HB372 By Representative Beckman RFD Judiciary Rd 1 08-MAR-16

SYNOPSIS: This bill would establish the Municipal Probation Reform Act.

This bill would define terms and would allow a municipal court to contract with a private probation entity to provide probation services under certain conditions.

This bill would: Provide qualifications and registration requirements for a private probation entity; provide for the qualifications of employees, agents, or volunteers of a private probation entity; provide certain insurance coverage requirements and contract requirements for a private probation entity; provide procedures for the revocation or suspension of the registration of a probation entity and would impose fines; and authorize the Administrative Office of Courts to inspect and investigate a private probation entity to monitor the entity.

A BILL TO BE ENTITLED AN ACT

To establish the Municipal Probation Reform Act; to authorize a municipal court to contract with a private probation entity; to provide qualifications and registration requirements for a private probation entity; to provide for the qualifications of employees, agents, or volunteers of a private probation entity; to provide certain insurance coverage and contract requirements; to provide procedures for the revocation or suspension of registration and to impose fines; and to authorize the Administrative Office of Courts to perform inspections and investigations to monitor compliance.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Municipal Probation Reform Act.

Section 2. For the purposes of this act, the following terms shall have the following meanings:

(1) CONVICTION. A finding or verdict of guilt, a plea of guilty, or a plea of nolo contendere in a criminal proceeding.

(2) DIRECTOR. Any person who participates in the operations, marketing, marketing consulting, or decision making of any probation entity, including any person who directly or indirectly benefits financially from the probation entity. A director may not include a person who beneficially owns stock or other securities of a publicly held corporation unless the person beneficially owns more than five percent of the voting capital stock of the corporation or otherwise meets the requirements of this definition.

(3) GOVERNING AUTHORITY. The elected body of any municipality with statutory power to enter into written contracts with corporations, enterprises, or agencies to provide public services.

(4) PROBATION ENTITY. Any probation service, corporation, enterprise, or agency which enters into written contracts or agreements with courts to provide probation supervision, counseling, collection services, or other probation services for all persons convicted of a misdemeanor and placed on probation by the court. A probation entity may be privately owned and operated or run by the governing authority of a municipality.

(5) PROBATION OFFICER SUPERVISOR. A person who has at least five years of experience in corrections, parole, or probation services or has served as a probation officer, parole officer, or corrections counselor.

(6) PROBATIONER. Any misdemeanor offender sentenced by a court in this state and assigned to a probation entity for supervision, counseling, financial collections, and compliance with any other court-ordered condition.

(7) REGISTRATION APPLICATION. The written application process a probation entity must complete in order to be approved to provide probation services.

(8) REGISTRATION APPROVAL. Written authorization by the Administrative Office of Courts to any probation entity to provide probation services. Registration approval is a prerequisite for initial and continued probation entity operation. It is granted and continued upon a showing of initial and continued compliance with the requirements of this act. Registration approval specifically authorizes a probation entity to enter into agreements with courts and governing authorities to provide probation services.

(9) REPRIMAND. A written notice to a probation entity for noncompliance of minor or first-time violations of the requirements provided by this act.

(10) REVOCATION. The termination by the Administrative Office of Courts of the registration approval of a probation entity based upon failure to comply with the requirements provided by this act.

(11) SUSPENSION. A temporary stop, a temporary delay, an interruption, or a cessation.

(12) VOLUNTEER. A person who gives his or her services without any express or implied promise of remuneration.

Section 3. (a) A municipal court that has original jurisdiction of ordinance violations or misdemeanors and in which a defendant in a case has been found guilty upon verdict or any plea, may hear and determine the question of the probation of the defendant at a time to be determined by the court.

(b)(1) If the court finds upon a hearing of the matter that the defendant is not likely to engage in an unlawful course of conduct and that the ends of justice and the welfare of society do not require that the defendant suffer the penalty imposed by law, the court shall impose a sentence upon the defendant but may stay and suspend the execution of the sentence, or any portion thereof, or may place the defendant on probation under the supervision and control of a probation officer for the duration of the probation, subject to this act.

