BILL ANALYSIS Ó
AB 1828
Page 1
Date of Hearing: April 13, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
AB 1828
(Dodd) - As Amended April 5, 2016
SUBJECT: State Board of Equalization: members: conflicts of
interest.
SUMMARY: Eliminates the current $250 campaign contribution
threshold that triggers conflict of interest requirements for
members of the Board of Equalization (BOE) under the Quentin L.
Kopp Conflict of Interest Act of 1990 (Kopp Act). Expands the
conflict of interest provisions of the Kopp Act to apply to
contributions made in the 12 months after a proceeding before
the BOE, and to apply to behested payments aggregating $5,000 or
more. Specifically, this bill:
1)Provides, for the purposes of the Kopp Act and this bill, that
the term "contribution" includes payments totaling $5,000 or
more in the aggregate that are made at the behest of a member
of the BOE principally for legislative, governmental, or
charitable purposes, thereby expanding the conflict of
interest provisions of the Kopp Act to include behested
payments. Provides that "at the behest of a member of the
BOE," for these purposes, means made under the control or at
the direction of, in cooperation, consultation, coordination,
or concert with, at the request or suggestion of, or with the
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express prior consent of a member of the BOE.
2)Lowers the campaign contribution threshold that triggers the
conflict of interest requirements under the Kopp Act from $250
to $0.
3)Prohibits a member of the BOE from requesting, suggesting, or
accepting a contribution of any amount from a party,
participant, or agent of a party or participant in the 12
months following an adjudicatory proceeding before the BOE in
which the party or participant is involved. By virtue of the
definition of the term "contribution" in this bill, this
prohibition also applies to behested payments aggregating
$5,000 or more.
a) Provides, for the purposes of this restriction, that
"suggesting" a contribution means mentioning or implying as
a possibility, or putting forward as a consideration.
b) Provides that if a member of the BOE receives a
contribution that is prohibited under this provision, the
member's acceptance of that contribution shall be deemed
lawful if it is returned within 30 days from the time the
member knows or has reason to know about the contribution
and the decision in the adjudicatory proceeding.
4)Requires a party or participant in an adjudicatory proceeding
before the BOE that makes a contribution to a member of the
BOE in the 12 months following the decision in that proceeding
to disclose that contribution to the BOE within 30 days of
making the contribution. By virtue of the definition of the
term "contribution" in this bill, this requirement also
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applies when a party or participant makes behested payments
aggregating $5,000 or more.
5)Requires the BOE to make any disclosure of a contribution or
behested payment, which is made by a party or participant in
an adjudicatory proceeding, publicly available on the BOE's
Internet Web site.
6)Makes various findings and declarations about the BOE, its
authority, and potential conflicts of interest, including the
following:
a) As a quasi-judicial body, the BOE is subject to strict
contribution limits under the Kopp Act. The Kopp Act
recognizes the unique positions of BOE members as both
elected officials and judges presiding over tax appeals.
b) The strict contribution limits of the Kopp Act do not
apply to payments made at the behest of a BOE candidate or
committee when the payment is made for purposes unrelated
to his or her candidacy for elected office.
c) Despite passage of the Kopp Act in 1990, a loophole
allowing parties before the BOE, as well as parties'
agents, to aggregate multiple contributions that
individually fall below the $250 limit but together exceed
$250 creates a perceived conflict of interest when the BOE
hears the parties' appeals. Similarly, payments made at the
behest of a BOE member by parties with an approaching
appeal before the BOE create a perceived conflict of
interest.
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d) The intent of the Legislature in enacting this bill is
to eliminate the perceived conflicts of interest associated
with contributions and behested payments by parties,
participants, and their agents related to appeals before
the BOE.
7)Makes corresponding and technical changes.
EXISTING LAW:
1)Limits, pursuant to the Kopp Act, the ability of a member of
the BOE to participate in an adjudicatory proceeding that
involves a participant or party who contributed $250 or more
in the preceding 12 months to that member, as follows:
a) Requires a member of the BOE who knows or has reason to
know that he or she received a contribution or
contributions totaling $250 or more in the last 12 months
from a party, participant, or agent of a party or
participant, to an adjudicatory proceeding before the BOE,
to disclose the fact on the record prior to rendering a
decision on the proceeding.
b) Requires a party or participant in an adjudicatory
proceeding before the BOE to disclose on the proceeding's
record any contribution or contributions of $250 or more
made in the last 12 months by that party, participant, or
his or her agent to any member of the BOE. Provides that
when a "close corporation" is the party or participant,
disclosure only applies to the majority shareholder.
