BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1828


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          Date of Hearing:  May 18, 2016


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                               Lorena Gonzalez, Chair


          AB  
          1828 (Dodd) - As Amended April 28, 2016


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          Urgency:  No  State Mandated Local Program:  YesReimbursable:   
          No


          SUMMARY:


          This bill 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 three months after a proceeding before  
          the BOE, and applies conflict of interest provisions to behested  
          payments aggregating $5,000 or more. Specifically, this bill:


          1)Lowers the campaign contribution threshold that triggers the  








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            conflict of interest requirements under the Kopp Act from $250  
            to $0, and in addition subjects to the Kopp Act behested  
            payments of $5,000 or more that are currently reportable by a  
            BOE member pursuant to the Political Reform Act (PRA) and made  
            within the 12 months prior to a proceeding.


          2)Prohibits a member of the BOE from accepting a contribution of  
            any amount from a party, participant, or agent of a party or  
            participant in the three months following an adjudicatory  
            proceeding before the BOE in which the party or participant is  
            involved, and in which the BOE member participated.  


          3)Provides that if a member of the BOE receives a contribution  
            that is prohibited per (2), the member shall be deemed not to  
            have accepted the contribution 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, participant, or agent in an adjudicatory  
            proceeding before the BOE-who makes a behested payment of  
            $5,000 or more that is currently reportable by a BOE member  
            pursuant the PRA in the 12 months preceding the decision on  
            the proceeding-to disclose that payment on the record of the  
            proceeding.


          5)Requires a party, participant, or agent in an adjudicatory  
            proceeding before the BOE that makes a contribution to a  
            member of the BOE in the three months following the decision  
            in that proceeding to disclose that contribution to the BOE  
            within 30 days of making the contribution.


          6)Requires the BOE to make the contributions and payments  
            reported per (4) and (5) available on its website.








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          FISCAL EFFECT:


          This measure will add significantly to the requirement for BOE  
          members to track the timing of contributions and also of  
          reportable behested payments, in order to avoid conflicts of  
          interest on matters before the board. This is particularly so  
          because the Kopp Act would now encompass contributions of any  
          amount, including contributions under $100 that are not even  
          reportable under current campaign laws. Assuming one-half a  
          staff analyst position for each of the five BOE members, annual  
          General Fund costs would be around $212,000. (Two board members  
          assert that their costs to comply with this bill will be  
          absorbable, while two other members believe that they will  
          require at least one full-time staff position to comply.)


          The BOE estimates additional one-time General Fund costs of  
          $35,000 in the first year provide notification to taxpayers,  
          participants, and agents with matters before the board, creating  
          online disclosure forms and revising contribution forms and  
          relevant regulations.


          COMMENTS:


          1)Purpose. According to the author's office "?recent reports  
            have highlighted contribution activities of individuals and  
            organizations having cases before the Board, which, while not  
            illegal, raise concerns about potential conflicts of interest.  








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             For example, organizations having cases before the BOE have  
            had multiple individuals associated with that same  
            organization each make $249 contributions to a single Board  
            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 PAC, 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 1828  
            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."


            In support, Board Members Fiona Ma argues that AB 1828, by  
            strengthening disclosure requirements, will "close a potential  
            avenue for corruption" and ensure citizens that BOE decisions  
            are made fairly and impartially. Board Member George Runner  
            believe AB 1828 will "remove the perception of potential  
            conflicts of interest created when Board Members accept  
            contributions from parties, or participants, or their  
            employees who have or recently had business before the Board."


          2)The Kopp Act (named for former Senator Quentin Kopp) 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.  The  








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            argument for enacting the Kopp Act was 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.


          3)Behested Payments. 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. 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. AB 1828 brings such  
            behested payments under the Kopp Act.


          4)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.  


          5)Implementation Issues. As noted in the analysis of this bill  
            by the Assembly Elections Committee, "The broad new additions  
            to the Kopp Act that are proposed by this bill could make  
            compliance with that Act considerably more difficult, could  








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            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."


          6)Opposition. Board Member Diane Harkey argues that the bill  
            will "create an extremely complex, if not impossible,  
            situation for monitoring campaign contributions, but more  
            egregiously, behested payments and participation on charitable  
            boards and foundations." Board Member Jerome Horton expresses  
            similar concerns, and contends the bill will create increased  
            filing burdens for small businesses and for third-party donors  
            to nonprofits, and believes that the requirements could deter  
            donors to nonprofits that participate in charitable events  
            with BOE members.


          7)Related Legislation. AB 816 (Hill), which recently passed the  
            Senate, reduces the campaign contribution threshold that  
            triggers the conflict of interest requirements under the Kopp  
          Act from $250 to $100.





            Analysis Prepared by:Chuck Nicol / APPR. / (916)  
          319-2081

















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