(2) The period of probation or suspension may not exceed the maximum sentence of confinement that could be imposed on the defendant.

(c) The court may require the payment of a fine or costs, or both, as a condition precedent to probation.

(d)(1) The sentencing judge does not lose jurisdiction over any probationer during the term of his or her probated sentence.

(2) The judge may revoke, rescind, modify, or change any or all of the probated sentence at any time during the period originally prescribed for the probated sentence to run.

Section 4. (a) The judge of a municipal court, with the approval of the governing authority of the municipality, may enter into written contracts with any private probation entity to provide any of the following:

(1) Probation supervision.

(2) Counseling.

(3) Collection services for all moneys to be paid by a probationer in accordance with the sentence imposed.

(4) Collection services for all moneys which by operation of law are to be paid by the probationer as a consequence of the conviction.

(5) Any other probation services for a probationer.

(b) The approval by the governing authority of the municipality shall be attached to the final contract negotiated by the judge with the private probation entity to privatize probation services as an exhibit to the contract.

Section 5. (a) All reports, papers, records, and files relating to the supervision of a probationer by a private probation entity or by a municipality providing probation services are confidential and available only to the affected municipality, the court, the Department of Examiners of Public Accounts, the appropriate law enforcement agencies acting within the normal course of business, the Administrative Office of Courts, and the probationer.

(b) In the event of a transfer of the supervision of a probationer from a private probation entity or municipality providing probation services to the Department of Corrections, the Department of Corrections shall have access to relevant reports, papers, records, and files of the transferring entity.

(c) All reports, papers, records, and files relating to the supervision of a probationer by a private probation entity or by a municipality providing probation services are not subject to subpoena.

(d) The Administrative Office of Courts may periodically prepare and distribute aggregate, statewide information regarding the status of probation activities.

(e) All records of a probation entity shall be maintained in accordance with confidentiality law.

(f) Each probation entity shall maintain the following records for a period of two years which upon request shall be made available and accessible for inspection by the affected municipality, court, the Department of Examiners of Public Accounts, or the Administrative Office of Courts:

(1) All written contracts or agreements for probation services.

(2) All court orders for a probationer assigned to the probation entity for supervision.

(3) All accounting ledgers and related documents.

(4) All payment receipts issued to a probationer for all funds received.

(5) All probation case history and management reports and documents.

(6) All other documents pertaining to the case management of each probationer assigned to the probation entity for supervision.

(7) The probation entity application for registration and supporting documents submitted to the Administrative Office of Courts.

(8) The registration approval issued to the probation entity by the Administrative Office of Courts.

Section 6. The following persons may not own, operate, direct, or serve as an employee or agent of a probation entity:

(1) An employee of the Administrative Office of Courts, or his or her spouse.

(2) Any person who has an apparent conflict of interest due to the existence of a fiduciary, business, or personal relationship with any probationer.

(3) Any person whose relationship with a probationer would place the person in a position to exert undue influence, exploit, take undue advantage of, or breach the confidentiality of the probationer.

(4) A judge, public probation officer or employee, or an employee of a court in this state or his or her spouse, to the extent that the probation services are to be provided within the same jurisdiction served by the judge, public probation officer, or court employee.

(5) Any person convicted of a felony offense.

(6) Any person convicted of a domestic violence offense.

(7) Any person who has an interest in any finance business or lending institution that makes loans to a probationer under its supervision.

Section 7. (a) In addition to the qualifications in Section 6, a person may not be employed by a probation entity if the person meets any of the following criteria:

(1) Has been convicted of a sufficient amount of misdemeanors so as to establish a pattern of disregard for the law. Violations of misdemeanors when the employee has received a pardon may not be considered.

