BILL ANALYSIS
SB 774
Page 1
Date of Hearing: July 7, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 774 (Ashburn) - As Amended: May 28, 2009
As Proposed to be Amended in Committee
PENDING TWO-DAY FILE NOTICE WAIVER
SUMMARY : Requires counties to obtain a Department of Justice
(DOJ) summary criminal history on applicants for or transferees
within the county welfare department who have frequent and
routine contact with children. 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 upon a determination that a prospective
employee is otherwise qualified for the position applied for
and is likely to make an offer of employment, the county
welfare director shall 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 DOJ 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 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 the crime is
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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. If this finding
is not made, the county is prohibited from hiring that person.
In making this determination, the county welfare director
shall consider: (a) the nature and seriousness of the conduct
or crime under consideration and its relationship to their
employment duties and responsibilities; (b) the time that has
elapsed since the commission of the conduct or offense and the
number of offenses; and may consider such factors as: (a)
activities since conviction, including employment or
participation in therapy or education, that would indicate
changed behavior; (b) the extent to which the person has
complied with any terms of parole, probation, restitution, or
any other sanction lawfully imposed against the person; (c)
any rehabilitation evidence, including character references,
submitted by the person; (d) employment history and current
employer recommendations; and, (e) 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 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)Prohibits the county from hiring a person convicted of a sex
offense against a minor, or has been convicted of a felony
offense specified in Penal Code Sections 220, 243.5, 245,
264.1, 273d, 273.5, 288, 289, or 290; or in Penal Code Section
273a(a); or Penal Code Section 368(a) or (b); or has been
convicted of an offense specified in Penal Code 667.5(c) of
the Penal Code; or a conviction for child abuse pursuant to
Penal Code Section 273ab or 273d.
5)Allows the county welfare director to grant an exemption if
the prospective employee, who was convicted of one of the
specified crimes, has received a certificate of rehabilitation
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. 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
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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 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 :
1)Requires all county welfare department employees who have
frequent and routine contact with children shall, 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, shall, if the employees
provide services to children who are alleged victims of abuse,
neglect, or exploitation, sign a declaration under penalty of
perjury regarding any prior criminal conviction, and shall
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
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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
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
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responsibilities. (Welfare and Institutions Code Section
16206.)
7)Requires the Attorney General (AG) 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 :
1)Background : According to information provided by 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 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."
2)Dozens of Child Protective Service (CPS) Workers in Sacramento
Found to Have Criminal Backgrounds : "Drug possession,
domestic violence, repeatedly driving drunk, assault with a
deadly weapon - any one of these charges or convictions could
lead CPS workers to remove children from a home or force a
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parent into counseling.
"But all of those crimes and many others appear in the
backgrounds of employees of Sacramento County's CPS, a Bee
investigation has found.
"A review of the agency's 969 workers employed as of Oct. 1
found that at least 68 individuals - 7 percent of the work
force - have criminal records in Sacramento County alone. The
number is likely to be even higher because some names were too
common to retrieve all criminal complaints linked to them, and
records in other counties were not searched.
"Although the county child protection agency has a policy to
perform criminal background checks on prospective employees -
and says it is alerted by the state if a current employee is
arrested - the ranks at CPS include offenders convicted of
such crimes as possession of heroin for sale, theft,
embezzlement, spousal abuse, obstructing an officer,
prostitution and identity theft.
"One county worker who was a receptionist at two CPS offices is
a registered sex offender. One social worker has a pending
court case over claims that she harassed her neighbors with
laser beams and obscene tirades. A family service worker was
charged in August with stealing gas from a county pump . . . .
"CPS workers are entrusted with Sacramento's most vulnerable
residents: abused and neglected children, living in broken
families. These workers are charged with passing judgment on
parents' fitness. They testify under oath, serving as the
eyes and ears of the juvenile court system.
" 'Just because they don't carry a gun doesn't mean they don't
exercise extraordinary power over children and families,' said
William Grimm, an attorney at the Oakland-based National
Center for Youth Law. 'Forcing them to adhere to the highest
level of conduct seems legitimate to me.'
"Some Sacramento CPS employees' arrests date back years, while
others are current. Some committed serious crimes while
working for the agency but remained on the job for months and
even years - sometimes on paid leave.
