BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 813 (Fletcher)
As Amended June 22, 2011
Hearing Date: June 28, 2011
Fiscal: Yes
Urgency: No
BCP
SUBJECT
Sex Offenders: Punishment
DESCRIPTION
The bill would provide good faith immunity for members of the
Sex Offender Management Board, and immunity from civil liability
for certified sex offender management professionals for any
criminal acts committed by a person who receives supervision or
treatment.
This bill would additionally create an exception to the
Bagley-Keene Open Meeting Act to allow the board to discuss
matters pertaining to the application of a sex offender
treatment provider in a closed session.
This bill would make other clarifying changes related to sex
offenders.
BACKGROUND
In 2006, AB 1015 (Chu & Spitzer, Chapter 338, Statutes of 2006)
created a 15 member California Sex Offender Management Board
(CASOMB) to serve as a resource for the Legislature and the
Governor. CASOMB states that its vision is to "to decrease
sexual victimization and increase community safety" and that it
will accomplish that mission by "addressing issues, concerns and
problems related to community management of adult sex offenders
by identifying and developing recommendations to improve
policies and practices."
AB 1844 (Fletcher, Chapter 219, Statutes of 2010), the Chelsea
(more)
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King Child
Predator Prevention Act of 2010, enacted numerous changes to
statutes relating to sex offenses and sex offenders. Those
changes include requiring the CASOMB to develop standards for
certification of sex offender management professionals, and
required the board to certify management professionals according
to those standards. This bill seeks to "clean up" AB 1844 by
making numerous largely technical changes to issues relating to
the management of sex offenders, providing a limited immunity
for members of the CASOMB and certified sex offender management
professionals, and allowing CASOMB to conduct certain activities
in closed session, as specified.
This bill was approved by the Senate Public Safety Committee on
June 21, 2011.
CHANGES TO EXISTING LAW
1. Existing law establishes the Sex Offender Management Board
and requires the board to "address any issues, concerns, and
problems related to the community management of adult sex
offenders. The main objective of the board, which shall be
used to guide the board in prioritizing resources and use of
time, is to achieve safer communities by reducing
victimization." (Penal Code Sec. 9002.)
This bill would provide that members of the board shall be
immune from liability for good faith conduct in their duties,
and make clarifying changes.
2. Existing law requires the board to develop and update
standards for certification of sex offender management
professionals on or before July 1, 2011, as specified. (Penal
Code Sec. 9003.) The board shall require any person who
applies for certification under this section to submit
information relevant to the applicant's fitness to provide sex
offender management services. (Penal Code Sec. 9003(a)(2).)
This bill would provide that any person who knowingly provides
false information under this paragraph shall be subject to a
civil penalty in an amount up to $1,500 dollars, in addition
to any other remedies available to the board. An action for a
civil penalty under this provision may be brought by any
public prosecutor in the name of the people of the State of
California.
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This bill would provide that certified sex offender management
professionals, who provide sex offender management programs
and risk assessments as specified shall not be held civilly
liable for any criminal acts committed by the persons on
parole, probation, or judicial commitment status who receive
supervision or treatment. This waiver of liability would
apply to certified sex offender management professionals,
administrators of the programs provided by those
professionals, and to agencies or persons under contract to
those professionals who provide screening, clinical
evaluation, risk assessment, supervision, or treatment to sex
offender parolees, probationers, or persons on conditional
release, as specified.
3. Existing law provides that the people have the right of
access to information concerning the people's business and
requires meetings of public bodies and the writings of public
officials and agencies to be open to public scrutiny. (Cal.
Const., art. I, sec. 3(b)(1).)
Existing law , the Bagley-Keene Open Meeting Act, provides
statutory requirements of state public bodies to keep the
public informed. (Gov. Code Sec. 11120 et seq.)
Existing law requires state public bodies to post notices and
agendas of state public body meetings. (Gov. Code Secs.