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c) Prohibits a member of the BOE from making, participating
in making, or otherwise attempting to use his or her
official position to influence, a decision in an
adjudicatory proceeding if the member knows or has reason
to know that he or she received a contribution or
contributions totaling $250 or more in the last 12 months
from a party, participant, or agent of a party or
participant, and if the member knows or has reason to know
that the participant has a financial interest in the
decision, as specified. Permits a member to participate in
a decision under the circumstances described above if the
member returns the contribution within 30 days from the
time that he or she knows or has reason to know about the
contribution and the adjudicatory proceeding.
2)Provides that a knowing or willful violation of the Kopp Act
is a misdemeanor, and provides that in addition to other
penalties provided by law, a violation is punishable by a fine
of $10,000, or three times the amount the person failed to
disclose or report properly, whichever is greater. Requires
prosecution for a violation to be commenced within four years
after the date of the violation.
3)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the Political Reform Act
(PRA).
4)Prohibits a person, other than a small contributor committee
or political party committee, from making any contribution
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totaling more than $7,000 to any candidate for BOE, and
prohibits candidates from accepting a contribution that
exceeds that amount. Requires the FPPC to adjust this limit in
January of every odd-numbered year to reflect any increase or
decrease in the Consumer Price Index, and requires those
adjustments to be rounded to the nearest $100.
5)Provides that a payment made at the behest of a candidate is a
contribution unless at least one of the following criteria are
satisfied:
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.
6)Requires a candidate who is 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;
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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.
FISCAL EFFECT: Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS:
1)Purpose of the Bill: According to the author:
The BOE is a unique governmental entity. Its members
maintain the dual role of administering the sales and
use tax and a variety of fee programs, as well as
adjudicating disputes between taxpayers and the state
regarding those same programs. Further, the BOE Chair,
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and the State Controller, a BOE member, also serve on
the state Franchise Tax Board, which administers
income and franchise taxes. Disputes pertaining to
those two programs are also adjudicated by the BOE.
Finally, the BOE issues regulations and sets property
tax values for utilities, railroads and
telecommunication companies.
California elected officials, including BOE members
are subject to campaign contribution limits in primary
and general elections. However, BOE members are
subject to an additional set of rules - the Quentin L.
Kopp Act, which requires BOE members to recuse
themselves, or return a contribution of $250 or more,
before voting on matters affecting the contributor for
a 12 month period. Nothing in the Act, however,
prohibits multiple individuals within the same
organization who did not actually work on the case
from contributing up to the $250 limit without
triggering the Act's recusal/return provisions.
As is the case with any other elected official, BOE
members can request an individual or organization
contribute money to a non-profit entity, like a
charity. If a contribution over a certain amount is
made at a member's behest, the member must report it,
as any elected official is required to do.
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Notwithstanding existing campaign finance and
reporting laws in general, and the additional rules
pertaining to the BOE, recent reports have highlighted
contribution activities of individuals and
organizations having cases before the [BOE], which,
while not illegal, raise concerns about potential
conflicts of interest. For example, organizations
having cases before the BOE have had multiple
individuals associated with that same organization
each make $249 contributions to a single [BOE] member,
thereby complying with the letter of the Kopp Act, but
cumulatively, exceeding the contribution threshold
triggering recusal or a return of the contribution.
Concerns have also been raised that organizations
having cases before the BOE have contributed
substantial sums to a [Political Action Committee],
which in turn contributes an unlimited amount to a BOE
member.
To be clear, there is no allegation of improper action
by any BOE member who may have received such
contributions. AB 1858 would, however, remove any
perception of a conflict of interest, and would have
the effect and benefit of increasing the public's
trust in the BOE, which is responsible for collecting
approximately $60 billion in state revenue each year.
2)Board of Equalization Background: Established in 1879 by a
constitutional amendment, the BOE is composed of four members
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elected by districts and the State Controller, and was
initially charged with responsibility for ensuring that county
property tax assessment practices were equal and uniform
throughout the state. Currently, the BOE also administers the
sales and use tax, locally-imposed transactions and use taxes,
several excise taxes, and more than 30 other fee programs, and
considers all appeals under these laws and programs.
Additionally, the BOE hears appeals from Franchise Tax Board
actions. The BOE is the only elected tax board in the
country.
3)Kopp Act: Under the PRA, campaign contributions generally
cannot be the basis for a disqualifying conflict of interest.