"Among The Bee's findings:
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a) "Six CPS family service workers who go into people's
homes to help families have been convicted or face charges
of drug possession, theft, embezzlement or possession of
heroin for sale.
b) "Many of the convictions are for driving under the
influence (DUI) and reckless driving, including 15 workers
who have close contact with children and families. Some of
their jobs require them to transport children to safe
locations, often in the middle of the night. Three CPS
social workers have multiple DUI convictions, including one
arrested three times between 1999 and 2005.
c) "At least 17 CPS office assistants who handle sensitive
case files have faced some of the most serious charges,
including spousal abuse, illegal weapons possession,
witness tampering, failure to provide for a child, identity
theft, grand theft, embezzlement of county resources,
welfare fraud, injury to a spouse and obstructing an
officer.
d) "Repeated arrests - even for violence - do not appear to
be an automatic impediment to CPS employment. One office
worker employed since 2001 faces spousal abuse charges in a
pending case and has previous arrests for DUI, gambling,
spousal abuse and witness tampering, court documents state.
A police report taken in that worker's 1993 spousal abuse
case states that 'he admitted association with the
Sacramento Blood Brothers, which is a violent gang.' "
[Lundstrom and Stanton, Dozens in CPS have criminal
records, Sacramento Bee (March 22, 2009) p. 1A.]
3)A Conviction May Not Serve as a Lifetime Ban to Employment : A
CPS case worker employed by Forest/Warren County Human
Services Department in Pennsylvania won back his job after
appealing his termination of employment, based upon an
aggravated assault conviction. [See Warren County Human
Servs. v. State Civ. Serv. Comm'n (Pa. Cmwlth. March 8, 2004)
No. 376 C.D. 2003.] The caseworker, Edward Roberts (Roberts),
was first hired by the Forest/Warren Department of Human
Services as a caseworker on January 2, 2001. During the job
interview process, Roberts admitted that he had pled guilty to
a felony charge of aggravated assault in 1980. As a condition
of employment, he provided a copy of his Pennsylvania State
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Police Criminal History, which corroborated his statement to
his employers regarding his 1980 guilty plea for aggravated
assault.
Roberts was an exemplary employee who successfully maintained
employment with the joint Forest/Warren County Human Service
Department until the agency disbanded on
December 31, 2001. When the new Warren County Department of
Human Services began hiring to fill its vacancies, Roberts
applied for and was rehired in 2002 as a caseworker, a
position that put him in direct contact with children. As a
condition of his employment with the new Warren County
Department of Human Services, Roberts was told that he would
be required to submit to new clearances, including a criminal
record history as required by the Child Protective Services
Law (CPSL). [See 23 Pa.C.S. 6301-6385.]
When the administrator of the Forest County Children and Youth
Services learned of Roberts' aggravated assault conviction, he
determined that Roberts' employment with the agency would be
in violation of the CPSL. [See 23 Pa.C.S. 6344(c)(2).] The
CPSL provides that if an individual's criminal history record
information reveals that an individual has been convicted of
certain provisions, that person may not be hired into a
position that involves direct contact with children. The
administrator of the Forest County Children and Youth Services
contacted the Warren County Department of Human Services to
inform them that Roberts' aggravated assault conviction was a
bar to employment under the CPSL. Warren County thereafter
terminated Roberts from his caseworker position on June 20,
2002 due to his 1980 conviction for aggravated assault.
Roberts appealed his termination to the Pennsylvania Civil
Service Commission where his termination was reversed. The
Civil Service Commission found that although Roberts'
termination was based upon the provisions of the CPSL, Warren
County failed to present evidence establishing a just cause
for his removal. The determination was based upon the
Commonwealth Court's holding in Nixon v. Department of Public
Welfare. [Pa. Cmwlth. 2001), 789 A.2d 376, affirmed, Nixon v.
Commonwealth (Pa. 2003) 576 Pa. 385.]
