BILL ANALYSIS Ó
AB 1090
Page 1
ASSEMBLY THIRD READING
AB 1090 (Fong)
As Amended April 10, 2013
2/3 vote
ELECTIONS 4-2 APPROPRIATIONS 12-5
-----------------------------------------------------------------
|Ayes:|Fong, Bonta, Hall, Perea |Ayes:|Gatto, Bocanegra, |
| | | |Bradford, |
| | | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Hall, |
| | | |Ammiano, Pan, Quirk, |
| | | |Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Donnelly, Logue |Nays:|Harkey, Bigelow, |
| | | |Donnelly, Linder, Wagner |
-----------------------------------------------------------------
SUMMARY : Authorizes the Fair Political Practices Commission
(FPPC) to bring civil and administrative enforcement actions for
violations of Government Code Section 1090 (Section 1090), dealing
with conflicts of interest in contracts, and requires the FPPC to
provide opinions and advice with respect to Section 1090.
Specifically, this bill :
1)Permits the FPPC to bring a civil or administrative action
against any person for a violation of Section 1090.
2)Prohibits the FPPC from commencing an action against a person
for a violation of Section 1090 absent a written authorization
from the district attorney of the county in which the violation
occurred, or if the Attorney General (AG) or a district attorney
is pursuing a criminal action against that person for the same
alleged violation.
3)Permits a person who is subject to Section 1090 to request an
opinion or advice from the FPPC with respect to his or her
duties under Section 1090.
4)Requires investigations and enforcement actions brought by the
FPPC regarding Section 1090 to be conducted pursuant to
procedures that govern FPPC investigations for potential
AB 1090
Page 2
violations of the Political Reform Act of 1974 (PRA).
5)Prohibits the FPPC from commencing both a civil and an
administrative action against a person for a single violation of
Section 1090.
6)Provides that a civil violation of Section 1090 shall be
punishable by a fine in an amount not to exceed three times the
value of the financial benefit received by the person. Provides
that a violation of Section 1090 is punishable through an
administrative action by a monetary penalty of up to $5,000.
7)Permits the FPPC to obtain a judgment in superior court for the
purpose of collecting any unpaid monetary penalties, fees, or
civil penalties imposed pursuant to this bill. Permits the FPPC
to apply to the clerk of the superior court for a judgment to
collect penalties imposed by an FPPC enforcement order for a
violation of Section 1090, in lieu of filing a small claims or
civil case with the court to collect those penalties.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, any additional costs to the FPPC will be minor and
absorbable, and offset to some extent by fine and penalty
revenues.
COMMENTS : According to the author, "Government Code Section 1090
generally prohibits a public official or employee from making a
contract in his or her official capacity in which he or she has a
financial interest. Unlike the conflict of interest rules
contained in the PRA, the FPPC does not have a role in enforcing
Government Code Section 1090. Instead, enforcement actions may be
brought only by the Attorney General or by the district attorney
in the county in which the violation occurred. Furthermore,
unlike the PRA, which can be enforced through criminal, civil, or
administrative actions, Government Code Section 1090 can be
enforced only through criminal prosecutions. The existence of
multiple conflict of interest laws that are enforced by multiple
entities create unnecessary confusion for public officials and
hamper efforts to effectively enforce the state's strict conflict
of interest rules. AB 1090 improves enforcement of the state's
conflict of interest laws by allowing the FPPC to bring civil or
administrative enforcement actions in response to violations of
the Government Code Section 1090 contracting laws, and gives
public officials an additional tool in helping to avoid conflicts
AB 1090
Page 3
of interest by allowing the FPPC to issue advice regarding a
public official's obligations under Government Code 1090."
Section 1090 generally prohibits a public official or employee
from making a contract in his or her official capacity in which he
or she has a financial interest. Violation of this provision is
punishable by a fine of up to $1,000 or imprisonment in the state
prison, and any violator is forever disqualified from holding any
office in the state.
Notwithstanding the fact that Section 1090 and the PRA's conflict
of interest laws are enforced and interpreted by different
entities, California courts nonetheless have recognized that the
two conflict of interest laws are very similar, and have sought to
harmonize the legal interpretations of the two laws to the extent
possible (see, e.g., Lexin v. Superior Court (2010) 47 Cal.4th
1050, People v. Honig (1996) 48 Cal.App.4th 289). In fact, the
California Supreme Court has relied upon regulations adopted by
the FPPC under the PRA to assist the court in interpreting the
provisions of Section 1090, notwithstanding the fact that the FPPC
does not enforce Section 1090 (see Lexin, supra).
Given the similarity between these two laws, authorizing the FPPC
to provide opinions and advice regarding Section 1090, and to
bring civil and administrative enforcement actions for violations
of Section 1090, may result in greater consistency in the
enforcement of these conflict of interest laws and may make it
easier for public officials acting in good faith to comply with
the conflict of interest laws.
California voters passed an initiative, Proposition 9, in 1974
that created the FPPC and codified significant restrictions and
prohibitions on candidates, officeholders and lobbyists. That
initiative is commonly known as the PRA. Amendments to the PRA
that are not submitted to the voters, such as those contained in
this bill, must further the purposes of the initiative and require
a two-thirds vote of both houses of the Legislature.
Please see the policy committee analysis for a full discussion of
this bill.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
FN: 0000425
AB 1090
Page 4