BILL ANALYSIS
SB 774
Page 1
Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr., Chair
SB 774 (Ashburn) - As Amended: May 28, 2009
SENATE VOTE : 39-0
SUBJECT : Social workers: criminal history
SUMMARY : Requires counties to obtain a criminal history before
hiring a social worker assigned to child welfare services and
prohibits a county from hiring in that position a person
convicted of specified crimes. Specifically, this bill :
1)States that applicants applying for, or an employee
transferring to, a position with the county welfare department
who will have frequent and routine contact with children, if
the prospective employee will provide services to children who
are alleged victims of abuse, neglect, or exploitation, to
sign a declaration under penalty of perjury regarding prior
criminal conviction and shall provide a set of fingerprints to
the county welfare director.
2)Mandates the county welfare director to secure from DOJ a
criminal record to determine whether the prospective employee
has ever been convicted of a crime, whether state or federal,
other than a minor traffic violation. The DOJ shall provide a
state- and federal-level response to the county. The county
shall request from the DOJ subsequent arrest notification
service, for persons hired by the county for a position that
includes frequent and routine contact with children.
3)Provides that if it is found that a person has been convicted
of a crime, other than a minor traffic violation, the county
welfare director shall determine whether there is substantial
and convincing evidence to support a reasonable belief that
the person is of good character so as to justify frequent and
routine contact with children. If this finding is not made,
the county is prohibited from hiring that person.
4)Prohibits a county from hiring a person if he or she has been
convicted of assault with a deadly weapon by means of force
likely to produce great bodily injury, assault with a firearm,
willful infliction of corporal injury, a sex offense requiring
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registration, willful harm or injury to a child, assault
resulting in death of a child under the age of eight, corporal
punishment or injury of a child or any sex offense specified
as being perpetrated against a minor.
5)Allows the county welfare director to grant an exemption to
the prohibition on hiring if the prospective employee, who was
convicted of one of the specified crimes, has received a
certificate of rehabilitation. In that case, the county
welfare director may give the prospective employee an
opportunity to explain the conviction and shall consider that
explanation in the evaluation of the criminal conviction
record.
6)Permits a county to require a person to pay any fees charged
by the DOJ and an additional fee in an amount that shall not
exceed the costs to the county of administering this
subdivision.
7)Provides that the person denied a position may receive a copy
of the DOJ criminal record upon written request to the county.
8)Provides that a county may require a current employee who has
frequent and routine contact with children, if the employee
provides services to children who are alleged victims of
abuse, neglect, or exploitation, to provide fingerprints for
the purpose of obtaining a criminal record from the DOJ. If
the criminal record returns a conviction for a crime, other
than a minor traffic violation, the county welfare director
shall make the determination to determine whether there is
substantial and convincing evidence to support a reasonable
belief that the person is of good character so as to justify
frequent and routine contact with children. If the criminal
record returns a conviction for any of the specified offenses,
the employee shall, either be terminated or suspended from any
duties involving frequent and routine contact with children
unless an exemption is granted by the county welfare director.
An exemption may be granted if the employee has received a
certificate of rehabilitation. In that case, the county
welfare director may give the employee an opportunity to
explain the conviction and shall consider that explanation in
the evaluation of the criminal conviction record.
EXISTING LAW
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1)Requires all county welfare department employees who have
frequent and routine contact with children, by February 1,
1997, and all welfare department employees who are expected to
have frequent and routine contact with children and who are
hired on or after January 1, 1996, and all such employees
whose duties change after January 1, 1996, to include frequent
and routine contact with children, if the employees provide
services to children who are alleged victims of abuse,
neglect, or exploitation, to sign a declaration under penalty
of perjury regarding any prior criminal conviction, and
provide a set of fingerprints to the county welfare director.
(Welfare and Institutions Code Section 16501(k)(1)(A).)
