BILL NUMBER: SB 252 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 31, 2011
AMENDED IN SENATE MAY 10, 2011
AMENDED IN SENATE APRIL 14, 2011
INTRODUCED BY Senator Vargas
FEBRUARY 10, 2011
An act to add Article 4.5 (commencing with Section 19135) to
Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code,
relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 252, as amended, Vargas. Public contracts: personal services.
The California Constitution provides that the civil service
includes every officer and employee of the state, except as otherwise
provided. The California courts have interpreted the California
Constitution as generally restricting the contracting out of state
activities or tasks to the private sector, if those activities or
tasks may be adequately and competently performed by state employees.
Existing statutory law codifies certain judicially created
exceptions to that constitutional provision, and authorizes the state
to enter into personal services contracts when specified conditions
are met.
The California Public Records Act requires each state and local
agency to make its records available for public inspection during
office hours and, upon request of any person, to make copies
available upon payment of fees, unless the records are exempt by law
from disclosure.
This bill would enact the Government Oversight and Fiscal
Accountability Review Act of 2011. The bill would require a state
agency or department that enters into a privatization
contract, as defined, to report to the Department of General Services
, on or before April 1, 2012, and annually each April 1
thereafter, regarding that privatization contract, and would
require the department Department of General
Services to compile, publish, and make that report available
for public inspection. The bill would also provide that a subcontract
executed under a privatization contract is a public record, and
would require the contractor to submit these subcontracts to the
contracting agency, which would in turn be required to make the
records available to the public pursuant to the California Public
Records Act. State agencies and departments would also be
required to prepare, as part of their budget requests, a document
that contains specified information relating to their use of
privatization contractors. The bill would also make
privatization contracts subject to audit or review by the Bureau of
State Audits, at the discretion of the State Auditor.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 4.5 (commencing with Section 19135) is added to
Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code,
to read:
Article 4.5. Government Oversight and Fiscal Accountability
Review
19135. This article shall be known, and may be cited, as the
Government Oversight and Fiscal Accountability Review Act of 2011.
19136. For purposes of this article:
(a) "Agency" includes any executive office, department,
division, board, commission, or other office or officer in the
executive branch of the government. state agency or
department.
(b) "Person" includes an individual, institution, federal, state,
or local government entity, or any other public or private entity.
(c) "Privatization contract" means an agreement or combination or
series of agreements executed pursuant to Section 19130, by which a
privatization contractor agrees with an agency to provide services
valued at one five hundred thousand
dollars ($100,000) ($500,000) or more,
that are substantially similar to, and in lieu of, services provided,
in whole or in part, by civil service employees of the agency.
(d) "Privatization contractor" means any contractor, consultant,
subcontractor, independent contractor, or private business owner that
contracts with an agency to perform services that are substantially
similar to, and in lieu of, services provided, in whole or in part,
by civil service employees of the agency.
(e) "Privatization contractor employee" includes a worker directly
employed by a privatization contractor, as well as an employee of a
subcontractor or an independent contractor that provides supplies or
services to a privatization contractor.
(f) "Services" includes, with respect to a privatization
contractor, all aspects of the provision of services provided by a
privatization contractor pursuant to a privatization contract, or any
services provided by a subcontractor of a privatization contractor
under the privatization contract.
19137. (a) A privatization contractor shall file with the
contracting agency a copy of each subcontract or amendment to a
subcontract executed under a privatization contract. The agency shall
maintain the subcontract or amendment to the subcontract as a public
record, as defined in the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1).
(b) A privatization contract shall include language that provides
for public access to the completed contract.
(c) As part of the budgetary process, an agency shall provide an
addendum to its submitted budget request that includes all of the
following information:
(1) The name of each privatization contractor or subcontractor
that has entered into a privatization contract with the agency during
that year, the duration of that privatization contract, and the
services provided pursuant to that contract.
(2) The total cost of each privatization contract for the prior
year.
(3) The projected number of privatization contracts for the
current and upcoming year and the estimated cost of each contract for
the current and upcoming year.
(4) For each privatization contract, the number of privatization
contractor employees and consultants, reflected as full-time
equivalent positions, and their hourly wage rates for the current and
previous fiscal year.
(d) The addendum provided pursuant to subdivision (c) shall be a
public record.
(e) A privatization contract shall be subject to audit or review,
as defined by the American Institute of Certified Public Accountants,
by the Bureau of State Audits at the discretion of the State
Auditor. An audit or review shall be conducted in compliance with
generally accepted auditing standards.
19138. (a) An agency that enters into a privatization contract
shall prepare and submit to the Department of General Services on a
quarterly basis a report containing both of the following:
(1) The name of the privatization contractor and the number of
privatization contractor employees and consultants, reflected as
full-time equivalent positions, that performed legal, medical,
accounting, engineering, or any other professional, technical, or
consultant service for the agency on a contractual basis during the
previous quarter.
(2) The amount of compensation received by each privatization
contractor employee or consultant for the services described in
paragraph (1) during the previous quarter.
(b)
19138. (a) An agency that enters
into a privatization contract shall prepare and submit to the
Department of General Services on an annual basis
Services, on or before April 1, 2012, and annually each April 1
thereafter, a report containing both
all of the following:
(1) A copy of each privatization contract for that year.
(2) A budget analysis of each privatization contract reported
pursuant to paragraph (1) that contains all of the following:
(A) The cost of each privatization contract for the prior,
current, and next year.
(B) The number of privatization contractor employees, reflected as
full-time equivalent positions, and their hourly wage rates.
(C) The cost of benefits paid by the agency for each privatization
employee for the current and previous year.
(3) The name of the privatization contractor and the number of
privatization contractor employees and consultants, reflected as
full-time equivalent positions, that performed legal, medical,
accounting, engineering, or any other professional, technical, or
consultant service for the agency on a contractual basis during the
previous year.
(4) The amount of compensation received by each privatization
contractor employee or consultant for the services described in
paragraph (3) during the previous year.
(c)
(b) The Department of General Services shall compile,
publish, and make available for public inspection all contracting
reports he or she has received in accordance with this article.