BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 10


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          Date of Hearing:  April 15, 2015


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB  
                        10 (Gatto) - As Amended  April 7, 2015


          SUBJECT:  Political Reform Act of 1974:  behested payments and  
          economic interest disclosures.


          SUMMARY:  Makes several significant changes to the Political  
          Reform Act (PRA) of 1974.  Specifically, this bill:  


          1)Increases the threshold at which a public official's financial  
            interest can potentially create a conflict of interest under  
            the PRA, as follows:

             a)   Raises the conflict of interest threshold for interests  
               in real property from $2,000 to $10,000;

             b)   Raises the conflict of interest threshold for  
               investments in a business entity from $2,000 to $5,000;  
               and,



             c)   Raises the conflict of interest threshold for sources of  
               income, other than gifts or specified loans, from $500 to  
               $1,000.












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          2)Revises the monetary ranges that specified public officials or  
            candidates, when filing a statement of economic interests  
            (SEI), use to describe the value of their investments,  
            interests in real property, and income.

          3)Requires a public official or candidate who is required to  
            disclose a business entity investment on his or her SEI  
            because the official or candidate is a director, officer,  
            partner, or trustee of the business entity, to provide a  
            thorough and detailed description of the business entity's  
            activities and disclose the names of all business partners who  
            share a financial interest in the business entity on the SEI,  
            based on criteria established by the Fair Political Practices  
            Commission (FPPC). 



          4)Requires a public official or candidate who is required to  
            disclose his or her pro rata share of income to a business  
            entity on an SEI to include a thorough and detailed  
            description of the business activity of the business entity,  
            instead of a general description of the entity's business  
            activity.



          5)Requires a public official who holds an office listed in  
            Section 87200 of the Government Code (a complete list of these  
            offices are detailed under "existing law" below) to disclose  
            on his or her SEI each governmental decision for which a  
            financial interest resulted in the official's disqualification  
            from making, participating in making, or in any way attempting  
            to use his or her official position to influence a  
            governmental decision.  Requires the disclosure to identify  
            the governmental decision, the date that the decision was made  
            or considered, the financial interest that created the  
            conflict of interest, and any other relevant information that  
            the FPPC determines appropriate.











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          6)Requires candidates who are not elected officials, and elected  
            officials for a year after leaving office, to report any  
            payment that is made at the behest of that person for a  
            legislative, governmental, or charitable purpose within 30  
            days following the date on which such payment or payments  
            equal or exceed $5,000 in the aggregate from the same source  
            in the same calendar year in which they are made.  Requires  
            the statement to be filed with the following entity:



             a)   In the case of a candidate, with the officials and  
               agencies with which the candidate is required to file  
               campaign statements; and,

             b)   In the case of a former elected officer, with the agency  
               with which the officer was required to file such statements  
               when he or she was an elected officer.



          7)Makes technical and corresponding changes.
          EXISTING LAW:  


          1)Prohibits a public official from making, participating in  
            making, or in any way attempting to use his official position  
            to influence a governmental decision in which the official  
            knows or has reason to know he or she has a financial  
            interest, as specified.  Provides that an official has a  
            financial interest in a decision, for these purposes, if it is  
            reasonably foreseeable that the decision will have a material  
            financial effect, distinguishable from its effect on the  
            public generally, on the official, a member of his or her  
            immediate family, or on any of the following: 

             a)   Any business entity in which the public official has a  
               direct or indirect investment worth two thousand dollars  
               ($2,000) or more; 









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             b)   Any real property in which the public official has a  
               direct or indirect interest worth two thousand dollars  
               ($2,000) or more; 



             c)   Any source of income, except gifts or loans by a  
               commercial lending institution made in the regular course  
               of business on terms available to the public without regard  
               to official status, aggregating five hundred dollars ($500)  
               or more in value provided or promised to, received by, the  
               public official within 12 months prior to the time when the  
               decision is made; 



             d)   Any business entity in which the public official is a  
               director, officer, partner, trustee, employee, or holds any  
               position of management; or,



             e)   Any donor of, or any intermediary or agent for a donor  
               of, a gift or gifts aggregating an amount that equals or  
               exceeds the gift limit (currently $460 in a year) that is  
               provided to, received by, or promised to the public  
               official within 12 months prior to the time when the  
               decision is made.



          2)Requires candidates for, and current holders of, specified  
            elected or appointed state and local offices and designated  
            employees of state and local agencies to file SEIs disclosing  
            their financial interests, including investments, real  
            property interests, and income.  Requires filers to file the  
            SEIs annually and at other periods of time, such as when  
            assuming or leaving office.
           









