BILL ANALYSIS Ó
AB 2410
Page 1
Date of Hearing: May 1, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2410 (Fuentes) - As Amended: April 24, 2012
SUBJECT : Elective office: felony conviction.
SUMMARY : Prohibits a person from running for elected office if
that person has been convicted of a felony involving certain
factors in the last 20 years, as specified. Specifically, this
bill :
1)Provides a person is not considered a candidate for, and not
eligible to be elected to, any elective office in the state if
the election occurs within 20 years of the date upon which the
person completes a sentence, including probation, for
conviction of a felony that involved a conflict of interests,
an act of fraud, dishonesty, a breach of public trust, or
money laundering.
2)Provides, for purposes of this bill, that "conviction of a
felony" includes a conviction of a felony in this state and a
conviction under the laws of any other state, the United
States, or any foreign government or country of a crime that,
if committed in this state, would be a felony, and for which a
person has not received a pardon from the Governor of this
state, the governor or other officer authorized to grant
pardons in another state, the President of the United States,
or the officer of the foreign government or country authorized
to grant pardons in that foreign jurisdiction.
EXISTING LAW :
1)Provides that a person who is convicted of any of the
following crimes is disqualified from holding public office in
this state:
a) Giving or offering a bribe to procure personal election
or appointment (Article VII, Section 8, California
Constitution).
b) Bribery, perjury, forgery, malfeasance in office, or
other high crimes (Article VII, Section 8, California
Constitution).
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c) As a public officer, for gratuity or reward, appointing
another person to public office, or permitting another
person to exercise or discharge the duties of his or her
office (Penal Code section 74).
d) While a member of the Legislature, refusing to appear
before the Senate, Assembly, or any committee of the
Legislature after being summoned to testify, or while
appearing before the Senate, Assembly, or any committee,
refusing to be sworn or to answer any material and proper
question, or refusing to produce, upon reasonable notice,
any material and proper books, papers, or documents in his
or her possession and under his or her control (Government
Code section 9412).
e) While an executive or ministerial officer, employee, or
appointee of the state, a county, a city, or another
political subdivision of the state, asking for, receiving,
or agreeing to receive any bribe to influence any decision
made by that person in his or her official capacity (Penal
Code section 68).
f) While a member of the Legislature or of a legislative
body of a city, county, city and county, school district,
or other special district, committing any of various crimes
against the Legislative power, including bribery and
logrolling (Penal Code section 88, Government Code section
9055).
g) While an officer, committing any of various bribery and
corruption crimes against the public justice, including
bribing or threatening judges or jurors (Penal Code section
98).
h) Giving or offering a bribe to a member of a city council
or a board of supervisors to influence any decision made by
that member in his or her official capacity (Penal Code
section 165).
i) While a public official, aiding the illegal casting of a
vote at an election or otherwise facilitating the
perpetration of election fraud (Elections Code section
18501).
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j) While a public official, being financially interested in
a contract made in his or her official capacity, or by any
body or board of which he or she is a member (Government
Code section 1097).
aa) Giving or offering a bribe to any executive officer in
the state to influence any decision made by that officer in
his or her official capacity (Penal Code section 67).
bb) While an officer of the state or of any county, city,
town, or district of the state, or while otherwise charged
with the receipt, safekeeping, transfer, or disbursement of
public moneys, appropriating such moneys for personal use,
or refusing to pay any public moneys as required by law
(Penal Code section 424).
cc) Interfering with the work of prisoners employed at a
road camp, or giving or attempting to give such prisoners
any controlled substances, intoxicating liquors, firearms,
weapons, or explosives of any kind (Penal Code section
2772).
dd) Interrupting the work of prisoners employed at a public
park or camp, or giving or attempting to give such
prisoners any controlled substances, intoxicating liquors,
firearms, weapons, or explosives of any kind (Penal Code
section 2790).
2)Provides a person is disqualified from holding public office
upon conviction of designated crimes as specified in the
Constitution and laws of the State (Government Code section
1021).
