BILL REQ. #:  H-5030.1 

READ FIRST TIME 02/09/10.   

     AN ACT Relating to transferring the indeterminate sentence review board and its functions to the department of corrections; amending RCW 9.95.003, 9.95.005, 9.95.007, 9.95.140, 9.95.280, 9.95.300, 9.96.050, 71.05.385, 72.09.585, and 42.17.2401; creating a new section; decodifying RCW 4.24.5502; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 9.95.003 and 2007 c 362 s 1 are each amended to read as follows:
     The board is created within the department of corrections. The board shall consist of a ((chairman)) chair and four other members, each of whom shall be appointed by the governor with the consent of the senate. Each member shall hold office for a term of five years, and until his or her successor is appointed and qualified. The terms shall expire on April 15th of the expiration year. Vacancies in the membership of the board shall be filled by appointment by the governor with the consent of the senate. In the event of the inability of any member to act, the governor shall appoint some competent person to act in ((his)) the member's stead during the continuance of such inability. The members shall not be removable during their respective terms except for cause determined by the superior court of Thurston county. The governor in appointing the members shall designate one of them to serve as ((chairman)) chair at the governor's pleasure. The appointed ((chairman)) chair shall serve as a fully participating board member ((and as the director of the agency)).
     The members of the board and ((its officers and employees)) staff assigned to the board shall not engage in any other business or profession or hold any other public office without the prior approval of the executive ethics board indicating compliance with RCW 42.52.020, 42.52.030, 42.52.040 and 42.52.120; nor shall they, at the time of appointment or employment or during their incumbency, serve as the representative of any political party on an executive committee or other governing body thereof, or as an executive officer or employee of any political committee or association. The members of the board shall each severally receive salaries fixed by the governor in accordance with the provisions of RCW 43.03.040, and in addition shall receive travel expenses incurred in the discharge of their official duties in accordance with RCW 43.03.050 and 43.03.060. Employees assigned to the board shall be employees of the department.
     The ((board)) secretary may employ((, and fix, with the approval of the governor, the compensation of and prescribe the duties of)) a senior administrative officer and such ((officers, employees, and assistants)) other personnel as may be necessary((, and provide necessary quarters, supplies, and equipment)) to carry out the duties of the board.

Sec. 2   RCW 9.95.005 and 2001 2nd sp.s. c 12 s 318 are each amended to read as follows:
     The board shall meet at major state correctional institutions at such times as may be necessary for a full and complete study of the cases of all convicted persons whose durations of confinement are to be determined by it; whose community custody supervision is under the board's authority; or whose applications for parole come before it. Other times and places of meetings may also be fixed by the board.
     The superintendents of the different institutions shall provide suitable quarters for the board and ((assistants)) staff while in the discharge of their duties.

Sec. 3   RCW 9.95.007 and 1986 c 224 s 5 are each amended to read as follows:
     The board may meet and transact business in panels. Each board panel shall consist of at least two members of the board. In all matters concerning the internal affairs of the board and policy-making decisions, a majority of the full board must concur in such matters. The ((chairman)) chair of the board with the consent of a majority of the board may designate any two members to exercise all the powers and duties of the board in connection with any hearing before the board. If the two members so designated cannot unanimously agree as to the disposition of the hearing assigned to them, such hearing shall be reheard by the full board. All actions of the full board shall be by concurrence of a majority of the sitting board members.