(2) Has an outstanding warrant for his or her arrest.

(3) Has a pending charge that is a felony or involves domestic violence.

(4) Fails to possess at a minimum a high school diploma or its equivalent, excepting those participating in an established high school program.

(b) An employee of a probation entity shall complete an initial 16-hour block of instruction within six months of employment and an 8-hour annual in-service continuing education training program relevant to the performance of his or her duties and consisting of a curriculum recommended by the American Corrections Association.

(c) An employee may assist a probation officer with case related administrative duties, but may not possess decision making authority regarding case supervision.

Section 8. (a) Any employee, agent, or volunteer who provides any service to probationers, has access to probation entity records, has telephone or face-to-face contact with probationers under supervision, or has access to probationer data, shall meet all of the following requirements:

(1) Be at least 18 years of age.

(2) Sign a confidentiality statement agreeing to hold the records of the probation entity confidential. This statement shall be maintained in the personnel file of the person.

(3) Sign a statement that is also signed by the probation entity director or his or her designee that the person has received an orientation on the provisions of this act as well as operations guidelines relevant to the job duties of the person. This statement shall be maintained in the personnel file of the person.

(4) Complete and pass a criminal background check.

(b)(1) Each owner, director, or agent of a probation entity shall sign a confidentiality statement agreeing to keep confidential the identity of probationers under the supervision of the probation entity.

(2) This statement shall be maintained in the personnel files of the probation entity.

Section 9. (a) A person employed as a probation officer with a probation entity shall meet all of the following standards:

(1) Be at least 21 years of age at the time of employment.

(2) Have completed a standard two-year college course of study of 90 quarter hours or 60 semester hours from an accredited institution or have four years of law enforcement experience as a certified peace officer or the jurisdictional equivalent at the time of employment.

(3) Any private probation officer who was employed as of July 1, 2015, who had at least six months of experience as a private probation officer or any person who was employed as a probation officer by a municipality as of July 1, 2015, shall be exempt from the requirements of subdivision (2).

(4) Complete and pass a criminal background check.

(5) Complete a 40-hour initial orientation program within six months of employment and a 20-hour annual in-service continuing education program consisting of a curriculum recommended by the American Corrections Association.

(b) All documentation of education and law enforcement experience, including post certification, shall be maintained in the personnel files of the employee.

(c) The following persons may not be employed as a probation officer, use the title probation officer, or otherwise be responsible for the supervision of a probationer:

(1) A person convicted of a felony.

(2) A person convicted of sufficient misdemeanors so as to establish a pattern of disregard for the law, provided that for the purposes of this subsection, violations of traffic laws and other offenses involving the operation of a motor vehicle when the employee has received a pardon may not be considered.

(3) A person with an outstanding warrant for his or her arrest.

(4) A person with a pending charge that is a felony or involves domestic violence.

Section 10. (a) When a probation entity submits its registration application, and at any time reasonably requested by the Administrative Office of Courts, the owner, director, or agent of the probation entity must possess or verify all of the following qualifications:

(1) The entity has at least one supervising employee who is responsible for the direct supervision of probation officers. The supervisor shall have a minimum of five years experience in corrections, parole, or probation services.

(2) The entity has a clean criminal record.

(3) The owner, operator, director, or agent has not been convicted of or pled guilty or nolo contendere to any crime that is a felony in this state or in any other state, unless a pardon has been obtained.

(4) The entity has not employed a person who has been convicted of sufficient misdemeanors so as to establish a pattern of disregard for the law. Violations of misdemeanors when the employee has received a pardon may not be considered.

(5) The entity has not employed a person with an outstanding warrant for his or her arrest.

(6) The entity has not employed a person with a pending charge that is a felony or involves domestic violence.

(7) The owner, operator, director, or agent is at least 21 years of age at the time of application.

(b)(1) In order for a probation entity to maintain its registration, each owner, director, agent, and employee of the probation entity shall maintain a criminal record free of felony conviction or a conviction involving domestic violence.

