BILL ANALYSIS Ó
AB 1090
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CONCURRENCE IN SENATE AMENDMENTS
AB 1090 (Fong)
As Amended August 29, 2013
2/3 vote
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|ASSEMBLY: |58-13|(May 31, 2013) |SENATE: |39-0 |(September 11, |
| | | | | |2013) |
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Original Committee Reference: E. & R.
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
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 the greater of
$10,000 or three times the value of the financial benefit
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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.
The Senate amendments :
1)Prohibit the FPPC from commencing an investigation that might
lead to an administrative or civil action against a person for
a violation of Section 1090 except upon written authorization
from the district attorney of the county in which the alleged
violation occurred.
2)Provide that any opinion or advice that is issued by the FPPC
with respect to a person's duties under Section 1090 is
subject to the following:
a) The FPPC is prohibited from issuing opinions or advice
relating to past conduct;
b) The FPPC shall forward a copy of the request for an
opinion or advice to the AG and the local district attorney
prior to proceeding, and shall provide to the person who
made the request with a copy of any written communications
that the FPPC received from the AG or district attorney;
and,
c) Any opinion or advice issued by the FPPC may be offered
as evidence of good faith conduct by the requester in an
enforcement proceeding, but the opinion or advice is not
admissible by any person other than the requester in a
criminal proceeding, and the FPPC shall indicate this fact
in the text of the advice or opinion.
3)Provide that any decision issued by the FPPC in an
administrative action brought in response to an alleged
violation of Section 1090 is not admissible in any enforcement
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proceeding other than one brought by the FPPC, and requires
the FPPC to indicate this fact in the text of any such
decision.
4)Remove language that provided that if the FPPC compelled a
person to testify in an enforcement proceeding for an alleged
violation of Section 1090 after that person claimed the
privilege against self-incrimination, the person could not be
prosecuted on account of any transaction, act, matter, or
thing concerning which he or she was compelled to testify, and
instead prohibit any testimony or testimonial evidence that
the person produced from being used against the person in a
prosecution.
5)Permit a civil violation of Section 1090 to be punishable by a
fine of the greater of $10,000 or three times the value of the
financial benefit received by the person, instead of being
capped at three times the value of the financial benefit.
6)Specify that, for the purposes of Section 1090, a person is
not deemed to be interested in a contract for public services
entered into by a special district that requires a person to
be a landowner or a representative of a landowner to serve on
the board of which the officer or employee is a member,
provided that the contract is on the same terms and conditions
as if he or she were not a member of the body or board.
Provide that for the purposes of this provision, "public
services" includes the powers and purposes generally provided
pursuant to provisions of the Water Code relating to
irrigation districts, California water districts, water
storage districts or reclamation districts.
7)Make technical and corresponding changes.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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.
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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 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 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).
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
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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: 0002055