Sec. 4   RCW 9.95.140 and 2009 c 28 s 29 are each amended to read as follows:
     (1) The board shall cause a complete record to be kept of every prisoner under the jurisdiction of the board released on parole or community custody. Such records shall be organized in accordance with the most modern methods of filing and indexing so that there will be always immediately available complete information about each such prisoner. Subject to information sharing provisions related to mentally ill offenders((,)) and the end of sentence review committee, ((and the department of corrections,)) the board may make rules as to the privacy of such records and their use by others than the board and ((its)) the department of corrections staff assigned to perform board-related duties. Sex offenders convicted of crimes committed before July 1, 1984, who are under the board's jurisdiction shall be subject to the determinations of the end of sentence review committee regarding risk level and subject to sex offender registration and community notification. The board and the department of corrections staff assigned to perform board-related duties shall be immune from liability for the release of information concerning sex offenders as provided in RCW 4.24.550.
     The superintendents of state correctional facilities and all officers and employees thereof and all other public officials shall at all times cooperate with the board and furnish to the board((, its officers, and employees)) and the department of corrections staff assigned to perform board-related duties such information as may be necessary to enable it to perform its functions, and such superintendents and other employees shall at all times give the members of the board((, its officers, and employees)) and the department of corrections staff assigned to perform board-related duties free access to all prisoners confined in the state correctional facilities.
     (2) Offenders sentenced under RCW 9.94A.507 shall be subject to the determinations of the end of sentence review committee regarding risk level and subject to sex offender registration and community notification.
     (3) The end of sentence review committee shall make law enforcement notifications for offenders under board jurisdiction on the same basis that it notifies law enforcement regarding offenders sentenced under chapter 9.94A RCW for crimes committed after July 1, 1984.

Sec. 5   RCW 9.95.280 and 2001 2nd sp.s. c 12 s 344 are each amended to read as follows:
     The secretary of corrections or the secretary's designee, upon recommendation by the board, may deputize any person (regularly employed by another state) to act as an officer and agent of this state in effecting the return of any person convicted of a crime committed before July 1, 1984, who has violated the terms and conditions of parole or probation as granted by this state. In any matter relating to the return of such a person, any agent so deputized shall have all the powers of a police officer of this state.

Sec. 6   RCW 9.95.300 and 2001 2nd sp.s. c 12 s 346 are each amended to read as follows:
     The secretary of corrections or the secretary's designee, upon recommendation by the board, may enter into contracts with ((similar)) officials of any other state or states for the purpose of sharing an equitable portion of the cost of effecting the return of any person who has violated the terms and conditions of parole, probation, or community custody as granted by this state.

Sec. 7   RCW 9.96.050 and 2009 c 325 s 4 are each amended to read as follows:
     (1)(a) When an offender on parole has performed all obligations of his or her release, including any and all legal financial obligations, for such time as shall satisfy the indeterminate sentence review board that his or her final release is not incompatible with the best interests of society and the welfare of the paroled individual, the board may make a final order of discharge and issue a certificate of discharge to the offender.
     (b) The board retains the jurisdiction to issue a certificate of discharge after the expiration of the offender's or parolee's maximum statutory sentence. If not earlier granted and any and all legal financial obligations have been paid, the board shall issue a final order of discharge three years from the date of parole unless the parolee is on suspended or revoked status at the expiration of the three years.
     (c) The discharge, regardless of when issued, shall have the effect of restoring all civil rights not already restored by RCW 29A.08.520, and the certification of discharge shall so state.
     (d) This restoration of civil rights shall not restore the right to receive, possess, own, or transport firearms.
     (e) The board shall issue a certificate of discharge to the offender in person or by mail to the offender's last known address.
     (2) ((The board shall send to the department of corrections)) A copy of every signed certificate of discharge for offender sentences under the authority of the department of corrections shall be placed in the department's files.
     (3) The discharge provided for in this section shall be considered as a part of the sentence of the convicted person and shall not in any manner be construed as affecting the powers of the governor to pardon any such person.

