Bill Text: CA AB906 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Personal services contracts.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2013-10-11 - Chaptered by Secretary of State - Chapter 744, Statutes of 2013. [AB906 Detail]

Download: California-2013-AB906-Amended.html

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BILL NUMBER: AB 906	AMENDED
	BILL TEXT

	AMENDED IN SENATE  SEPTEMBER 6, 2013
	AMENDED IN SENATE  SEPTEMBER 3, 2013
	AMENDED IN SENATE  AUGUST 22, 2013
	AMENDED IN SENATE  JULY 3, 2013
	AMENDED IN ASSEMBLY  MAY 24, 2013
	AMENDED IN ASSEMBLY  APRIL 25, 2013
	AMENDED IN ASSEMBLY  APRIL 18, 2013

INTRODUCED BY   Assembly Member Pan

                        FEBRUARY 22, 2013

   An act to amend Sections  19130 and  19131 
and 19132  of the Government Code, relating to personal services
contracts.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 906, as amended, Pan. Personal services  contracts:
independent contractors.   contracts. 
   The State Civil Service Act authorizes state agencies to use
personal services contracts if prescribed conditions are 
met, including requiring   met. The act, with regard to
certain personal services contracts, requires  the agency to
notify the State Personnel Board of its intention to enter into such
a contract and  requiring   requires  the
board to contact all organizations that represent state employees who
perform the type of work to be contracted.  Existing law
  The act  also requires the board, at the request
of an employee organization that represents state employees, to
review the adequacy of a proposed or executed personal services
contract, as specified. 
   This bill would authorize state agencies to use personal services
contracts when the services are of irregular, unpredictable, or
occasional duration and are necessary to carry out instructional
activities related to peace officer standards and training. The bill
would also limit the term of certain personal services contracts to 2
years, with specified exceptions. The bill would specify that the
provisions applicable to personal services contracts do not apply to
personal services contracts for architectural or engineering
services, as defined.  
   This bill would prohibit a contracting agency from executing
certain proposed personal services contracts until the State
Personnel Board has contacted all organizations that represent state
employees who perform the type of work to be contracted. 

   This bill would amend the act to remove the State Personnel Board
notification provisions, and instead, except as specified, would
prohibit the execution of proposed personal services contracts until
the state agency proposing to execute the contract has certified that
all organizations that represent state employees who perform the
type of work to be contracted have been notified. The bill would
require the Department of General Services to establish the
certification process. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
   