There is one exception-the Levine Act-which was enacted in
1982 as a response to reports that members of a state agency
sought to raise money from individuals and entities that had
permit requests pending before the agency.
The Levine Act is narrowly drafted to apply only to decisions
made by agencies with membership that is not directly elected
by voters, and only to proceedings involving licenses,
permits, or other entitlements for use. Proceedings of a more
general nature and with broader applicability are not covered
by the Levine Act. The Levine Act expressly provides that it
does not apply to the Legislature, the BOE, or constitutional
officers.
In 1990, the Legislature approved and Governor Deukmejian signed
SB 1738 (Roberti), Chapter 84, Statutes of 1990, a
comprehensive ethics reform package that enacted new
legislative conflict of interest rules, banned honoraria and
limited gifts to public officials, and imposed new
post-government employment restrictions on former public
officials, among other provisions. One provision of SB 1738
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established the Kopp Act-so named because those provisions
originally were contained in legislation authored by
then-Senator Quentin Kopp. The Kopp Act-which was modeled
after the Levine Act-prohibits a member of the BOE from
participating in an adjudicatory proceeding if the member
knows or has reason to know that he or she received
contributions totaling $250 or more in the 12 months prior to
the proceeding from a party, participant, or agent of a party
or participant, as specified. Members are permitted to
participate in the decision, however, if they return the
contribution within a specified time period. When the Kopp
Act was being considered, the author argued that the BOE
should be subject to rules similar to those that applied to
appointed boards and commissions under the Levine Act because
of the BOE's quasi-judicial role as the appellate body for
state tax appeals. Unlike the Levine Act, the Kopp Act is not
part of the PRA, and is neither administered nor enforced by
the FPPC.
4)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.
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,
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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.
5)Strategic Disqualification Under the Kopp Act: Under the
BOE's Regulation 5550, any three members of the BOE constitute
a quorum, except in specified circumstances, and a majority of
the quorum is required to approve or disapprove taxpayer
appeals and other matters. As a result, if two members of the
BOE are disqualified under the Kopp Act from participating in
a proceeding, it would take only two of the remaining three
members to reach a decision in the proceeding. The fact that
disqualifications due to the Kopp Act can reduce the number of
votes necessary for the BOE to reach a decision has led to
concern that parties and participants can strategically
disqualify members of the BOE from certain proceedings by
making campaign contributions of $250 or more to those
members. To the extent that the Kopp Act is actually being
used to strategically disqualify members in proceedings, this
bill could exacerbate that problem, as detailed below.
6)Restrictions on Behested Payments and FPPC Regulation: This
bill defines the term "contribution," for the purposes of the
Kopp Act, to include behested payments aggregating $5,000 or
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more that are made by a party, participant, or agent of a
party or participant in an adjudicatory proceeding at the BOE.
While the behested payments language in this bill is similar
to language in PRA and related regulations that were adopted
by the FPPC, the Kopp Act is not enforced by the FPPC, nor
would it be enforced by the FPPC under this bill. As a result,
regulations adopted by the FPPC to implement the behested
payments provisions of the PRA, and advice letters and
opinions issued by the FPPC interpreting the behested payments
provisions of the PRA would not necessarily govern the
interpretation of this bill. While the behested payments
provisions of the PRA and related regulations, advice letters,
and opinions likely would be considered when interpreting and
enforcing the provisions of this bill, there is no guarantee
that the similar provisions necessarily will be interpreted
and enforced consistently.
Furthermore, while this bill defines the term "at the behest of
a member of the board" in a manner that is similar to the way
that term is defined in FPPC regulations, the definition in
this bill does not include exceptions that are found in the
FPPC regulation. Specifically, the FPPC's regulations provide
that a payment is not "made at the behest" of an elected
officer if the payment is made in response to a fundraising
solicitation that does not feature an elected officer, as
defined. Generally, a solicitation is deemed to feature an
elected officer if it includes the officer's photograph or
signature, if it singles out the elected officer, or if it
includes a roster or letterhead listing in which a majority of
the people listed are elected officers. Additionally, the
FPPC's regulations provide that certain payments made by
governmental agencies are not behested payments. Because this
bill does not include those exceptions, and because the Kopp
Act is neither contained in the PRA nor administered by the
FPPC, the behested payment restrictions found in this bill
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could be construed much more broadly than existing rules
governing behested payments.
