BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      ACA 9


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          Date of Hearing:   June 15, 2016


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                                Shirley Weber, Chair


          ACA 9  
          (Gomez) - As Amended April 21, 2016


          SUBJECT:  Legislature:  legislative vacancies.


          SUMMARY:  Requires the Governor to fill a vacancy in the  
          Legislature by making an appointment from a list of three names  
          selected by certain entities, as specified.  Specifically, this  
          measure:  


          1)Makes legislative findings and declarations that Members of  
            the Legislature are expected to fulfill the full term of  
            office to which they have been elected.


          2)Provides that if a vacancy occurs in either house of the  
            Legislature, each of the following shall, within 30 days of  
            the vacancy, provide to the Governor the name of one person to  
            be nominated for appointment to fill the vacancy:


             a)   In the legislative house in which the vacancy occurs,  
               the legislative caucus of the same political party  
               preference the vacating Member had at the time he or she  
               was last elected to the Legislature.  Requires the  
               legislative caucus to agree by a majority vote on the name  
               of the person to submit to the Governor for consideration.








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             b)   The delegates to the state convention of the same  
               political party preference the vacating Member had at the  
               time he or she was last elected to the Legislature who  
               reside in the vacating Member's district boundaries.   
               Requires the delegates to agree by a majority vote on the  
               name of the person to submit to the Governor for  
               consideration.


             c)   The county board of supervisors of the county or  
               counties in which the vacating Member's district is  
               located.  Requires the county board of supervisors or  
               boards of supervisors jointly, as applicable, to adopt a  
               resolution setting forth the name of the person to submit  
               to the Governor for consideration.


          3)Provides that a person may be nominated to fill a vacancy only  
            if, at the time the person is nominated and during the 12  
            month period immediately preceding, the person had the same  
            political party preference the vacating Member had at the time  
            that Member was last elected to the Legislature. 


          4)Requires the Governor, within 60 days of the vacancy in the  
            Legislature, to fill the vacancy by appointing one of the  
            persons nominated pursuant to the provisions above.  Deletes  
            provisions of law that require the Governor, when a vacancy  
            occurs in the Legislature, to immediately call an election to  
            fill the vacancy.


          5)Requires the Legislature to enact laws implementing the  
            provisions of this measure related to filling vacancies in the  
            Legislature.










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          6)Prohibits a Member who has vacated his or her seat before the  
            expiration of his or her term of office, for reasons other  
            than personal medical reasons, from lobbying before the  
            Legislature, for compensation, until 12 months has passed from  
            the date his or her term of office was scheduled to expire. 


          7)Makes technical and corresponding changes.


          EXISTING LAW: 


          1)Requires the Governor to issue a proclamation calling a  
            special election within 14 calendar days of the occurrence of  
            a vacancy in a legislative office, unless that vacancy occurs  
            after the close of the nomination period in the final year of  
            the term of office.

          2)Permits the Governor, whenever there is a vacancy in the  
            office of the Superintendent of Public Instruction, the  
            Lieutenant Governor, Secretary of State, Controller,  
            Treasurer, or Attorney General, or on the State Board of  
            Equalization, to nominate a person to fill the vacancy who  
            shall take office upon confirmation by a majority of the  
            membership of the Senate and a majority of the membership of  
            the Assembly, as specified.  


          3)Requires the Governor, whenever a vacancy occurs in a county  
            board of supervisors, to fill the vacancy, as specified.   
            Requires the appointee to hold office until the election and  
            qualification of his or her successor.


          4)Permits the Governor to appoint or nominate a person to fill a  
            vacancy on the California Supreme Court, the court of appeal,  
            or the California Superior Court, provided the individual is  
            confirmed by the Commission on Judicial Appointments, as  








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            specified.


          5)Prohibits a Member of the Legislature, for a period of one  
            year after leaving office, for compensation, from acting as  
            agent or attorney for, or otherwise representing, any other  
            person by making any formal or informal appearance, or by  
            making any oral or written communication, before the  
            Legislature, any committee or subcommittee thereof, any  
            present legislator, or any officer or employee thereof, if the  
            appearance or communication is made for the purpose of  
            influencing legislative action. 