11123, 11125, 11125.4, 11125.5, 11125.9, and 11126.) Existing
law requires state public bodies to publicly report any action
taken in closed sessions. (Gov. Code Secs. 11125.2, 11126,
and 11126.3.)
This bill would allow the California Sex Offender Management
Board to hold a closed session for the purpose of discussing
matters pertaining to the application of a sex offender
treatment provider for certification, as specified, and
provide that those matters may include review of an
applicant's qualifications for certification.
4. This bill would make other clarifying changes related to
sex offenders.
COMMENT
1. Stated need for the bill
According to the author:
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AB 813 will help the Sex Offender Management Board perform
its role in protecting public safety by providing technical
amendments and clarification within the Penal Code, and by
limiting legal liability for treatment providers and the
Board for good faith conduct performed pursuant to sex
offender management.
The bill seeks to clean up some provisions of AB 1844 which
were overlooked in the original bill. Specifically, it would
codify some of the legal protections for treatment providers
and for the board for doing the tasks asked of them in AB
1844. The bill would provide an exemption to the
Bagley-Keene act when dealing with private personnel
matters. The bill would also make some technical language
changes.
2. Proposed immunities
This bill, sponsored by the California Sex Offender Management
Board, would enact two limited immunities that would address
concerns about liability arising as a result of obligations
imposed by AB 1844 (Fletcher, 2010). Both of those immunities
are based upon similar provisions already in existing law.
First, this bill would provide that members of the board shall
be immune from liability for good faith conduct. The author
maintains that the immunity is necessary because:
AB 1844 . . . expanded the Sex Offender Management Board's
role as a policy advisory board to include duties such as
developing certification standards for sex offender
management professionals and standards for sex offender
treatment programs; certifying that professionals and
programs meet the requirements of those standards; and
developing polygraph certification standards. Members of the
Board are not statutorily immune for good faith acts in
furtherance of this legislation, unlike members of the state
risk assessment committee.
The existing immunity referred to by the author applies to
members of the State-Authorized Risk Assessment Tool for Sex
Offenders (SARATSO) Review Committee. That immunity, contained
in Penal Code Section 290.04 (g), similarly provides that the
committee shall be immune from liability for good faith conduct.
(For background, the SARATSO Review Committee select risk
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assessment instruments for the state of California, monitors
risk assessments, and sponsors trainings on scoring risk
assessment tools.) Considering the related nature of the board
and the committee, the limited nature of the immunity, and
policy arguments in favor of encouraging individuals to serve on
the committee if those members act in "good faith," the proposed
immunity arguably appears appropriate. The California Sex
Offender Management Board, in support, further asserts that this
bill will enable CASOMB to carry out AB 1844's mandate and to
better ensure public safety in California.
Similarly, this bill would provide that certified sex offender
management professionals who provide sex offender management
programs and risk assessments "shall not be held civilly liable
for any criminal acts committed by the persons on parole,
probation, or judicial commitment status who receive supervision
or treatment." That immunity would apply to the professionals,
administrators of programs administered by those professionals,
and to agencies or persons under contract with those
professionals who provide screening, clinical evaluation, risk
assessment, supervision, or treatment to sex offender parolees,
probationers, or persons on conditional release, as specified.
Staff notes that the proposed immunity is nearly identical to
the immunity currently provided to administrators, supervisors,
and treatment staff of the Forensic Conditional Release Program
(CONREP). (Penal Code Section 1618.) CONREP itself is a program
for judicially committed persons that is described as follows:
Virtually all patients judicially committed in the CONREP
program have experienced long court-directed state
hospitalizations. Once psychiatric symptoms have been
stabilized and they are considered no longer to be a danger,
eligible patients may be referred for outpatient treatment
under conditional release. MDO Patients, have met certain
criteria (including the use of force or violence in
committing a crime) are treated in the state hospital until
they are in remission and can be treated safely in CONREP.
