BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1544|
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                                   THIRD READING 


          Bill No:  AB 1544
          Author:   Cooley (D) and Jones (R)
          AmendedAmended:8/20/15 in Assembly
          Vote:     27 - Urgency

           SENATE ELECTIONS & C.A. COMMITTEE:  5-0, 9/9/15
           AYES:  Allen, Anderson, Hancock, Hertzberg, Liu

           ASSEMBLY FLOOR:  74-0, 9/2/15 - See last page for vote

           SUBJECT:   Political Reform Act of 1974: behested payments


          SOURCE:    Author
          
          DIGEST:   This bill provides that a payment made by a state,  
          local, or federal governmental agency that is made principally  
          for legislative or governmental purposes does not need to be  
          reported as a behested payment, as specified.  

          ANALYSIS: 
          
          Existing law:

          1)Creates the Fair Political Practices Commission (FPPC), and  
            makes it responsible for the impartial, effective  
            administration and implementation of the Political Reform Act  
            (PRA).

          2)Provides that a payment made at the behest of a candidate is a  
            contribution unless at least one of the following criteria are  
            satisfied:









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             a)   Full and adequate consideration is received from the  
               candidate; or

             b)   It is clear from the surrounding circumstances that the  
               payment was made for purposes unrelated to the candidate's  
               candidacy for elective office.  The following types of  
               payments are presumed to be for purposes unrelated to a  
               candidate's candidacy for elective office:

               i)     A payment made principally for personal purposes, in  
                 which case it may be considered a gift under the PRA, as  
                 specified; 

               ii)    A payment made by a state, local, or federal  
                 governmental agency or by a nonprofit organization that  
                 is exempt from taxation under Section 501(c)(3) of the  
                 Internal Revenue Code; or,

               iii)   A payment that is made principally for legislative,  
                 governmental, or charitable purposes, in which case it is  
                 neither a gift nor a contribution.

          3)Requires 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.







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          This bill:

          1)Specifies that a payment by a state, local, or federal  
            governmental agency that is made principally for a legislative  
            or governmental purpose is not subject to the behested payment  
            reporting requirements described above.

          2)Contains an urgency clause, allowing this bill to take effect  
            immediately upon enactment.  Provides that the urgency clause  
            is necessary for the following reasons:

             a)   It is a core principle of representative government that  
               an elected official's duties include advocacy of government  
               agencies in favor of expenditures that benefit constituents  
               or public purposes generally. 

             b)   It is also well-established that a government agency may  
               not expend public funds for purposes unrelated to the  
               business of that agency. 

             c)   To that end, government expenditures are subject to a  
               myriad of laws designed to protect the public interest and  
               promote transparency, including laws relating to open  
               meetings, the appropriate use of public resources,  
               conflicts of interests, and disbursement practices. 

             d)   Therefore, it is necessary for this bill to take effect  
               immediately in order to provide clarity for elected  
               officials, in conformity with the Legislature's intent that  
               reporting requirements for behested payments not apply with  
               respect to the payments made by a government agency at the  
               behest of an elected official for a legislative or  
               governmental purpose.

          3)Contains language to avoid chaptering problems with AB 10  
            (Gatto).

          Background
          
          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.   







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          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  
          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.

          Because SB 124 was enacted in response to the FPPC's modified  
          regulatory definition of the term "contribution," the rules  
          governing behested payments -- including the requirement that  
          certain behested payments be publicly reported -- are found  
          within the provision of state statute that defines the term  
          "contribution."  The language added by SB 124 specifically  
          provides that a payment made at the behest of a candidate is not  
          a contribution if it is "clear from the surrounding  







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          circumstances that the payment was made for purposes unrelated  
          to his or her candidacy for elective office."  SB 124  
          additionally enumerates three types of payments that are  
          "presumed to be for purposes unrelated to a candidate's  
          candidacy for elective office":  (1) payments made principally  
          for personal purposes (which may be gifts under the PRA); (2)  
          payments made by governmental agencies or by nonprofit  
          organizations that are exempt from taxation pursuant to Section  
          501(c)(3) of the Internal Revenue Code; and (3) payments made  
          principally for legislative, governmental, or charitable  
          purposes.  It is the third type of payments-those made  
          principally for legislative, governmental, or charitable  
          purposes-that are potentially required to be reported when made  
          at the behest of a public official.  

          Notwithstanding the fact that payments by governmental agencies  
          are covered by the second enumerated type of payments that are  
          presumed to be for purposes unrelated to a candidate's  
          candidacy, the FPPC nonetheless has advised that such payments  
          also may be covered by the third enumerated type of payments  
          (those made principally for legislative, governmental, or  
          charitable purposes), and thus may be required to be reported as  
          behested payments.

