BILL ANALYSIS Ó
AB 910
Page 1
Date of Hearing: April 15, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 910
(Harper) - As Amended March 19, 2015
SUBJECT: Political Reform Act of 1974: local enforcement.
SUMMARY: Authorizes the Fair Political Practices Commission
(FPPC) to administer and enforce a local campaign finance
ordinance upon mutual agreement between the FPPC and a local
agency, as specified. Specifically, this bill:
1)Defines a local agency to mean a city, county, or city and
county.
2)Permits the FPPC to enter into a mutual agreement with the
governing body of a local agency to enforce a local campaign
finance ordinance. Provides that the FPPC, upon mutual
agreement between the FPPC and the governing body of a local
agency, is authorized to assume primary responsibility for the
impartial, effective administration, implementation, and
enforcement of a local campaign finance ordinance of the local
agency if the agreement has been approved by either of the
following:
a) The governing body of the local agency; or,
AB 910
Page 2
b) A majority of the voters in the local agency who voted
on the agreement.
3)Provides, upon approval of an agreement mentioned above, that
the FPPC shall be the civil prosecutor responsible for the
civil enforcement of the local campaign finance ordinance of
the local agency pursuant to this bill. Permits the FPPC, as
the civil prosecutor of the local agency's campaign finance
ordinance, to do all of the following with respect to the
local campaign finance ordinance:
a) Provide advice;
b) Investigate possible violations;
c) Bring administrative actions in accordance with the
provisions of this bill; and,
d) Bring civil actions.
4)Provides that the FPPC shall not be required to obtain
authorization from the city or district attorney of the local
agency to bring an administrative or civil action pursuant to
the provisions of this bill.
5)Requires a local campaign finance ordinance of the local
agency enforced by the FPPC to comply with the provisions of
this bill.
6)Requires the governing body of the local agency to consult
AB 910
Page 3
with the FPPC prior to adopting and amending any local
campaign finance ordinance that is subsequently enforced by
the FPPC pursuant to this bill.
7)Permits the governing body of the local agency and the FPPC to
enter into any agreement necessary and appropriate to carry
out the provisions of this bill, including agreements
pertaining to any necessary reimbursement of state costs with
county funds for costs incurred by the FPPC in administering,
implementing, or enforcing a local campaign finance ordinance
pursuant to the provisions of this bill.
8)Prohibits an agreement entered into pursuant to the provisions
of this bill from containing any form of a cancellation fee, a
liquidated damages provision, or other financial disincentive
to the exercise of the right to terminate the agreement,
except that the FPPC may require the governing body of the
local agency to pay the FPPC for services rendered and any
other expenditures reasonably made by the FPPC in anticipation
of services to be rendered pursuant to the agreement in the
event that the governing body of the local agency terminates
the agreement.
9)Permits the governing body of the local agency, at any time,
by ordinance or resolution, to terminate an agreement made
pursuant to this bill for the FPPC to administer, implement,
or enforce a local campaign finance ordinance or any provision
thereof.
10)Requires the FPPC, if an agreement is entered into pursuant
to this bill, to report to the Legislature regarding the
performance of that agreement on or before January 1, 2019,
and submit that report in compliance with existing law.
Requires the FPPC to develop the report in consultation with
the local agency. Requires the report to include, by not be
AB 910
Page 4
limited to, all of the following:
a) The status of the agreement;
b) The estimated annual cost savings, if any, for the local
agency;
c) A summary of relevant annual performance metrics,
including measures of utilization, enforcement, and
customer satisfaction;
d) Any public comments submitted to the FPPC or the local
agency relative to the operation of the agreement; and,
e) Any legislative recommendations.
11)Contains a January 1, 2020 sunset date.
EXISTING LAW:
1)Creates the FPPC, and makes it responsible for the impartial,
effective administration and implementation of the PRA.
2)Requires a local government agency that adopts or amends a
local campaign finance ordinance to file a copy of the
ordinance with the FPPC.
3)Prohibits a local government agency from enacting a campaign
finance ordinance that imposes campaign reporting requirements
that are additional to or different from those set forth in
the PRA for elections held in its jurisdiction unless the
AB 910
Page 5
additional or different requirements apply only to the
candidates seeking election in that jurisdiction, their
controlled committees or committees formed or existing
primarily to support or oppose their candidacies, and to
committees formed or existing primarily to support or oppose a
candidate or to support or oppose the qualification or passage
of a local ballot measure which is being voted on only in that
jurisdiction, and to city or county general purpose committees
active only in that city or county, respectively.
