BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 309|
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THIRD READING
Bill No: AB 309
Author: Cook (R)
Amended: 3/21/11 in Assembly
Vote: 21
SENATE GOVERNANCE & FINANCE COMMITTEE : 9-0, 6/8/11
AYES: Wolk, Huff, DeSaulnier, Fuller, Hancock, Hernandez,
Kehoe, La Malfa, Liu
ASSEMBLY FLOOR : 59-0, 4/14/11 - See last page for vote
SUBJECT : Public officers: removal from office
SOURCE : Author
DIGEST : This bill 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.
ANALYSIS : Under 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
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vacancy.
This bill 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.
This bill 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.
This 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.
This bill 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.
This bill specifies that its provisions do not apply to an
elective office.
When an office becomes vacant pursuant to the provisions of
this bill, the bill requires the local agency on which a
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vacancy occurs to notify the officer or body empowered to
fill the vacancy.
Background
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.
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
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.
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
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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.
Prior Legislation
This bill 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
ASSEMBLY FLOOR : 59-0, 4/14/11
AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Campos, Carter, Cedillo, Chesbro,
Cook, Davis, Dickinson, Donnelly, Eng, Fletcher, Fong,
Fuentes, Furutani, Gatto, Gordon, Hagman, Halderman,
Hall, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries,
Lara, Bonnie Lowenthal, Ma, Mansoor, Miller, Monning,
Nestande, Nielsen, Norby, Pan, Perea, V. Manuel Pérez,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Valadao, Wieckowski, Yamada, John A. Pérez
NO VOTE RECORDED: Alejo, Butler, Charles Calderon, Conway,
Feuer, Galgiani, Garrick, Gorell, Grove, Harkey, Roger
Hernández, Jones, Knight, Logue, Mendoza, Mitchell,
Morrell, Olsen, Wagner, Williams, Vacancy
AGB:nl 8/24/11 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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