BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 858 (Gaines)
As Amended April 25, 2011
Hearing date: May 3, 2011
Penal Code
AA:mc
CHIEF PROBATION OFFICERS: APPOINTMENT AND TERMINATION
HISTORY
Source: Nevada County Board of Supervisors
Prior Legislation: SB 1361 (Brulte) - 2002, failed passage in
Senate Public Safety
AB 1303 (Thompson) - 1999, amended into unrelated
bill
AB 1519 (Floyd) - 1999, died in the
Assembly
AB 765 (Maddox) - 2001, died in the
Assembly
Support: Unknown
Opposition:Chief Probation Officers of California; Judicial
Council of California
KEY ISSUE
SHOULD THE CHIEF PROBATION OFFICER OF NEVADA COUNTY OVER ADULT AND
JUVENILE PROBATION BE APPOINTED AND REMOVED BY THE BOARD OF
SUPERVISORS OF NEVADA COUNTY INSTEAD OF THE COURT?
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PURPOSE
The purpose of this bill is to provide that the Chief Probation
Officer of Nevada County over adult and juvenile probation shall
be appointed and removed by the Board of Supervisors of Nevada
County instead of the court.
Current law states legislative intent that "the provision of
probation services is an essential element in the administration
of criminal justice. The safety of the public, which shall be a
primary goal through the enforcement of court-ordered conditions
of probation; the nature of the offense; the interests of
justice, including punishment, reintegration of the offender
into the community, and enforcement of conditions of probation;
the loss to the victim; and the needs of the defendant shall be
the primary considerations in the granting of probation. . . .
(Penal Code � 1202.7.)
Current law imposes upon probation officers certain duties to
the court, as specified. (See Penal Code � 1203.)
Current law provides that the adult probation officer shall be
appointed and may be removed for good cause in a county with two
superior court judges, by the presiding judge. In the case of a
superior court of more than two judges, a majority of the judges
shall make the appointment, and
may effect removal. (Penal Code � 1203.6.)
Current law provides that the salary of the probation officer
shall be established by the board of supervisors. (Penal Code �
1203.6.)
Current law provides that the adult probation officer shall
appoint and may remove all assistants, deputies and other
persons employed in the officer's department, and their
compensation shall be established, according to the merit system
or civil service system provisions of the county. If no merit
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system or civil service system exists in the county, the board
of supervisors shall provide for appointment, removal, and
compensation of such personnel. This section is applicable in a
charter county whose charter establishes the office of adult
probation officer and provides that
the officer shall be appointed in accordance with general law
subject to the merit system provisions of the charter. (Penal
Code � 1203.6.)
Current law provides that when a county has a separate adult
probation officer, he or she shall perform all duties of a
probation officer except for matters under the jurisdiction of
the juvenile court. (Penal Code � 1203.5.)
Current law provides that juvenile probation officers shall be
nominated by the county juvenile justice commission, and then
shall be appointed by the judge of the juvenile court. (Welfare
and Institutions Code ("WIC") � 270.)
Current law provides that juvenile probation officers may at any
time be removed by the judge of the juvenile court for good
cause shown; and the judge may in his or her discretion remove
any probation officer at any time with the written approval of a
majority of the juvenile justice commission. (WIC � 270.)
Current law provides that in counties with charters setting
forth a method of appointment and tenure of office for probation
officers, those charters control as to those issues; in those
counties which have established merit or civil service systems
for appointment and tenure issues, those systems control as to
those issues; in all other counties, appointment and tenure of
juvenile probation officers shall be controlled exclusively by
the Code. (WIC � 271.)
This bill would provide that the Chief Probation Officer of
Nevada County over adult and juvenile probation shall be
appointed and removed by the Board of Supervisors of Nevada
County.
This bill would make additional technical, conforming revisions
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to related provisions consistent with the substantive change the
bill proposes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not aggravate the prison overcrowding crisis
described above.
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COMMENTS
1. Stated Need for This Bill
The author states:
SB 858 seeks to fix an authority problem that is left
over from the trial court shift that occurred in the
late 1990's. Currently, all probation activities are
administered through the Counties. Probation
employees are county employees adhering to all county
policies and procedures. This is similar to other
county departments particularly those in the law
enforcement and health and human services areas where
the County has its departments and employees
administering and implementing state required
programs.
