BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2628


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          Date of Hearing:  April 13, 2016


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                                Shirley Weber, Chair


          AB 2628  
          (Levine) - As Amended April 6, 2016


          SUBJECT:  Political Reform Act of 1974:  employment  
          restrictions.


          SUMMARY:  Prohibits elected and appointed officers of an agency  
          from being employed by that agency in another capacity, or from  
          being compensated to assist another entity with a permit,  
          regulatory action, or enforcement action before that agency,  
          while that officer is in office and for a period of a year after  
          leaving office.  Requires Statements of Economic Interests  
          (SEIs) that are filed by specified elected or appointed  
          officials to be posted online.  Specifically, this bill:  


          1)Prohibits an elected or appointed officer of a state or local  
            agency, while holding office and for a period of one year  
            after leaving office, from doing either of the following:


             a)   Maintaining employment with, in a position other than  
               the currently held elected or appointed office, or being a  
               compensated consultant of the state or local agency; or,











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             b)   Aiding, advising, consulting with, or assisting an  
               entity, for compensation, with a permit, regulatory, or  
               enforcement action pending before the agency.


          2)Requires every state and local agency that maintains an  
            Internet Web site to make SEIs that are filed with the agency  
            by specified high-ranking agency officials available on that  
            site.


          3)Makes a corresponding change.


          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)Restricts the post-governmental activities of specified former  
            public officials, commonly known as a "revolving door ban," as  
            follows:





             a)   A one-year ban prohibits certain officials, for one year  
               after leaving public service, from representing any other  
               person by appearing before or communicating with, for  
               compensation, their former agency in an attempt to  
               influence agency decisions that involve the making of  
               general rules (such as regulations or legislation), or to  
               influence certain proceedings involving a permit, license,  









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               contract, or transaction involving the sale or purchase of  
               property or goods.  Members of the Legislature, members of  
               state boards and commissions with decision-making  
               authority, local elected officials, members of air quality  
               management districts, and individuals who manage public  
               investments are examples of people who are subject to the  
               one-year ban.  



             b)   A permanent ban prohibits former state officials from  
               working on proceedings that they participated in while  
               working for the state.  The ban prohibits appearances and  
               communications to represent any other person, as well as  
               aiding, advising, counseling, consulting or assisting in  
               representing any other person, for compensation, before any  
               state administrative agency in a proceeding involving  
               specific parties (such as a lawsuit, a hearing before an  
               administrative law judge, or a state contract) if the  
               official previously participated in the proceeding.

          3)Prohibits a public official from making, participating in  
            making, or in any way attempting to use his or her official  
            position to influence a governmental decision in which the  
            official knows or has reason to know he or she has a financial  
            interest.

          4)Prohibits a public official from making, participating in  
            making, or using his or her official position to influence any  
            governmental decision directly relating to any person with  
            whom he or she is negotiating, or has any arrangement  
            concerning, prospective employment.



          5)Requires candidates for, and current holders of, specified  
            elected or appointed state and local offices and designated  









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            employees of state and local agencies to file SEIs disclosing  
            their financial interests, including investments, real  
            property interests, and income.



          6)Lists certain high-ranking public officials in Government Code  
            Section 87200 (these officials are known, and hereinafter are  
            referred to, as "87200 filers") who are subject to the most  
            expansive disclosure requirements under the PRA.  These 87200  
            filers include all of the following:
           
              a)   Elected state officers;

             b)   Judges and commissioners of courts of the judicial  
               branch of government;



             c)   Members of the Public Utilities Commission;



             d)   Members of the State Energy Resources Conservation and  
               Development Commission;



             e)   Members of the FPPC;



             f)   Members of the California Coastal Commission;



             g)   Members of the High-Speed Rail Authority;









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             h)   Members of planning commissions;



             i)   Any of the following county offices: Members of the  
               board of supervisors; district attorneys; county counsels;  
               county treasurers; and county chief administrative  
               officers;



             j)   Any of the following city offices: Mayors; members of  
               the city council; city managers; city attorneys; city  
               treasurers; city chief administrative officers;



             aa)  Other public officials who manage public investments;  
               and,



             bb)  Candidates for any of the offices listed above.