Patients must agree to follow a treatment plan designed by
the outpatient supervisor and approved by the committing
court. The treatment plan includes provisions for
involuntary outpatient services. In order to protect the
public, patients who do not comply with treatment may be
returned, upon court (or Board of Prison Terms) approval, to
inpatient status and treated at state expense.
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CONREP patients have direct access to a full range of mental
health services during their period of outpatient treatment.
These services include individual and group therapies,
collateral contacts, home visits, substance abuse screenings
and psychological assessments.
The Department of Mental Health (DMH) has developed
performance standards for these services which set minimum
treatment and supervision levels for all CONREP patients.
Pre-placement evaluations and assessments are done during
the period of state hospitalization, upon entry into the
community and throughout CONREP treatment. In addition,
CONREP staff participate in state hospital and court liaison
activities. Specialized forensic mental health clinicians
are essential to the effective management of CONREP patients
in the community.
( http://www.dmh.ca.gov/services_and_programs/forensic_service
s/conrep/default.asp .)
Similar to the second proposed immunity, existing law acts to
protect CONREP treatment providers from civil liability for
the acts of persons who receive supervision or treatment.
Prior to the enactment of AB 1844, treatment providers for sex
offenders who were under CONREP supervision received immunity
under Section 1618. AB 1844 subsequently required all
registered sex offenders to participate in an approved sex
offender management program while on parole or formal
supervised probation, as specified, thus, this bill would
apply a nearly identical immunity to the certified sex
offender management professionals that provide sex offender
management programs and risk assessments. The author, in
support of the provision, additionally highlights that it
would not insulate individuals from claims involving
malpractice.
Staff additionally notes that as of the writing of this
analysis, the Committee has received no opposition to those
proposed immunities and that the Consumer Attorneys of
California are neutral on the bill.
3. Bagley-Keene Open Meeting Act
It is the policy of the State of California that public agencies
exist to aid in the conduct of the people's business and that
the proceedings of public agencies are conducted openly so that
the public may remain informed. Implementing that policy, the
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Bagley-Keene Open Meetings Act generally requires state public
bodies to provide adequate notice of meetings to be held,
provide an opportunity for public comment, and to conduct
meetings in an open session. There are exceptions to the
requirements of Bagley-Keene, including numerous instances in
which a public body may hold a closed session.
This bill would additionally allow CASOMB to hold a closed
session for the purpose of discussing matters pertaining to the
application of a sex offender treatment provider for
certification, including review of an applicant's qualifications
for certification. The author maintains that this exception is
important because the discussion concerns sensitive personal
issues, and notes that it is similar to other existing
exceptions in Bagley-Keene regarding personnel issues. For
example, Section 11126 of the Government Code already allows
closed door sessions for advisory bodies that administer
licensing for purposes of discussing matters that, if discussed
in an open meeting, would constitute an unwarranted invasion of
privacy of a licensee or applicant, and the review of an
applicant's qualifications is within that exception.
Considering the potentially sensitive nature of discussing
applications in a public forum, the exemption from Bagley-Keen
would appear to help protect sensitive information about
applicants and not unduly undermine the principle of open
meetings.
4. Remaining provisions
This bill would additionally provide that an applicant for
certification who knowingly provides false information to the
board shall be subject to a civil penalty of up to $1,500, as
specified, and make clarifying changes to clean up provisions of
AB 1844. Those provisions were approved by the Senate Public
Safety Committee on June 21, 2011.
Support : California Probation Parole and Correctional
Association; Chief Probation Officers of California
Opposition : None Known
HISTORY
Source : California Sex Offender Management Board
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Related Pending Legislation : None Known
Prior Legislation : AB 1844 (Fletcher, Chapter 219, Statutes of
2010) See Background.
Prior Vote :
Senate Public Safety Committee (Ayes 6, Noes 0)
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Public Safety Committee (Ayes 7, Noes 0)
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