4)Authorizes the FPPC, until January 1, 2018, upon mutual
agreement between the FPPC and the San Bernardino County Board
of Supervisors, to have primary responsibility for the
impartial, effective administration, implementation, and
enforcement of a local San Bernardino County campaign finance
reform ordinance. Requires the San Bernardino County Board of
Supervisors to consult with the FPPC prior to adopting and
amending any local campaign finance reform ordinance that is
subsequently enforced by the FPPC.
5)Authorizes the FPPC, pursuant to the aforementioned agreement,
to investigate possible violations of the San Bernardino
County campaign finance reform ordinance and bring
administrative actions against persons who violate the
ordinance, as specified.
6)Permits the San Bernardino County Board of Supervisors and the
FPPC to enter into any agreements necessary and appropriate
for the operation of these provisions, including agreements
for reimbursement of state costs with county funds, as
specified. Permits the San Bernardino County Board of
Supervisors or the FPPC, at any time, by ordinance or
resolution, to terminate any agreement for the FPPC to
administer, implement, or enforce the local campaign finance
reform ordinance or any provision thereof.
7)Requires the FPPC to report to the Legislature with specified
information on or before January 1, 2017, if the FPPC enters
into such an agreement with the San Bernardino County Board of
AB 910
Page 6
Supervisors.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Amendments: After the committee deadline for
amending this bill prior to today's committee hearing, the
author submitted amendments to add co-authors and make minor,
technical changes to the bill. Those amendments, which are
reflected in this analysis, are entirely nonsubstantive.
2)Purpose of the Bill: According to the author:
AB 910 will enable cities and counties, upon approval by
voters within the affected jurisdiction to contract with
the Fair Political Practice Commission (FPPC) for the
administration and enforcement of local campaign finance
laws.
The Political Reform Act of 1974 allows local governments
to adopt more stringent campaign finance laws for elections
within their jurisdiction.
The FPPC has broad authority across the state to enforce
the Political Reform Act, but it does not assume primary
responsibility for a local government's additional campaign
finance laws.
AB 910
Page 7
Instead, the county board of supervisors or the city
council must monitor local ordinances or create an Ethics
Commission with this authority.
Implementing either of these options can be cost
prohibitive for local governments.
This bill is modeled after legislation from 2012, which
authorized the FPPC to contract with the County of San
Bernardino to assume primary responsibility for the
County's campaign finance laws.
AB 910 extends these provisions to any participating city
or county upon voter approval and authorizes the FPPC to
become the civil prosecutor responsible for the civil
enforcement of local campaign finance violations.
Contracting with the FPPC gives local governments the
ability to bring in an experienced, independent, and
impartial entity to investigate possible violations and
bring administrative or civil action against violators.
3)San Bernardino County: In 2012, the Legislature passed and
the Governor signed AB 2146 (Cook), Chapter 169, Statutes of
2012, which permitted San Bernardino County and the FPPC to
enter into an agreement that provides for the FPPC to enforce
the County's local campaign finance reform ordinance. Prior
to this the FPPC did not enforce any local campaign finance
ordinances. According to previous analyses, the County of San
Bernardino, which had been the subject of several high-profile
corruption cases, was in the process of developing a campaign
finance ordinance. Rather than appoint an ethics commission,
AB 910
Page 8
which could present financial as well as conflict of interest
challenges, the County proposed to contract with the FPPC to
enforce their local campaign finance ordinance. Moreover, the
County determined that it was in the best interest of the
County to retain the services of the FPPC to provide for the
enforcement and interpretation of San Bernardino County's
local campaign finance ordinance as the FPPC has special
skills, knowledge, experience, and expertise in the area of
enforcement and interpretation of campaign laws necessary to
effectively advise, assist, litigate, and otherwise represent
the County on such matters. As a result, the FPPC and San
Bernardino County entered into a mutual agreement, from
January 1, 2013 through December 31, 2014, for the FPPC to
provide the County campaign enforcement and interpretation
services for the impartial, effective administration,
implementation, and enforcement of the San Bernardino's
campaign finance reform ordinance. According to the FPPC, San
Bernardino County and the FPPC have entered into a new two
year mutual agreement.