          7)Requires each city clerk or county clerk who maintains an  
            Internet Web site to post all of the following information on  
            that Web site:  



             a)   A list of 87200 filers who are elected officers and who  
               file their SEIs with that city or county clerk;










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             b)   A statement informing the public that a copy of the SEI  
               for specified filers may be obtained by visiting either the  
               FPPC office, or the office of the city clerk or county  
               clerk where the SEI is filed, including the physical  
               address for the office of the FPPC, the city clerk, or the  
               county clerk where the SEI is filed; and,



             c)   A link to the FPPC's Internet Web site including a  
               statement that certain SEIs for state and local government  
               agency officers may be available in electronic format on  
               the FPPC's Internet Web site.

          FISCAL EFFECT:  Unknown.  State-mandated local program; contains  
          a crimes and infractions disclaimers; contains reimbursement  
          direction.


          COMMENTS:  


          1)Purpose of the Bill:  According to the author:


               AB 2628 will help assure that elected or appointed  
               officers of a state or local agency serve the public  
               and do not use their positions for personal gain.   
               Recently, two agencies have acted in a manner raising  
               questions about the motivations of public officials.   
               On March 4th, the South Coast Air Quality Management  
               District board voted to dismiss longtime executive  
               officer Barry Wallerstein.  Likewise, on February 10th  
               Commissioners voted to dismiss the Coastal  
               Commission's longtime executive director, Charles  









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               Lester.





               Media accounts of the firings included tremendous  
               criticism of those appointed to the Commission and the  
               District.  The media accounts asserted that the public  
               officials may have been acting at the behest of  
               special interests that had issues pending before the  
               Commission and the District.





               Currently, District Members and Commissioners are  
               allowed to have outside economic interests that are  
               related to their public service, and to use their  
               positions to directly benefit those outside interests.  
                 This should not be allowed and disclosure of outside  
               economic interests must be easily available to the  
               public.  AB 2628 will help restore public trust in  
               agencies like the Commission and the District.


          2)"Revolving Door" Restrictions on Former Government Officials:   
            Existing law restricts the post-governmental activities of  
            certain former public officials.  These restrictions are  
            commonly known as a "revolving door ban."  There are two main  
            types of revolving door restrictions in the PRA that may apply  
            to former public officials.



          A one-year ban prohibits certain officials, for one year after  









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            leaving public service, from representing any other person by  
            appearing before or communicating with, for compensation,  
            their former agency in an attempt to influence agency  
            decisions that involve the making of general rules (such as  
            regulations or legislation), or to influence certain  
            proceedings involving a permit, license, contract, or  
            transaction involving the sale or purchase of property or  
            goods.  Members of the Legislature, members of state boards  
            and commissions with decision-making authority, local elected  
            officials, and individuals who manage public investments are  
            examples of people who are subject to the one-year ban. The  
            one-year ban generally serves to prevent former officials and  
            employees from taking advantage of their relationships with  
            former colleagues for the benefit of third parties by  
            prohibiting former officials from having direct communications  
            with their former agency in an attempt to influence decisions.  
             To that end, the one-year ban is an appearance ban: it  
            prohibits a former official from appearing before, or directly  
            contacting employees of, the official's former agency in an  
            attempt to influence certain decisions, but does not prohibit  
            former officials from providing strategic advice to others  
            about business before that agency.

          The second main type of revolving door restriction permanently  
            prohibits former state administrative officials from being  
            paid to work on proceedings that they participated in while  
            working for the state.  The ban prohibits appearances and  
            communications to represent any other person, as well as  
            aiding, advising, counseling, consulting, or assisting in  
            representing any other person, for compensation, before any  
            state administrative agency in a proceeding involving specific  
            parties (such as a lawsuit, a hearing before an administrative  
            law judge, or a state contract) if the official previously  
            participated in the proceeding.  This permanent ban on  
            "switching sides" does not apply to local officials, though  
            some local jurisdictions have adopted similar rules.  This  
            "permanent ban" generally serves to protect the interests of  









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            the government in adversarial proceedings by preventing former  
            employees from using proprietary information that they  
            obtained as a part of their governmental employment to benefit  
            private parties in those proceedings.  Because the "permanent  
            ban" is designed to protect against certain information being  
            used in a way that is contrary to the government's interests,  
            the "permanent ban" not only prohibits a former official from  
            appearing before his or her former agency, but also prohibits  
            the former official from assisting or advising anyone else  
            with respect to the proceeding in which the former official  
            may have proprietary information.

