BILL ANALYSIS Ó
AB 309
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Date of Hearing: April 6, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 309 (Cook) - As Amended: March 21, 2011
SUBJECT : Public officers: removal from office.
SUMMARY : Requires an appointed or ex officio office to become
vacant when the incumbent is debarred, suspended, disqualified,
or otherwise excluded from participating in a covered
transaction, pursuant to federal law, and certain conditions are
met. Specifically, this bill :
1)Requires an appointed or ex officio office to become vacant
when the incumbent is debarred, suspended, disqualified, or
otherwise excluded from participating in a covered
transaction, pursuant to federal law, and all of the following
occur:
a) The office is one the incumbent holds ex officio, by
virtue of holding another office or as an appointee;
b) The appointed or ex officio office is on the governing
board of a local agency that is, or may be reasonably be
expected to be, a participant or principal in a covered
transaction, pursuant to federal law; and,
c) A federal agency head or designee has not granted the
incumbent an exception in writing permitting the incumbent
to participate in a particular covered transaction in which
the local agency is, or may reasonably be expected to be, a
participant or principal.
2)Defines "Excluded Parties List" to mean the list maintained
and disseminated by the federal General Services
Administration containing names of, and other information
about, persons who are debarred, suspended, disqualified, or
otherwise excluded from participating in a covered
transaction, pursuant to federal law.
3)Defines "local agency" to include, but not be limited to, a
county, whether general law or chartered; city, whether
general law or chartered; city and county; school district;
municipal corporation; district; political subdivision; or any
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board, commission, or agency of one of these entities.
4)Defines "federal law" to include, but not be limited to,
federal regulations adopted pursuant to Section 2455 of Public
Law 103-355 (108 Stat. 3327), Executive Order No. 11738,
Executive Order No. 12549, and Executive Order No. 12689.
5)Requires these provisions to not apply to an elective office.
6)Requires, when an office becomes vacant because the incumbent
is debarred, suspended, disqualified, or otherwise excluded
from participating in a covered transaction, pursuant to
federal law, and certain conditions are met, the local agency
on which the vacancy occurs to give notice of that vacancy to
the officer or body authorized to fill the vacancy.
EXISTING LAW :
1)Establishes under what circumstances a public office becomes
vacant.
2)Requires, when an officer is removed, declared insane, or
convicted of a felony or offense involving a violation of his
or her official duty, or when his or her election or
appointment is declared void, the body or person before whom
the proceedings are had to give notice to the officer
empowered to fill the vacancy.
FISCAL EFFECT : None
COMMENTS :
1)The Riverside County Transportation Commission (RCTC) has 32
appointed commissioners, ranging from county supervisors to
city council members. Every city in Riverside County has an
appointee along with the five county supervisors of Riverside
County. The Governor appoints one non-voting individual, who
is the director of the local Department of Transportation
district office.
In January 2010, the Federal Highway Administration suspended
four members of the San Jacinto City Council from
participating in federally funded transportation programs and
projects because these four council members had been indicted
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in November 2009 on 155 counts, including 56 felonies and 99
misdemeanors. The four council members pleaded not guilty.
Two of the council members also served on RCTC as commissioner
and alternate commissioner. In these capacities they helped
select federally funded highway transportation projects for
the county. As such, they participated in federal "covered
transactions" and were subject to suspension when adequate
evidence exists to suspect misconduct indicating a lack of
integrity or honesty affecting their responsibility. A
"covered transaction" is one that requires the consent of a
Department of Transportation official or, if no such consent
exists, one that equals or exceeds $25,000.
The San Jacinto City Council removed the two council members
from RCTC and replaced them with the sole city council member
to not be indicted. Because RCTC is an appointed commission,
it does not have the ability to remove commissioners itself.
The two council members remain on the San Jacinto city council
because, as provided for under existing law, they will
automatically be removed from their directly elected offices
only if they have been convicted of felony charges or any
offense involving official duties.
2)According to the author, AB 309 corrects this problem by
requiring an appointed member or ex officio member to vacate
his or her office when that member has been debarred,
suspended, disqualified, or otherwise excluded from
participating in federal transactions. The author emphasizes
AB 309 does not speak to indictments or allegations of
criminal activities, but rather ensures federal government
action does not jeopardize funding for communities.
3)AB 2672 (Cook, 2010) contained identical provisions. This
Committee passed AB 2672 on a 9-0 vote. The Governor vetoed
AB 2672, saying:
"The removal of appointed or ex-officio officers have
historically, and properly, been handled on the local level
and I believe the local appointing entity should continue to
have the ultimate say on the removal of these officials."
4)Support arguments: Supporters might say AB 309 is a good
government bill that ensures agencies, boards, commissions,
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and committees that solely have appointed members will not
have their federal funding jeopardized.
Opposition arguments: Opposition might argue the appointing
entity should have final say of whether or not its
representative on the agency, board, commission, or committee
is fit to continue to serve.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. /
(916) 319-3958