2)Mandates the county welfare director to secure from the DOJ a
criminal record to determine whether the employee has ever
been convicted of a crime other than a minor traffic
violation. The DOJ shall deliver the criminal record to the
county welfare director. (Welfare and Institutions Code
Section 16501(k)(1)(B).)
3)Provides that if it is found that the employee has been
convicted of a crime, other than a minor traffic violation,
the county welfare director shall determine whether there is
substantial and convincing evidence to support a reasonable
belief that the employee is of good character so as to justify
frequent and routine contact with children. (Welfare and
Institutions Code Section 16501(k)(1)(C).)
4)Prohibits an employee exemption from being granted if the
person has been convicted of a sex offense against a minor, or
has been convicted of assault with intent to commit mayhem,
rape, sodomy, oral copulation, or other specified offense in
the course of first degree burglary, sexual battery, rape or
penetration of genital or anal openings by a foreign object,
corporal punishment or injury of a child, lewd or lascivious
acts, forcible acts of sexual penetration, willful harm or
injury to a child, crimes against an elder or dependent adult,
or a violent felony. The county welfare director shall
suspend such a person from any duties involving frequent and
routine contact with children. (Welfare and Institutions Code
Section 16501(k)(1)(D).)
5)Allows the county welfare director to grant an exemption if
the employee or prospective employee, who was convicted of a
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crime against an individual as specified above, has been
rehabilitated and has maintained an honest, and upright life
for at least 10 years and has the recommendation of the
district attorney representing the employee's or prospective
employee's county of residence, or if the employee or
prospective employee has received a certificate of
rehabilitation. In that case, the county welfare director may
give the employee or prospective employee an opportunity to
explain the conviction and shall consider that explanation in
the evaluation of the criminal conviction record. (Welfare
and Institutions Code Section 16501(k)(1)(E).)
6)Asks 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 Section
16206.)
7)Requires the Attorney General to 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 Section 11105 (b)(11).)
FISCAL EFFECT : Unknown
COMMENTS :
Need for this bill : According to the author, "[w]hile 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
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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 been convicted of a crime such
as child abuse, domestic abuse, etc. has shown a serious
deficiency in judgment and should not by entrusted important
duties of a social worker."
Existing law requires the counties, with the assistance of the
Department of Social Services, to provide child welfare
services, including emergency response, foster care placement,
adoption services, and family maintenance and reunification.
Under existing law, counties may secure from DOJ a criminal
record for all county welfare department employees who have
frequent and routine contact with children, if the employees
provide services to children who are alleged victims of abuse,
neglect, or exploitation. If the employee has been convicted of
a crime, other than a minor traffic violation, the county
welfare director must determine whether there is substantial and
convincing evidence to support a reasonable belief that the
employee is of good character. Existing law provides specified
crimes for which the employee must be suspended from duties
involving frequent and routine contact with children.
Mandatory background checks : This bill requires, rather than
permits, a county to secure from the Department of Justice a
criminal record to determine if the person has ever been
convicted of specified crimes before hiring an applicant for a
position with frequent and routine contact with children, if the
employee will provide services to children who are alleged
victims of abuse, neglect, or exploitation,
Prohibition from hiring : This bill prohibits the county from
employing the person under prescribed circumstances. It permits
the county welfare director to grant an exemption to such
individuals if they have obtained a certificate of
rehabilitation.
Payment for background checks : This bill allows the county to
require the person to pay any fees charged by the Department of
Justice for the processing of the criminal history and an
additional fee in an amount not more than the amount sufficient
to cover the costs to the county of administering the criminal
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record checks.
Current employees : This bill also permits a county to obtain
fingerprints from specified current employees for the purpose of
obtaining a criminal record from the Department of Justice.
This bill permits termination or suspension from any duties
involving frequent and routine contact with children of an
employee convicted of any crime, other than a minor traffic
violation, and requires termination or suspension of an employee
whose criminal record includes conviction for specified crimes,
subject to the provisions on exemptions.
Arguments in opposition : A number of concerns have been raised
with this bill, many of which are addressed through the
amendments described below.