          FISCAL EFFECT:  Unknown


          COMMENTS:  


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


               In 2013, Los Angeles County spent more than twelve  
               million dollars on special elections. Recently, Fresno  
               County spent more than $500,000 on a special election  
               in the 31st Assembly District. These costs are too  
               great when there are many other priorities that could  
               use this funding. ACA 9 proposes to maintain a  
               democratic process, while also making sure that a  
               district doesn't go too long without representation in  
               the Assembly or Senate. This constitutional amendment  
               also prohibits a legislator vacating their seat prior  
               to the end of the term from lobbying until one year  
               after the end of their term. This prevents legislators  
               from leaving their elected office early and then  
               benefiting from it by lobbying ahead of legislators  
               that fulfilled their elected term.









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          2)Current Practice:  Existing law provides the Governor with  
            specific appointing authority for certain elected positions.   
            For instance, current law authorizes the Governor, whenever  
            there is a vacancy in the office of the Superintendent of  
            Public Instruction, the Lieutenant Governor, Secretary of  
            State, Controller, Treasurer, or Attorney General, or on the  
            State Board of Equalization, to nominate a person to fill the  
            vacancy who shall take office upon confirmation by a majority  
            of the membership of the Senate and a majority of the  
            membership of the Assembly, as specified.  Additionally,  
            existing law permits the Governor to appoint a person to fill  
            a vacancy on a county board of supervisors, or for a vacancy  
            on the California Supreme Court, the Court of Appeal, and the  
            California Superior Court, as specified.



            However, whenever a vacancy occurs in the State Senate or  
            Assembly, current law requires the Governor to issue a  
            proclamation calling for a special election within 14 calendar  
            days of the occurrence of the vacancy unless the vacancy  
            occurs after the close of the nomination period in the final  
            year of the term of that office.  This constitutional  
            amendment makes changes to this process.  Specifically, this  
            measure deletes provisions of law that require the Governor to  
            call a special election within 14 days after a vacancy occurs  
            in the Legislature and instead requires the Governor to fill a  
            legislative vacancy by making an appointment within 60 days of  
            the vacancy from a list of three names selected by certain  
            entities, as specified.  



          3)Legislative Vacancies and Special Elections:  According to  
            records provided by the Secretary of State's office, since  
            2000 there have been 50 special elections (including primaries  
            and general elections) conducted to fill vacancies in the  
            State Senate and Assembly.  Generally, special elections are  








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            unexpected and as a result, county elections officials are  
            unlikely to anticipate the cost in their budgets.   A special  
            election to fill a legislative vacancy can result in costs of  
            approximately $500,000 to $1 million for counties to conduct  
            depending on the size of the county.  Moreover, aside from the  
            cost of the election, critics argue that many special  
            elections, in particular those that are not consolidated with  
            a regularly scheduled election, result in significantly lower  
            voter turnout than regularly scheduled elections.  The turnout  
            for special elections for state legislative vacancies averages  
            around 15 percent.
          4)Resignations from the California Legislature: Since the  
            2001-2002 Legislative Sessions, there have been 32 instances  
            in which a member of the Legislature resigned from office  
            before the completion of his or her term.  More than 84% of  
            the resignations were the result of members being elected to  
            other public offices by the voters (25 cases) or being  
            appointed by the Governor to fill vacancies in other elective  
            offices (two cases).  In the five cases where a member of the  
            Legislature resigned for a reason other than assuming another  
            public office, one resigned after a criminal conviction, one  
            resigned amid press reports about comments he made regarding  
            an alleged relationship with a lobbyist, and three resigned  
            from office and subsequently accepted governmental relations  
            jobs with private organizations. 



          5)Other States:  There is tremendous variation among state  
            legislatures in how they fill a vacancy among their membership  
            when it occurs.  According to a National Conference of State  
            Legislatures (NCSL), in general, a vacancy is filled either  
            through a special election or by appointment.  The NCSL  
            indicates that 25 states fill legislative vacancies through  
            special elections, which may be ordered by the governor or  
            other official after being notified of the vacancy.  Moreover,  
            25 other states fill legislative vacancies through some form  
            of appointment process, such as by the political party of the  
            incumbent legislator, a board of county commissioners, the  








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            governor, the Legislature, or members of the same house and  
            party as the incumbent legislator.



