BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                AB 706
                                                                Page  1

        CONCURRENCE IN SENATE AMENDMENTS
        AB 706 (Torres)
        As Amended  September 1, 2011
        2/3 vote.  Urgency

         ----------------------------------------------------------------- 
        |ASSEMBLY:  |     |(May 2, 2011)   |SENATE: |40-0 |(September 6,  |
        |           |     |                |        |     |2011)          |
         ----------------------------------------------------------------- 
             (vote not relevant)
         
         
         ------------------------------------------------------------------------ 
        |COMMITTEE VOTE:  |8-0  |(September 8, 2011) |RECOMMENDATION: |concur    |
        |                 |     |                    |                |          |
         ------------------------------------------------------------------------ 
         
         Original Committee Reference:    RLS.  

        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 








                                                                AB 706
                                                                Page  2

          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 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 (Government Code Section 1090) 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.









                                                                AB 706
                                                                Page  3

        2)Prohibits (in Government Code Section 1099) a public officer, 
          including, but not limited to, an appointed or elected member of 
          a governmental board, commission, committee, or other body, from 
          simultaneously holding two public offices that are incompatible:

        3)Specifies offices are incompatible when any of the following 
          circumstances are present:

           a)   Either of the offices may audit, overrule, remove members 
             of, dismiss employees of, or exercise supervisory powers over 
             the other office or body;

           b)   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,

           c)   Public policy considerations make it improper for one 
             person to hold both offices.

        4)States a public officer may simultaneously hold two public 
          offices that are incompatible if compelled or expressly 
          authorized by law.

        5)Specifies a public officer will be deemed to have forfeited the 
          first office upon acceding to the second when two public offices 
          are incompatible.

        6)Prohibits the provisions dealing with incompatible offices from 
          applying to a governmental body that has only advisory powers.

        7)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.

        8)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.

        9)Provides (Government Code Section 1126) that a local agency 
          officer or employee shall not engage in any employment, activity, 
          or enterprise for compensation which is inconsistent, 








                                                                AB 706
                                                                Page  4

          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. 

        10)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.

        11)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 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 








                                                                AB 706
                                                                Page  5

        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 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 








                                                                AB 706
                                                                Page  6

        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 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 








                                                                AB 706
                                                                Page  7

        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.


         Analysis Prepared by  :    Debbie Michel / L. GOV. / (916) 319-3958 

        FN: 0002866