BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1055 (Ashburn) 5
As Introduced February 16, 2010
Hearing date: April 6, 2010
Government Code
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STATE CHIEF INFORMATION OFFICER:
FINGERPRINTS CRIMINAL HISTORY
HISTORY
Source: Office of the State Chief Information Officer
Prior Legislation: None
Support: Unknown
Opposition:California Teamsters Public Affairs Council;
California Conference of Machinists; International
Longshore and Warehouse Union; UNITE-HERE; California
Conference Board of the Amalgamated Transit Union;
United Food and Commercial Workers Western States
Council; Professional and Technical Engineers, Local
21, IFPTE, AFL-CIO; Engineers & Scientists of
California, Local 20, IFPTE, AFL-CIO; Legal Services
for Prisoners with Children; American Civil Liberties
Union
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KEY ISSUE
SHOULD THE STATE CHIEF INFORMATION OFFICER BE PERMITTED TO
REQUIRE CRIMINAL BACKGROUND CHECKS OF AN EMPLOYEE, PROSPECTIVE
EMPLOYEE, CONTRACTOR, SUBCONTRACTOR, VOLUNTEER OR VENDOR WHOSE
DUTIES INCLUDE ACCESS TO CONFIDENTIAL OR SENSITIVE INFORMATION?
PURPOSE
The purpose of this bill is to provide for criminal background
checks by the State Chief Information Officer for employees,
contractors, volunteers and vendors.
Existing law 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 access to such record by statute. (Penal Code
11076)
Existing law provides that the Attorney General is responsible
for the security of criminal offender record information.
(Penal Code 11077)
Existing law provides that the Attorney General shall maintain
summary criminal history information and shall furnish the
information regarding an employee or applicant including
specified organizations to whom the Attorney General shall
supply information regarding every conviction rendered against
the applicant as well as every arrest for which the applicant is
presently awaiting trial. (Penal Code 11105(p))
Existing law provides that there is in state government the
office of the State Chief Information Officer. The State Chief
Information Officer shall be appointed by, and serve at the
pleasure of, the Governor, subject to Senate confirmation. The
State Chief Information Officer shall be a member of the
Governor's cabinet. (Government Code 11545)
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This bill provides that the State Chief Information Officer may
require fingerprint images and associated information from an
employee, prospective employee, contractor, subcontractor,
volunteer, or vendor whose duties include, or would include,
access to confidential or sensitive information.
This bill provides that the fingerprint images and associated
information may be furnished to the Department of Justice for
the purposes of obtaining information as to the existence and
nature of a record of state or federal convictions and the
existence and nature of state or federal arrests for which the
person is free on bail or on his own recognizance pending trial
or appeal. Requests for federal criminal offender record
information received by the Department of Justice pursuant to
this section shall be forwarded to the Federal Bureau of
Investigation by the Department of Justice.
This bill provides that the Department of Justice may charge a
fee and shall respond to the State Chief Information Officer
with information as provided under Penal Code Section 1105(p).
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
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"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
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state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
1. Need for This Bill
According to the author:
The Office of the State Chief Information Officer (OCIO)
is engaged in an IT infrastructure consolidation effort
that will achieve ongoing GF savings, increase the
reliability of the state's IT infrastructure, and
bolster the security of confidential information. This
initiative adheres to the principles found within the
Legislature approved GRP 1 (2009) and the Governor's
Executive Order S-03-10. This initiative cannot be
completed without the ability to consolidate various
state agencies' IT infrastructure within the state's
data center. To date, the data center maintenance and
operations is completed with non-background checked
personnel. Without the statutory authority to ensure
current and future employees adhere to a required level
of background check verification, the OCIO will be
unable to consolidate departments such as CDCR, HHSA,
the CA State Lottery, FTB, DMV or any other agency that
is bound by federal or state background check
regulations. This legislation seeks to provide this
authority for those positions that would have access to
confidential information, approximately 400 employees
out of 1300 OCIO wide.
2. The Office of the State Chief Information Officer
According to the website for the Office of the State Chief
Information Officer:
The Office of the State Chief Information Officer (OCIO)
- The OCIO is a cabinet-level agency, responsible for
establishing and enforcing information technology (IT)
strategic plans, policies, standards and enterprise
architecture, and the IT project review, approval, and
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oversight program.
The Office of Information Security (OIS) - The OIS is an
Office within the OCIO and is responsible for the
promotion and protection of consumer privacy, and the
creation, issuance, and maintenance of information
security and privacy policies, standards, and procedures
directing state agencies to effectively manage security
and risk, as defined in Section 11549.3 of the
Government Code.
3. Background Check for Employees and Contractors of the Office
of the State Chief Information Officer
This bill provides that the State Chief Information Officer may
require an employee, prospective employee, contractor,
subcontractor, volunteer or vendor whose duties include access
to confidential or sensitive information. The background check
information received by the Office of the State Chief
Information Officer from the Department of Justice would include
every conviction and every arrest for which the applicant is
awaiting trial. The bill does not expressly prohibit the hiring
of a person or contractor convicted of a crime.
4. Appropriate Level of Background Check
Under existing law, over a period of many years, the Legislature
has created different categories of what criminal background
check information can be released based on the employment,
licensing or volunteer position the person is applying for. The
question for the Committee is whether the level of background
check in this bill is appropriate for the employees and
contractors of the Office of the State Chief Information
Officer.
The persons contemplated to be required to get background checks
under this bill would have access to confidential or sensitive
information. The question is whether this type of position
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requires that an employer know the person had an old conviction
for something like a DUI, or whether these positions are more
analogous to financial institution positions where background
checks include a narrower list of offenses related to financial
crimes. When an employee of a bank or similar institution has a
criminal background check, the convictions that are returned to
the employer are the commission or attempted commission of a
crime involving robbery, burglary, theft, embezzlement, fraud,
forgery, bookmaking, receiving stolen property, counterfeiting,
or involving checks or credit cards or using computers. (Penal
Code 11105(o) and Financial Code 550)
The opposition to this bill is concerned about the increasing
number of fingerprints that the State of California will collect
under this bill, and the privacy rights that this infringes.
Perhaps a narrower release of information tailored more closely
to the requirements of the job would help alleviate some of
their concerns, assuming it can still comply with the goals of
the stated need for this legislation.
WHAT IS THE APPROPRIATE LEVEL OF BACKGROUND CHECK FOR AN
EMPLOYEE OR CONTRACTOR OF THE STATE CHIEF INFORMATION OFFICER?
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