          6)Revolving Door Restrictions on Former Government Officials:  
            Article IV, Section 5 (e) of California Constitution states,  
            "The Legislature shall enact laws that prohibit a Member of  
            the Legislature whose term of office commences on or after  
            December 3, 1990, from lobbying, for compensation, as governed  
            by the Political Reform Act of 1974, before the Legislature  
            for 12 months after leaving office."  The Political Reform Act  
            (PRA) places restrictions on the post-governmental activities  
            of certain former public officials, including Members of the  
            Legislature.  These restrictions are commonly known as a  
            "revolving door ban."  Specifically, Members of the  
            Legislature are prohibited, for a period of one year after  
            leaving office, for compensation, from acting as agent or  
            attorney for, or otherwise representing, any other person by  
            making any formal or informal appearance, or by making any  
            oral or written communication, before the Legislature, any  
            committee or subcommittee thereof, any present legislator or  
            any officer or employee thereof, if the appearance or  
            communication is made for the purpose of influencing  
            legislative action.  The one-year ban generally serves to  
            prevent former officials from taking advantage of their  
            relationships with former colleagues for the benefit of third  
            parties by prohibiting former officials from having direct  
            communications with their former agency in an attempt to  
            influence decisions.  



          This constitutional amendment expands the one-year-ban provision  
            for Members of the Legislature.  Specifically, this measure  
            provides that a Member who has vacated his or her seat before  
            the expiration of his or her term of office for any reason  
            other than personal medical reasons, will be prohibited from  
            lobbying before the Legislature, for compensation, until 12  








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            months have passed from the date his or her term of office was  
            scheduled to expire.  The practical effect of this provision  
            means that if a Member of the Legislature resigns from office  
            for any reason other than a personal medical reason, the  
            one-year-ban could be longer than one year.  Moreover, because  
            the term personal medical reason is not defined, committee  
            staff is unsure what would constitute a personal medical  
            reason and thus exempt the resigning Legislator from these  
            provisions. 
          7)No Party Preference Legislators:  This bill requires the  
            Governor to fill a vacancy in the Legislature by making an  
            appointment from a list of three names selected by certain  
            entities.  Specifically, this bill requires the legislative  
            caucus of the same political party preference the vacating  
            Member had at the time that Member was last elected to the  
            Legislature, the delegates to the state convention of the same  
            political party preference the vacating Member had at the time  
            that Member was last elected to the Legislature, and the  
            county board of supervisors of the county or counties in which  
            the vacating Member's district is located to each submit the  
            name of one person to Governor for consideration for  
            appointment to fill the vacancy.  It is unclear how these  
            provisions would logistically work if the vacating Member was  
            registered as having No Party Preference (NPP).  There is  
            neither a NPP legislative caucus, nor any NPP central  
            committees.  Would the Governor be limited to appointing the  
            person who was nominated by the county board of supervisors of  
            the county or counties from the vacating Member's district?  


          8)Related Legislation:  AB 2284 (Patterson), requires a  
            Legislator who resigns before the completion of his or her  
            term to use surplus campaign funds to pay for the resulting  
            special election.  AB 2284 failed passage of this committee on  
            a 2-3 vote.



          SB 967 (Vidak), requires the state to pay expenses authorized  








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            and necessarily incurred on or after January 1, 2008 and  
            before December 31, 2016, for elections proclaimed by the  
            Governor to fill vacancies in the office of the Senate,  
            Assembly, and United States Senator or Representative.  SB 967  
            was held on the Senate Appropriations Committee's suspense  
            file.
          9)Previous Legislation:  SCA 16 (Steinberg) of 2014, would have  
            required the Governor to fill a Legislative vacancy by  
            appointment within 21 days of the date of the vacancy, as  
            specified.  SCA 16 was approved by the Senate Elections &  
            Constitutional Amendments Committee and the Senate  
            Appropriations Committee, but subsequently was referred to the  
            Senate Rules Committee and no further action was taken.


          10)Approval of Voters:  As a constitutional amendment, this  
            measure requires the approval of the voters to take effect.



          Existing law requires measures submitted to the people by the  
            Legislature to appear on the ballot of the first statewide  
            election occurring at least 131 days after the adoption of the  
            proposal by the Legislature.  The statutory deadline to place  
            a measure on the ballot for the November 8, 2016, statewide  
            election is June 30, 2016.  If this measure is chaptered after  
            June 30, 2016 it would appear on the ballot at the 2018  
            statewide primary election, or at any statewide special  
            election that is held prior to that date, but at least 131  
            days after this measure is adopted.  
          REGISTERED SUPPORT / OPPOSITION:




          Support                                           


          None on file.                                          








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          Opposition


          
          None on file.






          Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094