BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2387 (Pan) 7
As Amended April 21, 2014
Hearing date: June 10, 2014
Government and Penal Codes
JRD:mc
COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING:
CONTRACTING: AUTHORITY
HISTORY
Source: California Commission on Peace Officer Standards and
Training (POST)
Prior Legislation: AB 906 (Pan)-Chapter 744, Statutes of 2013
Support: California Association of Highway Patrolmen;
California Police Chiefs Association; California State
Sheriffs' Association; Office of the District Attorney
of San Diego County
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
SHOULD THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING (POST)
BE EXEMPT FROM CERTAIN CONTRACTING REQUIREMENTS?
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PURPOSE
The purpose of this legislation is to exempt POST from specified
notification requirements when entering into personal services
contracts, as specified.
Existing law establishes the POST within the Department of
Justice and sets forth its powers and duties which include,
among other things, the ability to contract with other agencies,
public or private, or persons as it deems necessary, for
services, facilities, studies, and reports as will best assist
the Commission in carrying out its duties and responsibilities.
(Penal Code �� 13500 and 13503.)
Existing law requires, based on provisions in the California
Constitution, that services provided by state agencies generally
be performed by state civil service employees. (Government Code
� 19130(c).)
Existing law permits the use of personal services contracts in
order to achieve cost savings provided that certain criteria are
met. (Government Code � 19130(a).)
Existing law permits the use of personal services contracts when
any of the following conditions are met:
The functions contracted are exempted from civil
service.
The contract is for a new state function and the
Legislature has specifically mandated or authorized the
performance of the work by independent contractors.
The services contracted are not available within civil
service, cannot be performed satisfactorily by civil
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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.
The services are incidental to a contract for the
purchase or lease of real or personal property.
The legislative, administrative, or legal goals and
purposes cannot be accomplished through the utilization of
persons selected pursuant to the regular civil service
system, as specified.
The nature of the work is such that the Government Code
standards for emergency appointments apply.
State agencies need private counsel because a conflict
of interest on the part of the Attorney General's office
prevents it from representing the agency without
compromising its position. These contracts shall require
the written consent of the Attorney General.
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.
The contractor will conduct training courses for which
appropriately qualified civil service instructors are not
available, provided that permanent instructor positions in
academies or similar settings shall be filled through civil
service appointment.
The services are of such an urgent, temporary, or
occasional nature that the delay incumbent in their
implementation under civil service would frustrate their
very purpose. Government Code � 19130(a).)
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Existing law requires a state agency proposing to execute a
personal services contract to achieve cost saving to notify the
State Personnel Board (SPB) of its intention and requires the
SPB to immediately contact specified persons or organizations
upon receipt of the notice so that they may be given a
reasonable opportunity to comment on the proposed contract.
(Government Code � 19131.)
Existing law authorizes an employee organization to request,
within 10 days of receiving the above notice, the SPB to review
any proposed or executed contract, as specified. (Government
Code � 19131.)
Existing law prohibits a state agency from executing a personal
services contract for non-cost savings reasons, except in
specified sudden and unexpected situations, until it has
certified that all employee organizations that perform the type
of work being contracted out have been notified. (Government
Code � 19132(b)(1).)
Existing law requires, at a minimum, the notification to include
a full copy of the proposed contract and permits the notifying
agency to redact specific confidential or proprietary
information from the notice. (Government Code � 19132(b)(2).)
Existing law requires the Department of General Services (DGS)
to establish the certification of notification process.
(Government Code � 19132(b)(3).)
This bill exempts personal services contracts entered into by
POST from specified notification requirements that other state
agencies must comply with when entering into personal services
contracts for non-cost savings reasons.
This bill requires POST, when exercising its contracting
authority, to determine if the services to be provided cannot be
provided by the state civil service system because the services
are highly specialized, cannot be performed by civil service
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employees, or are urgent or essential, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
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currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
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reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
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The author states:
Existing law proposes numerous restrictions that would
prevent POST from providing critical training needed by
the law enforcement community where personal services
contracts are involved. Without an exemption or waiver,
POST will not be able to provide training needed by the
law enforcement community where personal services
contracts are involved. The services contracted are not
available within civil service 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.
2. Effect of the Legislation
POST is required to adopt rules establishing minimum standards
for training of peace officers. (Penal Code � 13510(a).) POST
is additionally required to establish a number of training
courses, which include, but are not limited to: training in the
handling of civil disobedience (Penal Code � 13514.5); elder and
dependent adult training course (Penal Code � 13515); training
on law enforcement interaction with mentally disabled persons
(Penal Code � 13515.25); a high technology crimes and computer
seizure training course, which must be completed by every peace
officer at a supervisory level who is assigned field or
investigative duties (Penal Code � 13515.55); domestic violence
(Penal Code � 13519); stalking (Penal Code � 13519.05; and,
missing persons (Penal Code � 13519.1). POST has the ability
to contract with other agencies, public or private, or persons
as it deems necessary, for services, facilities, studies, and
reports as will best assist POST in carrying out these
responsibilities. (Penal Code �� 13500 and 13503.)
AB 906 (Pan), Chapter 744, Statutes of 2013, prohibited state
agencies from executing a personal services contract for
non-cost savings reasons, except in specified sudden and
unexpected situations, until it has certified that all employee
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organizations that perform the type of work being contracted out
have been notified and required DGS to establish the
certification of notification process.
According to the author:
Since POST contracts with very specialized teachers
and requires the experts in the field to train new
officers, AB 906 inadvertently made it difficult for
POST to provide critical law enforcement training.
Even though POST uses no tax dollars, the law was
slowing down the approval of contracts. AB 2387 will
fix this and ensure that POST is able to provide the
best training for our officers.
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