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
AB 2410 (Fuentes) would ban ex-felons who were convicted a
felony that violates the public trust from running for
public office for 20 years. The intent of this bill is to
create accountability and ensure that those seeking to
AB 2410
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represent Californians have proven to uphold the public's
trust in more ways than just serving time and probation.
Specifically, the bill would disqualify ex-felons who have
committed a felony related to the following: payment and
receipt of bribes and gratuities, honest services fraud,
Theft of government property, Financial conflict of
interest, fraud offenses committed against both the
government and private citizens, mail and wire fraud,
mortgage fraud, tax offenses, false claims, perjury,
government contract fraud, receipt and payment of kickbacks
on government contracts, bank fraud, perjury, and Money
laundering. The ban would be lifted 20 years after a felon
has served the required sentence and probation.
2)Federal Level : In setting qualifications for federal office,
the United States (US) Constitution does not prohibit felons
from holding elected federal office. Additionally, the US
Constitution provides that "Ýe]ach house may determine the
rules of its proceedings, punish its members for disorderly
behavior, and, with the concurrence of two-thirds, expel a
member." According to a 2012 Congressional Research Report,
congressional practice provides that Members of Congress may
be removed from office before the expiration of their
constitutional terms by an "expulsion" from the Senate (if a
Senator) or from the House of Representatives (if a
Representative) upon formal vote on a resolution agreed to by
two-thirds of the membership of each body. While there are no
specific grounds for an expulsion expressed in the US
Constitution, an expulsion is characterized as a
self-disciplinary action necessary to protect the integrity of
the institution and its proceedings. For example, expulsion
actions in both the House and the Senate generally concern
cases of perceived disloyalty to the US government, or the
conviction of a criminal statutory offense which involved the
abuse of one's official position. According to the report,
although expulsion is rare, there have been approximately five
House Members expelled, one occurring in the last decade. It
should be noted that many Members of Congress have chosen to
resign from office rather than face expulsion. Furthermore,
the report argues that "the apparent reticence of the Senate
or the House to expel a Member for past misconduct after the
Member has been duly elected or re-elected by the electorate,
with the knowledge of the Member's conduct, appears to reflect
in some part the deference traditionally paid in our heritage
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to the popular will and election choice of the people. In
1914, the Judiciary Committee of the House detailed various
policy considerations in expulsions for past misconduct:
In the judgment of your committee, the power of the House
to expel or punish by censure a Member for misconduct
occurring before his election or in a preceding or former
Congress is sustained by the practice of the House,
sanctioned by reason and sound policy and in extreme cases
is absolutely essential to enable the House to exclude from
its deliberations and councils notoriously corrupt men, who
have unexpectedly and suddenly dishonored themselves ....
But in considering this question and in arriving at the
conclusions we have reached, we
would not have you unmindful of the fact that we have been
dealing with the question
merely as one of power, and it should not be confused with
the question of policy also
involved. As a matter of sound policy, this extraordinary
prerogative of the House, in our
judgment, should be exercised only in extreme cases and
always with great caution and after due circumspection, and
should be invoked with greatest caution where the acts of
misconduct complained of had become public previous to and
were generally known at the time of the Member's election.
To exercise such power in that instance the House might
abuse its high prerogative, and in our opinion might exceed
the just limitations of its constitutional authority by
seeking to substitute its standards and ideals for the
standards and ideals of the constituency of the Member who
had deliberately chosen him to be their Representative. The
effect of such a policy would tend not to preserve but to
undermine and destroy representative government.
Moreover, the report expresses that the authority to expel has
been cautiously used, especially when it may be perceived as
usurping the judgment and will of the electorate.
Additionally, according to a US Department of Justice report
entitled, "Civil Disabilities of Convicted Felons," there are
various federal statutes which provide that a conviction may
result in loss of or ineligibility for office. For example,
federal statute provides that a person convicted of treason is
prohibited from holding any office in the US.
