HomeMy WebLinkAboutMINUTES - 09132005 - SD6 • FHS #77
TO: BOARD OF SUPERVISORS '��'8 L''O�' Contra
FROM: Family and Human Services CommitteeCosta
DATE: September 13, 2005 _ ��
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SUBJECT: Placement of Vulnerable Clients
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)8 BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
ACCEPT recommendation from the Family and Human Services Committee on
contract language to be used in contracts for services to vulnerable populations; and
DIRECT County departments to incorporate specified language in contracts for
services to vulnerable populations.
FISCAL IMPACT:
None
BACKGROUND:
The Family and Human Services Committee reviewed County policies on
placement of vulnerable clients on June 20, 2005. During this meeting the
Committee requested that County Counsel review contract language being used
by other counties and recommend language for use by Contra Costa County.
The attached report includes background discussion and recommendation by
County Counsel to incorporate the following language into all contracts for
services to vulnerable populations:
"CONTRACTOR accepts responsibility for determining and approving the
character and fitness of its employees (including volunteers, agents or
representatives), and, where appropriate and to the extend permitted by
law, for completing a satisfactory criminal background check and period
rechecks. CONTRACTOR will only utilize employees with current, valid
licenses, where required by law, in the performance of services under the
contract."
CONTINUED ON ATTACHMENT: ` YES SIGN URE:
COMMENDATION OF COUNTY ADMINISTRATOR _�� RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
F DERAL GLOVER j4RK DeSAULNIER
ACTION OF BOARD ON e APPROVE AS RECOMMENDED_ 1 OTHER
VOT OF SUPERVISORS
HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS (ABSENfl"(i ) AND CORRECT COPY OF AN ACTION TAKEN
AND ENTERED ON THE MINUTES OF THE BOARD
AYES: NOES: OF SUPERVISO S ON THE DATE SHOWN.
ABSENT: ABSTAIN:
ATTESTED � L `1 /
JOHP48WEETEN,CLERK OF TH BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
Contact Person: Dorothy Sansoe(5-1009)
CC: CAO
EHSD
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BY: � DEPUTY
ADDENDUM TO ITEM SD.6
September 13, 2005
On this day, the Board of Supervisors' considered accepting recommendation from Family
and Human Services Committee on contract Ianguage to be used in contracts for services
to vulnerable populations; and directing County departments to incorporate specified
language in contracts for services to vulnerable populations.
Dorothy Sansoe, Senior Deputy County Administrator presented a brief narrative on
contract language that should be used in contracts. She revealed on March 19 2005 the
Board of Supervisors referred to the Family and Human Services committee a review of
Contra Costa County policies and procedure on the placement of vulnerable clients.
Ms. Sansoe pointed out a working committee was convened comprising of members of
the County Administrator's office, County Counsel, the Health Services Department and
the Employment and Human Services Department. This committee met several times to
discuss what the County's practices were and what could be strengthened. She explained
the committee determined one potential weakness that was the standard contract language
in contracts for services to vulnerable clients. She went on to say that a survey was
conducted of other Bay Area counties and both Napa and Placer County use standard
language for these contracts.
Ms. Sansoe noted County Counsel reviewed the language for these types of contracts,
and developed proposed language for use by the county. Ms. Sansoe said the Family and
Human- Services Committee recommends approval of adding the standard contract
language drafted by County Counsel and including this language in all County contracts
which provides services to vulnerable clients.
The Chair asked for public opinion and the following people spoke:
Gloria Sandoval, (STAND against Domestic Violence), 1410 Denzig Plaza, Suite
220, Concord;
Liz Callahan, (Contractors Alliance)2977 Ygnacio Valley Road, #445,, Walnut
Creek.
Supervisor Glover said the committee felt this language was acceptable but agreed with
an earlier comment by Supervisor Gioia, suggesting the County's indemnity be
examined.
County Counsel Beatrice Liu said it was her understanding that this added language
would supplement the County's standard general conditions. She further remarked that
in the standard general conditions there is a broad indemnification,which requires the
contractor to indemnify the defendant and hold harmless the County for any liability that
arises out of the contract. She reiterated that in response to Supervisor Gioia's concern, it
would be incumbent upon the contractor to take responsibility for services provided and
any liability arising out of their failure to do so.
Supervisor Gioia asked Ms. Liu to explain from a legal standpoint what the difference or
distinction would be in three scenarios: (1)with the present language, (2)with the
contractors language and(3)with no language. He asked Ms. Liu-how liability issues
might be different to the county under each of the three scenarios .
