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AB-2439 Public works: prevailing wages: access to records.(2023-2024)

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Date Published: 04/01/2024 09:00 PM
AB2439:v98#DOCUMENT

Amended  IN  Assembly  April 01, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2439

Introduced by Assembly Member Quirk-Silva

February 13, 2024

An act to add Article 4 (commencing with Section 7920.300) to Chapter 1 of Part 1 of Division 10 of the Government Code, relating to public records. Section 1776.2 to the Labor Code, relating to public works.


LEGISLATIVE COUNSEL'S DIGEST


AB 2439, as amended, Quirk-Silva. Public records: owners and developers. works: prevailing wages: access to records.
Existing law defines “public works,” for the purposes of regulating public works contracts, as, among other things, construction, alteration, demolition, installation, or repair work done under contract and paid for, in whole or in part, out of public funds. Existing law requires each contractor and subcontractor on a public works project to keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the contractor or subcontractor in connection with the public work. Existing law requires any copy of records made available for inspection as copies and furnished upon request to the public or any public agency to be marked or obliterated to prevent disclosure of an individual’s name, address, and social security number but specifies that any copy of records made available to a Taft-Hartley trust fund for the purposes of allocating contributions to participants be marked or obliterated only to prevent disclosure of an individual’s full social security number, as specified.
This bill would require an owner, a developer, or the agent of an owner or developer, that, among other things, receives public funds from a public agency to perform specified public works projects, to make available upon written request from a joint labor-management committee, a multiemployer Taft-Hartley trust fund, or a specified tax-exempt organization specified public works records in their possession, including requests for bids and submitted bid documents, inspection and work logs, and funding documentation. The bill would subject an owner, a developer, the agent of an owner or developer, a contractor, and a subcontractor, for failing to comply with the provisions of this bill, to a penalty by the Labor Commissioner, as specified, and would deposit the penalties into a specified fund.

Existing law, the California Public Records Act, requires state and local agencies, as defined, to make their records available for public inspection, unless an exemption from disclosure applies. Existing law declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. Existing law requires specified state and local bodies to establish written guidelines for accessibility of records. Existing law requires the state and local bodies to post a copy of these guidelines in a conspicuous public place at the offices of these bodies, and to make available a copy of the guidelines upon request, free of charge, to any person requesting that body’s records.

This bill would additionally require an owner, developer, or their agents who receives public funds or the equivalent of public funds from a public agency to perform a public works project, as defined, to be subject to the act in connection with records that it prepares, owns, uses, or retains relating to that public works project. The bill would require the owner, developer, or their agents to establish written guidelines for accessibility of records. The bill would also require the owner, developer, or their agents to post a copy of these guidelines in a conspicuous public place at the offices of these owners and developers, and to make available a copy of the guidelines upon request, free of charge, to any person requesting that owner’s or developer’s records.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

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


SECTION 1.

 Section 1776.2 is added to the Labor Code, to read:

1776.2.
 (a) An owner, a developer, or the agent of an owner or developer, that contracts with a contractor or subcontractor or engages in the performance of work on a public works project subject to this chapter and that receives public funds as set forth in subdivision (b) of Section 1720 from a public agency to perform a public works project pursuant to subdivision (c) of Section 1720, shall make available upon written request from an authorized entity the following public works records in their possession:
(1) Requests for bids and submitted bid documents, including, but not limited to, bid advertisements, a list of all bids received, the notice of award, and the notice to proceed.
(2) Final executed construction contracts, including, but not limited to, lists of all contractors and subcontractors performing work on the project, copies of performance or payment bond, or both, issued on behalf of the contractor or subcontractors, copies of side agreements, project labor agreements, or any other agreements between the owner, developer, or the agent of the owner or developer and the contractor and subcontractors related to the public works project.
(3) Inspection and work logs, including, but not limited to, the inspectors’ photos of work performed on the project, critical chart paths, construction schedules and other documents showing the times when particular types of work have been performed or are expected to be performed by a contractor or subcontractor, daily worksite sign-in sheets, and the notice of completion.
(4) If the owner, developer, or the agent of the owner or developer were required to provide an enforceable commitment that a skilled and trained workforce will be used to complete a contract or project, the monthly reports required under Section 2602 of the Public Contract Code.
(5) Funding documentation, including, but not limited to, the funding sources, funding agreements, and tax credits.
(b) (1) The following authorized entities may request records pursuant to this section:
(A) A joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a).
(B) A multiemployer Taft-Hartley trust fund (29 U.S.C. Sec. 186(c)(5)).
(C) An organization operating pursuant to Section 501(c)(6) of the federal Internal Revenue Code and established for the purpose of ensuring compliance within the building and construction trades industry.
(2) For contractors or subcontractors only, an authorized entity may request the records outlined in Section 1776 evidencing work performed by the contractor’s or subcontractor’s employees on a public works project pursuant to this section and the statement of employer payments related to fringe benefits payments for the employees.
(c) (1) Any records made available under this section shall be redacted to prevent disclosure of any individual’s social security number. Nothing in this section requires the disclosure of financial records or confidential or proprietary information, including trade secrets.
(2) For purposes of this section, unredacted records shall be permitted to be provided to a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) and a multiemployer Taft-Hartley trust fund (29 U.S.C. Sec. 186(c)(5)) in the manner prescribed in Section 1776.
(d) An owner, a developer, and the agent of an owner or developer are not responsible for any liability, damages, or penalty assessment due to the failure of a contractor or subcontractor to provide records in response to a request by an authorized entity listed in subdivision (b).
(e) An owner, a developer, the agent of an owner or developer, a contractor, and a subcontractor shall comply with this section within 10 days after receipt of a written notice requesting the records enumerated in subdivision (a).
(f) An owner, a developer, the agent of an owner or developer, a contractor, or a subcontractor, who fails to comply with this section shall be subject to a penalty by the Labor Commissioner of one hundred dollars ($100) per day, per violation. Penalties received pursuant to this subdivision shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section.
(g) Nothing in this section shall limit the public’s ability to request public records pertaining to public works projects as provided under existing law, including, but not limited to, the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).

SECTION 1.Article 4 (commencing with Section 7920.300) is added to Chapter 1 of Part 1 of Division 10 of Title 1 of the Government Code, to read:
4.Owners and Developers
7920.300.

(a)Notwithstanding Sections 7920.510, 7920.525, and 7920.540, an owner, developer, or their agents who receives public funds or the equivalent of public funds from a public agency to perform a public works project, pursuant to Section 1720 of the Labor Code, shall be subject to this division in connection with records that it prepares, owns, uses, or retains relating to that public works project.

(b)(1)An owner, developer, or their agent described in subdivision (a) shall establish written guidelines for accessibility of records, in accordance with Section 7922.635.

(2)A copy of these guidelines shall be posted in a conspicuous public place at the offices of these owners or developers, as applicable, and a copy of the guidelines shall be available upon request, free of charge, to any person requesting that owner’s or developer’s records.

SEC. 2.

The Legislature finds and declares that Section 1 of this act, which adds Section 7920.300 to the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:

It is in the public interest, and it furthers the purposes of paragraph (7) of subdivision (b) of Section (3) of Article I of the California Constitution, to ensure that information concerning publicly funded public works construction projects administered by nonpublic entities is available to the public.