BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  June 29, 2016


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                           Susan Talamantes Eggman, Chair


          SB  
          1011 (Mendoza) - As Amended June 21, 2016


          SENATE VOTE:  38-0


          SUBJECT:  Public officers:  contracts:  financial interest.


          SUMMARY:  Expands the definition of what constitutes a remote  
          interest for purposes of California law governing public  
          officials' conflicts of interest in contracting.  Specifically,  
          this bill:  


          1)Provides, for the purposes of Government Code Section 1090 et  
            seq. (Section 1090), dealing with conflicts of interests in  
            contracts, that a public officer is deemed to have a remote  
            interest in a contract if the officer's child, parent,  
            sibling, or the spouse of the child, parent, or sibling, has a  
            financial interest in the contract and that interest is  
            actually known to the public officer.


          2)Becomes operative on January 1, 2018.


          3)Provides that no reimbursement is required by this bill  
            because the only costs that may be incurred by a local agency  








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            or school district will be incurred because this act creates a  
            new crime or infraction, eliminates a crime or infraction, or  
            changes the penalty for a crime or infraction, or changes the  
            definition of a crime, as specified.


          EXISTING LAW:   


          1)Prohibits, pursuant to Section 1090, members of the  
            Legislature and state, county, district, judicial district,  
            and city officers or employees from being financially  
            interested in any contract made by them in their official  
            capacity, or by any body or board of which they are members.

          2)Provides that a contract made in violation of Section 1090 may  
            be voided by any party to the contract, except for the officer  
            who had an interest in the contract in violation of Section  
            1090, as specified.

          3)Provides that an officer shall not be deemed to be interested  
            in a contract pursuant to Section 1090 if: the officer has  
            only a remote interest in the contract, as defined; that  
            remote interest is disclosed to the body or board of which the  
            officer is a member and noted in its official records; and,  
            the body or board approves the contract without counting the  
            vote of the officer or member with the remote interest.

          4)Defines remote interest to include a number of interests,  
            including that of a parent in the earnings of his or her minor  
            child for personal services.

          5)Provides that the willful failure of an officer to disclose  
            the fact of his or her remote interest in a contract is  
            punishable by a fine of not more than $1,000, or by  
            imprisonment in the state prison, and provides that such an  
            officer is forever disqualified from holding any office in  
            this state.  A violation of remote interest laws does not void  
            the contract, unless the contracting party had knowledge of  








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            the fact of the remote interest of the officer at the time the  
            contract was executed.

          6)Allows the Fair Political Practices Commission (FPPC) to  
            commence an administrative or civil enforcement action for a  
            violation of Section 1090 and related laws.

          7)Allows a person subject to Section 1090 to request that the  
            FPPC issue an opinion or advice with respect to that person's  
            duties under Section 1090 and related laws, and allows the  
            FPPC to issue such an opinion or advice, subject to certain  
            conditions.

          8)Prohibits, pursuant to the Political Reform Act (PRA), 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 that he or she has a financial interest.  
             A public official has a financial interest in a decision if  
            the decision will have a material financial effect, as  
            specified, on the official's spouse or dependent child. 

          9)Provides that the common law of England, so far as it is not  
            repugnant to or inconsistent with the Constitution of the  
            United States, or the Constitution or laws of this State, is  
            the rule of decision in all the courts of this State.

          FISCAL EFFECT:  This bill is keyed fiscal.


          COMMENTS:  


          1)Bill Summary.  This bill expands the definition of what  
            constitutes a remote interest under Section 1090.  It provides  
            that a public officer is deemed to have a remote interest in a  
            contract if the officer's child, parent, sibling, or the  
            spouse of the child, parent, or sibling, has a financial  
            interest in the contract and that interest is actually known  








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            to the public officer.  The bill becomes operative on January  
            1, 2018.  This bill is sponsored by the author.



          2)Author's Statement.  According to the author, "The perception  
            that political agendas coincide with personal financial  
            interests is a common thread of concern amongst the public.   
            Although Public officers are prohibited from entering into  
            state contracts that directly benefit them financially, Public  
            officers may be seen as having biases in their public contract  
            decisions when the specific contract decision directly affects  
            a child, parent, sibling, or the spouse of a child, parent, or  
            sibling."
          


          3)Background.  Two conflict-of-interest laws specifically govern  
            the allowable conduct of government officials when they act in  
            their official capacity:  Section 1090, and the PRA.
            Section 1090 prohibits public officials or employees from  
            having a financial interest in any contract made by them in  
            their official capacity, or by anybody or board of which they  
            are members.  Willful violation of this provision is  
            punishable by a fine of up to $1,000 or imprisonment, and any  
            violator is forever disqualified from holding any office in  
            the state.  In addition, contracts that are made in violation  
            of Section 1090 can be voided by any party to the contract,  
            except the officer interested in the contract.  For the  
            purposes of Section 1090, a public official is generally  
            considered to have a direct financial interest in a contract  
            if that official's spouse has a financial interest in the  
            contract.