          Behested payments by governmental agencies and FPPC advice.  In  
          2013, the FPPC was asked to provide advice on whether a member  
          of the Legislature would have reporting requirements under the  
          behested payment rules if the member communicated with a local,  
          state, or federal government agency to express his or her  
          support for a payment to be made to a local government agency  
          within the legislator's district.  In its response (Harrison  
          Advice Letter, No. I-13-106), the FPPC concluded that such  
          payments were not required to be reported by the member of the  
          Legislature as behested payments.  In reaching that conclusion,  
          the FPPC noted that regulations it adopted to implement the  
          behested payment rules provided that a payment behested by an  
          elected officer and made by a local, state, or federal  
          government agency is not subject to reporting if "that payment  
          will be used in the regular course of official agency business  
          of the elected officer['s agency.]"  The FPPC noted that  
          legislators "have traditionally been expected to assist local  
          agencies within their legislative districts in obtaining  
          government funding for local government agency projects," and as  
          such, "when a legislator acts to achieve this purpose, he or she  







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          is acting in the regular course of legislative business and  
          bringing benefits, through the affected local government agency,  
          to the state citizens whom he or she represents as  
          constituents."  In the same response, however, the FPPC stated  
          that "not all payments an elected officer 'behests' from a  
          government agency" would be exempt from reporting, mentioning  
          specifically that "a payment from a government agency to a  
          private individual or entity, such as through a government grant  
          or contract," could have benefits to specific, identified  
          private persons, and thus may not be exempt from reporting.

          Earlier this year, in response to a request for advice from the  
          Executive Officer of the California State Coastal Conservancy  
          (SCC) (Schuchat Advice Letter, No. A-15-070), the FPPC cited the  
          Harrison Advice Letter in concluding that "[a]n elected official  
          has a 'behested payment' reporting obligation when he or she  
          provides a letter to the [SCC] expressing support for a grant of  
          funds to be made by the Conservancy to a nonprofit 501(c)(3)  
          organization to carry out a specific project."  The FPPC letter  
          indicated that "a key component of the SCC's work is to grant  
          funds to public entities and?501(c)(3) nonprofit organizations  
          to aid the grant recipients in carrying out projects that  
          further the SCC goals," and acknowledged that the SCC "typically  
          asks grant applicants to contact their local and state elected  
          representatives to seek letters of support for their projects."  
          Nonetheless, the FPPC concluded that grants made by the SCC to  
          private nonprofit entities would "not be used in the regular  
          course of official agency business of the elected officer" and  
          therefore are subject to behested payment reporting.  

          This bill specifies that payments made by state, local, and  
          federal governmental agencies that are made principally for  
          legislative or governmental purposes are not subject to the  
          behested payment reporting requirements, regardless of whether  
          the beneficiary of the payments is another governmental agency  
          or a private entity.  In effect, this bill overturns the  
          Schuchat Advice Letter, and future payments made by governmental  
          agencies that are made principally for legislative or  
          governmental purposes would not be subject to behested payment  
          reporting.

          Comments
          
          According to the author, AB 1544 is an urgency bill that is  







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          meant to clear up confusion over whether payments made by  
          government agencies, such as grants for highway construction,  
          coastal restoration or drought relief, fall under the "behested  
          payment" reporting requirements for elected state and local  
          officers under the PRA.  (See Gov. Code Sec.  
          82015(b)(2)(B)(iii).)

          The FPPC's interpretation of this law, as it has evolved since  
          passage in 1997, is now seen as overbroad, duplicating other  
          laws and, in practice, a trap for the unwary. 

          One of the core principles of representative government is that  
          elected officers act as advocates before government agencies for  
          expenditures that benefit constituents or public purposes  
          generally.  It is also well-established that a government agency  
          may not expend public funds for purposes unrelated to the  
          business of that agency.  To that end, government expenditures  
          are subject to a myriad of laws designed to protect the public  
          interest and promote transparency.

          As such, it is difficult to conclude that the Legislature meant  
          these types of payments to be subject to additional reporting  
          and accountability requirements.  

          The current statute is ambiguous on this point.  However, the  
          legislative history of this law, as well as the FPPC's varying  
          interpretations and exceptions on this issue support the  
          conclusion that the Legislature did not intend for behested  
          payment reporting to encompass government payments.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified9/9/15)


          None received


          OPPOSITION:   (Verified9/9/15)










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          None received





          ASSEMBLY FLOOR:  74-0, 9/2/15
          AYES:  Achadjian, Alejo, Baker, Bigelow, Bloom, Bonilla, Bonta,  
            Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez,  
            Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,  
            Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,  
            Grove, Harper, Roger Hernández, Holden, Irwin, Jones,  
            Jones-Sawyer, Lackey, Levine, Lopez, Low, Maienschein, Mathis,  
            Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte,  
            O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas,  
            Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,  
            Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Travis Allen, Hadley, Kim, Linder, Melendez,  
            Patterson

          Prepared by:Darren Chesin / E. & C.A. / (916) 651-4106
          9/10/15 23:17:26


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