          This bill would create a new one-year ban, prohibiting former  
            public officers, for a year after leaving public service, from  
            aiding, advising, counseling, consulting, or assisting in  
            representing any other person, for compensation, with a  
            permit, regulatory, or enforcement action pending before the  
            official's former agency.  This new one-year ban is loosely  
            modeled after the existing "permanent ban,"  in that it not  
            only prevents a former official from appearing before his or  
            her former agency for the purposes of influencing governmental  
            decisions, but it also prohibits the former official from  
            assisting or advising others that are appearing before the  
            former official's agency.  That restriction applies even with  
            respect to actions that the former official was not involved  
            in during his or her time at the agency.  

          This new one-year ban represents a fundamental shift in the  
            policy rationale that underlies the existing revolving door  
            restrictions, as it would prevent a former officer from using  
            his or her expertise to advise others about business before  
            the former officer's agency, even in situations where the  
            officer does not possess proprietary information that would  
            unfairly disadvantage the government's position.  The new  
            one-year ban established by this bill is also broader in  
            another significant respect than the existing one-year ban in  
            that it applies to enforcement actions.  Although the  









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            "permanent ban" already prohibits a former official from  
            "switching sides" in a specific enforcement action, the  
            existing one-year ban does not prohibit a former official from  
            appearing before his or her former agency to represent someone  
            in an enforcement matter that the former official did not  
            participate in during his or her time at the agency.  This new  
            one-year ban would impose substantial new limits on the  
            postgovernmental employment of former elected and appointed  
            officers of state and local agencies.
          3)Restrictions on Public Agency Employment:  In addition to  
            prohibiting a former public official from aiding or assisting  
            other individuals with respect to appearances that those  
            individuals are making before the official's former agency,  
            this bill prohibits a former official of an agency from being  
            employed by that agency in any other capacity for one year  
            after leaving office.  Background materials submitted by the  
            author's office indicate that this provision is in response to  
            recent situations in which the California Coastal Commission  
            (Commission) and the South Coast Air Quality Management  
            District (District) both removed long-tenured staff from  
            high-ranking positions.  The author expresses a concern that  
            nothing in existing law would prevent a member of the  
            Commission or the District from applying for and serving in  
            top staff positions that were made vacant due to the recent  
            controversial actions of the Commission and District.



          Notwithstanding the concerns about these two particular  
            instances, however, the committee may wish to consider whether  
            it is appropriate to prohibit former officials at an agency  
            from working for that agency for a year after the official  
            leaves office.  Officials of an agency are likely to have a  
            high level of expertise with respect to the agency's  
            functions, so this prohibition could deprive public agencies  
            of the ability to fill staff positions with highly qualified  
            individuals who have agency and subject-matter specific  









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            expertise. 
          4)Technical Amendment:  As currently drafted, this bill could be  
            construed to prohibit an officer of an agency from being a  
            candidate for a different elective office at the same agency.   
            This does not appear to be consistent with the author's  
            intent.  Committee staff recommends that this bill be amended  
            to clarify that it will not prohibit a person from being a  
            candidate for, or being elected to, an elective office.



          5)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 initiative and require a  
            two-thirds vote of both houses of the Legislature.























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          REGISTERED SUPPORT / OPPOSITION:




          Support


          Azul (prior version)*


          California Coastal Protection Network (prior version)*


          California Coastkeeper Alliance (prior version)*


          Sierra Club California (prior version)*


          Surfrider Foundation (prior version)*




          Opposition


          None on file.





          *Note: The letter of support from these five organizations that  
          was received by the committee refers to a prior version of the  









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          bill.  Recent amendments to this bill substantially narrowed its  
          scope.  




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094