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AB-1238 Background checks: volunteers.(2017-2018)

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Date Published: 02/17/2017 09:00 PM
AB1238:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1238


Introduced by Assembly Member Kiley

February 17, 2017


An act to amend Section 11105.3 of the Penal Code, relating to background checks.


LEGISLATIVE COUNSEL'S DIGEST


AB 1238, as introduced, Kiley. Background checks: volunteers.
Existing law authorizes a human resource agency, as defined, or an employer to request from the Department of Justice records of all convictions or any arrest pending adjudication for specified offenses for a person who applies for a license, employment, or volunteer position, in which he or she would have supervisory or disciplinary power over a minor or any person under his or her care. Existing law defines “human resource agency” for those purposes as a public or private entity, excluding specified licensing agencies, responsible for determining the character and fitness of a person who is applying for a license, employment, or as a volunteer within the human services field, as specified, or applying to be a volunteer who transports individuals impaired by drugs or alcohol, or applying to adopt a child or be a foster parent. Existing law requires the department to furnish the information to the agency or employer and to send a copy of the information to the applicant. Existing law exempts a nonprofit organization from the fee otherwise charged by the department for processing those requests.
This bill would exempt a human resource agency tracking volunteer information provided to community-based organizations, as defined, from the fee otherwise charged by the department for processing a request for those records. The bill would revise the definition of “human resource agency” for those purposes to include a public or private entity responsible for tracking information related to a person who is applying as a volunteer within the human services field that involves the care and security of children, the elderly, the handicapped, or the mentally impaired, and includes a 3rd-party organization that tracks volunteer-related information that is provided to community-based organizations. The bill would authorize these newly described human resource agencies to request subsequent arrest notification from the department for those volunteers, and would define “community-based organization” for those purposes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 11105.3 of the Penal Code is amended to read:

11105.3.
 (a) Notwithstanding any other law, a human resource agency or an employer may request from the Department of Justice records of all convictions or any arrest pending adjudication involving the offenses specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code of a person who applies for a license, employment, or volunteer position, in which he or she would have supervisory or disciplinary power over a minor or any person under his or her care. The department shall furnish the information to the human resource agency or requesting employer and shall also send a copy of the information to the applicant.
(b) Any request for records under subdivision (a) shall include the applicant’s fingerprints, which may be taken by the requester, and any other data specified by the department. The request shall be on a form approved by the department, and the department may charge a fee to be paid by the employer, human resource agency, or applicant for the actual cost of processing the request. However, no fee shall be charged to a nonprofit organization or to a human resource agency tracking volunteer information provided to community-based organizations. Requests received by the department for federal level criminal offender record information shall be forwarded to the Federal Bureau of Investigation by the department to be searched for any record of arrests or convictions.
(c) (1) When a request pursuant to this section reveals that a prospective employee or volunteer has been convicted of a violation or attempted violation of Section 220, 261.5, 262, 273a, 273d, or 273.5, or any sex offense listed in Section 290, except for the offense specified in subdivision (d) of Section 243.4, and where the agency or employer hires the prospective employee or volunteer, the agency or employer shall notify the parents or guardians of any minor who will be supervised or disciplined by the employee or volunteer. A conviction for a violation or attempted violation of an offense committed outside the State of California shall be included in this notice if the offense would have been a crime specified in this subdivision if committed in California. The notice shall be given to the parents or guardians with whom the child resides, and shall be given at least 10 days prior to the day that the employee or volunteer begins his or her duties or tasks. Notwithstanding any other law, any person who conveys or receives information in good faith and in conformity with this section is exempt from prosecution under Section 11142 or 11143 for that conveying or receiving of information. Notwithstanding subdivision (d), the notification requirements of this subdivision shall apply as an additional requirement of any other provision of law requiring criminal record access or dissemination of criminal history information.
(2) The notification requirement pursuant to paragraph (1) shall not apply to a misdemeanor conviction for violating Section 261.5 or to a conviction for violating Section 262 or 273.5. Nothing in this paragraph shall preclude an employer from requesting records of convictions for violating Section 261.5, 262, or 273.5 from the Department of Justice pursuant to this section.
(d) Nothing in this section supersedes any law requiring criminal record access or dissemination of criminal history information. In any conflict with another statute, dissemination of criminal history information shall be pursuant to the mandatory statute. This subdivision applies to, but is not limited to, requirements pursuant to Article 1 (commencing with Section 1500) of Chapter 3 of, and Chapter 3.2 (commencing with Section 1569) and Chapter 3.4 (commencing with Section 1596.70) of, Division 2 of, and Section 1522 of, the Health and Safety Code, and Sections 8712, 8811, and 8908 of the Family Code, and Section 16519.5 of the Welfare and Institutions Code.
(e) The department may adopt regulations to implement the provisions of this section as necessary.
(f) As used in this section, “employer” means any nonprofit corporation or other organization specified by the Attorney General that employs or uses the services of volunteers in positions in which the volunteer or employee has supervisory or disciplinary power over a child or children.
(g) (1) As used in this section, “human resource agency” means a public or private entity, excluding any agency responsible for licensing of facilities pursuant to the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500)), the California Residential Care Facilities for the Elderly Act (Chapter 3.2 (commencing with Section 1569)), Chapter 3.01 (commencing with Section 1568.01), and the California Child Day Care Facilities Act (Chapter 3.4 (commencing with Section 1596.70)) of Division 2 of the Health and Safety Code, responsible for determining the character and fitness of a person who is:

(1)

(A) Applying for a license, employment, or as a volunteer within the human services field that involves the care and security of children, the elderly, the handicapped, or the mentally impaired.

(2)

(B) Applying to be a volunteer who transports individuals impaired by drugs or alcohol.

(3)

(C) Applying to adopt a child or to be a foster parent.
(2) As used in this section, “human resource agency” also includes a public or private entity, excluding licensing entities described in paragraph (1), responsible for tracking information related to a person who is applying as a volunteer within the human services field that involves the care and security of children, the elderly, the handicapped, or the mentally impaired, and includes a third-party organization that tracks volunteer-related information that is provided to community-based organizations.
(h) Except as provided in subdivision (c), any criminal history information obtained pursuant to this section is confidential and no recipient shall disclose its contents other than for the purpose for which it was acquired.
(i) As used in this subdivision, “community youth athletic program” means an employer having as its primary purpose the promotion or provision of athletic activities for youth under 18 years of age.
(j) A community youth athletic program, as defined in subdivision (i), may request state and federal level criminal history information pursuant to subdivision (a) for a volunteer coach or hired coach candidate. The director of the community youth athletic program shall be the custodian of records.
(k) The community youth athletic program may request from the Department of Justice subsequent arrest notification service, as provided in Section 11105.2, for a volunteer coach or a hired coach candidate.
(l) A human resource agency described in paragraph (2) of subdivision (g) may request subsequent arrest notification service from the department, as provided in Section 11105.2, for a volunteer registered with an agency providing volunteer-related information to community-based organizations.

(l)

(m) Compliance with this section does not remove or limit the liability of a mandated reporter pursuant to Section 11166.
(n) As used in this section, “community-based organization” means an organization whose main focus is the care and security of children, the elderly, the handicapped, or the mentally impaired for the local community.