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           3)Lists certain high-ranking public officials in Government Code  
            Section 87200 (these officials are known, and are hereinafter  
            referred to, as "87200 filers") who are subject to the most  
            expansive disclosure requirements under the PRA.  Provides  
            that these 87200 filers include all of the following:
           
              a)   Elected state officers;

             b)   Judges and commissioners of courts of the judicial  
               branch of government;



             c)   Members of the Public Utilities Commission;



             d)   Members of the State Energy Resources Conservation and  
               Development Commission;



             e)   Members of the FPPC;



             f)   Members of the California Coastal Commission;



             g)   Members of the High-Speed Rail Authority;



             h)   Members of planning commissions;



             i)   Any of the following county offices: Members of the  
               board of supervisors; district attorneys; county counsels;  









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               county treasurers; and county chief administrative  
               officers;



             j)   Any of the following city offices: Mayors; members of  
               the city council; city managers; city attorneys; city  
               treasurers; city chief administrative officers;



             aa)  Other public officials who manage public investments;  
               and,



             bb)  Candidates for any of the offices listed above.



          4)Requires an 87200 filer who is disqualified from participating  
            in a governmental action because of a financial conflict of  
            interest, except for members of the Legislature, to do the  
            following upon identifying the conflict of interest or  
            potential conflict of interest and immediately prior to the  
            consideration of the matter:

             a)   Publicly identify the financial interest that gives rise  
               to the conflict of interest or potential conflict of  
               interest in detail sufficient to be understood by the  
               public, except that disclosure of the exact street address  
               of a residence is not required;

             b)   Recuse himself or herself from discussing and voting on  
               the matter, or otherwise acting on the matter in violation  
               of existing law; and,

             c)   Leave the room until after the discussion, vote, and any  
               other disposition of the matter is concluded, unless the  
               matter has been placed on the portion of the agenda  









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               reserved for uncontested matters.  Provides that  
               notwithstanding this restriction, a public official who has  
               a conflict of interest may speak on the issue during the  
               time that the general public speaks on the issue.

          5)Requires a candidate who is an elected officer to report a  
            payment made at the behest of that officer, made principally  
            for legislative, governmental, or charitable purposes, within  
            30 days following the date on which the payment or payments  
            equal or exceed $5,000 in the aggregate from the same source  
            in the same calendar year.  Requires this report to be filed  
            with the elected officer's agency and to contain all of the  
            following:  

              a)   The name and address of the payor;
              
              b)   The amount of the payment;
              
              c)   The date or dates that the payment or payments were  
               made;
              
              d)   The name and address of the payee;
              
              e)   A brief description of the goods or services provided or  
               purchased, if any; and,
              
              f)   A description of the specific purpose or event for which  
               the payment or payments were made.
              
           FISCAL EFFECT:  Unknown.  State-mandated local program; contains  
          a crimes and infractions disclaimer.


          COMMENTS:  


          1)Purpose of the Bill:  According to the author:

          Transparency and disclosure are essential to protecting  
          public resources, preventing corruption, and restoring  









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          public trust.  This legislation will finally bring  
          disclosure requirements into the 21st century.  AB 10 will  
          ensure that California's public officials are more  
          transparent in their business, investment, and income  
          disclosures, which will further confirm that our trusted  
          elected officials are using their positions to serve all  
          citizens equally.





          AB 10 has five main components.  1) It will modernize the  
          financial interest thresholds that necessitate a public  
          official excusing him or herself from a governmental  
          decision.  These numbers have been updated only once since  
          1974.  2) It will include additional middle tiers and upper  
          tiers in the financial disclosures on the FPPC's Form 700,  
          ensuring that the public has a more accurate view of the  
          financial holdings and potential conflicts of interest for  
          their public officials.  3) It will require a more detailed  
          disclosure of these holdings, specifically a more thorough  
          description of any businesses and the names of any business  
          partners.  4) It will add an additional disclosure to the  
          Form 700 that requires public officials to specify any  
          instances in the previous year where a financial interest  
          has been cause for a recusal from being involved with or  
          making a governmental decision.  5) It will extend the  
          behested payment reporting requirements to include those  
          candidates who are required to file a campaign statement  
          and elected officials for one year after leaving elective  
          office.



          2)Statements of Economic Interests: As part of the PRA's  
            comprehensive scheme to prevent conflicts of interest by state  
            and local public officials, existing law identifies certain  
            elected and other high-level state and local officials who  
            must file SEIs. Similarly, candidates for those positions must  









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            file SEIs.  Other state and local public officials and  
            employees are required to file SEIs if the position they hold  
            is designated in an agency's conflict of interest code.  A  
            position is designated in an agency's conflict of interest  
            code when the position entails the making or participation in  
            the making of governmental decisions that may foreseeably have  
            a material financial effect on the decision maker's financial  
            interests.  While the exact number of people that are required  
            to file SEIs is unknown, the FPPC has estimated that the  
            number exceeds 200,000 officials and employees statewide.

