BILL ANALYSIS Ó
AB 706
Page 1
Date of Hearing: September 8, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 706 (Torres) - As Amended: September 1, 2011
SUBJECT : Metro Gold Line Foothill Extension Construction
Authority.
SUMMARY : Renames the Pasadena Metro Blue Line Construction
Authority (Authority), adds two additional non-voting members to
the governing board of the Authority, specifies circumstances
under which board members and alternate members of the Authority
shall not be considered financially interested, and exempts
board and alternate members from specified incompatible office
and incompatible activity statutes.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Change the name of the Authority, formerly known as the
Pasadena Metro Blue Line Construction Authority, to the Metro
Gold Line Foothill Extension Construction Authority.
2)Redefine the Authority's "project" to be the Los
Angeles-Pasadena Foothill Extension Gold Line light rail
project, formerly known as the Los Angeles Pasadena Metro Blue
Line.
3)Define "extension cities" to include the cities of Arcadia,
Monrovia, Duarte, Irwindale, Azusa, Glendora, San Dimas, La
Verne, Pomona, and Claremont.
4)Add two nonvoting members, for a total of three nonvoting
members, to the Governing Board of the Authority to be
appointed by the city councils of the Cities of Pasadena and
South Pasadena, with each city appointing one nonvoting
member.
5)Allow each appointing entity to appoint an alternate member to
serve in the member's absence.
6)Provide that Authority board members and alternative members
are not considered financially interested, pursuant to
existing law, by virtue of their holding office with the
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Authority and simultaneously holding office with an appointing
member of the Authority, or holding a similar position with an
extension city.
7)Provide that any member who holds a position is permitted to
participate in decisions and agreements regarding the
development of the Gold Line Extension without such
participation constituting a financial conflict of interest,
and are exempt from existing law governing incompatible
employment activity.
8)State that provisions of the bill are declaratory of existing
law as they pertain to conflicts of interest, incompatible
offices, or incompatible activities and the ability of board
members and alternate members to participate in decisions and
agreements regarding the Pasadena Metro Blue Line Construction
Authority, any of the appointing entities, and any of the
extension cities.
9)Provide for reimbursement to local agencies and school
districts if the Commission on State Mandates determines that
the provisions of the bill contain costs mandated by the
state.
10)State that the bill is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety,
in order to avoid delays in the construction of the Metro Gold
Line Foothill Extension Construction Authority Phase 2A
project, and shall go into immediate effect.
EXISTING LAW :
1)States (in Section 1090 of the Government Code) that members
of the Legislature, state, county, district, judicial
district, and city officers or employees shall not be
financially interested in any contract made by them in their
official capacity, or by any body or board of which they are
members. Nor shall state, county, district, judicial district,
and city officers or employees be purchasers at any sale or
vendors at any purchase made by them in their official
capacity.
2)Prohibits (in Section 1099 of the Government Code) a public
officer, including, but not limited to, an appointed or
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elected member of a governmental board, commission, committee,
or other body, from simultaneously holding two public offices
that are incompatible.
a) Specifies offices are incompatible when any of the
following circumstances are present:
i) Either of the offices may audit, overrule, remove
members of, dismiss employees of, or exercise supervisory
powers over the other office or body;
ii) Based on the powers and jurisdiction of the offices,
there is a possibility of a significant clash of duties
or loyalties between the offices; and,
iii) Public policy considerations make it improper for
one person to hold both offices.
b) States a public officer may simultaneously hold two
public offices that are incompatible if compelled or
expressly authorized by law.
c) Specifies a public officer will be deemed to have
forfeited the first office upon acceding to the second when
two public offices are incompatible.
d) Prohibits the provisions dealing with incompatible
offices from applying to a governmental body that has only
advisory powers.
e) Specifies nothing in law dealing with incompatible
offices is intended to expand or contract the common law
rule prohibiting an individual from holding incompatible
public offices. It is intended courts interpreting these
provisions be guided by judicial and administrative
precedent concerning incompatible public offices developed
under the common law.
f) Clarifies the provisions dealing with incompatible
offices do not apply to a position of employment, including
a civil service position for the purposes of a common law
incompatible offices analysis.
3)Provides (in Section 1126 of the Government Code) that a local
agency officer or employee shall not engage in any employment,
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activity, or enterprise for compensation which is
inconsistent, incompatible, in conflict with, or inimical to
his or her duties as a local agency officer or employee or
with the duties, functions, or responsibilities of his or her
appointing power or the agency by which he or she is employed,
as specified.
4)Creates the Pasadena Metro Blue Line Construction Authority
and provides that the Authority has all of the power necessary
for planning, acquiring, leasing, developing, jointly
developing, owning, controlling, using, jointly using,
disposing of, designing, procuring, and building the project,
as specified.
5)Specifies the duties of the Authority, and the composition of
the governing board of the Authority, as follows:
a) A governing board consisting of five voting members and
one nonvoting member is appointed as follows:
i) Three members appointed by the City Councils of the
Cities of Los Angeles, Pasadena, and South Pasadena, with
each city council appointing one member by a majority
vote of the membership of that city council;
ii) One member appointed by the President of the
Governing Board of the San Gabriel Valley Council of
Governments, subject to confirmation by that board;
iii) One member appointed by the Los Angeles County
Metropolitan Transportation Authority (LACMTA); and,
iv) One nonvoting member appointed by the Governor.