This bill is similar to the provisions of AB 2146 (Cook),
however, this bill adds a few new elements to these
provisions. First, this bill provides that the FPPC is
authorized to assume primary responsibility for the impartial,
effective administration, implementation, and enforcement of
the local campaign finance ordinance of the local agency if
the agreement is approved by either the governing body of the
local agency or a majority of the voters in the local agency
who voted on the agreement. According to background
information provided by the author's office, in November 2014,
Orange County voters approved Measure E, which authorized the
County to contract with the FPPC for the administration and
enforcement of its local campaign finance ordinance, commonly
referred to as TINCUP. Consequently, this bill and this
particular provision is an attempt to fulfill the will of
Orange County voters.
AB 910
Page 9
Additionally, this bill expands the duties of the FPPC, as the
civil prosecutor of the local agency's campaign finance
ordinance, to provide advice and bring civil actions.
Finally, this bill provides that the FPPC shall not be
required to obtain authorization from the city or district
attorney of the local agency to bring an administrative or
civil action. This provision may be problematic as it sets
different rules for different local agencies that the FPPC may
contract with.
4)Local Campaign Ordinances and the PRA: Under existing law,
local government agencies have the ability to adopt campaign
ordinances that apply to elections within their jurisdictions,
though the PRA imposes certain limited restrictions on those
local ordinances. For instance, SB 726 (McCorquodale),
Chapter 1456, Statutes of 1985, limited the ability of local
jurisdictions to impose campaign filing requirements that
differed from those in the PRA, permitting such requirements
only when they applied solely to candidates and committees
whose activity is restricted primarily to the jurisdiction in
question. This provision sought to avoid the necessity of a
candidate or committee active over a wider area being required
to adhere to several different campaign filing schedules.
Similarly, AB 1430 (Garrick), Chapter 708, Statutes of 2007,
prohibited local governments from adopting rules governing
member communications that are different than the rules that
govern member communications at the state level.
Aside from these restrictions, however, local government
agencies generally have a significant amount of latitude when
developing local campaign finance ordinances that apply to
elections in those agencies' jurisdictions. Any jurisdiction
that adopts or amends a local campaign finance ordinance is
required to file a copy of that ordinance with the FPPC, and
the FPPC posts those ordinances on its website.
Several cities and counties have adopted campaign finance
ordinances, some of which are very extensive. In some cases,
AB 910
Page 10
those ordinances include campaign contribution limits,
reporting and disclosure requirements that supplement the
requirements of the PRA, temporal restrictions on when
campaign funds may be raised, and voluntary public financing
of local campaigns, among other provisions. In many cases,
local campaign finance ordinances are enforced by the district
attorney of the county or by the city attorney. In at least a
few cases, however, local jurisdictions have set up
independent boards or commissions to enforce the local
campaign finance laws.
The FPPC does not currently enforce any local campaign finance
ordinances other than San Bernardino County's. The FPPC can
and does, however, bring enforcement actions in response to
violations of the PRA that occur in campaigns for local
office, even in cases where the local jurisdiction brings
separate enforcement actions for violations of a local
campaign finance ordinance.
5)Criminal, Civil, and Administrative Enforcement of the PRA and
Local Campaign Ordinances: Violations of the PRA are subject
to administrative, civil, and criminal penalties. Generally,
the Attorney General (AG) and district attorneys have
responsibility for enforcing the criminal provisions of the
PRA, though any elected city attorney of a charter city also
has the authority to act as the criminal prosecutor for
violations of the PRA that occur within the city. The FPPC,
the AG, district attorneys, and elected city attorneys of
charter cities all have responsibility for enforcement of the
civil penalties and remedies provided under the PRA, depending
on the nature and location of the violation, while any member
of the public also has the ability to file a civil action to
enforce the civil provisions of the PRA, subject to certain
restrictions. The FPPC has the sole authority to bring
administrative proceedings for enforcement of the PRA. When
the FPPC determines on the basis of such a proceeding that a
violation of the PRA has occurred, it can impose monetary
penalties of up to $5,000 per violation, in addition to
ordering the violator to cease and desist violation of the PRA
and to file any reports, statements, or other documents or
AB 910
Page 11
information required by the PRA.
In the case of local campaign ordinances, there is no single
approach as to the types of penalties that are available for
the violations of those ordinances. Many local ordinances
provide for misdemeanor or civil penalties for violations,
while some ordinances do not establish any penalties for
violations. In some local jurisdictions that have independent
boards or commissions to enforce the local campaign finance
ordinances, those boards or commissions have the authority to
bring administrative enforcement proceedings, similar to the
authority the FPPC has under the PRA.
