money in the Fund be
expended in accordance with the law by the Bureau for the
purpose of carrying out the provisions of the PI licensing law
when appropriated by the Legislature.
6)Provides that the Bureau shall consider requiring, and may
require, an applicant for initial licensure to submit proof of
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satisfactory completion of a course in professional ethics, and
may specify which courses and course providers satisfy the
requirement.
7)Provides that if the Bureau determines that a separate
professional ethics examination is necessary, the bureau shall
require that current licensees take the separate professional
ethics examination if appropriate.
This bill:
1)Requires licensed PIs, as a condition of license renewal,
beginning on or after January 1, 2013, to complete 12 hours of
continuing education in specified subjects; two hours on privacy
rights, two hours on professional ethics, two hours on recent
legal developments relating to private investigators, and six
hours on any subject relating to private investigators.
2)Licensees renewing their licenses during 2012 would only be
required to complete 6 hours of CE in specified subjects; two
hours on privacy rights, two hours on professional ethics, and
two hours on recent legal developments relating to private
investigators.
3)Requires a licensee to submit to the DCA a signed statement with
the license renewal application attesting that he or she has
completed the specified continuing education requirements.
4)Requires a licensee to maintain copies of certificates
demonstrating completion of required CE courses for five years.
5)Authorizes the DCA to suspend, for 60 days, the license of a PI
for failure to comply with the CE requirements, and revoke the
license at that time unless the required CE is completed and
documented.
6)Authorizes DCA to audit the records of any licensee to verify
completion of the continuing education requirement.
7)Exempts from the mandatory continuing education requirements:
a) Licensed individuals at least 70 or older who have been
licensed in good standing for a minimum of 25 consecutive
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years.
b) Inactive licensed investigators, defined as a licensee who
has informed the DCA that he or she will not be performing
activities that require licensure, and who does not perform
such activities. Permits an inactive licensed investigator
to become an active licensee upon payment of the regular
renewal fee and submitting to the DCA a signed statement of
completion of the specified 12 hours of required continuing
education.
8)Requires the DCA to develop a procedure for approving CE
providers (CEPs), convene a review panel to consult with to
assist the DCA in its consideration and approval of CEPs and
course content, and develop criteria for CEPs and CE courses.
9)Requires CEPs to obtain DCA approval to provide required CE
courses, submit a course description and curriculum vitae of
course instructors for review and approval by DCA, maintain a
record of course sign-in forms, sign-out forms, student
enrollment, copies of certificates of completion, and course
outlines for a period of five years, and agree to audits
performed by DCA.
10)Authorizes the DCA Director to revoke or deny the right of a
CEP to offer the required PI CE courses for failure to comply
with any of these requirements.
11)Specifies that a renewal applicant, or an inactive licensee
applying for an active license, who is required to sign a
statement attesting to their compliance with the continuing
education requirements of this bill, who knowingly signs a false
statement is subject to a civil penalty of up to $10,000 and
license suspension for up to one year. Any public prosecutor
may bring the civil action.
12)Increases the maximum limit for initial license fees from $175
to $195 and for renewal license fees from $125 to $145.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
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COMMENTS:
1.Note : Last Year's SB 1282 (Margett). This bill is a
reintroduction of last year's
SB 1282 (Margett) which was one of an unprecedented number of
bills that were vetoed by the Governor citing the delay in
passing the Budget. That bill passed this Committee on a 9-0
vote.
2.Purpose. This bill is sponsored by California Association of
Licensed Investigators (CALI). According to the bill Sponsor
many laws have changed since a majority of PIs received their
license. The Author states that this bill will help make certain
that PIs have received training on the new laws which affect
their profession. This bill seeks to ensure the public has some
assurances that a PI knows relevant laws and regulations.
3.Background. Currently there are over 25 classes of professions
or occupations licensed by the various licensing boards and
bureaus within the DCA that are required to complete CE courses
related to their profession. However, private investigators
currently are not required to take any CE as a condition of
license renewal. Requiring mandatory CE for license renewal is
justified when it is considered necessary in order to maintain a
licensee's minimal satisfactory level of competence in his or
her occupation.
4.Prior Legislation. In addition to last year's SB 1282
(Margett), in 2001, the Assembly versions of AB 761 (Maddox,
Chapter 309, Statutes of 2001) contained provisions similar to
this bill that would have required 14 hours of mandatory CE for
renewal of a PI license. That bill was amended in this
Committee to delete those requirements and instead enact the
current statutory requirements that the Bureau consider
including privacy and ethics questions on the PI licensing exam,
requiring a separate professional ethics exam, and requiring
applicants for new licenses to complete a professional ethics
course. To date the Bureau has not utilized these provisions.
5.Other Pending Legislation. SB 741 (Maldonado), which will also
be heard at this hearing, would extend the BSIS authority to
regulate proprietary security guards.
6.Committee Fee Bill Worksheet. Included with this analysis is a
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"Fee Background Information Questionnaire" which is to be
completed by the Author's office and the Board requesting a fee
increase. This Questionnaire is required by the Committee to
justify any fee increases and provide background information on
requested fee increases by the boards under DCA. The
Questionnaire is to include fund condition statements displaying
five years of actual and five years of projected expenditures
and revenues with (a) current statutory maximum fee amounts and
(b) proposed statutory maximum fee amounts. It also is to
include a schedule of fee revenue by various fee "categories"
displaying five years of actual and five years of projected
revenue based on (a) current fees and (b) proposed fees and
includes the workload (e.g., number of licensees) and fee
charged per category. It is to provide a schedule displaying
two years of expenditures by program component, such as
application review, examination, enforcement, administration and
other licensing activities for each licensing category. It is
to provide a table of comparison of existing and proposed fees
which includes the
percentage by which the fee will change. Lastly, it should
provide the history for the past 10 years of legislative fee
increase authorizations.