          The information that must be disclosed on an SEI, and the  
            location at which an SEI is filed, varies depending on the  
            position held by the individual who is required to file an  
            SEI.  Although there are some exceptions, individuals who are  
            required to file an SEI typically must file that document with  
            the agency of which they are an elected official or by which  
            they are employed.

          3)Financial Interests: Under existing law, when a public  
            official or a candidate for public office is required to  
            disclose a financial interest on his or her SEI, the filer is  
            not required to disclose the exact value of the interest, but  
            instead must select a monetary range that describes the value  
            of the interest.  As noted above, this bill revises the  
            monetary ranges that public officials use to describe the  
            values of their financial interests on SEIs.  In most cases,  
            the revised disclosure categories in this bill would provide  
            greater specificity about the values of financial interests  
            held by public officials, although in some cases, this bill  
            could provide somewhat less specificity about the value of  
            financial interests held by the public official.  



          Additionally, this bill increases the thresholds at which  
            certain financial interests of a public official can give rise  
            to a conflict of interest that requires the official to recuse  
            himself or herself from participating in a governmental  
            decision.









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          The changes to the conflict of interest thresholds and  
            disclosure categories that are proposed by this bill are  
            detailed below:










































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             ------------------------------------------------------------- 
            |Financial Interest     |Existing Law     |This Bill          |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            |Interest in Real       |                 |                   |
            |Property               |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            | Conflict of Interest |$2,000           |$10,000            |
            |  Threshold:           |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            |  SEI Disclosure      |$2,000 - $10,000 |$10,000 - $250,000 |
            |  Ranges:              |                 |                   |
            |                       |                 |                   |
            |                       |$10,000.01 -     |$250,000.01 -      |
            |                       |$100,000         |$500,000           |
            |                       |$100,000.01 - $1 |$500,000.01 -      |
            |                       |million          |$750,000           |
            |                       |Over $1 million  |$750,000.01 - $1   |
            |                       |                 |million            |
            |                       |                 |$1,000,000.01 - $2 |
            |                       |                 |million            |
            |                       |                 |Over $2 million    |
            |-----------------------+-----------------+-------------------|
            |Investment             |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            | Conflict of Interest |$2,000           |$5,000             |
            |  Threshold:           |                 |                   |
            |                       |                 |                   |









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            |                       |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            |  SEI Disclosure      |$2,000 - $10,000 |$5,000 - $10,000   |
            |  Ranges:              |                 |                   |
            |                       |                 |                   |
            |                       |$10,000.01 -     |$10,000.01 -       |
            |                       |$100,000         |$100,000           |
            |                       |$100,000.01 - $1 |$100,000.01 -      |
            |                       |million          |$250,000           |
            |                       |Over $1 million  |$250,000.01 -      |
            |                       |                 |$500,000           |
            |                       |                 |$500,000.01 - $1   |
            |                       |                 |million            |
            |                       |                 |$1,000,000.01 - $2 |
            |                       |                 |million            |
            |                       |                 |Over $2 million    |
            |-----------------------+-----------------+-------------------|
            |Income                 |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            | Conflict of Interest |$500             |$1,000             |
            |  Threshold:           |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            |  SEI Disclosure      |$500 - $1,000    |$1,000 - $10,000   |
            |  Ranges:              |                 |                   |
            |                       |                 |                   |
            |                       |$1,000.01 -      |$10,000.01 -       |
            |                       |$10,000          |$100,000           |
            |                       |$10,000.01 -     |$100,000.01 -      |
            |                       |$100,000         |$250,000           |
            |                       |Over $100,000    |$250,000.01 -      |
            |                       |                 |$500,000           |
            |                       |                 |Over $500,000      |









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             ------------------------------------------------------------- 



          1)Is More Disclosure Always Better? One of the original purposes  
            of the PRA was to ensure that public officials disclose income  
            and assets that could be affected by official actions and  
            disqualify themselves from participating in decisions when  
            they have conflicts of interest. In the background material  
            provided by the author's office, the author argues that  
            revising the disclosure categories for public officials'  
            financial interests is warranted in order to ensure that the  
            public has more accurate information about officials'  
            financial holdings.  Additionally, the author points to recent  
            news articles questioning the Governor's business holdings in  
            arguing for the need to require greater detail about the  
            business holdings and business partners of public officials.

          If a public official or a candidate reports that he or she  
            receives income of over $100,000 from one source, isn't that  
            sufficient information to determine whether there could be a  
            possible conflict of interest regarding related public policy  
            issues? Similarly, does the public need to know the names of a  
            public official's business partners in order to determine  
            whether the official's business interests potentially create a  
            conflict of interest? On the other hand, if a public official  
            or candidate's net worth exceeds tens or hundreds of millions  
            of dollars, disclosure of that information may seem  
            reasonable. Determining appropriate financial disclosure rules  
            is a subjective task, and the committee may wish to consider  
            whether the benefit of the increased specificity proposed by  
            this bill outweighs the additional burdens that such increased  
            specificity imposes for those who are required to file  
            financial disclosure reports. 

