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).







                                                                  AB 2410
                                                                  Page  2


             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).








                                                                  AB 2410
                                                                  Page  3

             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
                                                                  Page  4

               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 







                                                                  AB 2410
                                                                  Page  5

            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.  







                                                                  AB 2410
                                                                  Page  6


           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 







                                                                  AB 2410
                                                                  Page  7

            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, 







                                                                  AB 2410
                                                                  Page  8

            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