The attached Worksheet shows that the proposed fee will increase
the license and renewal fee by $20 each. The authorized initial
licensure fee would increase from $175 to $195 and authorized
license renewal fee will increase from $125 to $145. This
constitutes an 11.5% and a 16% fee increase respectively. The
worksheet states that the fee will cover all operating expenses
associated with the CE program. The worksheet shows an estimate
that the fee increase would generate $100,000 a year in revenue.
The current fees have been set at $175 and $125 since 1993.
The worksheet did not provide all of the requested information,
including: (1) a completed fund condition statements with 5
years of actual and 5 years of projected expenditures and
revenues showing the current and proposed maximum fees; (2 a
completed schedule of revenue by various fee categories with 5
years of actual and 5 years of projected revenue displaying the
workload per category; (3) a completed schedule displaying 2
years of expenditures by program component (such as application
review, examination, enforcement, administration, and other
regulatory activities) for each fee category.
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7.Arguments in Support. The California Association of Licensed
Investigators, Inc ., (CALI) forwarded 130+ letters from various
private investigation corporations, individual licensed
investigators, and lawyers expressing support of this bill. The
backers argue that: (1) many new laws affecting PIs have been
passed; (2) there is currently no law mandating CE for PIs; and,
(3) PIs should be educated in the new laws.
According to CALI and other supporters, there are significant legal
changes which cover, among other things, the protection of sensitive
personal information, prohibitions against false impersonation to
obtain information, and measures to prevent identity theft. Since
most PIs received their licenses prior to the passage of these new
laws, CALI argues that CE is needed to make investigators aware of
ongoing evolution of the law. CALI argues that CE on the law and
other topics, as required by this bill, will result in better
trained investigators, benefiting the public by giving it some
measure of assurance that the PI knows relevant laws.
8.Arguments in Opposition. Capitol City Investigations and
numerous individual private investigators state their opposition
to SB 202 due to poor economic timing, no recognition of law
enforcement experience or training, there is no recognized
problem being addressed, the bill might cause revenue
short-falls, similar bills were vetoed in the past, and general
problems in DCA. The opposition also expresses concern that
there are conflict of interest issues with the Sponsors of the
bill.
The Federal Defender for the Eastern District of California also
states that there are conflict of interest issues with this bill
and policy issues which the Federal Defender believes have not
been adequately considered by the bill's Sponsor. Further, the
Federal Defender argues that this bill will add costs not
covered by the increase in licensure fees.
9.Policy Considerations.
a. Is there a need for the proposed mandatory CE? The
arguments for the bill focus on informing PIs so that they
will be knowledgeable on the current laws regarding
confidentiality of certain information, ethical standards,
and current information. However, the proponents have not
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clearly documented the harm that consumers encounter without
a mandatory continuing education requirement for licensees.
In addition, the Bureau already has authority under current
law enacted by AB 761, in 2001, to consider including
additional requirements regarding privacy laws and
professional ethics for PI licensing if needed. Why is that
authority insufficient?
A mandatory continuing education requirement would generate
unspecified costs to licensees and generate corresponding
revenues to continuing education providers, which typically
are educational institutions and professional associations.
The Bureau would also incur costs in establishing continuing
education standards and tracking licensee compliance. What
is the demonstrated need to mandate continuing education?
The proponents should address the justification for, cost,
and availability of such continuing education before going
forward with a continuing education proposal.
It may be useful to draw a distinction between continuing
education that is undertaken voluntarily by conscientious,
motivated practitioners, versus continuing education that is
undertaken involuntarily by unwilling or unmotivated
practitioners. While continuing education seems intuitively
to be highly beneficial to licensees and the consumer public,
there is no empirical evidence that demonstrates a clear
conjunction between a continuing education mandate and
improved practitioner competence.
b. Added workload on the Bureau. The bill imposes a number
of requirements on the Bureau to implement and then
administer the proposed new CE program. Whether the proposed
increases in the initial and renewal license fees will be
sufficient to cover the added workload on the Bureau is
unknown at this time. The Sponsor points out that the
proposed CE program is modeled after that used by the State
Bar for attorneys and attempts to minimize the burden on the
Bureau by simply having the licensees and the CE providers
maintain documentation of completion of the required CE, and
having the licensees submit a signed statement attesting that
they have completed the required CE. Then the Bureau would
only need to perform spot checks to assure the integrity of
the program.
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c. Costs associated with Implementing the Program. Although
the Sponsor claims that the increase in fees associated with
licensure will cover any additional costs to the Bureau,
opponents claim the opposite; the new fees will not cover the
added expenditure to the tune of over $100,000.
d. Long-term Licensees are Grandfathered. This bill has a
large carve-out for PIs who are over 70 years in age and have
been licensed for over 25 years. It is
unclear why this exception is included in the bill and why
long-term licensees over 70 with 25 years of licensure would
not benefit from the CE.
e. No Assurances of Quality Education. Requiring that
licensees attend CE does not ensure that they understood the
material presented. This bill does not mandate any
certification or testing.
SUPPORT AND OPPOSITION:
Support:
California Association of Licensed Investigators (Sponsor)
Adelanto Committee of Los Angeles
National Organization for Women, San Fernando Valley/Northeast Los
Angeles
Privacy Rights Clearinghouse
Numerous Individuals
Opposition:
Capitol City Investigations
Office of the Federal Defender, Eastern District of California
Numerous Individuals
Consultant:G. V. Ayers/Michael Stanley
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