BILL NUMBER: AB 1090 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 10, 2013
INTRODUCED BY Assembly Member Fong
FEBRUARY 22, 2013
An act to amend Section 1097 of, and to add Sections 1097.1,
1097.2, 1097.3, and 1097.4 to, the Government Code, relating to
public officers.
LEGISLATIVE COUNSEL'S DIGEST
AB 1090, as amended, Fong. Public officers: conflicts of interest:
contracts.
The Political Reform Act of 1974 establishes the Fair Political
Practices Commission as the agency responsible for enforcing the act.
The act authorizes the Commission to issue an opinion or advice
to a person with respect to that person's duties under the act, as
specified. The act authorizes the Commission to seek and impose
administrative and civil penalties against persons who violate the
act, as prescribed.
Existing law prohibits Members of the Legislature, state, county,
district, judicial district, and city officers or employees from
being financially interested in any contract made by them in their
official capacity, or by any body or board of which they are members.
Existing law makes a willful violation of this prohibition a crime.
This bill would also make a person who violates the prohibition
against being financially interested in a contract, or who causes
another person to violate or who aids and abets another person in
violating the prohibition, subject to administrative and civil fines,
as specified. The bill would authorize the Commission to enforce
these violations by bringing an administrative or civil action
against a person who is subject to the prohibition, as specified
, upon written authorization from the district attorney of the
county in which the alleged violation occurred .
This bill would authorize a person who is subject to those
prohibitions to request an opinion or advice from the Commission with
respect to those prohibitions. The bill would authorize the
Commission to issue opinions and advice to those persons consistent
with the manner in which the Commission provides opinions and advice
pursuant to the act.
The Political Reform Act of 1974, an initiative measure, provides
that the Legislature may amend the act to further the act's purposes
upon a 2/3 vote of each house and compliance with specified
procedural requirements.
This bill would declare that it furthers the purposes of the act.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1097 of the Government Code is amended to read:
1097. (a) An officer or person prohibited by the laws of
this state Section 1090 from making or being
interested in contracts, or from becoming a vendor or purchaser at
sales, or from purchasing scrip, or other evidences of indebtedness,
including any member of the governing board of a school district, who
willfully violates any provision of those laws
Section 1090 is punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in the state prison,
and is forever disqualified from holding any office in this state.
(b) An officer or person prohibited by the laws of this
state Section 1090 from making or being
interested in contracts, or from becoming a vendor or purchaser at
sales, or from purchasing scrip, or other evidences of indebtedness,
including any member of the governing board of a school district, who
violates any provision of those laws Section
1090 , who causes any other person to violate any provision of
those laws Section 1090 , or who aids
and abets any other person in the violation of any provision of
those laws Section 1090 shall be liable
in an administrative action commenced by the Commission as provided
in Section 1097.1 or a civil action commenced by the Commission as
provided in Section 1097.2.
(c) The Commission shall not commence an administrative or civil
action pursuant to subdivision (b) against a person if a
criminal prosecution is being pursued against except
upon written authorization from the district attorney of the county
in which the alleged violation occurred. A civil action alleging a
violation of Section 1090 shall not be filed against a person
pursuant to this section if the Attorney General or a district
attorney is pursuing a criminal prosecution of that person
pursuant to subdivision (a).
(d) If two or more persons are responsible for a violation of this
section, they shall be jointly and severally liable.
(e) A person who is subject to the prohibitions of Section 1090,
or that person's authorized representative, may request an opinion or
advice from the Commission with respect to his or her duties under
Section 1090. The Commission may provide an opinion or formal or
informal advice to that person in a manner consistent with the
Commission's duties and authority to provide opinions and advice
pursuant to the Political Reform Act of 1974 (Title 9 (commencing
with Section 81000)) and implementing regulations adopted by the
Commission. The Commission's authority to issue opinions and advice
pursuant to this subdivision is concurrent with the authority of the
Attorney General to issue opinions and advice to a person with
respect to Section 1090.
(f) The Commission may adopt, amend, and rescind regulations to
implement this section and Sections 1097.1, 1097.2, 1097.3, and
1097.4 in the same manner as provided in Section 83112.
(e)
(g) For purposes of this section and Sections 1097.1,
1097.2, 1097.3, and 1097.4, "Commission" means the Fair Political
Practices Commission.
