BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 774 (Ashburn)
As Amended April 14, 2009
Hearing date: April 21, 2009
Welfare and Institutions Code
MK:br
SOCIAL WORKERS: BACKGROUND CHECKS
HISTORY
Source: Author
Prior Legislation: None
Support: California Welfare Directors Association (if amended)
Opposition:None known
KEY ISSUES
SHOULD A COUNTY BE REQUIRED TO HAVE A CRIMINAL BACKGROUND CHECK DONE
BEFORE HIRING A PERSON FOR A POSITION AS A COUNTY CHILD PROTECTIVE
SERVICE SOCIAL WORKER WHO WILL BE ASSIGNED EMERGENCY RESPONSE,
FAMILY MAINTENANCE, FAMILY REUNIFICATION, PERMANENT PLACEMENT, OR
ADOPTION RESPONSIBILITIES?
IF A COUNTY FINDS THAT A PERSON HAS BEEN CONVICTED OF SPECIFIED
OFFENSES, SHOULD THE COUNTY NOT HIRE THE PERSON OR TERMINATE A
PERSON WHO IS ALREADY EMPLOYED?
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PURPOSE
The purpose of this bill is to require a county to do a criminal
background check on people being hired to be a county child
protective service social worker who will be assigned emergency
response, family maintenance, family reunification, permanent
placement, or adoption responsibilities and to prohibit the
hiring or retention of employees who have been convicted of
specified offenses.
Existing law provides for statewide coordinated training
programs to meet the needs of county child protective service
social workers assigned to emergency response, family
maintenance, family reunification, permanent placement, and
adoption responsibilities. (Welfare and Institutions Code
16206.)
Existing law provides that the Attorney General shall maintain
summary criminal history information and shall furnish the
information to specified persons including any city or county,
city and county, district, or any officer or official thereof
if access is needed in order to assist that agency, officer,
or official in fulfilling employment, certification, or
licensing duties, and if the access is specifically authorized
by the city council, board of supervisors, or governing board
of the city, county , or district if the criminal history
information is required to implement a statute, ordinance, or
regulation that expressly refers to specific criminal conduct
applicable to the subject person of the state summary criminal
history information, and contains the requirements or
exclusions, or both, expressly based upon that specified
criminal conduct. (Penal Code 11105 (b)(11).)
This bill provides that before hiring a person for a position as
a county child protective service social worker who will be
assigned emergency response, family maintenance, family
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reunification, permanent placement, or adoption
responsibilities, the county shall secure from an appropriate
law enforcement agency a criminal history to determine if the
applicant has ever been convicted of assault with a deadly
weapon, felony spousal abuse, a registerable sex offense or
child endangerment.
This bill provides that the criminal history information shall
include the applicant's full criminal record, if any, and
subsequent arrest information.
This bill provides that the county may require the applicant to
pay any fees charged by the law enforcement agency for the
processing of the criminal history.
This bill provides that if the county finds through the criminal
history that an applicant has been convicted of one of the
listed crimes, the applicant shall not be hired.
This bill provides that if the county finds that the applicant
is awaiting trial for a crime specified, the county may cease
processing the application until the conclusion of the trial.
This bill provides that if the county determines, after hiring
an applicant, that the person has been convicted of a crime, the
county shall terminate the employee.
This bill provides that for the purposes of this chapter,
"conviction" means a plea or verdict of guilty or a conviction
following a plea of nolo contendere in any court in this or
another state. A conviction has occurred when the time for
appeal has elapsed, when the judgment of conviction has been
affirmed on appeal, or when an order granting probation is made
suspending the imposition of sentence, notwithstanding a
subsequent order to withdraw a plea of guilty or setting aside
the verdict of guilty, or dismissing the accusation, information
or indictment.
This bill provides that an applicant who is denied a position
shall be entitled to receive a copy of the criminal history
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report upon written request.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
While the vast majority of child protective service
social workers operate in a lawful and ethical
manner, we bear the responsibility of reducing the
ability of unscrupulous individuals to abuse and
neglect their charges. Individuals working in these
positions have the authority to remove children from
their home and to force parents into counseling. The
judgment of social workers is vital to the protection
of one of the state's most vulnerable populations.
It is not appropriate for individuals, who are
entrusted with such decisions, to have a history of
the very convictions on which they base their
consideration of other parents. An individual who
has be convicted of a crime such as child abuse,
domestic abuse, etc. has shown a serious deficiency
in judgment and should not be entrusted important
duties of a social worker.
2. Background Checks for County Child Protective Service Social
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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Workers
a. Mandatory background check
Under existing law, a county is permitted to
background check through the DOJ any employee to
assist in employment. This bill would require the
county to get a criminal background check before
hiring a person for a position as a county child
protective service social worker who will be
assigned emergency response, family maintenance,
family reunification, permanent placement or
adoption responsibilities. The criminal background
check will include the ability to get subsequent
arrest information. The criminal background check
is intended to determine if the person has been
convicted of assault with a deadly weapon, felony
spousal abuse, a registerable sex offense, or child
abuse.
SHOULD THE MANDATORY BACKGROUND CHECK BE LIMITED TO THOSE WHO
ACTUALLY HAVE ACCESS TO CHILDREN IN THEIR JOBS?
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b. Prohibited from hiring
This bill provides that if an applicant has been
convicted of one of the specified crimes, then the
county may not hire the applicant. If the
applicant is awaiting trial on any of the specified
crimes, the county may stop processing the
application.
SHOULD THE COUNTY BE PROHIBITED FROM HIRING A PERSON CONVICTED
OF ONE OF THE SPECIFIED OFFENSES?
c. Termination required
This bill provides that if after hiring an
applicant, the county determines that a person has
been convicted of one of the listed offenses, the
county shall terminate the employee. It is not
clear whether this bill is intended to require the
background check of all current employees. If it
is intended to apply to current employees, who may
or may not have had a background checked when they
were hired, should any consideration be given to
how long ago the crime was or how they have
performed their responsibilities while they have
been employed?
SHOULD A COUNTY BE REQUIRED TO TERMINATE AN EMPLOYEE WHO HAS
BEEN CONVICTED OF ONE OF THE CRIMES?
IF THE BILL IS INTENDED TO APPLY TO CURRENT EMPLOYEES, SHOULD
THE FACT THAT THE CRIME WAS COMMITTED A LONG TIME AGO AS WELL AS
HOW THE PERSON HAS PERFORMED HIS OR HER DUTIES BE TAKEN INTO
CONSIDERATION?
3. DOJ Amendments
The DOJ has given the author some amendments necessary to make
the provisions of this bill technically correct. Because this
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bill is double referred to the Human Services Committee, the
author plans to take those amendments in that Committee.
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