7)Implementation and Compliance Issues: The broad new additions
to the Kopp Act that are proposed by this bill could make
compliance with that Act considerably more difficult, could
increase the risk of inadvertent violations of the law, and
could exacerbate the potential for parties and participants in
BOE proceedings to use the Act's conflict of interest
provisions strategically to force BOE members to disqualify
themselves from participating in certain proceedings. While
the reduction in the campaign contribution threshold that
triggers the conflict of interest requirements under the Kopp
Act from $250 to $0 could present all of those challenges,
three other aspects of this bill arguably would present even
greater challenges to implementation of and compliance with
this bill.
a) Making Behested Payments Subject to Disqualification
under the Kopp Act: While behested payments must be
publicly reported by public officials in certain
circumstances, under no area of existing law are they the
basis for a disqualifying conflict of interest. This bill,
however, not only creates a situation where a behested
payment could create a disqualifying conflict of interest,
but also subjects a member of the BOE to potential criminal
penalties if that member fails to recuse himself or herself
from participating in a proceeding involving a party or
participant that made certain payments at that member's
behest. This restriction could make compliance with the
Kopp Act considerably more difficult given the fact that
public officials have much less control over payments made
at their behest than they do over other types of interests
that can be the basis for disqualification under existing
law.
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If a member of the BOE has received a potentially
disqualifying campaign contribution from a party to or
participant in a proceeding before the BOE, that member can
return the contribution, as specified, in order to preserve
his or her ability to participate in the proceeding.
Unlike campaign contributions made to members of the BOE,
however, payments made at the behest of a member of the BOE
are not necessarily made to or received by an entity under
the control of the member. As a result, it will be
considerably more difficult for members to reject or return
behested payments that create conflicts under the Kopp Act
than it is for members to reject or return campaign
contributions that would create conflicts.
For example, if a member of the BOE agrees to lend his or her
name to a fundraising solicitation by a charitable
organization, payments made in response to that
solicitation could be considered "behested payments" even
if the nonprofit organization distributed the solicitation
itself and the BOE member had no control over or knowledge
of the entities to which the solicitation was being sent.
If a party to an adjudicatory proceeding before the BOE
made a donation of $5,000 or more in response to such a
solicitation, this bill would prohibit the BOE member from
participating in the proceeding, unless the behested
payment was somehow returned. Even though the member could
not control whether the nonprofit organization chose to
accept the donation, and could not compel the nonprofit
organization to return it, the payment nonetheless would
create a disqualifying conflict of interest for that member
under this bill.
Furthermore, making behested payments the basis for
disqualification under the Kopp Act could make it easier
for parties to BOE proceedings to force strategic
disqualifications of BOE members, as described above. If a
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party wanted to prevent a member of the BOE from
participating in a proceeding, that party could donate to a
charitable organization in response to a solicitation by
that member of the BOE. The member would then be forced
either to recuse himself or herself from the proceeding, or
to prevail upon the charitable organization to return the
donation that it had received.
b) Making the Kopp Act Applicable to Contributions and
Behested Payments Made in the 12 Months After Proceedings:
Currently, the Kopp Act applies only to contributions that
were made in the 12 months prior to a BOE proceeding. As a
result, a member of the BOE has the ability to determine at
the time of a proceeding whether that member has a conflict
under the Kopp Act. This bill, however, makes the Kopp Act
applicable to contributions and behested payments that are
made after a BOE proceeding has occurred. In a situation
where a proceeding has already occurred, there is no
ability for a member of the BOE to recuse himself or
herself from participating in that proceeding. As a
result, the only way for a BOE member to avoid a violation
of the Kopp Act would be to refuse or return a contribution
from a party to or participant in a proceeding that is
received in the 12 months following a BOE proceeding.
As detailed above, however, particularly with respect to
behested payments, the decision of whether to return a
payment may not always be a decision that is within the
control of the member of the BOE. Using the example from
above, if a party to a proceeding made a $5,000 charitable
donation to an organization in response to a solicitation
that featured a member of the BOE, and that donation was
made six months after the proceeding, the only way for the
member to avoid violating this bill would be for the
organization to return the donation. The member, however,
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would not be able to compel the organization to return the
donation, and if the organization refused to do so, the
member could face potential criminal penalties under this
bill.
c) Making the Kopp Act Applicable to Situations Where BOE
Members "Suggest" a Contribution or Behest: Under current
law, a member of the BOE can have a conflict of interest
under the Kopp Act only if that member received a campaign
contribution of $250 or more from a party to or participant
in a proceeding. This bill, however, creates a
disqualifying conflict of interest in situations where no
contribution or behested payment is ever made.