            Existing law provides a number of exceptions to Section 1090.   
            Among other provisions, existing law provides that an officer  
            shall not be deemed to be financially interested in a contract  
            if: the officer has only a remote interest in the contract;  








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            that fact is disclosed to the body or board of which the  
            officer is a member and noted in its official records; and,  
            the body or board thereafter approves the contract without  
            counting the vote of the member with the remote interest.   
            Among the numerous instances of what constitutes a remote  
            interest is an interest of a parent in the earnings of his or  
            her minor child for personal services.  Willful violation of  
            this provision is punishable by a fine of up to $1,000 or  
            imprisonment, and any violator is forever disqualified from  
            holding any office in the state.  However, a contract made in  
            violation of the remote interest statutes is not void, unless  
            the contracting party had knowledge of the fact of the remote  
            interest of the officer at the time the contract was executed.


            The PRA prohibits any state or local public official from  
            using his or her official position to influence any  
            governmental decision in which the official has a financial  
            interest, or that will have a material financial effect on a  
            member of the official's immediate family, which is defined to  
            include a spouse or any dependent children.


          4)Common Law Doctrine Regarding Conflicts of Interest.  In  
            addition to Section 1090 and the PRA, the common law doctrine  
            also governs conflicts of interests.  The common law doctrine,  
            codified in the Civil Code, provides that the common law of  
            England, so far as it is not repugnant to or inconsistent with  
            the Constitution of the United States, or the Constitution or  
            laws of this State, is the rule of decision in all the courts  
            of this State.  The common law includes a prohibition against  
            self-dealing.
            In January 2009, the Attorney General opined that "[t]he  
            common law doctrine prohibits public officials from placing  
            themselves in a position where their private, personal  
            interests may conflict with their official duties."  The  
            opinion noted that, while the PRA and Section 1090 focus "on  
            actual or potential financial conflicts, the common law  
            prohibition extends to noneconomic interests as well."  The  








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            opinion stated that, even though the conflict of interest  
            rules in the PRA and Section 1090 did not apply to the case at  
            hand (which involved a redevelopment agency board member and  
            her son who sought a loan from the board), "?it is difficult  
            to imagine that the agency member has no private or personal  
            interest in whether her son's business transactions are  
            successful or not.  At the least, an appearance of impropriety  
            or conflict would arise by the member's participation in the  
            negotiations and voting upon an agreement that, if executed,  
            would presumably redound to her son's benefit."


            The opinion concluded that "?the agency board member's status  
            as the private contracting party's parent ? places her in a  
            position where there may be at least a temptation to act for  
            personal or private reasons rather than with 'disinterested  
            skill, zeal, and diligence' in the public interest, thereby  
            presenting a potential conflict?. Under these circumstances,  
            we believe that the only way to be sure of avoiding the common  
            law prohibition is for the board member to abstain from any  
            official action with regard to the proposed loan agreement and  
            make no attempt to influence the discussions, negotiations, or  
            vote concerning that agreement."


          5)Policy Considerations.  The Committee may wish to consider the  
            following:
             a)   What is a Meaningful Financial Interest?  The state's  
               conflict-of-interest laws collectively draw the line around  
               a public officer's financial interest to include the  
               financial interests of the officer's spouse and minor  
               children.  This bill significantly expands this circle of  
               financial interest (albeit a "remote" one) to include a  
               public officer's (adult) child, parent or sibling, as well  
               as the spouse of a public officer's child, parent, or  
               sibling.  Expanding the definition of a financial interest  
               to encompass this much broader group of people begs a  
               question the Committee may wish to consider: Do the  
               financial interests of these individuals truly represent a  








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               financial interest for the related public official?  



             b)   How Will Public Officials Disprove Knowledge?  While the  
               penalty for violating the remote interest provisions of  
               Section 1090 requires "willful failure" to disclose a  
               remote interest, and while this bill provides that the  
               remote interest would have to be "actually known to the  
               public officer," it could be difficult for public officials  
               to prove they were unaware of such a remote interest at the  
               time a contract was approved.  Given the penalties for  
               violating Section 1090, the Committee may wish to consider  
               whether the potential merits of this bill outweigh its  
               potential unintended consequences.



             c)   Is Legislation Necessary?  Considering the broad reach  
               of Section 1090, the PRA, and the common law doctrine over  
               conflicts of interest by public officials, the Committee  
               may wish to consider whether this bill is necessary.



          6)Previous Legislation.  SB 330 (Mendoza) of 2015 was  
            substantially similar to this bill.  
          SB 330 was held in the Assembly Appropriations Committee.



            AB 785 (Mendoza) of 2011 would have provided that a public  
            official has a financial interest in a governmental  
            contracting decision if an immediate family member of the  
            public official, as defined, lobbies the agency of the  
            official on that decision or is a high ranking official in a  
            business entity on which it is reasonably foreseeable that the  
            decision would have a material financial effect.  AB 785 was  
            held in the Assembly Local Government Committee.








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          7)Arguments in Support.  None on file.



          8)Arguments in Opposition.  None on file.



          9)Double-Referred.  This bill was heard by the Elections and  
            Redistricting Committee on 
          June 15, 2016, where it passed with a 6-0.
          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file




          Opposition


          None on file




          Analysis Prepared by:Angela Mapp / L. GOV. / (916)  
          319-3958










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