Agenda Item   

AGENDA STAFF REPORT

 

                                                                                                                        ASR Control  19-000370

 

MEETING DATE:

04/09/19

legal entity taking action:

Board of Supervisors

board of supervisors district(s):

All Districts

SUBMITTING Agency/Department:

District Attorney   (Approved)

Department contact person(s):

Melanie Eustice  (714) 347-8443 

 

 

Shawn Nelson (714) 347-8404

 

 

Subject:  DNA Processing Cost Recovery Fee Update and Contract for DNA Databasing Testing

 

      ceo CONCUR

County Counsel Review

Clerk of the Board

Concur

Approved Resolution to Form

Public Hearing

 

 

3 Votes Board Majority

 

 

 

    Budgeted: N/A

Current Year Cost: N/A

Annual Cost: FY 2019-20 $995,000
FY 2020-21 $995,000
FY 2021-22 $995,000

 

 

 

    Staffing Impact:

No

# of Positions:

Sole Source: No

    Current Fiscal Year Revenue: N/A

  Funding Source: Other: 100% (DNA Admin Fee)

County Audit in last 3 years: No

 

 

    Prior Board Action: 12/18/2018 #15, 01/27/2009 #70, 03/27/2007 #64

 

RECOMMENDED ACTION(S):

 

 

1. Conduct a Public Hearing.

 

2. Adopt a Resolution that:

 

a. Approves the proposed Orange County District Attorney DNA Processing Cost Recovery Fee, effective upon Board approval, as specified in the attached draft resolution, which supersedes and rescinds Resolution No. 09-009 DNA Processing Cost Recovery Fee.

 

b. Finds that the proposed fee meets the requirement set forth in subdivisions (e)(2) of Section 1 of Article XIII C of the California Constitution, and is therefore exempt from the definition of a tax as used therein.

 

c. Finds that the fee bears a fair or reasonable relationship to the payor’s burdens on, or benefits received from, the applicable governmental services and the revenue resulting from the fee established under the resolution will not exceed the estimated reasonable cost to provide these services.

 

3. Authorize the County Procurement Officer or authorized Deputy to execute Contract with Bode Cellmark Forensics, Inc. for Forensic DNA Databasing Testing Services in an amount not to exceed $995,000 annually and a cumulative total not to exceed $2,985,000 for the period of July 1, 2019, through June 30, 2022.

 

4. Receive and file the attached report, “The District Attorney’s Position on Science and Technology,” which includes the transforming of the DNA Unit to OCDA Science and Technology Unit.

 

 

 

 

SUMMARY:

 

Approval of the DNA Processing Cost Recovery Fee will enable the District Attorney to be closer to full-cost recovery of DNA collections and testing services for those who legally consent to provide a DNA sample to the OCDA as a condition of a negotiated case disposition. Furthermore, approval of the Contract for DNA Databasing Testing Services will allow the District Attorney to continue its DNA testing and processing for leads that assist in case investigations and prosecutions.

 

 

BACKGROUND INFORMATION:

 

DNA analysis and other technologies have increasingly become powerful tools in solving crime, exonerating the innocent and preventing criminals from repeat offenses through early identification and prosecution. With advancements in DNA technology, law enforcement agencies can use DNA to narrow the scope of potential suspects through DNA profiles.

 

On March 27, 2007, the Board of Supervisors (Board) approved the development of a robust local Office of the District Attorney (OCDA) DNA Database. The maintenance of a local DNA database is authorized by California Penal Code Sections 297(e) and 300.1. The OCDA database now contains over 182,000 DNA profiles from individuals who legally consent to provide a DNA sample to the OCDA as a condition of a negotiated case disposition. 

 

On January 27, 2009, the Board approved Resolution 09-009 authorizing the collection of a $75 fee from defendants to recover a portion of the administrative costs associated with collecting and processing said DNA samples.

 

Since program inception, approximately 8,077 hits or leads have been generated from the OCDA local DNA database, which includes 4,238 Individual to Crime matches and 3,839 Crime to Crime matches. These leads are shared with all departments in Orange County.

