BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          ELECTIONS AND CONSTITUTIONAL AMENDMENTS
                              Senator Ben Allen, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 10          Hearing Date:    7/7/15    
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          |Author:    |Gatto                                                |
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          |Version:   |4/7/15                                               |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Darren Chesin                                        |
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           Subject:  Political Reform Act of 1974:  behested payments and  
                            economic interest disclosures

           DIGEST
           
          This bill makes several significant changes to the Political  
          Reform Act (PRA) of 1974 including changes to reporting  
          requirements on statements of economic interests (SEI) and  
          behested payment reports. 

           ANALYSIS
           
           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 $2,000 or more; 








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



             c)   Any real property in which the public official has a  
               direct or indirect interest worth $2,000 or more; 



             d)   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 $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; 



             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.
           
           3)Delineates 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.   








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            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 Fair Political Practices Commission  
               (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;  
               county treasurers; and county chief administrative  
               officers;











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             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 (If the governmental  
               decision is to be made during an open session of a public  
               meeting, the public identification shall be made orally and  
               shall be made part of the official public record.);

             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  
               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.

          1)Requires an elected officer to report a payment made at the  








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            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.
              
          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 use to describe the value of their investments,  
            interests in real property, and income when filing a SEI (see  
            table below under "Background" for a detailed description).

          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 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" above) 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.



          6)Requires  candidates  who are not elected officials, and elected  








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            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.





           BACKGROUND
           
           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 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  








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          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.

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



             ------------------------------------------------------------- 
            |Financial Interest     |Existing Law     |This Bill          |
            |-----------------------+-----------------+-------------------|
            |Interest in Real       |                 |                   |
            |Property               |                 |                   |
            |-----------------------+-----------------+-------------------|
            | Conflict of Interest |$2,000           |$10,000            |
            |  Threshold:           |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |








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            |-----------------------+-----------------+-------------------|
            |  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:           |                 |                   |
            |                       |                 |                   |
            |                       |                 |                   |
            |-----------------------+-----------------+-------------------|
            |  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           |








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            |                       |Over $100,000    |$250,000.01 -      |
            |                       |                 |$500,000           |
            |                       |                 |Over $500,000      |
            |                       |                 |                   |
             ------------------------------------------------------------- 

           Behested Payments  .  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 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.


          Examples of payments made at the behest of an elected officer  
          that have to be reported under this provision of law include  








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          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.

           COMMENTS
           
           1)According to the author  :  Transparency and disclosure are  
            essential to protecting public resources, preventing  
            corruption, and restoring 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:  

                 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.  

                 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.  

                 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.  
                

                 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.  

                 It will extend the behested payment reporting  
               requirements to include those candidates who are  
               required to file a campaign statement and elected  








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               officials for one year after leaving elective office.
           
            1)Is More Disclosure Always Better ?  Existing law and this bill  
            address the monetary thresholds that determine when financial  
            conflicts of interest exist.  It is unclear how disclosing the  
            names of a public official's business partners help determine  
            whether the official's business interests potentially create a  
            conflict of interest.  Furthermore, the list may be brief for  
            smaller businesses, but what if the official is an officer for  
            a much larger company that has partnerships with lots of other  
            corporations in and out of the state?  



          Additionally, this bill requires a public official or candidate  
            to include on an SEI a "thorough and detailed description" of  
            the business activities of specified business entities instead  
                                        of a general description as required under existing law.   
            Although the bill permits the FPPC to establish the criteria  
            on which these expanded descriptions will be based, a  
            "thorough and detailed description" could include an enormous  
            amount of information that would be not only burdensome but of  
            questionable value.
           2)Why Expand Behested Payment Reports to Non-Officeholders  ?   
            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.   



           3)Why Add Recusal Information to SEIs  ?  Since public officials  
            already have to publicly identify their reasons for  
            disqualification - often during an open session of a public  
            meeting - it is unclear how adding recusal information on the  
            SEI after the fact would be useful.  That information would be  
            reported in many cases long after the recusal which is already  
            recorded in public meeting minutes. 

                               RELATED/PRIOR LEGISLATION








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          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."

           PRIOR ACTION
           
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          |Assembly Floor:                       |79 - 0                     |
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          |Assembly Appropriations Committee:    |17 - 0                     |
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          |Assembly Elections and Redistricting  |  6 - 0                    |
          |Committee:                            |                           |
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          POSITIONS
           
          Sponsor: Author

          Support: Association of California Water Agencies 
                   California Clean Money Campaign
                   California Common Cause
                   California Newspaper Publishers Association

          Oppose:  None received
                                          
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