  SECTION 1.    Section 19130 of the Government Code
is amended to read:
   19130.  The purpose of this article is to establish standards for
the use of personal services contracts.
   (a) Personal services contracting is permissible to achieve cost
savings when all the following conditions are met:
   (1) The contracting agency clearly demonstrates that the proposed
contract will result in actual overall cost savings to the state,
provided that:
   (A) In comparing costs, there shall be included the state's
additional cost of providing the same service as proposed by a
contractor. 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
function.
   (B) In comparing costs, there shall not be included the state's
indirect overhead costs unless these costs can be attributed solely
to the function in question and would not exist if that function was
not performed in state service. Indirect overhead costs shall mean
the pro rata share of existing administrative salaries and benefits,
rent, equipment costs, utilities, and materials.
   (C) In comparing costs, there shall be included in the cost of a
contractor providing a service any continuing state costs that would
be directly associated with the contracted function. These continuing
state costs shall include, but not be limited to, those for
inspection, supervision, and monitoring.
   (2) Proposals to contract out work shall not be approved solely on
the basis that savings will result from lower contractor pay rates
or benefits. Proposals to contract out work shall be eligible for
approval if the contractor's wages are at the industry's level and do
not significantly undercut state pay rates.
   (3) The contract does not cause the displacement of civil service
employees. The term "displacement" includes layoff, demotion,
involuntary transfer to a new class, involuntary transfer to a new
location requiring a change of residence, and time base reductions.
Displacement does not include changes in shifts or days off, nor does
it include reassignment to other positions within the same class and
general location.
   (4) The contract does not adversely affect the state's affirmative
action efforts.
   (5) The savings shall be large enough to ensure that they will not
be eliminated by private sector and state cost fluctuations that
could normally be expected during the contracting period.
   (6) The amount of savings clearly justify the size and duration of
the contracting agreement.
   (7) The contract is awarded through a publicized, competitive
bidding process.
   (8) The contract includes specific provisions pertaining to the
qualifications of the staff that will perform the work under the
contract, as well as assurance that the contractor's hiring practices
meet applicable nondiscrimination, affirmative action standards.
   (9) The potential for future economic risk to the state from
potential contractor rate increases is minimal.
   (10) The contract is with a firm. A "firm" means a corporation,
limited liability company, partnership, nonprofit organization, or
sole proprietorship.
   (11) The potential economic advantage of contracting is not
outweighed by the public's interest in having a particular function
performed directly by state government.
   (b) Personal services contracting also shall be permissible when
any of the following conditions can be met:
   (1) The functions contracted are exempted from civil service by
Section 4 of Article VII of the California Constitution, which
describes exempt appointments.
   (2) The contract is for a new state function and the Legislature
has specifically mandated or authorized the performance of the work
by independent contractors.
   (3) The services contracted are not available within civil
service, cannot be performed satisfactorily by civil 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.
   (4) The services are incidental to a contract for the purchase or
lease of real or personal property. Contracts under this criterion,
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.
   (5) The legislative, administrative, or legal goals and purposes
cannot be accomplished through the utilization of persons selected
pursuant to the regular civil service system. Contracts are
permissible under this criterion to protect against a conflict of
interest or to ensure independent and unbiased findings in cases
where there is a clear need for a different, outside perspective.
These contracts shall include, but not be limited to, obtaining
expert witnesses in litigation.
   (6) The nature of the work is such that the Government Code
standards for emergency appointments apply. These contracts shall
conform to Article 8 (commencing with Section 19888) of Chapter 2.5
of Part 2.6.
   (7) 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,
pursuant to Section 11040.
   (8) 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.
   (9) 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.
   (10) 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.
   (11) The services are of irregular, unpredictable, or occasional
duration and are necessary to carry out instructional activities in
compliance with Chapter 1 (commencing with Section 13500) of Title 4
of Part 4 of the Penal Code.
   (c) All persons who provide services to the state under conditions
the board determines constitute an employment relationship, unless
exempted from civil service by Section 4 of Article VII of the
California Constitution, shall be retained under an appropriate civil
service appointment.
   (d) (1) A personal services contract authorized under paragraph
(6) or paragraph (10) of subdivision (b) shall not have a term in
excess of two years.
   (2) This subdivision does not apply if 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, or by habilitation programs in accordance with
Chapter 13 (commencing with Section 4850) of Division 4.5 of the
Welfare and Institutions Code, or by a program vendored or contracted
through a regional center or the State Department of Developmental
Services pursuant to 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 state 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.
   (e) This section does not apply to personal services contracts for
architectural and engineering services, as defined in Section
4529.10. 
   SEC. 2.   SECTION 1.   Section 19131 of
the Government Code is amended to read:
   19131.  (a) Any state agency proposing to execute a contract
pursuant to subdivision (a) of Section 19130 shall  notify
the State Personnel Board of its intention. All organizations that
represent state employees who perform the type of work to be
contracted, and any person or organization which has filed with the
board a request for notice, shall be contacted immediately by the
State Personnel Board upon receipt of this notice so that they may be
given a reasonable opportunity to comment on the proposed contract.
  not execute the contract until it has certified that
all organizations that represent state employees who perform the type
  of work to be contracted have been notified. 
Departments or agencies submitting proposed contracts shall retain
and provide all data and other information relevant to the contracts
and necessary for a specific application of the standards set forth
in subdivision (a) of Section 19130. Any employee organization may
request, within 10 days of notification, the State Personnel Board to
review any contract proposed or executed pursuant to subdivision (a)
of Section 19130. The review shall be conducted in accordance with
subdivision (b) of Section 10337 of the Public Contract Code. Upon
such a request, the State Personnel Board shall review the contract
for compliance with the standards specified in subdivision (a) of
Section 19130. 
   (b) No state agency shall execute a proposed contract pursuant to
subdivision (a) of Section 19130 until the State Personnel Board has
contacted all of the organizations that represent state employees who
perform the type of work to be contracted.  
   (b) (1) At a minimum, the notice required by subdivision (a) shall
include a full copy of the proposed contract. The notifying agency
may redact specific confidential or proprietary information from the
notice.  
   (2) The Department of General Services shall establish the
certification process.  
   (3) The notification and certification requirements of this
section do not change the requirements for contracts under Section
11045 or require an additional notification. 
   SEC. 2.    Section 19132 of the   Government
Code   is amended to read: 
   19132.   (a)    The State Personnel Board, at
the request of an employee organization that represents state
employees, shall review the adequacy of any proposed or executed
contract  which   that  is of a type
enumerated in subdivision (b) of Section 19130. The review shall be
conducted in accordance with subdivision (c) of Section 10337 of the
Public Contract Code. However, a contract that was reviewed at the
request of an employee organization when it was proposed need not be
reviewed again after its execution. 
   (b) (1) Unless a personal services contract pursuant to
subdivision (b) of Section 19130 is necessary due to a sudden and
unexpected occurrence that poses a clear and imminent danger,
requiring immediate action to prevent or mitigate the loss or
impairment of life, health, property, or essential public services,
the contract shall not be executed until the state agency proposing
to execute the contract has certified that all organizations that
represent state employees who perform the type of work to be
contracted have been notified.  
   (2) At a minimum, the notice shall include a full copy of the
proposed contract. The notifying agency may redact specific
confidential or proprietary information from the notice.  
   (3) The Department of General Services shall establish the
certification process.  
   (4) The notification and certification requirements of this
subdivision do not change the requirements for contracts under
Section 11045 or require an additional notification.