Amended in Assembly March 27, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2332

Introduced by Assembly Member Wieckowski

February 21, 2014

An act to add Section 71621 to the Government Code, relating to courts.

LEGISLATIVE COUNSEL’S DIGEST

AB 2332, as amended, Wieckowski. Courts: personal services contracts.

The Trial Court Employment Protection and Governance Act establishes a trial court employee personnel system that provides authority to hire trial court personnel, regulates the classification and compensation of trial court employees, labor relations, and personnel files, and requires each trial court to establish a system of employment selection and advancement and an employment protection system.

Existing law authorizes state agencies to use personal services contracts to achieve cost savings if specified standards are satisfied, including, among other things, the contract does not cause the displacement of civil service employees and the contract is awarded through a publicized, competitive bidding process. The State Personnel Board is required to review a proposed contract upon the request of an employee organization for compliance with those standards.

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This bill would establish specified standards if a trial court intends to enter into a new contract, or renew or extend an existing contract, for any services that are currently or customarily performed by that trial court’s employees or for court reporter services. Among other things, the bill would require the trial court to clearly demonstrate that the contract will result in actual overall cost savings to the trial court for the duration of the entire contract as compared with the trial court’s actual costs of providing the same services. The bill would require a contract for services in excess of $100,000 annually to include specific, measurable performance standards and provisions for audits on performance and cost savings, as specified.

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This bill would provide that these standards apply to any contract entered into, renewed, or extended on or after January 1, 2015. The bill would provide that its provisions do not apply to a contract under specified circumstances, including when services are incidental to a contract for the purchase or lease of real or personal property.

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This bill would require each trial court to provide a report by February 1, 2015, to the Chairperson of the Joint Legislative Budget Committee and the chairpersons of the Senate Judiciary Committee and the Assembly Judiciary Committee if the trial court entered into a contract between July 1, 2014, and December 31, 2014, inclusive, for services that were provided or are customarily provided by its trial court employees if the contract has a term extending beyond March 31, 2015. This report would be required to include specified information relating to these contracts, including an analysis of whether the contract resulted in the displacement of trial court employees.

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The bill would provide that its provisions are severable.

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This bill would require, if a trial court intends to contract for services that are currently or customarily performed by trial court employees, that certain best practice requirements for responsible contracting apply.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 71621 is added to the end insert begin insert Government Code end insert begin insert ,
to read: end insert

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begin insert 71621. end insert   

(a) If a trial court intends to enter into a new contract,
or renew or extend an existing contract, for any services that are
currently or customarily performed by that trial court’s employees,
or for court reporter services, all of the following requirements
shall apply:

(1) The trial court shall clearly demonstrate that the contract
will result in actual overall cost savings to the trial court for the
duration of the entire contract as compared with the trial court’s
actual costs of providing the same services. In comparing costs,
all of the following shall occur:

(A) The trial court’s additional cost of providing the same
services as proposed by the contract shall be included. These
additional costs shall include the salaries and benefits of additional
staff that would be needed and the cost of additional space,
equipment, and materials needed to perform the services.

(B) The trial court’s indirect overhead costs shall not be
included unless those costs can be attributed solely to the function
in question and would not exist if that function was not performed
by the trial court. For the purposes of this subparagraph, “indirect
overhead costs” means the pro rata share of existing administrative
salaries and benefits, rent, equipment costs, utilities, and materials.

(C) The cost of a contractor providing a service for any
continuing trial court costs that would be directly associated with
the contracted function shall be included. Continuing trial court
costs shall include, but not be limited to, costs for inspection,
supervision, and monitoring.

(2) The contract shall not be approved solely on the basis that
savings will result from lower contractor pay rates or benefits.
Contracts shall be eligible for approval if the contractor’s wages
are at the industry’s level and do not undercut trial court pay rates.

(3) The contract shall not cause an existing trial court employee
to incur a loss of his or her employment or employment seniority,
a reduction in wages, benefits, or hours, or an involuntary transfer
to a new location requiring a change in residence.

(4) The contract shall not be approved if, in light of the services
provided by trial courts and the special nature of the judicial
function, it would be inconsistent with the public interest to have
the services covered by the contract performed by a private entity.

(5) The contract shall be awarded through a publicized,
competitive bidding process.

(6) The contract shall include specific provisions pertaining to
the qualifications of the staff that will perform the work under the
contract, as well as assurances that the contractor’s hiring
practices meet applicable nondiscrimination standards.

(7) The contract shall provide that it may be terminated at any
time by the trial court without penalty if there is a material breach
of the contract and notice is provided within 30 days of termination.

(8) If the contract is for services in excess of one hundred
thousand dollars ($100,000) annually, all of the following shall
occur:

(A) The trial court shall require the contractor to disclose all
of the following information as part of its bid, application, or
answer to a request for proposal:

(i) A description of all charges, claims, or complaints filed
against the contractor with a federal, state, or local administrative
agency during the prior 10 years.

(ii) A description of all civil complaints filed against the
contractor in a state or federal court during the prior 10 years.

(iii) A description of all state or federal criminal complaints or
indictments filed against the contractor, or any of its officers,
directors, or managers, at any time.

(iv) A description of any debarments of the contractor by a
public agency or licensing body at any time.