(2) Each owner, director, agent, and employee shall notify the Administrative Office of Courts in writing if he or she is charged, arrested, convicted, or pleads guilty or nolo contendere to any felony within 10 business days of the charge, arrest, conviction, or plea.

(c) Upon filing a registration application to operate as a private probation entity, the entity shall include written evidence of general liability insurance coverage of at least one million dollars ($1,000,000). The insurance requirements required by this subsection shall be maintained at all times while providing probation services. Failure to maintain current liability insurance may result in the suspension of the registration of the private probation entity.

Section 11. (a) A probation entity engaged in probation services shall initially submit a registration application as designed and required by the Administrative Office of Courts and shall re-register as often as necessary to maintain current information with the Administrative Office of Courts.

(b) A registration application shall be made utilizing forms provided by the Administrative Office of Courts.

(c) Failure or refusal to register or re-register shall subject the probation entity to sanctions or fines based upon individual circumstances.

(d) An entity providing probation services upon the effective date of this act shall be allowed to continue providing probation services, pending successful registration.

(e) The Administrative Office of Courts is authorized to charge an annual registration fee from each entity in an amount not to exceed five thousand dollars ($5,000).

Section 12. (a) Contracts for probation services shall demonstrate through a written plan or contract form the reasonable ability of the probation entity to furnish continuous service in compliance with the requirements of this act for a probation entity from the date the operation of the probation entity commences.

(b) Private probation entity plans and contracts shall be filed and maintained current with the parties of the contract and the Administrative Office of Courts and shall minimally contain the following information about the probation entity:

(1) A description of the extent of services to be rendered.

(2) The staff qualifications which meet or exceed the requirements of this act.

(3) The completed criminal background checks on all of the staff.

(4) The policies and procedures for staff training.

(5) The bonding of the staff.

(6) The staffing levels and standards of supervision, including the type and frequency of contacts.

(7) The collection procedures for handling court-ordered fines, fees, and restitution.

(8) The procedures for handling indigent probationers.

(9) The revocation circumstances and procedures.

(10) The reporting and record keeping procedures.

(11) The default and contract termination procedures.

(12) A schedule of the range of probation fees and charges assessed to the probationers supervised by the entity.

Section 13. (a) Every operator, director, agent, and probation officer employed by a probation entity shall successfully complete 40 hours of initial orientation training within six months of the beginning of operations, where required by law, and 20 hours of relevant continuing education courses each year.

(b) Every owner, operator, director, or agent shall continually employ at least one supervisor with a minimum of five years' experience in corrections, probation, or parole services who is responsible for the direct supervision of probation officers.

Section 14. In addition to any other requirements of a probation entity, every owner, operator, director, or agent of a probation entity is responsible for each of the following:

(1) Entering into a written contract or agreement with each court for services provided.

(2) Providing services for the supervision, counseling, and collection of court-ordered fines of a probationer assigned to the probation entity by the court.

(3) The actions of all employees and agents carried out within the scope of employment, whether they are characterized as employees, agents, or independent contractors.

(4) Training all employees who have contact with a probationer to provide accurate information regarding his or her probation case and to maintain confidentiality.

(5) Maintaining an employee folder for every employee containing the job application, signed statements acknowledging the content of this act, training records, law enforcement experience, certifications, documentation of education, and criminal history, and record check information.

(6) Prohibiting the solicitation of a probationer for insurance, legal services, bail bonds, specific clinical evaluations, treatment providers, or any other product or service.

(7) Ensuring the quality of case management and execution of all court orders in a professional manner.

(8) Maintaining accountability to the court by reporting the status of all probation cases assigned to the probation entity.

Section 15. (a) Each probation entity shall provide the judge and the Administrative Office of Courts with a quarterly probation entity activity report in such detail as the judge and the Administrative Office of Courts may require.

