BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 1055 (Spitzer) 5
As Amended March 27, 2003
Hearing date: June 17, 2003
Government Code
MK:mc
DISTRICT ATTORNEY: SPECIAL APPROPRIATION
HISTORY
Source: Author
Prior Legislation: None
Support: California District Attorneys Association;
Auditor-Controller County of Orange; Office of the
Attorney General
Opposition:None
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE LAW REQUIRE THAT THE DISTRICT ATTORNEY USE THE SPECIAL
APPROPRIATION FUND FOR EXPENSES NECESSARILY INCURRED IN CRIMINAL
CASES ARISING IN THE COUNTY, IN THE DETECTION OF CRIME OR IN CIVIL
ACTIONS OR PROCEEDINGS?
PURPOSE
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The purpose of this bill is to make it clear that the district
attorney shall use the special appropriation for expenses
necessarily incurred in criminal cases arising in the county, in
the detection of crime or in civil actions or proceedings.
Existing law provides that the district attorney is the public
prosecutor, except as otherwise provided. Requires the public
prosecutor to attend the courts, and within his or her
discretion, initiate and conduct all prosecutions for public
offenses on behalf of the people. (Government Code 26500.)
Existing law establishes a district attorney's special
appropriation in each county. (Government Code 29400.)
Existing law requires the county board of supervisors for
counties having a population of 90,000 or more to make the sum
of $5,000 available to the district attorney's special
appropriation at the beginning of each fiscal year. Allows the
board to transfer additional amounts to the special
appropriation. (Government Code 29401.)
Existing law requires the county board of supervisors in all
other counties, to make a board-determined sum of as much as
$2,500 available to the district attorney's special
appropriation at the beginning of each fiscal year. (Government
Code 29402.)
Existing law provides that the population basis is that fixed by
the last decennial federal census. (Government Code 29403.)
Existing law requires the auditor to draw the warrant in favor
of the district attorney on the district attorney's presentation
of his or her requisition for the amounts the district attorney
requires. Requires the treasurer to pay the warrant.
(Government Code 29405.)
Existing law requires the district attorney to file vouchers
with the auditor at the end of each fiscal year, and from time
to time during the year, showing the disposition he or she has
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made of any money received from the special appropriation and
the particular purpose for which it was spent. Provides that,
if at the end of the fiscal year a criminal proceeding is
pending or under investigation, the vouchers as to any money
spent in the proceeding or investigation need not be filed until
the trial of the proceeding is ended or the investigation
concluded. (Government Code 29406.)
Existing law provides that the district attorney's special
appropriation is in addition to any other appropriations at his
or her disposal, and that this provision does not limit or
affect any provision of law relative to the expenses of the
district attorney incurred by he or she and paid as other county
claims after allowance by the board of supervisors. (Government
Code 29407.)
Existing law exempts any county operating under a charter making
provision for a similar appropriation from this section.
(Government Code 29408.)
Existing law provides that the district attorney may use the
special appropriation to pay:
His expenses incurred in criminal cases arising in the county;
Expenses necessarily incurred by he or she in the detection of
crime, other than those declared to be misdemeanors by the
Vehicle Code; or,
Expenses in civil actions, proceedings, or other matters in
which the county is interested. (Government Code 29404.)
This bill provides instead that the district attorney shall use
the special appropriation to pay:
Expenses lawfully incurred in criminal cases arising in the
county;
Expenses lawfully incurred by in the detection of crime, other
than those declared to be misdemeanors by the Vehicle Code;
or,
Expenses lawfully incurred in civil actions, proceedings.
COMMENTS
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1. Need for This Bill
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According to the author:
Each district attorney has a special, non-audited,
non-sunshine fund that they may use to pay for the
expenses incurred in criminal cases arising in the
county, expenses incurred in the detection of a crime,
and expenses in civil action, proceedings or other
matters in which the county is interested. The
Government Code is broad, yet most district attorneys
have maintained a high level of integrity when using the
fund.