6)Is Expansion of the Law too Soon? As mentioned above, in
2012, AB 2146 (Cook), was enacted to permit San Bernardino
County and the FPPC to enter into an agreement for the FPPC to
enforce the County's local campaign finance reform ordinance.
Among other provisions, AB 2146 also required the FPPC, if it
entered into an agreement with the San Bernardino County Board
of Supervisors, to report to the Legislature with specified
information on or before January 1, 2017. Current law
requires the report to include, but not be limited to, the
status of the agreement, the estimated annual cost savings, if
any, for the County of San Bernardino, a summary of relevant
annual performance metrics, as specified, any public comments
submitted relative to the operation of the agreement, and any
legislative recommendations. The committee is not aware that
any report has been submitted from the FPPC to the
Legislature. The committee may wish to consider whether it is
prudent to expand the law to allow more participating cities
or counties to authorize the FPPC to administer and enforce
their local campaign finance ordinances when the Legislature
has not received a report detailing the effectiveness of the
current agreement between the FPPC and San Bernardino County.
Furthermore, the committee may wish to consider whether such an
expansion of the FPPC's workload could negatively impact the
ongoing enforcement of the PRA. Because there is no guarantee
that local campaign finance ordinances will be consistent with
AB 910
Page 12
the general framework of the PRA, each additional local
ordinance that the FPPC is asked to enforce could add
complexity to the FPPC's work. Moreover, while the added
complexity of a single ordinance and a single jurisdiction
likely can be handled by the FPPC without much difficulty,
this bill allows for the FPPC to enter into similar
arrangements with other jurisdictions, adding complexity of
tracking and enforcing multiple (potentially inconsistent)
ordinances in multiple jurisdictions, which could harm the
FPPC's ability to focus on its primary responsibility of
enforcing the PRA.
On the other hand, this bill does require a mutual agreement be
made between the city council or board of supervisors of the
participating city or county and the FPPC. Moreover, this
bill gives the FPPC discretion on whether or not they will
choose to enter into an agreement with a city or county to
administer and enforce its local campaign finance ordinance.
7)Arguments in Support: In support, the Orange County Board of
Supervisors, writes:
Orange County voters approved this proposal with the
passage of Measure E in November 2014, which received 57%
of the vote. The bill is modeled after legislation enacted
in 2012 with AB 2146 (Cook), Chapter 169 of 2012, which
authorized FPPC civil enforcement of San Bernardino
County's campaign reform laws.
8)Arguments in Opposition: In opposition, the Orange County
Employees Association (OCEA), writes:
The OCEA takes issue with the county potentially
contracting with the FPPC because they are concerned the
county's finance law, known as TINCUP, would be invalidated
because it's stricter than state law?
AB 910
Page 13
It is not surprising that the Orange County Board of
Supervisors would be pushing legislation allowing the Fair
Political Practices Commission to investigate and enforce
campaign finance laws in the region. This would, in their
minds, eliminate the need to establish an office of ethics
and compliance in Orange County. Additionally, besides
increasing the contribution limits above what is currently
allowed in Orange County per TINCUP, the FPPC would be
limited to civil, not criminal enforcement. This is not
the direction nor is it the recommendation by Orange County
Grand Jury, which issued two reports on the subject.
9)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 proposition and require a
two-thirds vote of each house of the Legislature.
10)Related Legislation: AB 1083 (Eggman), which is also being
heard in this committee today, is similar to this bill. AB
1083 permits the City Council of the City of Stockton and the
FPPC to enter into an agreement that provides for the FPPC to
enforce a local campaign finance ordinance passed by the City
Council of the City of Stockton.
11)Previous Legislation: AB 2146 (Cook), Chapter 169, Statutes
of 2012, permitted San Bernardino County and the FPPC to enter
into an agreement that provides for the FPPC to enforce the
County's local campaign finance ordinance.
AB 910
Page 14
SB 1226 (Correa) of 2014, authorized any city or county to
enter into an agreement with the FPPC to administer and
enforce a local campaign finance ordinance. The bill was
gutted and amended in the Assembly Appropriations Committee.
12)Double Referral: This bill is double-referred to the
Assembly Local Government Committee.
AB 910
Page 15
REGISTERED SUPPORT / OPPOSITION:
Support
Orange County Board of Supervisors
Opposition
Orange County Employees Association
Four individuals
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094