BILL ANALYSIS �
AB 355
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Date of Hearing: March 15, 2011
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 355 (Solorio) - As Introduced: February 10, 2011
SUMMARY : Repeals existing authorization for the California
Department of Corrections and Rehabilitation (CDCR) to obtain
day treatment, and to contract for crisis care services for
parolees with mental health problems.
EXISTING LAW :
1)Authorizes CDCR to obtain day treatment, and to contract for
crisis care services, for parolees with mental health
problems. Day treatment and crisis care services should be
designed to reduce parolee recidivism and the chances that a
parolee will return to prison. The department shall work with
counties to obtain day treatment and crisis care services for
parolees with the goal of extending the services upon
completion of the offender's period of parole, if needed.
(Penal Code Section 3073.)
2)Mandates that participating county matching funds for projects
funded, as specified, must be a minimum of 25% of the total
project costs. The Corrections Standards Authority (CSA) may
reduce matching fund requirements for participating counties
with a general population below 200,000 upon petition by a
participating county to the CSA requesting a lower level of
matching funds. �Government Code Section 15820.917(a).]
3)States that the CDCR and CSA shall give funding preference to
counties that assist California in siting reentry facilities,
as specified. �Government Code Section 15820.917(b).]
4)Requires CDCR to give funding preference to counties that
assist California in siting mental health day treatment and
crisis care, pursuant to existing law and to counties who
provide a continuum of care so that parolees with mental
health and substance abuse needs can continue to receive
services at the conclusion of their period of parole.
AB 355
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�Government Code Section 15820.917(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill would
delete a provision in AB 900 that is inconsistent with
Government Code 19130, Section (b), the standard for personal
service contracts. This would clarify the authority of CDCR
in contracting out services for Clinical Social Workers and
Psychologists providing day treatment and mental health crisis
care services for parolees with mental health problems.
"In 2009, the California Department of Corrections and
Rehabilitation (CDCR) issued seven contracts for services of
Clinical Social Workers and Psychologists to provide day
treatment and mental health crisis care services for parolees
with mental health problems. The American Federation of
State, County and Municipal Employees (AFSCME), Local 2620
challenged these contracts on the basis that they violated
Government Code 19130, Section (b), 'standards for use of
personal service contracts.' AFSCME asserted that the duties
performed by the Clinical Social Workers and Psychologists
were the same as those performed by civil service employees.
After review of the contracts, the State Personnel Board (SPB)
ruled that six of the contracts were not permissible under the
Government Code Section (b). CDCR appealed the initial ruling
of the SPB, claiming that the language included in AB 900
provided the department with the necessary authority to
contract out existing civil service work. However, the SPB
upheld its prior ruling and ordered the termination of the
privatization contracts. CDCR has since filed a separate
lawsuit challenging SPB's ruling.
"Consistent with the findings of the SPB, and given that
Clinical Social Workers and Psychologists are already
providing day treatment and mental health crisis care services
for parolees, AB 355 would delete the provision in AB 900
(Penal Code 3073) that is in conflict with Government Code
19130, Section (b)."
2)AB 900 (Solorio), Chapter 7, Statutes of 2007 : AB 900
(Solorio), Chapter 7, Statutes of 2007, authorized up to
40,000 new state prison beds, contingent upon significant
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program enhancements designed to reduce recidivism. This bill
also provides CDCR with the temporary authority to house up to
8,000 inmates out-of-state until new construction is completed
and the results of enhanced anti-recidivism programming impact
the inmate population. Specifically, AB 900 allowed CDCR to
contract for crisis care services for parolees with mental
health problems. The overall goal of AB 900 was to alleviate
prison overcrowding and reduce recidivism.
3)State Service Requirements : Government Code Section 19130
sets out the standards by which personal service contracts may
be used instead of public service contracts. However, both
Government Code Section 19130 and the California Constitution
Art. IV, Sec. 1 require use of public service contracts unless
specific facts exist.