Sec. 8   RCW 71.05.385 and 2009 c 320 s 2 are each amended to read as follows:
     (1) A mental health service provider shall release to the persons authorized under subsection (2) of this section, upon request:
     (a) The fact, place, and date of an involuntary commitment, the fact and date of discharge or release, and the last known address of a person who has been committed under this chapter.
     (b) Information related to mental health services, in the format determined under subsection (9) of this section, concerning a person who:
     (i) Is currently committed to the custody or supervision of the department of corrections or the indeterminate sentence review board under chapter 9.94A or 9.95 RCW;
     (ii) Has been convicted or found not guilty by reason of insanity of a serious violent offense; or
     (iii) Was charged with a serious violent offense and such charges were dismissed under RCW 10.77.086.
     Legal counsel may release such information to the persons authorized under subsection (2) of this section on behalf of the mental health service provider, provided that nothing in this subsection shall require the disclosure of attorney work product or attorney-client privileged information.
     (2) The information subject to release under subsection (1) of this section shall be released to law enforcement officers, personnel of a county or city jail, designated mental health professionals, public health officers, therapeutic court personnel, personnel of the department of corrections, ((or personnel of)) including the indeterminate sentence review board and personnel assigned to perform board-related duties, when such information is requested during the course of business and for the purpose of carrying out the responsibilities of the requesting person's office. No mental health service provider or person employed by a mental health service provider, or its legal counsel, shall be liable for information released to or used under the provisions of this section or rules adopted under this section except under RCW 71.05.440.
     (3) A person who requests information under subsection (1)(b) of this section must comply with the following restrictions:
     (a) Information must be requested only for the purposes permitted by this subsection and for the purpose of carrying out the responsibilities of the requesting person's office. Appropriate purposes for requesting information under this section include:
     (i) Completing presentence investigations or risk assessment reports;
     (ii) Assessing a person's risk to the community;
     (iii) Assessing a person's risk of harm to self or others when confined in a city or county jail;
     (iv) Planning for and provision of supervision of an offender, including decisions related to sanctions for violations of conditions of community supervision; and
     (v) Responding to an offender's failure to report for department of corrections supervision.
     (b) Information shall not be requested under this section unless the requesting person has reasonable suspicion that the individual who is the subject of the information:
     (i) Has engaged in activity indicating that a crime or a violation of community custody or parole has been committed or, based upon his or her current or recent past behavior, is likely to be committed in the near future; or
     (ii) Is exhibiting signs of a deterioration in mental functioning which may make the individual appropriate for civil commitment under this chapter.
     (c) Any information received under this section shall be held confidential and subject to the limitations on disclosure outlined in this chapter, except:
     (i) Such information may be shared with other persons who have the right to request similar information under subsection (2) of this section, solely for the purpose of coordinating activities related to the individual who is the subject of the information in a manner consistent with the official responsibilities of the persons involved;
     (ii) Such information may be shared with a prosecuting attorney acting in an advisory capacity for a person who receives information under this section. A prosecuting attorney under this subsection shall be subject to the same restrictions and confidentiality limitations as the person who requested the information; and
     (iii) As provided in RCW 72.09.585.
     (4) A request for information related to mental health services under this section shall not require the consent of the subject of the records. Such request shall be provided in writing, except to the extent authorized in subsection (5) of this section. A written request may include requests made by e-mail or facsimile so long as the requesting person is clearly identified. The request must specify the information being requested.
     (5) In the event of an emergency situation that poses a significant risk to the public or the offender, a mental health service provider, or its legal counsel, shall release information related to mental health services delivered to the offender and, if known, information regarding where the offender is likely to be found to the department of corrections or law enforcement upon request. The initial request may be written or oral. All oral requests must be subsequently confirmed in writing. Information released in response to an oral request is limited to a statement as to whether the offender is or is not being treated by the mental health service provider and the address or information about the location or whereabouts of the offender.
     (6) Disclosure under this section to state or local law enforcement authorities is mandatory for the purposes of the health insurance portability and accountability act.
     (7) Whenever federal law or federal regulations restrict the release of information contained in the treatment records of any patient who receives treatment for alcoholism or drug dependency, the release of the information may be restricted as necessary to comply with federal law and regulations.
     (8) This section does not modify the terms and conditions of disclosure of information related to sexually transmitted diseases under chapter 70.24 RCW.
     (9) In collaboration with interested organizations, the department shall develop a standard form for requests for information related to mental health services made under this section and a standard format for information provided in response to such requests. Consistent with the goals of the health information privacy provisions of the federal health insurance portability and accountability act, in developing the standard form for responsive information, the department shall design the form in such a way that the information disclosed is limited to the minimum necessary to serve the purpose for which the information is requested.