Ms. Liu responded there would not be a difference with any of the language. She said
she believes the County's standard contract language would be enough,but also noted
since there was a concern,to highlight the importance of doing background checks and
making sure that people have active current licenses. Ms. Liu remarked that she does not
see a problem with the alternative language presented by Contractors Alliance with a
slight change in the last sentence. Supervisor Gioia asked Ms. Liu if the key language
that puts an affirmative burden on the nonprofit to complete a satisfactory criminal
background check and periodic rechecks. Ms. Liu acknowledged that it is her
understanding that if the contractor has an active current license,,the State who issues that
license has already done that check.
Supervisor DeSaulnier said he had requested that this issue be referred to Family and
Human Services initially because of an unfortunate incident in an unlicensed facility the
county did not have a contractual relationship with. He stressed that this has since been
cured,but in his view and others there had been a mistake. He noted the Executive
Officer who placed the employee knew the employee had a background not suited to the
group home in which he was placed. He pointed out this incident triggered this referral to
Family and Human Services.
Supervisor DeSaulnier said he wanted to heighten security to provide a higher warning
from the county. Supervisor DeSaulnier said he was fine with the substitute language by
Contractors Alliance,but requested County Counsel make the recommendations.
Ms. Liu explained the change would be to the last sentence of Contractors
Alliance proposed language, which would read:
"Where appropriate and to the extent permitted by law, CONTRACTOR
accepts responsibility for completing a satisfactory criminal background
check and periodic rechecks, and CONTRACTOR agrees to utilize only
employees with current, valid licenses.,where required by law, in the
performance of services under the contract. CONTRACTOR also agrees
to employ reasonable methods to determine the fitness and qualifications
of its employees, volunteers, agents or representatives who deal with
vulnerable populations."'
Supervisors Glover and DeSaulnier both indicated the amended language presented by
County Counsel would be acceptable.
Supervisor Piepho requested some clarification on the language on the Board Order and
asked Ms. Liu whether the third line should read"extent"or"extend", and in the fourth
line should it be"periodic rechecks "instead of"period rechecks". Ms. Liu agreed with
Supervisor Piepho.
Supervisor Gioia suggested amending the contract language to read "qualifications and
fitness"instead of"character and fitness"and said that this was a more accurate term to
use.
Supervisor DeSaulnier moved approval, and the motion was seconded by Supervisor
Glover. By unanimous approval,with none absent,the Board of Supervisors took the
following action:
ACCEPTED recommendations as presented with an amendment to the
contract language to read: "Where appropriate and to the extent permitted
by law, CONTRACTOR accepts responsibility for completing a
satisfactory criminal background check and periodic rechecks, and
CONTRACTOR agrees to utilize only employees with current, valid
licenses, where required by law, in the performance of services under the
contract. CONTRACTOR also agrees to employ reasonable methods to
determine the fitness and qualifications of its employees, volunteers,
agents or representatives who deal with vulnerable population".
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DATE: August 15, 2005
TO: Family and Human Services Committee
Federal Glover, Chair
Mark DeSaulnier,Member
FROM: Dorothy Sansoe,, aff
Family and H an Services Committee
SUBJECT: VULNERABLE CLIENTS—CONTRACT LANGUAGE
RECOMMENDATIONS:
RECOMMEND to the Board of Supervisors that the following language be required in
all contracts for services to vulnerable populations:
"CONTRACTOR accepts responsibility for determining and approving the
character and fitness of its employees (including volunteers) agents or
representatives), and,where appropriate and to the extent permitted by law, for
completing a satisfactory criminal background check and period rechecks.
CONTRACTOR will only utilize employees with current, valid licenses,where
required by law,in the performance of services under the contract."
BACKGROUND:
On June 20,2005,the Family and Human Services Committee reviewed County policies
and procedures on the placement of vulnerable clients with community-based
organizations. Included in this review was a review of existing referral practices and best
practices in other jurisdictions, including language other counties use in contracts for
services to vulnerable populations.
During this meeting the Committee requested that County Counsel review contract
language being used in Napa and Placer Counties and recommend language for use by
Contra Costa County departments. The attached report from County Counsel
recommends specific language and provides background discussion. From the
information provided in this memo, it is recommended that County departments include
specific language in any contract for services to vulnerable populations.
Office of the County Counsel Contra Costa County
651 Pine Street, 9th Floor Phone: (925)335-1800
Martinez, CA 94553 Fax: (925)646-1078
Date: August 9, 2005
To: John Sweeten, County Administrator
Attn: Dorothy Sansoe, Senior Deputy County Administrator
From: Silvano B. Marchesi, County Counsel
By: Beatrice Liu, Deputy County Counsel
Re: Contract Language for Criminal Background Checks
We are in receipt of your proposed contract language from Placer and
Napa Counties for use in contracts with service providers who come into contact with
vulnerable populations such as children, elderly, mentally ill or disabled persons. The
proposed language relates to the Contractor's obligation to conduct criminal
background checks on its employees, agents and volunteers who come into contact
with vulnerable populations. Before addressing the specific language from Placer
and Napa Counties, we have the following general comments on criminal background
checks.