Over-expansiveness : The National Employment Law Project (NELP)
and the American Civil Liberties Union (ACLU) argue that this
bill's lifetime bars "are unwarranted and over expansive. The
Legislature should exercise caution in adding crimes that would
bar an individual for life from working in a position they have
demonstrated fitness to hold."
This bill does, in fact, potentially bar an individual from
employment in a position for which they might otherwise be
highly qualified if they have a conviction for virtually any
crime, including misdemeanors, other than minor traffic
infractions. Should a misdemeanor or felony unrelated to the
functions and duties of a child welfare worker--for example a
shoplifting offense at age 18--potentially bar an individual
from a position as a child welfare worker decades later? The
result may be exclusion of many highly qualified individuals.
(Many former foster children, for example, do have difficulty
adjusting after emancipation, and their histories may be among
the reasons they would well-suited to work with children going
through similar experiences.)
This bill provides for the granting of an exemption to the
otherwise nondiscretionary hiring prohibition for conviction for
specified crimes if the individual has received a "certificate
of rehabilitation" under the Penal Code. NELP and the ACLU
point out, however, that some of the designated crimes may be
charged as either a felony or a misdemeanor and certificates of
rehabilitation are not available for misdemeanors. The only
remedy available to misdemeanants is dismissal or expungement
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pursuant to Section 1203.4 of the Penal Code. The California
Supreme Court has held that the statutory requirement for a
certificate of rehabilitation could not constitutionally be
applied to deny misdemeanants opportunities for employment that
are available to convicted felons. Newland v. Board of
Governors of the California Community Colleges (1977) 19 Cal.3d
705, 710-14. The Court described this as a "Kafka-like perverse
effect." NELP and the ACLU propose that an exemption based on
the remedy provided for in Penal Code Section 1203.4 be included
in this bill in the case of persons convicted of misdemeanors.
Costs of background checks : NELP and the ACLU also object to
the requirement that applicants pay the fees charged by DOJ plus
additional administrative costs. Charging every job applicant
in excess of $80 merely to submit an application does appear to
be unreasonable and unnecessary. In a time when there is a
growing shortage of relatively low-paid child welfare workers,
and many applicants are presumably unemployed at the time they
apply, this provision would likely discourage many qualified
applicants from applying.
Typically, the vast majority of applicants for any position are
not seriously considered for a variety of reasons and only a
relative handful are interviewed. If background checks were
limited to a smaller pool of applicants--e.g., potential hires
to whom a contingent offer is made or an offer is likely to be
made--the costs to the county of paying for the DOJ background
checks would be significantly reduced.
PROPOSED AMENDMENTS :
The author has reportedly agreed to the following amendments, as
author's amendments, to address most of the foregoing concerns
with this bill:
1)Limiting applicants subject to background checks and payment .
Amend Section 16501(k)(1)(B), at page 6, lines 20-32, as
follows:
(B) The If the county determines that a prospective
employee specified in subparagraph (A) is otherwise
qualified for the position applied for and is likely to
make an offer of employment, prior to making the offer, the
county welfare director shall secure from the Department of
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Justice a criminal record to determine whether the
prospective employee specified in subparagraph (A) has ever
been convicted of a crime, whether state or federal, other
than a minor traffic violation. The Department of Justice
shall provide a state and federal level response to the
county pursuant to subdivision (p) of Section 11105 of the
Penal Code. The county shall request from the Department of
Justice subsequent arrest notification service, as provided
pursuant to Section 11105.2 of the Penal Code, for persons
described in subparagraph (A) that are hired by the county
for a position that includes frequent and routine contact
with children.
Amend Section 16501(k)(3), at page 8, lines 9-13, as follows:
(3) The county may require a person to whom subparagraph
(A) (B) of paragraph (1) applies to pay any fees charged by
the Department of Justice and an additional fee in an
amount that shall not exceed the costs to the county of
administering this subdivision.