Specifically, this bill prohibits a member of the BOE from
requesting or suggesting a contribution from a party to or
participant in a proceeding in the 12 months after that
proceeding. Even if the request or suggestion does not
result in a contribution or payment being made, the BOE
member still would have violated the provisions of this
bill, and could face criminal penalties.
This restriction would seem to create a significant potential
for inadvertent violations of the law. Prior to sending
any solicitation for campaign contributions, a member of
the BOE would have to compare the list of entities to which
the solicitation will be sent against all parties to and
participants in BOE adjudicatory proceedings in the prior
12 months in order to ensure that the member does not
"request" or "suggest" a contribution as prohibited by this
bill. Similarly, with respect to behested payments, a
member would have to ensure that nothing he or she did
could be construed as requesting or suggesting a behested
payment from a party to or participant in any BOE
proceeding in the previous 12 months. Would a general
solicitation-as opposed to an individualized
solicitation-be sufficient to conclude that a member had
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requested or suggested a contribution or behested payment?
If so, this bill could significantly restrict the ability
of members of the BOE to solicit campaign contributions or
behested payments from anyone, not only from entities that
were parties to or participants in BOE proceedings in the
prior 12 months.
Furthermore, the broad definition of the term "suggest" could
increase the potential for inadvertent violations of this
bill. "Suggest" is defined to mean "to mention or imply as
a possibility or put forward for consideration." If a
member of the BOE was speaking at the annual conference of
a nonprofit organization, and broadly praised the
organization and encouraged attendees to support its work,
could such a statement be construed as a suggestion that
attendees make behested payments to the organization? If
so, the restrictions of this bill presumably would apply if
any attendee at the conference was a party to or
participant in a BOE proceeding in the previous 12 months.
8)Arguments in Support: In support of a prior version of this
bill, BOE Chair Fiona Ma wrote:
This legislation strengthens a number of key
provisions that exist in current law, including
toughening the reporting requirements for
contributions to [BOE] Members' political committees
from individuals and businesses with petitions before
the [BOE]?and extending the blackout period by which
individuals and businesses with petitions before the
board are prohibited from contributing to [BOE]
Members' political committees from one year prior to
their petition hearing until one year after.
In addition, this Legislation adds new provisions to
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the law prohibiting [BOE] Members from soliciting
behested payments from businesses or individuals with
petitions before the [BOE]. In general, behested
payments do not represent a conflict of interest for
members of the Legislature or the Constitutional
Officers of the State, provided they are appropriately
disclosed. However, the duties of the members of the
[BOE] are not analogous to Legislators or Executive
Branch officers. The [BOE] carries out a number of
quasi-judicial functions in their capacity as the
Appeals Board for tax payers in California.
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Also in support of a prior version of this bill,
California Common Cause wrote:
The [BOE] is the only elected tax commission in the
nation; it is also unique in that it not only
administers tax programs, but also adjudicates
individual tax disputes as an appellate body. To
ensure commissioner impartiality in tax disputes,
state law requires a member of the [BOE] to recuse
himself or herself from hearing the appeal of any
party who has contributed $250 or more to member's
campaign in the prior twelve months. This recusal
limit, which is lower than the campaign contribution
limits to a member of the [BOE], helps to ensure that
members do not have a conflict of interest or the
appearance of a conflict of interest as they
adjudicate tax claims?
AB 1828 would require recusal whenever a member has
received any value donation from a party or one of
their agents?The recusal rule would also apply when a
member has received a behested payment. Finally, the
bill also prevents parties before the [BOE] from
donating to members for 12 months after any
adjudication, to prevent the possibility or the
appearance that members are being "paid off" for a
favorable decision. These are common sense amendments
that reinforce the basic notion that quasi-judicial
bodies should be above reproach when hearing and
deciding cases.
9)Arguments in Opposition: In opposition to this bill, BOE
Member Jerome Horton writes:
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[This] bill? has three major constitutional, fairness,
and equality flaws as summarized below.
First, the bill has overly restrictive contribution
limits that violate free speech. In Randall v.
Sorrell, 548 U.S. 230 (2006), the Supreme Court found
that Vermont's limits on contributions were so
restrictive as to violate the First Amendment?. AB
1828 is a far more egregious violation of political
free speech, in that it reduces the contribution limit
to one cent from the current Kopp Act restriction of
$249 - already the lowest contribution limit in the
nation for statewide elected officials - without valid
cause. This is also a direct violation of the equal
protection to which every citizen and elected official
is entitled.