First, inquiring about past criminal conduct in a job interview has some
legal limitations. Labor Code Section 432.7 prohibits an employer from asking for
information about an arrest or detention that does not result in a conviction, and from
asking for information relating to a referral to or participation in pretrial or post trial
diversion program as a condition of probation.
Second, a Contractor may have difficulty in obtaining criminal history
information from a public agency, such as the Department of Justice, if it is required
under the contract. Penal Code Section 11105 limits access to Department of
Justice criminal history information to certain public agencies and officers for job
related needs, and to any person or entity when access is expressly authorized by
statute. For example, Health and Safety Code Section 1522 authorizes the State
Department of Social Services to access criminal records of an individual before
issuing that individual a license or permit to operate or provide direct care services in
community care facilities, foster family homes, or a certified family home of a
licensed foster family agency. Health and Safety Code Section 1569.17 contains
similar provisions for issuing licenses to persons who operate or provide direct care
services in a residential care facility for the elderly. Therefore, while a service
provider for vulnerable populations may not be able to obtain criminal records
directly, it should be able to assume that the State has already performed this
Dorothy Sansoe
August 9, 2005
Page 2
function by verifying'that the prospective employee holds a valid, current license to
work in one of the aforementioned facilities. Rather than requiring a Contractor to
conduct a criminal investigation, it may be sufficient to simply require the Contractor
to employ only individuals with valid, current licenses.
Finally, if a Contractor were to conduct background investigations on
prospective employees as a condition of employment, it may be subject to various
requirements imposed by the federal Fair Credit Reporting Act (FCRA) and the
California Investigative Consumer Reporting Agencies Act (ICRAA) such as giving
notice to the applicant of the investigation, obtaining applicant's consent for the
investigation, and providing the applicant with a copy of the report if employment is
denied. (1 5 U.S.C. §1681 et.seq.; Civil Code §1786 et.seq.).
Under-these service contracts, the Contractor is responsible for hiring and
training its own employees and for providing the services called for under the
contract. It is appropriate to include general language in the contracts requiring the
Contractor to determine the character and fitness of its own employees (as it should),
but it is not advisable to include too much detail as to how that should be done. The
danger in telling the Contractor how to do its job is that it may create liability for the
County where there was none before.
Taking into consideration the aforementioned issues, our analysis of the
specific contract language follows:
Placer County Language:
We suggest inserting language that the Provider must conduct background
checks, where appropriate, only to the extent permitted by law since background
checks are subject to so many restrictions. Appropriate language might read:
"CONTRACTOR accepts responsibility for determining and approving the
character and fitness of its employees (including volunteers, agents or
representatives), and, where appropriate and to the extent permitted by
law, for completing a satisfactory criminal background check and period
rechecks."
The indemnification language of Placer's provision (second sentence)
would not have to be included in the contract if the County's standard General
Conditions paragraph 18 ("Indemnification") is already included in the contract. The
General Conditions paragraph 18 provides greater protection for the County because
it is broader and requires the Contractor to defend as well as indemnify the County
Dorothy Sansoe
August 9, 2005
Page 3
against all liability arising from the operations or services of the Contractor in the
performance of the contract. Therefore, it would cover acts or omissions of the
Contractor in conducting criminal background checks.
Napa County Lanquage:
While the Napa County language is more explicit in its expectations of
what the Contractor should do to protect the well being of vulnerable populations, it
does not provide greater protection for the County against liability arising from the
acts or omissions of the Contractor's employees. As discussed above, requiring the
contractor to do certain acts but not others may create an argument that the County
was remiss in not requiring the Contractor to do more under its contract. Further, the
County's standard General Conditions paragraph 1 ("Compliance with Law") already
requires the Contractor to comply with all applicable federal, state and local laws and
regulations with respect to its performance under the contract. Therefore, it is
unnecessary to additionally state that the Contractor should comply with all laws
pertaining to working with and protecting the well being and safety of vulnerable
populations.
In summary, if County departments wish to add contract language to
address the specific concern that Contractor screen prospective employee's
backgrounds for criminal history, we suggest including the above quoted, modified
sentence from Placer County, along with a statement that Contractor will only utilize
employees with current, valid licenses, where required by law, in the performance of
services under the contract. These statements, in conjunction with the County's
standard General Conditions provisions, should adequately protect the County.
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