In Nixon, the Commonwealth Court found that the criminal records
provisions in the Older Adults Protective Services Act, which
prohibited the hiring of individuals in the elder care field
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who had at any time in the past been convicted of certain
criminal offenses was unconstitutional because there existed
no rational relationship between a lifetime ban on employment
in elder care and a legitimate governmental purpose. (Nixon
v. Department of Public Welfare, supra, 789 A.2d at 381.) The
Pennsylvania court recognized a "deeply ingrained public
policy . . . to avoid unwarranted stigmatization of and
unreasonable restrictions upon former offenders. This State
in recent years has been unalterably committed to
rehabilitation of those persons who have been convicted of
criminal offenses. To forever foreclose a permissible means
of gainful employment because of an improvident act in the
distant past completely loses sight of any concept of
forgiveness for prior errant behavior and adds yet another
stumbling block along the difficult road of rehabilitation."
(Ibid.)
This bill is dissimilar from the Pennsylvania statute in that
this bill does not create a lifetime ban: this bill allows
the county welfare director to grant exemptions to prospective
or current employees convicted of specified crimes if he or
she has received a certificate of rehabilitation. In these
cases, the county welfare director may give the prospective
employee or current employee an opportunity to explain the
conviction and shall consider that explanation in the
evaluation of the criminal conviction record.
In furtherance, an argument can be made that there is a rational
relationship between obtaining an employee's criminal history
from DOJ and a legitimate governmental purpose in protecting
children.
4)Argument in Support : None submitted.
5)Argument in Opposition : According to the National Employment
Law Project, "California faces significant reentry challenges.
With one in five adults showing a criminal record on a
background check, over seven million Californians face
potential employment barriers. Employment is vital to the
successful reentry of formerly incarcerated individuals.
California processes about 1.4 million criminal background
checks each year pursuant to state laws regulating hundreds of
occupations. While criminal background checks for employment
have expanded significantly under California laws,
insufficient attention has been paid to the fairness of the
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process and to the detrimental impact that these state laws
have on employers and the tax base when the state goes too far
in denying people with irrelevant criminal records employment.
"Studies have shown that the economic support provided by
employment reduces recidivism. Additionally, a recent study
suggests that California statutes requiring a background check
have a profound negative impact on the hiring prospects of
people with criminal records by supporting state laws, which
will improve public safety by also reducing the state's record
rates of recidivism.
"The bill would require all counties to obtain criminal history
information for all CPS workers - current and prospective -
and would prohibit anyone required to register as a sex
offender or convicted of assault, domestic violence or child
abuse from employment as a CPS worker, and would also
potentially bar applicants with convictions for any crime
other than a minor traffic offense. In its current form, the
bill does not provide an adequate opportunity for an applicant
or employee to present evidence of rehabilitation and fitness
to perform the duties of the position.
"The proposed 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.
"In order to bring the bill in line with existing laws, we
recommend the following amendments:
a) "Provide an applicant or current employee with an
opportunity to appeal adverse employment decisions by
demonstrating rehabilitation in order to obtain or retain a
position at CPS. Existing laws require agencies to review
any evidence presented that the person has been
rehabilitated for at least five years, or has received a
certificate of rehabilitation or if the conviction has been
dismissed pursuant to Section 1203.4 or 1203.4a of the
Penal Code, in making determinations about whether or not
to use specified convictions as a bar to employment.
(Please note: In its current form, the bill allows for any
crime other than a minor traffic conviction to pose a bar
to employment, which includes all misdemeanor convictions.
Therefore, in order to comply with existing law, I t is
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imperative that a dismissal/expungement pursuant to Penal
Code Section 1203.4, which is the only criminal record
remedy available to someone with a misdemeanor conviction,
be considered as evidence of rehabilitation sufficient to
overcome the bar to hiring an applicant.)
b) "Remove the provisions requiring workers to pay the
costs associated with processing a criminal history report
and the administration costs acquired by the county to
process the background checks and ongoing arrest
notifications. In the bill's current form, to apply for a
position, applicants must pay a minimum of $50 for the
Livescan process, and with no idea of how much each county
will determine their additional administration costs will
be, the fee could rise to over $100 just to apply. The
current fiscal crisis should not be used to pass on all
these costs to a job seeker facing a tough job market in
order to move the bill out of the Appropriations Committee.
c) "Automatically provide all individuals with a copy of
their criminal history record when they are denied
employment based on prior criminal conviction(s)."
REGISTERED SUPPORT / OPPOSITION :
Support
County Welfare Directors Association of California
Opposition
American Civil Liberties Union
National Employment Law Project
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744