BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          ELECTIONS AND CONSTITUTIONAL AMENDMENTS
                              Senator Ben Allen, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 2558        Hearing Date:    6/21/16    
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          |Author:    |Steinorth                                            |
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          |Version:   |2/19/16                                              |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Darren Chesin                                        |
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           Subject:  Political Reform Act of 1974:  San Bernardino County

           DIGEST
           
          This bill removes the January 1, 2018, sunset date from a  
          provision of law that authorizes the Fair Political Practices  
          Commission (FPPC) to enforce San Bernardino County's local  
          campaign finance reform ordinance, as specified.
           
          ANALYSIS
           
          Existing law:
           
          1)Creates the FPPC, and makes it responsible for the impartial,  
            effective administration and implementation of the Political  
            Reform Act (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  
            additional or different requirements apply only to the  
            candidates seeking election in that jurisdiction, their  
            controlled committees or committees formed or existing  







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            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 and 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  
            Supervisors, as specified. 

          This bill:

          1)Deletes the January 1, 2018, sunset date from the provision of  








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            law that authorizes the FPPC, upon a 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 San  
            Bernardino County's local campaign finance reform ordinance.

           BACKGROUND
           
           San Bernardino County -- FPPC Agreement  .  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, 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 from January 1, 2015 through  
          December 31, 2016. 

           FPPC's San Bernardino County Report  .  As mentioned above, in  
          2012, AB 2146 (Cook) became law to permit San Bernardino County  
          and the FPPC to enter into an agreement for the FPPC to enforce  








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          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 FPPC submitted the report to the  
          Legislature on March 24, 2016.  According to the report, the  
          FPPC served to administer, interpret and enforce the County's  
          ordinance, focusing on four key areas - advising, informing,  
          auditing and enforcing.  Key points detailing the FPPC's  
          responsibilities include, but is not limited to, the following: 


           Advising candidates for elected county offices and potential  
            contributors in county elections regarding the county's local  
            campaign finance reform ordinance; 
           Proposing revisions to the original ordinance to help the  
            ordinance more closely align with the PRA; 
           Providing training and developing educational materials to  
            assist candidates and campaign treasurers in the county; 
           Conducting audits of 22 candidates and campaign committees; 
           Resolving 23 cases involving committees, candidates, and  
            donors involved in San Bernardino County elections (of those  
            23 cases, the FPPC prosecuted 9 cases resulting in fines,  
            issued warning letters in 4 cases, and closed 10 cases with no  
            violation found). 

          Additionally, County staff stated that the agreement between the  
          FPPC and San Bernardino County resulted in substantial savings  
          when compared to the cost of other public ethics commissions and  
          aided in enforcement proceedings by removing any semblance of  
          conflict of interest.  The report concluded by stating that the  
          partnership between the FPPC and the San Bernardino County has  
          been successful and both the FPPC and San Bernardino County  
          support removing the sunset date from the statute.

           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,  








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          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,  
          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.
           
            Criminal, Civil, and Administrative Enforcement of the PRA and  








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          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 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.  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. 

           COMMENTS
           
           1)According to the author  :  By removing the 2018 sunset date  
            from statute, AB 2558 will continue the existing, effective  
            partnership between San Bernardino County and the FPPC for  
            enforcement of local campaign finance ordinances.  In 2012,  
            the County established a campaign finance ordinance with  
            contribution limits mirroring those applied to State Senate  
            and Assembly candidates.  However, appointing an ethics  
            commission to enforce the ordinance could have created  
            financial and conflict-of-interest challenges to the County,  
            which had suffered various levels of corruption in its local  
            governments over recent years. 








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          Instead, AB 2146 (Cook, 2012) allowed the County to contract  
            with the FPPC for enforcement of their local ordinance.  The  
            FPPC willingly took on responsibility for this enforcement in  
            2012.  This partnership has been successful, cost-effective,  
            and mutually beneficial to the two entities.  AB 2558 seeks to  
            continue this arrangement by removing the 2018 sunset date  
            from statute.

                               RELATED/PRIOR LEGISLATION
           
          AB 2070 (Harper), which was heard but never voted upon in the  
          Assembly Elections and Redistricting Committee, would have  
          authorized the FPPC, upon mutual agreement between the FPPC and  
          the Board of Supervisors of the County of Orange, to administer  
          and enforce a local campaign finance ordinance passed by the  
          Orange County Board of Supervisors, as specified. 


          AB 1083 (Eggman, Chapter 186, Statutes of 2015), 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. 

          AB 910 (Harper of 2015), would have authorized the FPPC to  
          administer and enforce a local campaign finance ordinance for  
          any city or county, upon mutual agreement between the FPPC and  
          the local agency, as specified.  AB 910 was never heard in  
          Assembly policy committee.

          SB 1226 (Correa of 2014), would have 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. 

          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. 

           PRIOR ACTION
           
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          |Assembly Floor:                       |76 - 0                     |
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          |Assembly Appropriations Committee:    |16 - 0                     |
          |--------------------------------------+---------------------------|
          |Assembly Local Government Committee   |  9 - 0                    |
          |Assembly Elections and Redistricting  |  7 - 0                    |
          |Committee:                            |                           |
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          POSITIONS
           
          Sponsor: San Bernardino County

           Support: California State Association of Counties 
                    Fair Political Practices Commission
                    Urban Counties of California 

           Oppose:  None received 

                                          
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