Sec. 9   RCW 72.09.585 and 2004 c 166 s 5 are each amended to read as follows:
     (1) When the department is determining an offender's risk management level, the department shall inquire of the offender and shall be told whether the offender is subject to court-ordered treatment for mental health services or chemical dependency services. The department shall request and the offender shall provide an authorization to release information form that meets applicable state and federal requirements and shall provide the offender with written notice that the department will request the offender's mental health and substance abuse treatment information. An offender's failure to inform the department of court-ordered treatment is a violation of the conditions of supervision if the offender is in the community and an infraction if the offender is in confinement, and the violation or infraction is subject to sanctions.
     (2) When an offender discloses that he or she is subject to court-ordered mental health services or chemical dependency treatment, the department shall provide the mental health services provider or chemical dependency treatment provider with a written request for information and any necessary authorization to release information forms. The written request shall comply with rules adopted by the department of social and health services or protocols developed jointly by the department and the department of social and health services. A single request shall be valid for the duration of the offender's supervision in the community. Disclosures of information related to mental health services made pursuant to a department request shall not require consent of the offender.
     (3) The information received by the department under RCW 71.05.445 or ((71.34.225)) 71.34.345 may be released to the indeterminate sentence review board as relevant to carry out its responsibility of planning and ensuring community protection with respect to persons under its jurisdiction. Further disclosure by the indeterminate sentence review board is subject to the limitations set forth in subsections (5) and (6) of this section and must be consistent with the written policy of the indeterminate sentence review board. The decision to disclose or not shall not result in civil liability for the indeterminate sentence review board or ((its employees)) staff assigned to perform board-related duties provided that the decision was reached in good faith and without gross negligence.
     (4) The information received by the department under RCW 71.05.445 or ((71.34.225)) 71.34.345 may be used to meet the statutory duties of the department to provide evidence or report to the court. Disclosure to the public of information provided to the court by the department related to mental health services shall be limited in accordance with RCW 9.94A.500 or this section.
     (5) The information received by the department under RCW 71.05.445 or ((71.34.225)) 71.34.345 may be disclosed by the department to other state and local agencies as relevant to plan for and provide offenders transition, treatment, and supervision services, or as relevant and necessary to protect the public and counteract the danger created by a particular offender, and in a manner consistent with the written policy established by the secretary. The decision to disclose or not shall not result in civil liability for the department or its employees so long as the decision was reached in good faith and without gross negligence. The information received by a state or local agency from the department shall remain confidential and subject to the limitations on disclosure set forth in chapters 70.02, 71.05, and 71.34 RCW and, subject to these limitations, may be released only as relevant and necessary to counteract the danger created by a particular offender.
     (6) The information received by the department under RCW 71.05.445 or ((71.34.225)) 71.34.345 may be disclosed by the department to individuals only with respect to offenders who have been determined by the department to have a high risk of reoffending by a risk assessment, as defined in RCW 9.94A.030, only as relevant and necessary for those individuals to take reasonable steps for the purpose of self-protection, or as provided in RCW 72.09.370(2). The information may not be disclosed for the purpose of engaging the public in a system of supervision, monitoring, and reporting offender behavior to the department. The department must limit the disclosure of information related to mental health services to the public to descriptions of an offender's behavior, risk he or she may present to the community, and need for mental health treatment, including medications, and shall not disclose or release to the public copies of treatment documents or records, except as otherwise provided by law. All disclosure of information to the public must be done in a manner consistent with the written policy established by the secretary. The decision to disclose or not shall not result in civil liability for the department or its employees so long as the decision was reached in good faith and without gross negligence. Nothing in this subsection prevents any person from reporting to law enforcement or the department behavior that he or she believes creates a public safety risk.