Second, the bill violates the Equal Protection
Clause?.It does not treat equally all California
elected officials or the citizens who donate to
nonprofit organizations they support, but singles out
BOE members and their contributors only, with no
justification or compelling reasons. Other elected
officials with similar duties, and even more
authority, responsibilities, and influence - e.g.,
judges, commissioners, and legislators - are not
similarly restricted, despite the countless articles
about their appearance of influence/corruption and
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conflicts of interest?.
Third, the bill violates equal protection and Davis v.
Federal Election Commission, 554 U.S. 724 (2008). In
that Supreme Court case, Justice Samuel Alito noted
that the court had never upheld the constitutionality
of a law imposing different contribution limits for
candidates competing against one another. This bill
however, will give candidates for the Senate and
Assembly a distinct advantage over BOE candidates, in
that they can raise $8,400 (combined) without being
disqualified from voting on any matter (or being
accused of a conflict of interest) - and then they can
transfer these funds to a campaign committee for
[BOE], without restriction. Conversely, Members of
the [BOE] who seek another office would be subjected
to the provisions in this bill, but their opponents
seeking the same office would not.
In a letter opposing a prior version of this bill, the
California State Conference of the National Association for
the Advancement of Colored People wrote:
Proponents admit that there is no evidence of any
wrongdoing or illegal activity by any BOE member, nor
any evidence that a charitable donation to a nonprofit
influenced a Member's decision on an adjudicatory
matter. Yet, AB 1828 would have the effect of
prohibiting the [BOE], its Members, and the State
Controller from publicizing, partnering, hosting, or
co-hosting any events with nonprofit
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organizations?which have a charitable, governmental,
or legislative purpose?
Further, this bill places an enormous administrative,
as well as economic, burden on the nonprofit-both in
terms of reporting and in terms of discouraging
donors. It would also be a great financial and
accounting challenge for nonprofits to actually return
the money to contributors when a [BOE] Member is
required to do so in order to vote.
10)Technical Amendments: The current version of this bill
contains ambiguous language that could be interpreted to
permit members of the BOE to accept contributions made by
parties and participants to a proceeding in the 12-month
period subsequent to the decision in that proceeding. Such an
interpretation, however, seems contrary to the author's and
sponsor's intent. To eliminate that ambiguity, committee
staff recommends that the language on page 4, lines 35-39 and
page 5, lines 1-2 of the bill be amended as follows:
(d) (1) Notwithstanding subdivision (c), a contribution shall
not be deemed received by a member for the purposes of if a
member receives a contribution which would otherwise require
disqualification under subdivision (c) , and he or she if the
member returns the contribution within 30 days from the time
he or she knows, or has reason to know, about the contribution
and the adjudicatory proceeding pending before the board , his
or her participation in the proceeding shall be deemed lawful .
Additionally, as currently drafted, this bill appears to make it
illegal for a member of the BOE to accept contributions from
parties and participants to a proceeding in the 12-month
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period following that proceeding even if the member did not
participate in that proceeding. In fact, this provision
appears to apply even in the situation where the BOE member
was not on the BOE at the time the decision was made. The
committee may wish to consider whether the post-decision
restrictions of this bill should be limited only to those
members who participated in the decision.
11)Related Legislation: SB 816 (Hill), which is pending in the
Senate Elections & Constitutional Amendments Committee,
eliminates the current $250 campaign contribution threshold
that triggers conflict of interest requirements for members of
the BOE under the Kopp Act, thereby prohibiting a member of
the BOE from participating in an adjudicatory proceeding if
the member received a contribution of any amount in the
preceding 12 months from a party or participant in the
proceeding, as specified.
REGISTERED SUPPORT / OPPOSITION:
Support
Board of Equalization Chair Fiona Ma (prior version)
Board of Equalization Member George Runner (prior version)
California Clean Money Campaign (prior version)
California Common Cause (prior version)
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CALPIRG (prior version)
Opposition
Beverly Hills Chamber of Commerce (prior version)
Black Business Association (prior version)
Board of Equalization Member Diane Harkey (prior version)
Board of Equalization Member Jerome Horton
California State Conference of the National Association for the
Advancement of Colored People (prior version)
Jewish Labor Committee Western Region (prior version)
National Association for Equal Justice in America (prior
version)
Orange County Assessor Claude Parrish (prior version)
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Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094