The senior executives who manage these departments
that provide the programs that are part of the
judicial system are hired and held accountable by the
County Board of Supervisors. The exception is the
Chief Probation Officer who is appointed by the local
Superior Court, yet the County Probation Officer is a
county employee. This was not as much of a problem
when the Court and its employees were part of the
County organization prior to the trial court shift of
the late 1990's.
This can cause confusion as the County Probation
Officer is an employee of one government entity, but
held accountable by a separate authority. Chief
Probation Officers are currently caught between two
authorities. As more State responsibility is shifted
to counties, the potential for confusion and conflict
that already exists will certainly grow over time.
SB 858 will provide consistency with both the
responsibility and the authority for implementing
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Probation programs in the furtherance of justice in
Nevada County.
2. The Role of Probation; the Appointment and Removal of Chief
Probation Officers
In 2003, the Judicial Council and the California State
Association of Counties released findings and recommendations of
the "Probation Services Task Force." The report sought "to
establish the foundation for a long-term plan that will enhance
the delivery of services, establish a more rational governance
system, and elevate the status of probation in recognition of
the essential services the system provides to our courts,
counties, probationers, and victims."<1> The report frames the
unique structure of probation in California:
Probation occupies a unique and central position in
the local and state justice structure. It serves as a
linchpin of the criminal and juvenile justice systems
and is the one justice system partner that regularly
collaborates with all stakeholders as an offender
moves through the system. Probation connects the many
diverse stakeholders, including law enforcement; the
courts; prosecutors; defense attorneys;
community-based organizations; mental health, drug and
alcohol, and other service providers; the community;
the victim; and the probationer.
The role and identity of probation departments have
evolved substantially over the years, with
developments in the past decade showing extraordinary
innovation in the face of fiscal challenge.
Substantial variation exists in the types of services
offered in each of the 58 counties. While state law
mandates certain probation services in all counties,
other programs are tested on a pilot or otherwise
----------------------
<1>
http://www2.courtinfo.ca.gov/probation/documents/new/fullreport.p
df.
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limited-term basis, supported by a fixed cycle of
grant funding. Local needs, community requirements,
funding constraints, and the absence of statewide
standards in most core program areas have encouraged
the growth of services and programs that best fit
local needs.
The report also describes the unique governance of probation in
California:
In 57 of the 58 counties, a single CPO has oversight
and supervisory responsibility for the adult and
juvenile services provided by the probation
department. The City and County of San Francisco is
unique in that it maintains separate adult and
juvenile probation departments, each with its own CPO.
In the vast majority of the counties, the court
appoints the CPO. Structurally, however, probation
departments are county agencies financed by the local
executive branch, and the CPO is a county official who
hires staff according to county procedures. This
bifurcated governance system results in a wide range
of variations in policies, procedures, and facilities
among probation departments
within California.
. . .
California's bifurcated governance model places
pressures on the system. Anecdotally, task force
members learned that the CPO could be presented with
conflicts owing to the "two masters" structure. The
court, for example, could request that the probation
department provide a higher level of service than the
county is able to fund. Or the county could be unable
or unwilling to fund the probation department at a
level sufficient to provide a service requested by the
court. Another potential byproduct of the governance
structure is that a CPO who reports to two entities
may also have a sense that neither entity can actively
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champion the cause of probation.
There is a broad sense among stakeholders that
retaining maximum local flexibility in the area of
governance is optimal. However, the task force
concluded that the current governance structure is
unsatisfactory in many respects. While members were
able to arrive at this conclusion with relative ease,
the next step-identifying an alternative to the
existing structure-proved to be the biggest challenge
facing the task force. The task force went to
extraordinary efforts to outline a new model for
probation in California that would ensure effective
services, establish clear lines of responsibility,
encourage collaboration among justice system partners,
and secure adequate and stable funding.
The Task Force report did not result in recommended statutory
changes for the current governance structure described above.
However, as a result of the Task Force, an MOU model for use by
counties and courts was developed and reportedly is being used
now in many counties; that MOU is intended to reflect the first
principle identified by the Task Force: "Authority over and
responsibility for the conduct, support, funding, oversight, and
administration of probation services, including the appointment
of the CPO, must be connected."