 

DNA Databasing as a Deterrent

 

Researchers have praised the collection of DNA from offenders as an effective deterrent to future crime.  In December 2017, University of Virginia Professor Jennifer Doleac, who holds a Ph.D. in Economics from Stanford University and is widely praised as the national leading voice on the economics of crime, published a comprehensive study titled The Effects of DNA databases on the Deterrence and Detection of Crime.  Professor Doleac found overwhelming evidence to support her conclusion that DNA databases deter crime. “DNA profiling leads to significant deterrence of future crime while also increasing the likelihood of offenders being detected.”  Dr. Doleac found, in fact, that DNA databases increased crime detection probability and reduced recidivism within the year following sample collection by as much as 43 percent.  Professor Doleac concluded that polices which increase the identification of criminal offenders, like DNA databasing, are an effective tool to reduce crime and increase public safety. Doleac’s research has been cited in numerous publications, as well as by the United States Supreme Court. 

 

Genetic Genealogy

 

Genetic Genealogy is the most recent, innovative breakthrough in the area of DNA. Since April 2018, investigations utilizing cutting-edge genetic genealogy techniques have literally changed the landscape of DNA case investigation across the United States.   

 

In less than a year, 30 perpetrators of heinous rapes and murders, have been identified through Genetic Genealogy.  To the surprise of many, a number of these individuals were leading apparently normal lives, amongst us in our communities. The risk these violent criminals posed to our community was enormous. The societal benefit derived from finally identifying these killers and rapists cannot be overstated.

 

Investigative Genetic Genealogy clearly represents a monumental breakthrough in the ability to solve violent crimes. The District Attorney is committed to the responsible, ethical use of this new technology, which is why the OCDA has partnered with our fellow District Attorneys across the state to design and implement best practice procedures and protocols for using this revolutionary tool.

 

Approximately $50 million has been expended on the OCDA DNA program since its inception in 2007. The OCDA DNA budget in FY 2019-20 is in excess of $10 million, which consists primarily of staffing, benefits, overhead and DNA databasing testing services.

 

DNA Processing Cost Recovery Fee Update

 

This is the first request for an increase in fees since its inception in 2009. To identify the needed cost for recovery, OCDA has conducted a fee study including staff salaries, amount of time required to process each sample, DNA database testing and kit costs. The OCDA requests a fee increase from $75 to $110. The fee increase of $35, or 47 percent, is related to increased salaries and employee benefits costs during the past nine years and brings the department closer to full-cost recovery. This request is made in accordance with County policy of full-cost recovery of fee-supported programs. This fee should have been revisited by the prior administration and was not.  The proposed fee is based on the estimated annual program cost for DNA Collections of Non-Combined DNA Index System samples in the amount of $3,760,165, which includes staff salaries, services and supplies, and indirect costs. With the updated fee taking effect upon Board approval, approximately $490,000 increase in annual revenue is expected to be realized in FY 2019-20.

 

The following fee amount is:

 

Fee Description

Current Fee

FY 2018-19 – FY 2021-22

DNA Processing Cost Recovery Fee

$75

$110

 

Notices of the Public Hearing have been published to comply with Sections 66018 and 6062a of the California Government Code, which require any local agency to hold a public hearing when new fees are adopted or existing fees are increased.

 

Compliance with California Environmental Quality Act (CEQA)

 

The proposed project was previously determined to be Statutorily Exempt from the California Environmental Quality Act pursuant to Section 21080(b)(8) of the Public Resources Code and Section 15273 of the CEQA Guidelines as the establishment or modification, structuring, restructuring or approval of rates, tools, fares and other charges by a public agency for the purpose of meeting operation expenses, including employee wage rates and fringe benefits; purchasing or leasing supplies, equipment, or material on January 27 , 2009, when it was originally approved.

 

Compliance with Proposition 26

 

The proposed fee schedule does not fall within the definition of a “Tax” under Proposition 26 because it is excepted by California Constitution Article XIII C, Section 1, Subdivision (e)(2). Subdivision (e)(2) excepts from the definition of tax, “a charge imposed for a specific government service or product provided directly to the payer that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.” This exception applies because the DNA Processing Cost Recovery Fee is established to fund the DNA processing and collection services provided to fee payors. Additionally, the fee amounts are no more than is necessary to recover the cost of OCDA’s fee related activities. 

 

 

Approval of Contract for Forensic DNA Database Testing Services

 

The OCDA requests the Board's approval to execute Contract MA-026-19010623 as referenced in the Recommended Action. 

 

Bode Cellmark Foresics, Inc. (Bode) is a highly respected, accredited DNA databasing facility located in Virginia.  Bode’s unparalleled ability to provide high quality databasing services in a timely manner is demonstrated by their outstanding performance record with Orange County.  In 2018, Bode processed 14,436 OCDA local DNA database samples, with a 99.999 percent success rate, and an average 20-day turn-around time.

