BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 241                           |Hearing    |6/8/16   |
          |          |                                 |Date:      |         |
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          |Author:   |Gordon                           |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |6/1/16                           |Fiscal:    |Yes      |
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          |Consultant|Weinberger                                            |
          |:         |                                                      |
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               Bankruptcy:  retired employees:  disclosure of names and  
                                  mailing addresses



          Requires a local public entity to provide contact information  
          for each of its retirement plan beneficiaries to an organization  
          representing the local public entity's retired employees in  
          certain situations related to the public entity's efforts to  
          seek municipal bankruptcy protection.


           Background 

           Federal bankruptcy law for public agencies (Chapter 9) gives  
          government debtors time to come up with repayment plans,  
          providing them a breathing spell from creditors' collection  
          efforts.  Only a municipality, which federal law defines as a  
          political subdivision, public agency, or instrumentality of a  
          state, can initiate a Chapter 9 proceeding.  The municipality  
          must be insolvent and desire to effect a plan to adjust its  
          debts.  

          Unlike private bankruptcy law (Chapter 11), municipal bankruptcy  
          law must respect the states' sovereign powers.  Consequently,  
          the states can control their local agencies' access to federal  
          bankruptcy protection.  California state law allows a local  
          government to petition for bankruptcy protection only after it  
          either participates in a neutral evaluation process or declares  
          a fiscal emergency (AB 506, Wieckowski, 2011).







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          The California Public Records Act (PRA) requires public records  
          to be open to inspection during office hours and gives every  
          person a right to inspect public records, with specific  
          exceptions.  The PRA exempts from disclosure "personnel,  
          medical, or similar files, the disclosure of which would  
          constitute an unwarranted invasion of personal privacy."   
          However, state law also specifically allows for disclosure of  
          some personnel information under specific circumstances.  For  
          example, although state law generally prohibits public the  
          public disclosure of information regarding persons paid by the  
          state to provide in-home supportive services or personal care  
          services, it does require that copies of names, addresses, and  
          telephone numbers of those service providers must be made  
          available, upon request, to an exclusive bargaining agent and to  
          any labor organization seeking representation rights pursuant to  
          state law (AB 515, Wright, 1999).

          Because a local government's bankruptcy has the potential to  
          alter the benefits that the local government provides to its  
          retirees, those retirees' have an interest in being represented  
          as stakeholders in the local government's bankruptcy process.   
          Advocates for retired public employees want to help retirees  
          organize as a group to ensure that they are properly represented  
          as a party in a local government bankruptcy.  They want the  
          Legislature to require that a local government that has taken  
          steps towards a municipal bankruptcy must provide contact  
          information for its retirement beneficiaries to an organization  
          that is formed for the purpose of representing the local  
          government's retired employees.


           Proposed Law

           Assembly Bill 241 requires a local public entity to provide a  
          list of the name and mailing address of each retired employee,  
          or his or her beneficiary receiving the retired employee's  
          retirement benefit, to any organization that is incorporated as  
          a California nonprofit mutual benefit corporation pursuant to  
          state law and qualified pursuant to Section 501(c)(5) of Title  
          26 of the Internal Revenue Code for the purpose of representing  
          retired employees of the local public entity, upon that  
          organization's request, if any of the following occur:
                 The local public entity began the process of  








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               participating in a neutral evaluation process pursuant to a  
               specified statute. 

                 The local public entity declared a fiscal emergency and  
               adopted a resolution by a majority vote of the governing  
               board pursuant to a specified statute.

                 The local public entity filed a petition pursuant to  
               applicable federal bankruptcy law.

          AB 241's requirements to disclose names and mailing addresses  
          apply to a local public entity notwithstanding any other law,  
          with one specified exception.  Specifically, upon written  
          request of any retired employee, or his or her beneficiary  
          receiving the retired employee's retirement benefit, a local  
          public entity must not disclose the name and home address of the  
          retired employee, or his or her beneficiary receiving the  
          retired employee's retirement benefit, and must remove the  
          retired employee, or his or her beneficiary receiving the  
          retired employee's retirement benefit, from any mailing list  
          maintained by that local public entity in compliance with the  
          bill's disclosure requirements.

