BILL ANALYSIS
SB 447
Page 1
Date of Hearing: June 16, 2009
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 447 (Yee) - As Amended: April 21, 2009
SUMMARY : Requires the Department of Justice (DOJ) to establish
and maintain a confirmation program to process fingerprint-based
criminal record background clearances on individuals designated
by an agency as a custodian of records. Specifically, this
bill :
1)Requires every agency to designate at least one custodian of
records.
2)Defines "custodian of records" as the individual designated by
an agency as responsible for the security, storage,
dissemination and destruction of the criminal records
furnished to the agency and who serves as the primary contact
for the DOJ on any related issues.
3)Defines "agency" as any public or private entity that receives
criminal history information from the DOJ.
4)Provides that, commencing July 1, 2011, no person shall serve
as an agency custodian of records unless confirmed by the DOJ.
5)Exempts from the requirements of this section criminal justice
agency personnel who have undergone a state and federal
criminal background check.
6)States that the DOJ shall charge a fee of $30 to include the
costs of the confirmation program in addition to a fee
sufficient to include the cost of processing the appropriate
state and federal level criminal record background check.
7)Requires each agency subject to this section to submit to the
DOJ the fingerprint images and related information of the
individual or individuals designated by the agency to serve as
the custodian or custodians of records, along with the
SB 447
Page 2
appropriate fees and documentation. States that the DOJ shall
retain one copy of the fingerprint impressions to process a
state-level criminal background check, and DOJ shall submit
one copy of the fingerprint impressions of each individual to
the Federal Bureau of Investigation to process a federal-level
criminal record background check.
8)Requires that every person confirmed as a custodian of records
shall be at least 18 years of age and shall have completed and
submitted a written application prescribed by the DOJ.
9)States that prior to confirming an individual as a custodian
of records, the DOJ shall determine that the applicant
possesses the required honesty, credibility, truthfulness, and
integrity to fulfill the responsibilities of the position.
10)Provides that the DOJ shall not confirm any individual who
has been convicted of a felony offense or any other offense
that involves moral turpitude, dishonesty, or fraud, or that
impacts the applicant's ability to perform the duties or
responsibilities of a custodian of records. Further states
that a confirmation shall be revoked if, at any time, the
individual is convicted of any such offense.
11)States that the DOJ may refuse to confirm any individual as a
custodian of records or revoke or suspend the confirmation of
any custodian of records if the individual has done any of the
following:
a) Made a substantial and material misstatement or omission
in the application submitted to the DOJ;
b) Been convicted of any offense of a nature incompatible
with the duties of a custodian of records;
c) Failed to discharge fully and faithfully any of the
duties or responsibilities required of a custodian of
records;
d) Been adjudged liable for damages in any suit grounded in
fraud, misrepresentation, or in violation of the state
regulatory laws, or in any suit based upon a failure to
discharge fully and faithfully the duties of a custodian of
records,
SB 447
Page 3
e) Committed any act involving dishonesty, fraud, or
deceit; or,
f) Failed to submit any remittance payable upon demand by
the DOJ under this section or failed to satisfy any
court-ordered money judgment, including restitution.
12)Provides that the agency shall immediately notify the DOJ
when the designated custodian of records no longer serves in
that capacity. Requires the agency, by March 1, 2012 and by
March 1 each year thereafter, to notify the DOJ on a form
provided by DOJ, of the individual or individuals currently
serving in the capacity of custodian of records.
EXISTING LAW :
1)Defines "criminal offender record information" as records and
data compiled by criminal justice agencies for purposes of
identifying criminal offenders and of maintaining as to each
such offender a summary of arrests, pretrial proceedings, the
nature and disposition of criminal charges, sentencing,
incarceration, rehabilitation, and release. [Penal Code
Section 11075(a).]
2)States that such information shall be restricted to that which
is recorded as the result of an arrest, detention, or other
initiation of criminal proceedings or of any subsequent
proceedings related thereto. [Penal Code Section 11075(b).]
3)Provides that criminal offender record information shall be
disseminated, whether directly or through an intermediary,
only to such agencies as are, or may subsequently be,
authorized to access to such record by statute. (Penal Code
Section 11076.)
4)Provides that the Attorney General is responsible for the
security of criminal offender record information. (Penal Code
Section 11077.)
5)Provides, by regulation, that record checks shall be conducted
on all personnel hired after July 1, 1975, who have access to
criminal offender record information. [California Code of
Regulations (CCR), Title 11, Division 1, Chapter 7, Article 1,
Section 703(d).]
SB 447
Page 4
6)Provides that the DOJ shall maintain summary criminal history
information and shall furnish the information to specified
persons and agencies. (Penal Code Section 11105.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Around 36,000
youth organizations and human resource agencies work with
children and vulnerable populations in California, and are
therefore required to conduct criminal background checks.
These include groups such as the Boy Scouts and youth soccer
leagues. Agencies that are required to conduct criminal
background checks of their members also must designate a
person to function as the 'Custodian of Records' to review the
background checks and assess if a person's criminal history
poses a potential danger to the population the agency serves.
"However, there is a loophole in the law - the Custodian of
Records also reviews his or her own criminal record that is
sent to the group by DOJ. Potentially, a person holding the
position of Custodian of Records for an organization could be
convicted of a violent crime or crimes against children, and
still approve himself or herself for a position within the
organization, while others in the agency are unaware of the
applicant's criminal history.