SEC. 2. Section 1097.1 is added to the Government Code, to read:
1097.1. (a) Upon the sworn complaint of a person or on its own
initiative, the Commission may shall
investigate possible violations of Section 1090 relating to any
officer or person subject to that section. Within 14 days
after receipt of a complaint, the Commission shall notify in writing
the person who made the complaint of the action, if any, the
Commission has taken or plans to take on the complaint, together with
the reasons for such action or nonaction. If no decision has been
made within 14 days, the person who made the complaint shall be
notified of the reasons for the delay and shall subsequently receive
notification as provided above. The Commission shall
provide a written notification to the person filing a complaint in
the manner described in Section 83115.
(b) The Commission shall not make a finding of probable cause to
believe Section 1090 has been violated unless , at least 21
days prior to the Commission's consideration of the alleged
violation, the person alleged to have violated Section 1090 is
notified of the alleged violation by service of process or registered
mail with return receipt requested, provided with a summary of the
evidence, and informed of his or her right to be present in person
and represented by counsel at any proceeding of the Commission held
for the purpose of considering whether probable cause exists for
believing the person violated Section 1090. Notice to the alleged
violator shall be deemed made on the date of service, the date the
registered mail receipt is signed, or if the registered mail receipt
is not signed, the date returned by the post office. A proceeding
held for the purpose of considering probable cause shall be private
unless the alleged violator files with the Commission a written
request that the proceeding be public the Commission
has notified the person who is all eged to have
violated Section 1090 in the manner described in Section 83115.5
.
(c) If the Commission determines there is probable cause to
believe Section 1090 has been violated, it may hold a hearing to
determine if a violation has occurred , subject to the
requirements of subdivision (c) of Section 1097 and in the manner
described in Section 83116 . Notice shall be given and
the hearing conducted in accordance with the Administrative
Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2). The Commission shall have all the powers
granted by that chapter. If the Commission determines that no
violation has occurred, it shall issue a letter so stating. If the
Commission determines on the basis of a hearing that a violation has
occurred, it shall issue an order requiring the violator to cease and
desist violation of Section 1090, pay a monetary penalty of up to
five thousand dollars ($5,000) per violation to the Commission for
deposit in the General Fund of the state, or both.
(d) If the Commission rejects the decision of an administrative
law judge made pursuant to Section 11517, the Commission shall state
the reasons in writing for rejecting the decision , as required
by Section 83116.3 .
(e) The Commission may subpoena witnesses, compel their
attendance and testimony, administer oaths and affirmations, take
evidence and require by subpoena the production of books, papers,
records, or other items material to the performance of the Commission'
s duties or exercise of its powers under this section
shall have all of the subpoena powers provided in Section
83118 to assist in the performance of the Commission's duties under
this section .
(f) The Commission may refuse to excuse a person from
testifying, or from producing books, records, correspondence,
documents, or other evidence in obedience to a subpoena of the
Commission notwithstanding an provide immunity from
prosecution for testimony compelled by the Commission over
a person's objection that the testimony or evidence required
of him or her may tend to incriminate that person ,
as provided in Section 83119, with respect to possible violations of
Section 1090. In addition to the requirements of Section 83119, the
Commission shall not grant immunity to a witness pursuant to this
section unless the Commission has obtained written authorization from
the Attorney General and the district attorney of the county in
which the alleged violation occurred . An individual
shall not be prosecuted in any manner or subjected to any penalty or
forfeiture for or on account of any transaction, act, matter, or
thing concerning which he or she is compelled, after having claimed
his or her privilege against self-incrimination, to testify or
produce evidence, except that the individual so testifying shall not
be exempt from prosecution and punishment for perjury committed in so
testifying. Immunity shall not be granted to a witness under this
section unless the Commission has notified the Attorney General of
its intention to grant immunity to the witness at least 30 days in
advance or unless the Attorney General waives this requirement .
(g) An interested person may seek judicial review of any action of
the Commission under this section.
(h)
(g) The Commission shall not commence an administrative
action pursuant to this section against a person who is subject to
Section 1090 alleging a violation of that section if the Commission
has commenced a civil action pursuant to Section 1097.2 against that
person for the same violation.
(i) An administrative action shall be brought pursuant to this
section no later than five years after the date on which the
violation occurred.
