REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
August 9, 2022
FROM
TRACY REECE, Chief Probation Officer, Probation Department
SUBJECT
Title
Agreement with California Department of Education, Nutrition Services Division for Food Services at Juvenile Detention and Assessment Centers.
End
RECOMMENDATION(S)
Recommendation
Approve the Permanent Single Agreement with California Department of Education, Nutrition Services Division, including non-standard terms, to allow the Probation Department to continue to qualify for state and federal reimbursement for providing food services to detained juveniles at the Juvenile Detention and Assessment Centers, retroactively effective July 1, 2022 until terminated by either party.
(Presenter: Tracy Reece, Chief Probation Officer, 387-5692)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Operate in a Fiscally-Responsible and Business-Like Manner.
Ensure Development of a Well-Planned, Balanced, and Sustainable County.
Provide for the Safety, Health and Social Service Needs of County Residents.
FINANCIAL IMPACT
This item will not result in the additional use of Discretionary General Funding (Net County Cost). Appropriation and revenue for the cost of meals and the related state/federal reimbursements are included annually in the Probation Department’s (Department) budget.
BACKGROUND INFORMATION
In order for the Department to receive reimbursement for meals served to detained juveniles under the Child Nutrition Programs (CNPs), which are administered by the United States, Department of Agriculture (USDA), the Department must enter into a Permanent Single Agreement (PSA) with the California Department of Education (CDE), Nutrition Services Division. The approval of this PSA is needed to maintain the Department’s eligibility for available state and federal reimbursement regarding the following food programs:
• National School Lunch Program (NSLP)
• NSLP Afterschool Meal Supplements (NSLP Snacks) Program
• School Breakfast Program (SBP)
• Food Distribution Program (FDP)
On September 24, 2013 (Item No. 33), the Board of Supervisors (Board) approved a PSA (Contract No. 13-756) with the CDE effective July 1, 2013. On June 30, 2022, the CDE notified the Department that a new revised PSA must be signed and returned by September 30, 2022, due to two significant changes. The Early Childhood Development Act of 2020 (Senate Bill 98, Chapter 24, Statutes 2020) authorized the transfer of child care and development programs administered by the CDE to the California Department of Social Services (CDSS) effective July 1, 2021. With regards to CNPs, this transferred the administration of the Child and Adult Care Food Program (CACFP) from the CDE to the CDSS. Assembly Bill 130 (McGuire) Education finance: education omnibus budget trailer bill, signed into law on July 9, 2021, established the California Universal Meals Program beginning School Year 2022-23, revising the state meal mandate and creating new requirements regarding participation in provision programs.
Once signed, the new and revised PSA and its four addendums will be effective retroactively to July 1, 2022. Once approved, the revised PSA will replace the Department’s previous PSA that was effective on July 1, 2013. The revised PSA shall remain in effect unless terminated by either party by giving at least 30 days’ written notice.
The terms in the PSA are set forth by the CDE to fulfill the USDA requirements for state agencies, which differ from the San Bernardino County standard contract terms. The non-standard terms include the following:
1. The term of the PSA is indefinite.
• County Policy 11-04 does not permit indefinite term or automatically renewing contracts unless approved by the Board.
• Potential Impact: There is no end term to the PSA and the County is indefinitely bound to the terms and conditions of the PSA.
2. The PSA is silent on governing law.
• The County standard contract requires California governing law.
• Potential Impact: The PSA is silent on governing law. This results in uncertainty over which state’s laws will govern the interpretation of the PSA and leads to ambiguity in interpretation of the PSA terms. However, CDE is a California state agency. Nevertheless, the PSA could be interpreted under any state law depending on where the claim is brought. Any questions, issues or claims arising under this PSA could require the County to hire outside counsel competent to advise on the applicable state law.
3. There is no stated venue in the PSA.
• The County standard contract requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: CDE is located in Sacramento, California. Having no express venue in the PSA means that CDE’s venue could be applied to this PSA, which may result in additional expenses.
4. The PSA does not require CDE to indemnify the County.
• The County standard contract general indemnify provision requires the Contractor to indemnify, defend and hold County harmless from any and all claims arising out of the acts, errors or omission of any person.
• Potential Impact: CDE is not required to defend, indemnify or hold the County harmless from any claims. If the County is sued for any claims, the County may be solely liable for the costs of defense and damages.
5. The PSA does not require CDE to meet the County insurance standards.
• The County standard contract requires contractors to carry appropriate insurance limits and under conditions determined by the County’s Risk Management Department.
• Potential Impact: The PSA does not include County standard insurance requirements. This means that the County has no assurance that CDE will be financially responsible for claims that may arise, which could result in expenses to the County.
The Department recommends approval of the PSA, including the non-standard terms, in order to maintain the Department’s eligibility for available state and federal reimbursement regarding the above-described food programs.
PROCUREMENT
Not applicable.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Jamie Ryan, Deputy County Counsel, 387-5455) on July 18, 2022; Risk Management (Victor Tordesillas, Director, 386-8623) on July 18, 2022; Finance (Kathleen Gonzalez, Administrative Analyst, 387-5412) on July 19, 2022; and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-4342) on July 20, 2022.