2)Providing copies of Department of Justice criminal records to
applicants :
Amend Section 16501(k)(1)(B), at page 6, lines 20-32, as
follows:
(B) The county welfare director shall secure from the
Department of Justice a criminal record to determine
whether the prospective employee specified in subparagraph
(A) (B) has ever been convicted of a crime, whether state
or federal, other than a minor traffic violation. The
Department of Justice shall provide a state and federal
level response to the county pursuant to subdivision (p) of
Section 11105 of the Penal Code. The Department of Justice
shall furnish the information to the county and shall also
send a copy of the information to the applicant. The
county shall request from the Department of Justice
subsequent arrest notification service, as provided
pursuant to Section 11105.2 of the Penal Code, for persons
described in subparagraph (A) that are hired by the county
for a position that includes frequent and routine contact
with children.
Amend Section 16501(k)(4), at page 8, lines 14-16, as follows:
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(4) A person to whom subparagraph (A) of paragraph (1)
applies who is denied a position pursuant to paragraph (1)
shall receive a copy of the criminal record upon written
request.
3)Factors in determining if an applicant is of good character so
as to justify frequent and routine contact with children .
Amend Section 16501(k)(1)(C), at page 6, lines 33-40, as
follows:
(C) If it is found that a person to whom subparagraph (A)
(B) applies has been convicted of a crime, other than a
minor traffic violation, the county welfare director shall
determine whether the crime is substantially related to the
qualifications, functions or duties of the position and, if
so, whether there is substantial and convincing evidence to
support a reasonable belief that the person is of good
character so as to justify frequent and routine contact
with children. In making this determination, the county
welfare director may consider such factors as (1) the
nature and seriousness of the conduct or crime under
consideration and its relationship to their employment
duties and responsibilities; (2) activities since
conviction, including employment or participation in
therapy or education, that would indicate changed behavior;
(3) the time that has elapsed since the commission of the
conduct or offense and the number of offenses; (4) the
extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction
lawfully imposed against the person; (5) any rehabilitation
evidence, including character references, submitted by the
person; (6) employment history and current employer
recommendations; and (7) circumstances surrounding the
commission of the offense that would demonstrate the
unlikelihood of repetition. The applicant must provide
evidence to the welfare director for consideration. If
this finding is not made it is not found that the person is
of good character so as to justify frequent and routine
contact with children , the county is prohibited from hiring
that person.
4)Specification of the specific crimes to which a prohibition
from hiring apply .
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Amend Section 16501(k)(1)(D), at page 7, lines 1-13, as
follows:
(D) The county is prohibited from hiring a person to whom
subparagraph (A) (B) applies if the person has been
convicted of an a sex offense against a minor, or has been
convicted of a felony offense specified in Section 220,
243.5, 245, 264.1, 273d, 273.5, 288, 289, or 290 of the
Penal Code, or in subdivision (a) of Section 273a of, or
subdivision (a) or (b) of Section 368 of the Penal Code, or
has been convicted of an offense specified in subdivision
(c) of Section 667.5 of the Penal Code, or a conviction for
child abuse pursuant to Section 273a, 273ab, or 273d of the
Penal Code . , or any sex offense specified as being
perpetrated against a minor .
5)Providing for an exemption in the case of persons charged with
or convicted of misdemeanors .
Amend Section 16501(k)(1)(E), at page 7, lines 14-30, as
follows:
(E) Notwithstanding subparagraph (D), the county welfare
director may grant an exemption if the prospective
employee, who was convicted of a crime specified in
subparagraph (D) has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code or
if the accusation or information against the person has
been dismissed and he or she has been released from all
disabilities and penalties resulting from the offense
pursuant to Section 1203.4 of the Penal Code . In that
case, the county welfare director may give the prospective
employee an opportunity to explain the conviction and shall
consider that explanation in the evaluation of the criminal
conviction record required pursuant to subparagraph (C).
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
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County Welfare Directors Association of California
Opposition
American Civil Liberties Union (unless amended)
National Employment Law Project (unless amended)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089