AS PASSED BY THE ASSEMBLY , this bill would have designated the
second full week of April of each year, commencing in 2012, as
California Public Safety Telecommunicators Week for the purpose
of heightening citizen awareness of the great important of 911
service and its role in keeping the public safe.
FISCAL EFFECT : According to the Senate Appropriations
Committee, there are no fiscal costs to the state.
COMMENTS : The Pasadena Metro Blue Line Construction Authority
was statutorily created (SB 1847, Schiff, Chapter 1021, Statutes
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of 1998) to oversee the planning, design, and construction of a
light rail line, referred to as the Gold Line (formerly the Blue
Line), between downtown Los Angeles and Pasadena. The Authority
is currently constructing an eleven-mile extension of the Gold
Line east from Pasadena to Azusa that is proposed to open for
service in 2015. This bill changes the name of the Authority,
formerly known as the Pasadena Metro Blue Line Construction
Authority to the Metro Gold Line Foothill Extension Construction
Authority.
The existing governing board of the Authority is comprised of
six members of whom five are voting members and one is a
non-voting member. Of the voting members, three are appointed
by the city councils of the Cities of Los Angeles, Pasadena, and
South Pasadena, one member is appointed by the San Gabriel
Valley Council of Governments, and one member is appointed by
the Los Angeles County Metropolitan Transportation Authority.
The non-voting member is appointed by the Governor.
This bill authorizes the Cities of South Pasadena and Pasadena
to each appoint one nonvoting member, bringing the total of
nonvoting members from one to three, and requires every
appointing entity to appoint an alternate member to serve in the
absence of the primary appointee on the Authority's governing
board.
This bill defines the term "extension cities" to include the
Cities of Arcadia, Monrovia, Duarte, Irwindale, Azusa, Glendora,
San Dimas, La Verne, Pomona, and Claremont. The bill also
specifies that Authority board members and alternate members are
not considered financially interested, pursuant to provisions in
existing law, by virtue of their holding office with the
Authority and simultaneously holding office with an appointing
member of the Authority, or holding a similar position with an
extension city. Additionally, the bill provides that any member
who holds such a position is permitted to participate in
decisions and agreements regarding the development of the Gold
Line Extension without such participation constituting a
financial conflict of interest, and are exempt from existing law
governing incompatible employment activity. The bill states
that provisions contained in the legislation are declaratory of
existing law related to conflicts of interest, incompatible
office and incompatible activities, and the ability of board
members and alternate members to participate in the decisions
and agreements regarding the Authority, any of the appointing
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entities, and any of the extension cities.
In 1850, the Legislature adopted the English common law to guide
the California courts, to the extent the common law is
consistent with the United States Constitution, the California
Constitution, or state statutory laws. The common law prohibits
holding incompatible offices.
Many court decisions and Attorney Generals' opinions have
interpreted and applied the prohibition against incompatible
offices. The Attorney General restated this doctrine in a 1999
opinion: "Offices are incompatible, in the absence of statutes
suggesting a contrary result, if there is any significant clash
of duties or loyalties between the offices, if the dual office
holding would be improper for reasons of public policy, or if
either officer exercises supervisory, auditory, or removal power
over the other."
Section 1099 of the Government Code was added by SB 274
(Romero), Chapter 254, Statutes of 2005, to codify the common
law doctrine of office incompatibility. The intent of the bill
was the idea that the codification of the common law would give
better notice to potential office holders in advance of any
potential conflicts.
According to the author, a property owner along the right-of-way
for the proposed Phase II Project has recently called into
question the membership of the Authority. The property owner
contends that the positions of a member of a city council and
Authority board member are incompatible, in violation of
Government Code Section 1099, and has filed a quo warrant
request with the Attorney General (AG), seeking authorization
from the AG to sue an office holder to determine if that
individual is simultaneously holding two offices that are
incompatible. The author notes that if successful in his bid to
have the existing Authority members removed due to the 1099
violation, all but two members of the Authority would be
affected.
Support arguments: Supporters argue that the bill's provisions
remove any ambiguity about incompatible office issues between
city council members representing the cities along the
construction corridor and board members of the Authority,
allowing persons to serve simultaneously on each governing
board. Supporters note that a similar clarification has been
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granted in other such situations by the Legislature, and in this
case, the disruption of the Authority's membership may lead to
delays in the Authority's Gold Line Extension Project.
Opposition arguments: Opposition argues that the bill's
provisions will wipe out lawsuits and a complaint pending with
the Attorney General on the Authority's members and potential
conflicts of interest and related incompatible office holding
and activities. Opposition to the bill notes that the Mayor of
Monrovia and numerous other local officials sit on the
Authority's board in a manner contrary to the enabling statute
and that the last minute "gut and amend" approach should be
reviewed carefully.
REGISTERED SUPPORT / OPPOSITION :
Support
Metro Gold Line Foothill Extension Construction Authority
ÝSPONSOR]
Cities of: Arcadia, Azusa, Duarte, Glendora, Irwindale, La
Verne, Los Angeles, Monrovia, Montclair, Ontario, Pasadena, San
Dimas, and South Pasadena
Los Angeles County Metropolitan Transportation Authority
San Gabriel Valley Council of Governments
Opposition
Law Office of Christopher Sutton
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958