In 2002, the Attorney General helped the Orange County
Grand Jury investigate the actions of the office of the
District Attorney and found that the office used money
from the special fund to buy meals and alcohol at
meetings with law enforcement personnel, lobbyists,
politicians, county and other government employees,
campaign consultants, clergy and media personnel. The
Chief Investigator, who directly oversees the special
fund for the District Attorney, billed the fund on
approximately 38 different occasions to pay for bills to
the Santa Ana Elks Club. After it was noted that these
funds were used for lobbying, the District Attorney
changed his office policy to include these activities.
On October 4, 2002, after the media exposed the change
in policy, the District Attorney again changed his
policy to remove the allowance for lobbying. The Grand
Jury found that the language of the District Attorney's
policy in addition to the current Government Code 29404
can be interpreted so broadly as to justify almost any
expense. With regard to the entire Grand Jury
investigation, the Attorney General stated that the
district attorney had made some "bad management
decisions" and that his office is beset with morale
problems.
This legislation would simply clarify that this fund
shall only be used to pay for lawful costs incurred in
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criminal cases, detection of crimes, and civil actions.
This still allows district attorneys to expend funds on
lobbying, but only from accounts that are public and
subject to audit.
The integrity of the district attorney special fund is
paramount. Since it is an unaudited, secret fund,
neither the public nor the press has any way to know if
these funds are being spent properly. Clearly lobbying
and entertainment with alcohol, unrelated to criminal or
civil investigations should be expended from this
account. Such activity should only come out of an
account subject to the Public Records Act.
2. Use of Funds for Criminal Cases, Detection of Crimes, and
Civil Actions
Under existing law, the district attorney has access to a
special appropriation, $5,000 in counties over $90,000 and
$2,500 in smaller counties. The law provides that the money may
be used for expenses incurred in criminal cases arising in the
county, in the detection of crime or in civil actions or
proceedings. This bill provides that the special appropriation
shall be used for those purposes.
According to the author, the recent situation in Orange County
demonstrates that because the fund is unaudited, it susceptible
to misuse. There, the special investigators had difficulty
determining whether the funds had been misused because the
district attorney was unwilling, and contended that he was under
no obligation, to disclose the documents that demonstrated how
the funding had been used. However, the Attorney General
contended that it has the right to audit the fund because the
Attorney General's office allocates the money in the special
fund and oversees its use. Furthermore, Government Code section
29406 requires the district attorney to file vouchers with the
county auditors at the end of each fiscal year at a minimum that
show the disposition he or she has made of any money received
from special appropriation and the particular purpose for which
it was spent.
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This bill does not create a method of accountability for how
these funds are spent. If one of the issues in Orange County
was that the auditor and the Attorney General had trouble
auditing these funds, should the bill make it clear that either
the Attorney General or some other entity has the authority to
audit these funds. Should Government Code section 29406 also be
clarified to state that the purpose of the requirement of filing
vouchers is for the county auditor to ensure that the funds are
not spent inappropriately.
SHOULD THE LAW BE CLARIFIED THAT THE DISTRICT ATTORNEY SPECIAL
FUND SHOULD BE USED ONLY FOR EXPENSES LAWFULLY INCURRED IN
CRIMINAL CASES ARISING IN THE COUNTY, THE DETECTION OF CRIME, OR
IN CIVIL ACTIONS OR PROCEEDINGS?
SHOULD THE LAW CLEARLY PROVIDE THAT THE ATTORNEY GENERAL HAS THE
AUTHORITY TO AUDIT THESE SPECIAL FUNDS?
SHOULD THE LAW BE CLARIFIED TO STATE THAT THE AUDITOR SHALL USE
THE VOUCHERS THAT MUST BE FILED TO DETERMINE IF THE FUNDS ARE
BEING USED APPROPRIATELY?
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