          2)Behested Payments and Previous Legislation: In 1996, the FPPC  
            amended its regulatory definition of the term "contribution"  
            to include any payment made "at the behest" of a candidate,  
            regardless of whether that payment was for a political  
                                                                                     purpose.  As a result, payments made by a third party at the  









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            request or direction of an elected officer were required to be  
            reported as campaign contributions, even if those payments  
            were made for governmental or charitable purposes.





            The change in regulations by the FPPC, along with a number of  
            advice letters issued by the FPPC interpreting the new  
            definition of "contribution," limited the ability of elected  
            officers to co-sponsor governmental and charitable events.  In  
            one advice letter, the FPPC concluded that a member of the  
            Legislature would be deemed to have accepted a campaign  
            contribution if, at his behest, a third party paid for the  
            airfare and lodging for witnesses to testify at a legislative  
            hearing.





            In response to the FPPC's modified definition of  
            "contribution," the Legislature enacted SB 124 (Karnette),  
            Chapter 450, Statutes of 1997, which provided that a payment  
            made at the behest of a candidate for purposes unrelated to  
            the candidate's candidacy for elective office is not a  
            contribution.  SB 124 specifically provided that a payment  
            made at the behest of a candidate principally for a  
            legislative, governmental, or charitable purpose is not  
            considered a contribution or a gift.  However, SB 124 also  
            required that such payments made at the behest of a candidate  
            who is also an elected officer, when aggregating $5,000 or  
            more in a calendar year from a single source, be reported to  
            the elected officer's agency.  The elected officer must report  
            such a payment within 30 days.













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            Examples of payments made at the behest of an elected officer  
            that have to be reported under this provision of law include  
            charitable donations made in response to a solicitation sent  
            out by an elected officer or donations of supplies and  
            refreshments made by a third party for a health fair that was  
            sponsored by an elected officer.



            This bill makes candidates for elective office, and former  
            elected officials for one year after leaving office, subject  
            to the requirement to disclose behested payments.  The reason  
            for such an expansion is unclear. Because candidates and  
            former public officials are not in a position to make  
            governmental decisions, unlike officeholders, the existing  
            rationale for requiring behested payment reporting does not  
            necessarily extend to candidates and former public officials.   
            Furthermore, committee staff is unaware of any instances in  
            which candidates who are not public officials, or former  
            public officials, have solicited behested payments in any  
            significant amount.

          3)Arguments in Support:  The California Newspaper Publishers  
            Association submitted a letter of support to this bill prior  
            to the most recent amendments.  The primary effect of those  
            amendments was adding the provisions of this bill that expand  
            behested payment reporting.  In support of the prior version  
            of the bill, which primarily dealt with conflict of interest  
            thresholds and information that is required to be disclosed on  
            SEIs, the California Newspaper Publishers Association wrote:

          This bill would increase the reporting requirements in the  
          Form 700, which elected officials and government workers  
          must file annually to reveal whether they have any  
          financial interests that create a conflict of interest in  
          their professional work. The Form 700s submitted by several  
          public officials have been analyzed by journalists who  
          found that there is a paucity of information current law  
          actually requires an official to report. Creating greater  









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          obligations of disclosure will provide the public with more  
          detailed information regarding a public official's  
          financial holdings and potential conflicts of interest.



          AB 10 creates greater transparency by giving the public a  
          broader look at an official's financial holdings. It also  
          creates a more robust database for the public to analyze  
          election and political data. CNPA supports this legislation  
          as it increases public access to data regarding the  
          financial interests that impact public officials'  
          decisions.
          
          4)Previous Legislation:  AB 2162 (Portantino) of 2012 would have  
            revised the dollar thresholds that are used to report the  
            value of investments, real property interests, and income,  
            when a public official files a SEI, thereby providing greater  
            specificity about the value of those investments, property  
            interests, and income.  AB 2162 was vetoed by Governor Brown.   
            In his veto message, the Governor argued that "[t]he law  
            already requires public officials to disclose their income and  
            investments with enough particularity so that conflicts of  
            interest can be identified," and indicated that he was "not  
            convinced that this bill will provide more useful information  
            to the public."

          5)Political Reform Act of 1974:  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.











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          REGISTERED SUPPORT / OPPOSITION:


          Support




          Association of California Water Agencies
          California Newspaper Publishers Association (prior version)


          Opposition


          None on file.


          Analysis Prepared  
          by:              Ethan Jones/E. & R./(916) 319-2094