HAS THE MOU APPROACH DEVELOPED AFTER THE PROBATION SERVICES TASK
FORCE EFFORT RESOLVED SOME OF THE CONCERNS REGARDING THE
"BIFURCATED GOVERNANCE SYSTEM" OF PROBATION?
HAS A PARTICULAR PROBLEM OCCURRED IN NEVADA COUNTY THAT HAS MADE
IT DIFFICULT FOR THAT COUNTY AND THE COURT TO REACH COMMON
GROUND WITH RESPECT TO THE CHIEF PROBATION OFFICER?
SHOULD THE NEVADA COUNTY BOARD OF SUPERVISORS HAVE THE
UNILATERAL AUTHORITY TO APPOINT AND TERMINATE THEIR CHIEF
PROBATION OFFICER?
SHOULD THE COURT BE EXCLUDED FROM APPOINTMENT AND TERMINATION
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DECISIONS FOR THE CHIEF PROBATION OFFICER IN NEVADA COUNTY?
3. Opposition
This bill is opposed by the Chief Probation Officers of
California, which submits:
This issue has a long history as the Chief Probation
Officer plays a critical role within county government
and the courts. Due to this important function many
counties have worked with their local courts to strike
balance in the appointment and removal function. The
probation system in general was studied in depth
culminating in years of review and discussion by the
Probation Services Task Force in a report published in
June of 2003. This esteemed group brought the
judicial branch, the county boards of supervisors,
probation and other affected parties together to make
recommendations to the state. One of the issues that
took a significant amount of discussion was the
appointment of the Chief Probation Officer. The
conclusion did not result in a recommendation for any
legislative changes of the appointment process but
instead encouraged courts and counties to identify
ways to collaborate on the process. Many counties and
courts do so
through an MOU process or other formal or informal
procedures. We see no reason to change this process
by legislative intervention, especially without
revisiting this complex issue with the Probation
Services Task Force or some similar entity.
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While the link between the county supervisors and the
county chief probation officer is very important, the
link between county probation and the courts is also
crucial. Probation officers are officers of the court
and often the linchpin to every stakeholder taking
part in the justice process. Due to that
relationship, the ties to the court are important to
maintain the integrity of their role within the
judicial process.
Finally, the approach of just changing one county's
process through legislation sets a troubling
precedent. A piecemeal approach on such an important
topic may result in an unintended consequence of
politicizing the appointment.
The Judicial Council of California, which also opposes this
bill, states in part:
In 2000, Chief Justice Ronald M. George appointed the
Judicial Council Probation Services Task Force to
study probation services in California's 58 counties.
The panel was jointly created by the Judicial Council
and the California State Association of Counties
(CSAC). The primary charge of the task force was to
assess probation programs, services, organizational
structures, and funding related to adult and juvenile
probation services currently provided by the counties
to the courts, probationers, and the general public.
The task force met over the course of three years, and
spent considerable time addressing the impact of state
trial court funding on probation governance. The task
force concluded that the model promising to offer
greater fiscal and programmatic stability, improved
service delivery, and a rational governance structure
is one that contemplates a realignment of probation
services with the state." (Task Force Report, p. 71)
Recognizing that such a restructuring would require
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long term development and adequate state resources,
the task force noted that "certain issues-namely,
those surrounding the appointment, evaluation, and
removal of the CPO-need an immediate remedy while
efforts continue to develop a long term proposal for
probation governance." (Task Force Report, p. 73) To
this end, the task force developed an interim model
for the appointment, evaluation, discipline, and
removal of the CPO. Under this interim model,
probation would continue to operate as a county
department, and the CPO would remain a county officer.
Collaboration between court and county in the
appointment, evaluation, and removal process was
emphasized.
In the intervening years, staff of the Administrative
Office of the Courts have continued to work with CSAC
and the Chief Probation Officers of California to
facilitate a collaborative approach to resolving
issues locally arising from the unique governance
structure applicable to probation services. In fact,
a Model Memorandum of Understanding has been developed
by the AOC for use in general law counties for this
purpose.
While SB 858 applies only to one county, the council
is concerned about the precedent that would be set by
enactment of the bill, given that probation functions
are critical to court administration.
The bill would codify a one-sided governance structure
that ignores the critical role of the court in
probation activities, is inconsistent with the task
force's strong recognition of the importance of local
flexibility and the need for collaborative
relationships at the county level.
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