(b) Probation entity quarterly activity reports shall be submitted within 30 days after the close of each calendar quarter and shall be made utilizing forms approved by the Administrative Office of Courts.

(c) A probation entity shall provide other reports in such detail as the municipality, court, Department of Examiners of Public Accounts, or the Administrative Office of Courts may require.

(d) All records of the probation entity shall be open to inspection as requested by the municipality, court, Department of Examiners of Public Accounts, or the Administrative Office of Courts.

Section 16. (a) A probation entity may not assess, collect, or disburse any funds as it pertains to the collection of court-ordered monies, except by written order of the court or as required by state law.

(b) A current schedule of all probation fees shall be filed by the probation entity.

(c) A probation entity, owner, director, agent, or employee may not offer any program service or component for an additional fee unless the fee charge has been ordered by the court or as required by state law.

(d) A probation entity, by contract with a municipal court, may collect a monthly probation supervision fee from a probationer, except that the probation fee may not be collected in advance for months of a probated sentence not yet passed and may not be collected for any month or portion of any month during which the probationer is incarcerated or participating in an in-house treatment program.

(e) Each time a probation entity collects a contractually authorized probation supervision fee, the probation entity shall also collect the following surcharges and disburse the surcharges to the appropriate agency of this state on a monthly basis accompanied by a monthly report itemizing each collected surcharge:

(1) A surcharge of five dollars ($5) remitted to the Alabama Office of Indigent Defense Services.

(2) A surcharge of five dollars ($5) remitted to the Alabama Office of Prosecution Services.

(f) An owner, operator, director, agent, or employee may not collect or disburse any funds under this act except by written or oral order of the court or as required by state law.

(g) It shall be the duty of the probation entity to collect and disburse funds and faithfully keep the records of accounts as required by the court, the Administrative Office of Courts, or state law.

Section 17. (a) The Administrative Office of Courts, or its designated representatives, may conduct periodic inspections at any time during the established operating hours of a probation entity in order to assess and monitor compliance with this act.

(b)(1) The Administrative Office of Courts, or its designated representatives, may conduct investigations to determine whether a probation entity has been or is violating the requirements of this act.

(2) The investigations may be conducted at any site, location, or place and may be initiated at any time during operating hours or other reasonable hours and may continue during a pending administrative action initiated by the Administrative Office of Courts.

(3) An investigation may involve any person who may have information related to an alleged or suspected violation by a probation entity.

(4) Investigations may be initiated by the Administrative Office of Courts when it suspects actual or potential noncompliance with the requirements of this act on the part of a probation entity or when any person alleges facts that if true would likely constitute a violation of the requirements of this act.

(c) A registration application or the approval by the Administrative Office of Courts constitutes consent by the registration applicant and the owner of the premises for the representatives of the Administrative Office of Courts to enter the premises for the purpose of conducting an inspection, investigation, or monitoring.

(d)(1) A representative of the Administrative Office of Courts shall be allowed immediate entrance and meaningful access to the probation entity premises and to sources of information determined by the Administrative Office of Courts to be pertinent to making a full compliance determination.

(2) This information includes, but is not limited to, all staff, all parts of the premises, and probationer records related to the initial or continued registration approval of a probation entity.

(e)(1) The Administrative Office of Courts may require the probation entity to provide any relevant documents, including originals when available, or photocopies or portions thereof.

(2) The authority under subdivision (1) extends to documents to which confidentiality or privilege otherwise would attach but any claim of confidentiality or privilege shall be preserved and may not be considered waived as a result of the access to the documents by the Administrative Office of Courts.

(f) Probation entity staff, employees, representatives, and any agents thereof, shall cooperate with any inspection or investigation by the Administrative Office of Courts and shall provide, without delay, any information reasonably requested by the representative of the Administrative Office of Courts.

(g)(1) The Administrative Office of Courts shall notify in writing any probation entity found not to be in compliance with the requirements of this act and shall state the specific rule or rules violated and the factual basis for its finding of noncompliance.