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3)Will of Voters vs. Public Trust : The author argues that the
intent of the bill is to create accountability and ensure that
those seeking to represent Californians have proven to uphold
the public's trust. This same sentiment has been made in a
court cases relating to the interpretation of Article VII,
Section 8 of the California Constitution pertaining to public
officers and employees and disqualification from holding
office. For instance, in Lubin v. Wilson (1991), 232
Cal.App.3d 1422, a case surrounding former Senator Paul B.
Carpenter's conviction of racketeering, extortion, and
conspiracy and his attempt to appeal his disqualification and
forfeiture of public office on the Board of Equalization.
Part of the court's opinion acknowledged that the "Ýr]emoval
from public office is simply a consequence of a reasonable and
sound public policy, and a condition imposed upon a public
official in furtherance of the public interest in good
government. Public officials are elected for the benefit of
the community and can and should be removed, irrespective of
detriment to the individuals involved if the interests of the
community so require (State v. Twitchell, supra, 367 P.2d at
p. 992.)."
In addition, the court opinion stated that, "Ýa] person holds
office subject to conditions imposed by the state and, where
cause for removal is provided by law, the person is deemed to
have accepted the office on condition he or she could be
removed for cause and in the manner provided (Cline v.
Superior Court (1920) 184 Cal. 331, 336)."
It should also be pointed out that, as mentioned above, there
are laws in place that prohibit nefarious actions on the part
of elected officials. Should the electorate find itself
unsatisfied with the actions of their elected official, voters
have procedures available to make changes. For instance, the
constitution provides the electorate with the power to recall
and remove any state or local elected official before their
term has expired. A prime example of this occurred in 2003,
when former Governor Gray Davis was successfully recalled.
According to the SOS's office, since 1913, there have been 154
recall attempts of state elected officials in California.
Nine recall efforts collected enough signatures to qualify for
the ballot and of those, the elected official was recalled in
five instances. Moreover, should the electorate believe a
candidate has violated the public trust, they maintain the
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ability to vote against the candidate or vote the elected
official out of office.
4)Is There a Problem? : As mentioned above, the California
Constitution directs that "laws shall be made to exclude
persons convicted of bribery, perjury, forgery, malfeasance in
office, or other high crimes from office or serving on juries"
and although this section is mandatory, it is not
self-executing and requires legislation to give it effect. To
effectuate the constitutional prohibitions, various state laws
were enacted. For instance, various Penal and Government Code
sections listed above enumerate events and actions which cause
certain crimes to result in an elected official being
disqualified from holding public office in the state.
While the author has provided anecdotal evidence to suggest
current law is insufficient in its ability to deter such
behavior from California's elected officials, no empirical or
statistical evidence was presented to the committee.
Moreover, the committee is unaware of any information that
demonstrates convicted felons are being elected to office in
California. The lack of evidence may demonstrate that
California voters are not electing convicted felons as their
representatives and consequently question the need for this
bill. The committee may wish to consider whether this is a
widespread problem in California, and whether the proposal is
necessary.
5)Enforcement : This bill restricts a person from being eligible
for elective office in the state for 20 years if convicted of
a felony involving certain elements, such as a felony
involving a conflict of interest, an act of fraud, dishonesty,
a breach of public trust, or money laundering. While this
approach may sound reasonable, and while it can be argued that
elected officials should be held to a higher ethical standard,
it does raise questions regarding the practical application of
those provisions, mainly with regards to enforcement. For
instance, what constitutes dishonesty or a breach of the
public trust? The terminology used in the bill is ambiguous,
broad, and not defined by current law.
To provide clarity and specificity for the practical application
of this bill, the committee may wish to adopt the following
amendments suggested by committee staff. On page 2, starting
on line 7, strike "a conflict of interests, an act of fraud,
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dishonesty, a breach of a public trust, or money laundering"
and insert the following:
accepting or giving, or offering to give, any bribe, the
embezzlement of public money, extortion or theft of public
money, perjury, or conspiracy to commit any of those
crimes.
REGISTERED SUPPORT / OPPOSITION :
Support Opposition
Los Angeles County District Attorney's OfficeNone on file.
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094