(1)
(h) An administrative action brought
pursuant to this section shall be subject to the requirements of
Section 91000.5. For purposes of this subdivision
that section , the commencement of the
administrative action shall be the date of the service of the
probable cause hearing notice, as required by subdivision (b), upon
the person alleged to have violated Section 1090.
(2) If the person alleged to have violated Section 1090 engages in
the fraudulent concealment of his or her acts or identity, the
five-year period shall be tolled for the period of concealment. For
purposes of this subdivision, "fraudulent concealment" means the
person knows of material facts related to his or her duties under
Section 1090 and knowingly conceals them in performing or failing to
perform those duties, for the purpose of defrauding the public of
information to which it is entitled.
(3) If, upon being ordered by a superior court to produce any
documents sought by a subpoena in any administrative action under
this section, the person alleged to have violated Section 1090 fails
to produce documents in response to the order by the date ordered to
comply therewith, the five-year period shall be tolled for the period
of the delay from the date of filing of the motion to compel until
the date the documents are produced.
SEC. 3. Section 1097.2 is added to the Government Code, to read:
1097.2. (a) The Subject to the
requirements of subdivision (c) of Section 1097, the Commission
may file a civil action against a person subject to the prohibitions
identified in Section 1090. A person held liable for a violation of
Section 1090 shall be subject to a civil fine payable to the
Commission for deposit in the General Fund of the state in an amount
not to exceed three times the value of the financial benefit received
by the person, as determined by the trier of fact.
(b) The Commission shall not commence a civil action pursuant to
this section alleging a violation of Section 1090 if the Commission
has commenced an administrative action pursuant to Section 1097.1
against the person for the same violation.
(c) A civil action brought by the Commission pursuant to this
section shall be filed not more than four years after the date the
violation occurred.
SEC. 4. Section 1097.3 is added to the Government Code, to read:
1097.3. (a) In addition to
any other remedies available, the Commission may obtain a judgment in
superior court for the purpose of collecting any unpaid monetary
penalties, fees, or civil penalties imposed pursuant to Section
1097.1 or 1097.2. The action may be filed as a small claims,
limited civil, or unlimited civil case, depending on the
jurisdictional amount. The venue for this action shall be in the
county where the monetary penalties, fees, or civil penalties were
imposed. In order to obtain a judgment in an action under this
section, the Commission shall show, following the procedures and
rules of evidence as applied in ordinary civil actions, all of the
following:
(1) The monetary penalties, fees, or civil penalties were imposed
following the procedures set forth in Section 1097.1 or 1097.2.
(2) The defendant or defendants in the action were notified, by
actual or constructive notice, of the imposition of the monetary
penalties, fees, or civil penalties.
(3) A demand for payment has been made by the Commission and full
payment has not been received.
(b) A civil action
brought pursuant to subdivision (a) shall be commenced within four
years after the date on which the monetary penalty, fee, or civil
penalty was imposed. Penalties shall be
collected in accordance with Section 91013.5.
SEC. 5. Section 1097.4 is added to the Government Code, to read:
1097.4. (a) If the time for judicial review of a final Commission
order or decision issued pursuant to Section 1097.1 has lapsed, or
if all means of judicial review of the order or decision have been
exhausted, the Commission may apply to the clerk of the superior
court for a judgment to collect the penalties imposed by the order or
decision, or the order as modified in accordance with a decision on
judicial review.
(1) The application, which shall include a certified copy of the
order or decision, or the order as modified in accordance with a
decision on judicial review, and proof of service of the order or
decision, constitutes a sufficient showing to warrant issuance of the
judgment to collect the penalties. The clerk of the court shall
enter the judgment immediately in conformity with the application.
(2) An application made pursuant to this section shall be made to
the clerk of the superior court in the county where the monetary
penalties, fees, or civil penalties were imposed by the Commission.
(3) A judgment entered in accordance with this section has the
same force and effect as, and is subject to all the provisions of law
relating to, a judgment in a civil action and may be enforced in the
same manner as any other judgment of the court in which it is
entered.
(4) The Commission may bring an application pursuant to this
section only within four years after the date on which the monetary
penalty, fee, or civil penalty was imposed.
(b) The remedy available under this section is in addition to
those available under Section 1097.3 or any other law.
SEC. 6. The Legislature finds and declares that this bill furthers
the purposes of the Political Reform Act of 1974 within the meaning
of subdivision (a) of Section 81012 of the Government Code.