          AB 241 requires that an organization receiving a list of the  
          name and mailing address of a retired employee or his or her  
          beneficiary receiving the retired employee's retirement benefit  
          must use that information only for the purpose of representing  
          the retired employee or his or her beneficiary as a member of  
          the organization as an interested party in:
                 A neutral evaluation process,

                 The declaration of a fiscal emergency and adoption of a  
               resolution, or

                 A bankruptcy proceeding.

          The bill requires that an organization that misuses the list of  
          names and mailing addresses must be subject to a civil penalty  
          in the amount of twenty-five thousand dollars ($25,000).  


           State Revenue Impact

           No estimate.








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           Comments

           1.  Purpose of the bill  .  AB 241 responds to a problem  
          experienced by retirees from the City of Stockton during that  
          city's municipal bankruptcy process.  When the City of Stockton  
          filed for bankruptcy in 2012, retirees from the city organized  
          as a group in order to become a party to the bankruptcy.  This  
          group received approval as a labor organization under the  
          Internal Revenue Code.  They were then able to obtain donations  
          and hire legal counsel to represent them in bankruptcy court.   
          However, they were unable to obtain, from the city, the names  
          and addresses of the city's retirees so they could notify them  
          of their intent to seek representation before the bankruptcy  
          court.  AB 241 strikes a balance between retiree organizations'  
          legitimate interests in being effective advocates for their  
          members and individual retiree's fundamental interests in  
          protecting the privacy of their personal information.  The bill  
          is modelled on a narrow exception in state law that allows  
          contact information for in-home care service providers to be  
          provided to labor organizations for specified purposes.  AB 241  
          protects individual privacy rights by allowing individual  
          retirees to request that their information not be disclosed and  
          by imposing a penalty for the unauthorized use of a list of the  
          contact information.

          2.   Clarification  .  State law requires that either a neutral  
          evaluation process or declaration of a fiscal emergency must  
          precede a local entity's filing a bankruptcy petition pursuant  
          to federal law.   AB 241 specifies three circumstances under  
          which a local government must produce a list of its retirement  
          beneficiaries upon the request of an organization representing  
          the government's retirees: initiating a neutral evaluation  
          process, declaring a fiscal emergency, or filing a petition  
          pursuant to federal bankruptcy law.  As a result, AB 214's  
          language could be misconstrued as implying that a local entity  
          can file a bankruptcy petition under federal law without having  
          either gone through a neutral evaluation process or declared a  
          fiscal emergency.  The Committee may wish to consider amending  
          AB 241 to clarify this provision either by deleting the  
          reference to a local entity's filing a bankruptcy petition or by  
          narrowing that language to apply only to local entities that  
          filed a bankruptcy petition before the neutral evaluation and  








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          fiscal emergency statutes were enacted by AB 506 (Wieckowski,  
          2011).

          3.  Who pays  ?  The Legislative Counsel's Office says that AB 241  
          would impose a state-mandated local program because it requires  
          local government officials to perform additional duties related  
          to producing a list of contact information for retirees.  The  
          California Constitution generally requires the state government  
          to reimburse the costs of new or expanded state mandated local  
          programs.  However, on June 3, 2014, California voters approved  
          Proposition 42, which amended the California Constitution to  
          require local agencies to comply with the California Public  
          Records Act.  Proposition 42 also requires local agencies to  
          comply with any subsequent statutory enactment amending the  
          Public Records Act that contains specified findings that the  
          newly enacted statute furthers specified constitutional  
          provisions guaranteeing public access to public agency meetings  
          and records.  AB 241 contains legislative findings that the bill  
          furthers the purpose of Section 3 of Article I of the California  
          Constitution because it "ensures that public retirees and their  
          beneficiaries have the opportunity to meaningfully participate  
          in the legal processes of a local public entity filing a  
          petition and exercising powers pursuant to applicable federal  
          bankruptcy law."  As a result, AB 241 disclaims the state's  
          responsibility for reimbursing local governments' costs of  
          complying with the bill's requirements.


           Assembly Actions

           Assembly Local Government Committee:       9-0
          Assembly Privacy & Consumer Protection Committee: 11-0
          Assembly Appropriations Committee:       13-4
          Assembly Floor:                         61-14


















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          Support and  
          Opposition   (6/2/16)


           Support  :  Retired Public Employees Association of California;  
          American Federation of State, County, and Municipal Employees,  
          AFL-CIO; California Alliance for Retired Americans; California  
          State Retirees.

           Opposition  :  Unknown.



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