"Personal services contracting also shall be permissible when
any of the following conditions can be met: The functions
contracted are exempted from civil service by Section 1 of
Article 4 of the California Constitution, which describes
exempt appointments; the contract is for a new state function
and the Legislature has specifically mandated or authorized
the performance of the work by independent contractors; the
services contracted are not available within civil service,
cannot be performed satisfactorily by civil service employees,
or are of such a highly specialized or technical nature that
the necessary expert knowledge, experience, and ability are
not available through the civil service system; the services
are incidental to a contract for the purchase or lease of real
or personal property. Contracts under this criterion, known
as 'service agreements,' shall include, but not be limited to,
agreements to service or maintain office equipment or
computers that are leased or rented; the legislative,
administrative, or legal goals and purposes cannot be
accomplished through the utilization of persons selected
pursuant to the regular civil service system. Contracts are
permissible under this criterion to protect against a conflict
of interest or to insure independent and unbiased findings in
cases where there is a clear need for a different, outside
perspective. These contracts shall include, but not be
limited to, obtaining expert witnesses in litigation; the
nature of the work is such that the Government Code standards
for emergency appointments apply; state agencies need private
counsel because a conflict of interest on the part of the
Attorney General's office prevents it from representing the
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agency without compromising its position. These contracts
shall require the written consent of the Attorney General, as
specified; the contractor will provide equipment, materials,
facilities, or support services that could not feasibly be
provided by the state in the location where the services are
to be performed; the contractor will conduct training courses
for which appropriately qualified civil service instructors
are not available, provided that permanent instructor
positions in academies or similar settings shall be filled
through civil service appointment, or; the services are of
such an urgent, temporary, or occasional nature that the delay
incumbent in their implementation under civil service would
frustrate their very purpose." �Government Code Section
19130(b)(1) to (10).]
According to AFSCME 2620, the State Personnel Board determined
that CDCR could not contract out these services because there
were state service employees able to perform these duties.
The Board stated the following:
"CDCR has failed to demonstrate that the contracted services are
a 'new state function' under Government Code (GC) Section
19130(b)(2) because it did not prove, in addition to
legislative authorization, that the service truly comprised a
new governmental activity and not merely expansion of an
existing function (internal citation omitted). CDCR has
failed to demonstrate that the contracted services cannot be
performed satisfactorily by civil services employees under GC
19130(b)(3) because AFSCME adequately showed that the state
employees in their current position perform the same services
provided under the contract. CDCR has failed to demonstrate
that the contracted services are justified under GC
19130(b)(8) because it did not provide credible evidence to
show what specific equipment, materials, facilities, or
support services the contractor will provide at specific
locations that could not feasibly be provided by the state.
"CDCR is permitted to continue, if necessary, the current
personal service contract for clinical social workers and
psychologist services for no more than six months from the
date of mailing this Resolution so that the transition of the
services from the private contractor to the civil service
employees would not negatively impact the critical services to
the mentally-ill parolees or the safety of the public at
large." �In the matter of the Appeal by the California
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Department of Corrections and Rehabilitation, SPB File No.
09-030(b).] Although CDCR appealed the ruling, no further
action has been taken in this case.
4)Arguments in Support : According to the American Federation of
State, County and Municipal Employees (AFSCME) , "California's
Constitution provides for a strong civil service system to
perform the state's many public service duties. Although
Government Code Section 19130 allows for the use of personal
service contracts, provided that certain criteria are met, it
also permits the challenge of a contract on the grounds of
violation of any of those criteria. Those criteria include
the inability of civil employees to satisfactorily perform the
contracted services. On behalf of our members, AFSCME
exercised its right to challenge a contract in which the
Department of Corrections and Rehabilitation (CDCR) contracted
out jobs involving day treatment and crisis care services for
parolees with mental health problems under Penal Code Section
3037. The State Personnel Board (SPB) reviewed the contract
and concluded that CDCR 'failed to show that the civil service
employees are not capable of performing the contracted
services' and was in violation of Government Code section
19130. This assessment was echoed after the Board denied
CDCR's appeal and ordered the termination of the privatization
contracts. Based on the SPB's ruling, Penal Code Section 3073
is in conflict with Government Code 19130 and should be
repealed. AB 355 would eliminate this section, thereby
preventing the privatization of these services and protecting
the clinical social workers and psychologists who provide
them, in congruence with the SPB's rulings."
5)Arguments in Opposition : None submitted.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
AB 355
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