 

The OCDA recommends that the County continue to outsource DNA databasing testing services. On August 9, 2018, a Request For Proposal (RFP) was issued, and the OCDA received one proposal from the current contractor, Bode. An evaluation panel of three members rated the Bode proposal on the criteria specified in the RFP. The evaluation panel has recommended awarding the Contract to Bode.

 

The Contractor’s performance has been confirmed as satisfactory. OCDA has verified there are no concerns that must be addressed with respect to Contractor’s ownership/name, litigation status or conflicts with County interests. The last time OCDA brought a contract with Bode before the Board was on December 18, 2018, to extend that contract by a period of six months to expire on June 30, 2019, which was approved. The six month extension was to allow time for the OCDA to review and evaluate its DNA program.    

 

Subcontractors

 

This Contract does not include subcontractors or pass through to other providers. See Attachment D for Contract Summary Form.

 

Science and Technology Unit

 

The OCDA continues its commitment to the ethical use of science and technology in providing safety and security to the Orange County community. The department is committed to spending over $10 million on the DNA Unit in the FY 2019-20 budget, and has committed nearly $50 million since the Unit’s inception in 2007. These costs are listed with the Fee Study on Attachment G and include salaries, benefits, DNA databasing testing services, testing kits and other costs.

Studies find that DNA profiling has a deterrent effect on future criminal activity. The collection of low-level offender DNA also protects the community by confirming that those who join the database as part of their case disposition are not suspects in other, more serious crimes. If identified as a suspect through an OCDA DNA hit, law enforcement is provided the pointer or lead information and conducts an independent investigation. This database is not evidentiary in nature. Rather the database is a repository of biometric information collected from charged defendants as part of the District Attorney’s case disposition. The database, which is legally authorized, consists primarily of misdemeanant offenders, is not duplicative, and serves multiple prosecutorial purposes, including the effective and efficient processing of high-volume, primarily misdemeanor cases that is fiscally responsible and protects the community. The OCDA local DNA database is the largest consensual DNA database in the nation. It is larger than DNA databases maintained by 25 states.

 

OCDA has worked in conjunction with the Sheriff-Coroner Department (Sheriff-Coroner) and the County Executive Office in the joint management of the Orange County Crime Lab (OC Crime Lab). The OC Crime Lab processes forensic evidence from all Orange County law enforcement agencies for possible use in court. On April 9, 2019, the Sheriff-Coroner and OCDA submitted a joint report recommending to change the management structure of the OC Crime Lab to be under the sole jurisdiction of the Sheriff-Coroner. OCDA is in support of this change in structure, which provides a clear separation of powers between the District Attorney and law enforcement and will also help to increase public confidence in the objectivity and oversight function of the OCDA.

 

The OCDA is dedicated to using innovative and proven science and technology to develop pointers or leads, which may help guide law enforcement investigations. These pointers are provided to law enforcement to assist with their development of evidence. To emphasize that the role of public prosecutors is independent from that of law enforcement, the OCDA is transforming the DNA Unit to the OCDA Science and Technology Unit. The name change reflects the prosecutorial unit’s purpose to properly oversee the disposition of all cases based on evidence developed by law enforcement. It also embraces the broader scope of utilizing other innovative technologies such as body-worn cameras. By harnessing and integrating the power of science and technology, the OCDA Science and Technology Unit will advance the OCDA’s mission of providing safety and security for the Orange County community through the vigorous enforcement of criminal and civil laws. 

 

 

 

FINANCIAL IMPACT:

 

Appropriations and Revenue pertaining to this Contract will be included in the recommended FY 2019-20 budget and will be included in the budgeting process for future years.

 

 

 

STAFFING IMPACT:

 

N/A

 

 

ATTACHMENT(S):

 

Attachment A - Contract MA-026-19010623 with Bode Cellmark Forensics, Inc.
Attachment B - Request For Proposal # 026-C017195-RC
Attachment C - Evaluation Scores, Memo and Individual Evaluator Score Sheets
Attachment D - Contract Summary Form
Attachment E - Government Code Section 26500
Attachment F - DNA Processing Cost Recovery Fee Resolution
Attachment G - DNA Processing Cost Recovery Fee Study
Attachment H - District Attorney's Position on Science and Technology
Attachment I - 2018 OCDA DNA Database Annual Summary