(2) The probation entity shall correct all violations within a reasonable period of time, as determined by the Administrative Office of Courts.

Section 18. (a) The Administrative Office of Courts may deny, suspend, or revoke the registration approval of a probation entity for noncompliance with the requirements of this act.

(b) The Administrative Office of Courts shall have the authority to issue a written reprimand or assess administrative fines against any probation entity for noncompliance with the requirements of this act.

(c) In considering which sanctions to impose, the Administrative Office of Courts shall consider the history of compliance of the probation entity, the seriousness of the violations, whether the probation entity voluntarily reported problems giving rise to any violation, and whether the probation entity exhibited good faith efforts to correct areas of noncompliance prior to or subsequent to the discovery of noncompliance by the Administrative Office of Courts.

(d) The Administrative Office of Courts may base the denial, suspension, revocation, or assessment of an administrative fine upon any of the following applicable grounds:

(1) Knowingly making any verbal or written false or misleading statement of material fact, or knowingly omitting a material fact in connection with a registration application or in connection with an inspection or investigation.

(2) Failing or refusing to provide the representative of the Administrative Office of Courts with meaningful access to the probation entity premises, staff, probationer records, including refusing to provide the representatives of the Administrative Office of Courts with documents reasonably necessary to make a compliance determination.

(3) The applicant for registration approval having an overall poor record of compliance, including, but not limited to, denial of registration approval within the previous 12 months, registration revocation at any time in the past in this or in any other state, or registration suspension within the previous two years.

(4) Changing ownership of a private probation entity in order to avoid or avert the denial, revocation, or suspension of registration.

(5) Altering or falsifying any probation entity records.

(6) Failing or refusing to remit required reports as outlined by this act.

(7) Failing or refusing to comply with the probation entity requirements of this act or violating any law relating to the operation of a probation entity.

(8) Failing or refusing to abide by or comply with any order or directive issued by the Administrative Office of Courts pursuant to its authority as provided by this act.

(9) Failing or refusing to properly supervise its officers, agents, or employees to the detriment of the public.

(10) Committing any act or omission that the Administrative Office of Courts finds to be contrary to the spirit of this act or contrary to the public good.

(e) The Administrative Office of Courts may choose to issue a written notice of noncompliance to a probation entity for a minor or first-time violation of the requirements of this act.

(f)(1) The category of fine for a violation of this section shall be determined by the Administrative Office of Courts based upon the egregiousness of the violation.

(2) The Administrative Office of Courts may assess an administrative fine, not to exceed one thousand dollars ($1,000) per violation, against any probation entity that fails to comply with any probation entity requirement.

(3) Payments of assessed fines shall be made to the Administrative Office of Courts within 30 days after notice of assessment.

(4) All fines collected by the Administrative Office of Courts shall be remitted to the State Treasury.

(5) In determining the amount of the fine, the Administrative Office of Courts may consider the seriousness of the violation, whether the same or any other probation entity requirement has been previously violated by the same probation entity owner, director, agent, or employee, and whether procedures designated to prevent the violation were in place and were followed.

(g) When the Administrative Office of Courts determines that a fine shall be imposed, violations shall be categorized based on the following and shall rest on whether the same or similar violation has previously been cited:

(1) Category I ($100-$300). Violations involving probation entity operating requirements, including, but not limited to, failure to maintain the required records and documentation.

(2) Category II ($200-$700). Violations involving noncompliance with probation entity registration requirements, including, but not limited to, failure to submit required periodic reports and documents.

(3) Category III. ($400-$1,000). Violations involving fraud, providing false information or documents, failure to account or produce official court documents and reports, and any violations of the law as proved by a preponderance of the evidence.

Section 19. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Court, Municipal

Probation

Judge, Municipal

Private Entities

Employers

Employees

Insurance

Administrative Office of Courts