BILL ANALYSIS Ó
AB 2628
Page 1
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,
AB 2628
Page 2
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,
AB 2628
Page 3
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
AB 2628
Page 4
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;
AB 2628
Page 5
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;
AB 2628
Page 6
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
AB 2628
Page 7
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
AB 2628
Page 8
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
AB 2628
Page 9
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
AB 2628
Page 10
"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
AB 2628
Page 11
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.
AB 2628
Page 12
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
AB 2628
Page 13
bill. Recent amendments to this bill substantially narrowed its
scope.
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094