"SB 447 will create a program in which the DOJ will review the
criminal record information for Custodian of Records
applicants and confirm that an individual is suited for the
position. The DOJ will ensure that the people appointed to
this position do not have a felony or any offense involving
moral turpitude, dishonesty, or fraud. This bill would not
prevent any person's involvement in these organizations, just
their appointment to the position of Custodian of Records.
"The program will operate similar to the DOJ Fingerprint Rolling
Certification Program, and will be funded by a $30 fee for all
Custodian of Records applicants."
2)Confirmation Process for Custodians of Records : Under
existing law, if specified employees of a public or private
entity must obtain a criminal background check through the
SB 447
Page 5
DOJ, those records are sent to the designated custodian of
records at that entity. However, the law does not provide for
a process to assure that the custodian of records is an
appropriate person to have access to such sensitive criminal
history information and to be responsible for its storage,
dissemination, and destruction.
This bill requires the DOJ to establish, implement, and maintain
a confirmation program for the custodian of records of
entities that require DOJ background checks. The custodian of
records will be required to have a federal and state
background check. The person will not be confirmed as the
custodian of records, or will have his or her confirmation
revoked, if he or she has been convicted of a felony or any
other offense that involves moral turpitude, dishonesty, or
fraud, or any offense that impacts the applicant's ability to
do the job of custodian of records. Under this bill, the
person may not be confirmed, or may have his or her
confirmation revoked, if he or she has made a substantial and
material omission in the application; has been convicted of an
offense that is not compatible with his or her duties; and for
other specified reasons generally related to acts of fraud,
dishonesty and misrepresentation.
3)Are the Reasons for Denial of an Application to Be a Custodian
of Records Sufficiently Specific to Assure Uniform Application
of This Law ? Would an ordinary, reasonable person know what
offenses are of a nature incompatible with the duties of a
custodian of records? Should this bill establish criteria for
determining the type of offenses incompatible with the duties
of a custodian of records? Similarly, is it clear to a
defendant in a civil lawsuit that the damages awarded were due
to a violation of the state regulatory laws?
"A statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due process of
law. Vague laws may trap the innocent by not providing fair
warning. Moreover, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit
standards for those who apply them. [T]he prohibition against
vagueness extends to administrative regulations affecting
conditions of governmental employment as well as to penal
statutes." [Cranston v. City of Richmond, (1985) 40 Cal. 3d
SB 447
Page 6
775, hn. 4 and 5.]
Are these provisions of this bill so vague as to cause persons
of ordinary intelligence to differ as to their application?
Do these provisions constitute a lack of specificity such that
an applicant for a custodian of records position is likely to
inadvertently make a substantial and material misstatement or
omission in the application submitted to the DOJ in violation
of this bill's Penal Code Section 11102.2(g)(1)? In the
terminology used by the Cranston Court, do these provisions
trap the innocent by not providing fair warning or fail to
provide explicit standards for those who apply them? (Id.)
Penal Code Section 11102.1, enacted in 2002, would immediately
precede this bill if this bill is enacted into law. Although
Penal Code Section 11102.1 contains similar language to that
of this bill, that section also contains a provision that the
DOJ may adopt regulations as necessary to implement the
provisions of that section. Should this bill have a provision
that allows the DOJ to enact "explicit standards" for those
who apply them? [Cranston, supra.]
4)Arguments in Support :
a) The Attorney General of California (the sponsor of this
bill) states that this bill "will close a security gap that
could potentially result in an individual with a
disqualifying criminal record being placed in a position of
trust as an agency custodian of records. [T]he laws
requiring fingerprint based criminal offender record
information (CORI) searches have long been based on the
premise that persons with certain criminal convictions
shall not be placed in specified positions of trust.
Currently, the CORI response to determine the eligibility
of the agency's Custodian of Records position is being
returned to the Custodian of Records applicant.
Potentially, an applicant for a Custodian of Records
position could be convicted of a violent crime or crimes
against children and approve himself or herself for the
Custodian of Records position, while others in the agency
are unaware of the applicant's criminal history. The
Custodian of Records would be able to access the CORI for
other individuals applying to serve in positions of trust
within the organization. In this example, the Custodian of
Records is a benefactor of an undeserved public trust, and
SB 447
Page 7
those impacted may be the children served by the agency."
b) The California Coalition Against Sexual Assault states,
"SB 447 makes sense. Professionals designated by an agency
as the custodian of records should have criminal background
checks. [S]B 447 also requires agencies to designate a
custodian of records and to annually notify [the DOJ] as to
the identity of this professional."
c) The American Federation of State, County, and Municipal
Employees, AFL-CIO (AFSCME) states, "Custodians of Records
review the criminal histories of people who work within
youth-based organizations to see if they pose a threat to
the constituency the agency serves. Currently, the
Custodians of Records check their personal criminal
history. Requiring the DOJ to assess the Custodians'
criminal history ensures they are qualified to be a
Custodian. AFSCME supports SB 337 because it increases the
oversight of Custodians of Records to be sure they lack a
threatening criminal history and are therefore qualified
for the position."
d) The Child Abuse Prevention Center states, "In order to
adequately protect children, we must ensure that the
Custodian of Records is not the only person to review their
own criminal record. This bill will simply ensure that
staff with a criminal history that could present a danger
to children does not slip through the cracks."
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General of California (Sponsor)
American Federation of State, County,
and Municipal Employees, AFL-CIO
California Coalition Against Sexual Assault
California Peace Officers' Association
California Police Chiefs Association
Child Abuse Prevention Center
Crime Victims United of California
Los Angeles County District Attorney's Office
Opposition
SB 447
Page 8
None
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744