BILL ANALYSIS �
AB 355
Page 1
Date of Hearing: April 6, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 355 (Solorio) - As Introduced: February 10, 2011
Policy Committee: Public
SafetyVote: 4-2
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill repeals explicit statutory authorization for the
California Department of Corrections and Rehabilitation (CDCR)
to contract for crisis care services for parolees with mental
health problems.
FISCAL EFFECT
Unknown GF cost pressure, potentially in the hundreds of
thousands of dollars, to the extent statutorily eliminating
contracting-out authority as an option for parolee mental health
care results in more costly and less effective services.
CDCR currently spends about $10 million annually for its
integrated services for mentally ill parolees.
COMMENTS
1)Rationale. The author and sponsor, AFSCME, Local 2620, seek to
eliminate the explicit statutory authorization for CDCR to
contract out mental health crisis care services for parolees.
This authority was contained in AB 900, Statutes of 2007. In
March 2010, however, the State Personnel Board (SPB) ruled
that six specific contracts to provide such services were not
permissible pursuant to statute governing contracting out. (A
seventh contract was with a local government and therefore was
not subject to the SPB review). CDCR appealed to the SPB. SPB
upheld its ruling in September 2010.
According to the author, this bill simply clarifies CDCR's
authority for contracting out services that can be provided by
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civil service clinical social workers and psychologists, and
deletes the AB 900 provision that is in conflict (pursuant to
the SPB ruling) with Government Code 19130.
Although 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. AFSCME challenged CDCR contracts
involving day treatment and crisis care services for parolees
with mental health problems pursuant to Penal Code Section
3037 (AB 900). The State Personnel Board (SPB) reviewed the
contracts and concluded CDCR failed to show civil service
employees are not capable of performing the contracted
services and was therefore in violation of Section 19130.
2)Penal Code 3073 (AB 900) states: "The Department of
Corrections and Rehabilitation is hereby authorized 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."
3)Government Code 19130(b)(2),(3) and (8) states: "Personal
services contracting also shall be permissible when any of the
following conditions can be met:
(2) The contract is for a new state function and the
Legislature has specifically mandated or authorized the
performance of the work by independent contractors.
(3) 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.
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(8) 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.
4)SPB's ruling on CDCR's appeal stated:
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.
5)CDCR has appealed the SPB decision in Superior Court
contending the contracts are statutorily authorized and comply
with the Government Code requirements. Arguments are scheduled
for April.
According to CDCR, in a letter to the SPB, "It is the position
of CDCR that pursuant to Government Code Section
19130(b)(2)(3) and (8) the above-described contracts were
executed legally and should be allowed to remain in
place?.these contracts are legislatively authorized for a new
state function, are for services that cannot be performed
satisfactorily by civil service employees, and require the
contractor to provide facilities and support services that
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could not feasibly be provided by the state at the required
county locations."
Thus CDCR contends the state work force is unable to provide
around-the clock crisis care services for mentally ill
parolees.
6)No need for the bill/no harm by the bill. The code sections in
question are not necessarily in conflict. The SPB ruling -
legal appeal pending - demonstrates the explicit
contracting-out authority in Penal Code 3073 must work in
conjunction with Government Code 19130 or it is not binding.
Therefore, it is not clear 3073 must be eliminated - though
proponents prefer to remove the statute for clarity.
Conversely, 19130 allows contracting under specified
conditions, so 3073 is arguably not necessary - though CDCR
would prefer to keep the statute in place pending appeal, and,
should the appeal fail, for use in adjusted efforts to
contract out for parolee mental health care.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081