BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 309 HEARING: 6/8/11
AUTHOR: Cook FISCAL: No
VERSION: 3/21/11 TAX LEVY: No
CONSULTANT: Weinberger
PUBLIC OFFICE VACANCIES AND DISQUALIFICATIONS
Automatically vacates an appointed or ex officio office
when the federal government excludes the incumbent
officeholder from participating in federal transactions.
Background and Existing Law
A public office becomes vacant when an incumbent dies,
resigns, is removed from office, ceases to be an inhabitant
of the state, or is convicted of a felony, any offense
involving a violation of his or her duties, or other
specified crimes. When an officer is removed, declared
insane, or convicted of a specified felony offense, or when
his election or appointment is declared void, the body
which conducted the proceedings must notify the officer who
can fill the vacancy.
To protect the public's interests, federal agencies can
exclude businesses or individuals from receiving federal
contracts, grants, loans, subsidies, donations, or other
forms of federal assistance. A federal agency may exclude
a business or individual for reasons such as a conviction
of, or indictment for, a criminal or civil offense, or a
serious failure to perform to the terms of a contract.
Federal agencies must report all excluded parties to the
Excluded Parties List System (EPLS), a Web-based system
maintained by the federal General Services Administration
(GSA). Before awarding funds, contracting officers and
other agency officials must check EPLS to ensure that a
prospective vendor is not an excluded party.
Some local agencies' board members are appointed by other
agencies or are filled automatically because an individual
holds another office. Some local officials worry that
these agencies could not remove a governing board member
who is listed in the federal EPLS, which could preclude the
AB 309 -- 3/21/11 -- Page 2
agencies' receiving federal funds. They want the
Legislature to automatically vacate the seat of any ex
officio or appointed local agency board member listed in
the EPLS when an agency is involved in federal
transactions.
Proposed Law
Assembly Bill 309 provides that a public office becomes
vacant when an incumbent is listed in the Excluded Parties
List System and all of the following apply:
The office is one that the incumbent holds ex
officio, by virtue of holding another office, or as an
appointee.
The appointed or ex officio office is on the
governing board of a local agency that is, or may
reasonably be expected to be, a participant or
principal in a covered transaction, pursuant to
federal law.
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.
AB 309 defines "Excluded Parties List System" as the list
maintained and disseminated by the 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.
The bill defines "local agency" as including a county,
city, whether general law or chartered, city and county,
town, school district, municipal corporation, district,
political subdivision, or any board, commission or agency
thereof, or other local public agency.
AB 309 defines "federal law" as including 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.
AB 309 -- 3/21/11 -- Page 3
The bill specifies that its provisions do not apply to an
elective office.
When an office becomes vacant pursuant to the provisions of
AB 309, the bill requires the local agency on which a
vacancy occurs to notify the officer or body empowered to
fill the vacancy.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . After two San Jacinto city
council members who also served as appointed members of the
Riverside County Transportation Commission (RCTC) were
indicted in November 2009, the Federal Highway
Administration (FHA) suspended them from participating in
federally-funded programs and projects and posted their
names to the Excluded Parties List System. Because the
RCTC is the Metropolitan Planning Organization that selects
federally-funded highway transportation projects for the
region, the FHA notified the RCTC that the suspended
council members needed to be excluded from participating in
all federally funded programs and projects. However, the
RCTC had no authority to remove the two council members
from the Commission. Although the City of San Jacinto
agreed to replace its RCTC appointees, the RCTC's federally
funded programs could have been jeopardized if the council
members had not been replaced. AB 309 protects federal
funding for local agencies by automatically vacating ex
officio or appointed offices when an incumbent's exclusion
from participating in federal transactions jeopardizes a
local agency's participation in federal transactions.
2. Who decides ? AB 309 could force an official to vacate
a seat to which he or she is appointed by an elected local
body, based on a decision made by an unelected federal
agency official. The Committee may wish to consider
whether the decision to remove an individual who is
appointed to a local agency's board is best left to the
appointing authority.
AB 309 -- 3/21/11 -- Page 4
3. Try again . AB 309 is nearly identical to AB 2672
(Cook, 2010), which Governor Schwarzenegger vetoed. The
governor's veto message stated that a "local appointing
entity should continue to have the ultimate say" on
removing appointed or ex officio officeholders.
Assembly Actions
Assembly Local Government Committee: 9-0
Assembly Floor: 59-0
Support and Opposition (6/2/11)
Support : Unknown.
Opposition : Unknown.