Sec. 10   RCW 42.17.2401 and 2009 c 565 s 24 are each amended to read as follows:
     For the purposes of RCW 42.17.240, the term "executive state officer" includes:
     (1) The chief administrative law judge, the director of agriculture, the administrator of the Washington basic health plan, the director of the department of services for the blind, the director of the state system of community and technical colleges, the director of commerce, the secretary of corrections, the director of early learning, the director of ecology, the commissioner of employment security, the chair of the energy facility site evaluation council, the secretary of the state finance committee, the director of financial management, the director of fish and wildlife, the executive secretary of the forest practices appeals board, the director of the gambling commission, the director of general administration, the secretary of health, the administrator of the Washington state health care authority, the executive secretary of the health care facilities authority, the executive secretary of the higher education facilities authority, the executive secretary of the horse racing commission, the executive secretary of the human rights commission, ((the executive secretary of the indeterminate sentence review board,)) the director of the department of information services, the executive director of the state investment board, the director of labor and industries, the director of licensing, the director of the lottery commission, the director of the office of minority and women's business enterprises, the director of parks and recreation, the director of personnel, the executive director of the public disclosure commission, the executive director of the Puget Sound partnership, the director of the recreation and conservation office, the director of retirement systems, the director of revenue, the secretary of social and health services, the chief of the Washington state patrol, the executive secretary of the board of tax appeals, the secretary of transportation, the secretary of the utilities and transportation commission, the director of veterans affairs, the president of each of the regional and state universities and the president of The Evergreen State College, and each district and each campus president of each state community college;
     (2) Each professional staff member of the office of the governor;
     (3) Each professional staff member of the legislature; and
     (4) Central Washington University board of trustees, the boards of trustees of each community college and each technical college, each member of the state board for community and technical colleges, state convention and trade center board of directors, committee for deferred compensation, Eastern Washington University board of trustees, Washington economic development finance authority, The Evergreen State College board of trustees, executive ethics board, forest practices appeals board, forest practices board, gambling commission, life sciences discovery fund authority board of trustees, Washington health care facilities authority, each member of the Washington health services commission, higher education coordinating board, higher education facilities authority, horse racing commission, state housing finance commission, human rights commission, indeterminate sentence review board, board of industrial insurance appeals, information services board, recreation and conservation funding board, state investment board, commission on judicial conduct, legislative ethics board, liquor control board, lottery commission, marine oversight board, Pacific Northwest electric power and conservation planning council, parks and recreation commission, board of pilotage commissioners, pollution control hearings board, public disclosure commission, public pension commission, shorelines hearings board, public employees' benefits board, salmon recovery funding board, board of tax appeals, transportation commission, University of Washington board of regents, utilities and transportation commission, Washington state maritime commission, Washington personnel resources board, Washington public power supply system executive board, Washington State University board of regents, Western Washington University board of trustees, and fish and wildlife commission.

NEW SECTION.  Sec. 11   RCW 4.24.5502 is decodified.

NEW SECTION.  Sec. 12   (1) The indeterminate sentence review board is transferred to the department of corrections.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the indeterminate sentence review board shall be delivered to the custody of the department of corrections. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the indeterminate sentence review board shall be made available to the department of corrections. All funds, credits, or other assets held by the indeterminate sentence review board shall be assigned to the department of corrections.
     (b) Any appropriations made to the indeterminate sentence review board shall, on the effective date of this section, be transferred and credited to the department of corrections.
     (c) If any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All employees of the indeterminate sentence review board are transferred to the jurisdiction of the department of corrections. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the department of corrections to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.
     (4) All rules and all pending business before the indeterminate sentence review board shall be continued and acted upon by the department of corrections. All existing contracts and obligations shall remain in full force and shall be performed by the department of corrections.
     (5) The transfer of the powers, duties, functions, and personnel of the indeterminate sentence review board shall not affect the validity of any act performed before the effective date of this section.
     (6) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.
     (7) All classified employees of the indeterminate sentence review board assigned to the department of corrections under this act whose positions are within an existing bargaining unit description at the department of corrections shall become a part of the existing bargaining unit at the department of corrections and shall be considered an appropriate inclusion or modification of the existing bargaining unit under the provisions of chapter 41.80 RCW.
     (8) Notwithstanding any provision of this act and despite the transfer of the indeterminate sentence review board to the department of corrections, the members of the indeterminate sentence review board will possess and shall exercise independent judgment when making any decisions concerning offenders. These decisions include but are not limited to decisions concerning offenders' release, revocation, reinstatement, or the imposition of conditions of supervision.

NEW SECTION.  Sec. 13   This act takes effect July 1, 2010.