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