(B) The trial court shall include in the contract specific,
measurable performance standards and provisions for a
performance audit by the trial court, or an independent auditor
approved by the trial court, to determine whether the performance
standards are being met and whether the contractor is in
compliance with applicable laws and regulations. The audit shall
be made available to the public upon request within 10 calendar
days from receipt of the request. A charge per page, per copy, may
be charged representing the direct costs of equipment, supplies,
and staff required to duplicate or produce the requested audit. The
trial court shall not renew or extend the contract prior to receiving
and considering the audit report.

(C) The contract shall include provisions for an audit by the
trial court, or an independent auditor approved by the trial court,
to determine whether and to what extent the anticipated cost
savings have actually been realized. The audit shall be made
available to the public upon request within 10 calendar days from
receipt of the request. A charge per page, per copy, may be charged
representing the direct costs of equipment, supplies, and staff
required to duplicate or produce the requested audit. The trial
court shall not renew or extend the contract before receiving and
considering the audit report.

(9) The term of the contract shall not be more than five years
from the date on which the trial court approves the contract.

(b) This section does not preclude a trial court or the Judicial
Council from adopting more restrictive rules regarding the
contracting of court services.

(c) This section does not apply to a contract in any of the
following circumstances:

(1) The contract is between a trial court and another trial court
or a local government entity for services to be performed by
employees of the other trial court or employees of the local
government entity.

(2) The contract is for a new trial court function and the
Legislature has specifically mandated or authorized the
performance of the services by independent contractors.

(3) The services contracted for are of such a highly specialized
or technical nature that the necessary expert knowledge,
experience, and ability cannot be obtained from the court’s trial
court employees.

(4) The services are incidental to a contract for the purchase
or lease of real or personal property. Contracts described in this
paragraph, 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. Contracts described in
this paragraph shall not include agreements to operate equipment
or computers, except as necessary to service or maintain that
equipment.

(5) The legislative, administrative, or legal goals and purposes
cannot be accomplished through the utilization of trial court
employees because of the need to protect against a conflict of
interest or to ensure independent and unbiased findings in
situations where there is a clear need for an independent, outside
perspective.

(6) Due to an emergency, a contract is necessary for the
immediate preservation of the public health, welfare, or safety.

(7) The contractor will conduct training courses for which
appropriately qualified trial court employee instructors are not
available from the court, provided that permanent instructor
positions shall be filled through the process for hiring trial court
employees.

(8) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation through
the process for hiring trial court employees would frustrate their
very purpose. This paragraph shall not apply to the services of
official court reporters, except individual official reporters pro
tempore may be used by a trial court when the criteria of this
paragraph are met.

(9) The contract is a personal services contract developed
pursuant to rehabilitation programs in accordance with Sections
19403 and 19404 of the Welfare and Institutions Code, pursuant
to habilitation programs in accordance with Chapter 13
(commencing with Section 4850) of Division 4.5 of the Welfare
and Institutions Code, or pursuant to a program vendored or
contracted through a regional center or the State Department of
Developmental Services in accordance with the Lanterman
Developmental Disabilities Services Act (Division 4.5 (commencing
with Section 4500) of the Welfare and Institutions Code), and the
contract will not cause an existing trial court employee to incur a
loss of his or her employment or employment seniority; a reduction
in wages, benefits, or hours; or an involuntary transfer to a new
location requiring a change in residence.

(10) The contract is for the services of any court interpreter.
Contracts for the services of any court interpreter, and restrictions
on contracting out interpreter services, shall be governed by the
Trial Court Interpreter Employment and Labor Relations Act
(Chapter 7.5 (commencing with Section 71800)) and any
memorandum of understanding or agreement entered into pursuant
to that act, or by the other provisions of this chapter, the Trial
Court Employment Protection and Governance Act, and any
memorandum of understanding or agreement entered into pursuant
to that act, as applicable.

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begin insert SEC. 2. end insert   

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Section 71621 of the Government Code, as added by
Section 1 of this act, shall apply to any contract entered into,
renewed, or extended on or after January 1, 2015.

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begin insert SEC. 3. end insert   

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(a) Each trial court shall provide a report by no later
than February 1, 2015, to the chairperson of the Joint Legislative
Budget Committee and the chairpersons of the Senate Judiciary
Committee and Assembly Judiciary Committee if the trial court
entered into a contract between July 1, 2014, and December 31,
2014, inclusive, for services that were provided or are customarily
provided by its trial court employees and that contract has a term
extending beyond March 31, 2015. The report shall provide the
following information for each of these contracts:

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(1) A copy of the contract.

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(2) An analysis of whether the contract would have been
permissible under the standards set forth in Section 71621 of the
Government Code, as added by Section 1 of this act.

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(3) An analysis of whether the contract resulted in the
displacement of trial court employees.

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(4) An analysis of whether the contract involves the use of
contractors to perform the type of services that were customarily
performed by trial court employees.

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(b) It is the intent of the Legislature to consider the reduction
of future budget appropriations to each trial court by the amount
of any contract analyzed pursuant to subdivision (a) if the
Legislature concludes that the contract would not have been
permissible under the standards provided in Section 71621 of the
Government Code, as added by Section 1 of this act.

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begin insert SEC. 4. end insert   

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The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.

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SECTION 1.  

Section 71621 is added to the Government Code,
to read:

71621.  

If a trial court intends to contract for services that are
currently or customarily performed by trial court employees, certain
best practice requirements for responsible contracting shall apply.

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