BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 1625 (Klehs) 5
As Amended April 25, 2005
Hearing date: June 28, 2005
Government Code
SH:mc
SUBMISSION OF SPECIFIED REPORTS TO THE LEGISLATURE -
REQUIRING SUBMISSION UNDER PENALTY OF PERJURY
HISTORY
Source: Author
Prior Legislation: SB 662 (Boatwright) - regarding criminalizing
false "unsworn" testimony before legislative
committees - vetoed October 11, 1995
Support: American Federation of State, County, and Municipal
Employees (AFSCME), AFL-CIO
Opposition:California State Board of Behavioral Sciences (See
Comment #8, below)
Assembly Floor Vote: Ayes 46 - Noes 28
KEY ISSUES
SHOULD REPORTS SUBMITTED TO THE LEGISLATURE INCLUDE A SIGNED
STATEMENT BY THE HEAD OF THE AGENCY, OR CHAIR OF THE BOARD OF
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COMMISSION, DECLARING UNDER PENALTY OF PERJURY (A FELONY) THAT
THE CONTENTS OF THE REPORT ARE TRUE, ACCURATE, AND COMPLETE TO
THE BEST OF HIS OR HER KNOWLEDGE?
(CONTINUED)
SHOULD THAT REQUIREMENT APPLY ONLY TO THOSE INDIVIDUALS APPOINTED BY
THE GOVERNOR AND CONFIRMED BY THE SENATE (INCLUDING FULLTIME STATE
EMPLOYEES; PERSONS NOT REGULAR EMPLOYEES BUT COMPENSATED; AND
PERSONS WHO SERVICE WITHOUT COMPENSATION) INCLUDING THAT IT SHALL
NOT BE CONSTRUED TO APPLY TO ANY ELECTED OFFICIAL OF THE STATE, OR
ANY OFFICIAL WHOSE DUTIES ARE PRESCRIBED BY THE CALIFORNIA
CONSTITUTION?
SHOULD THE EXECUTIVE OFFICER OF THE FRANCHISE TAX BOARD AND THE
EXECUTIVE DIRECTOR OF THE BOARD OF EQUALIZATION BE DESIGNATED TO
SIGN THE STATEMENT FOR THOSE ENTITIES?
PURPOSE
The purpose of this bill is to (1) require that reports
submitted to the Legislature include a signed statement by the
head of the agency, or chair of the board of commission,
declaring under penalty of perjury (a felony) that the contents
of the report are true, accurate, and complete to the best of
his or her knowledge, as specified; (2) make that requirement
apply only to those persons appointed by the Governor and
confirmed by the Senate; and, (3) make related changes in law.
Existing law provides the following:
Every willful omission to perform any duty enjoined by
law upon any public officer, or person holding any public
trust or employment, where no special provision is made for
the punishment of such delinquency, is punishable as a
misdemeanor. (Government Code 1222.)
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Every person who exercises any function of a public
office without taking the oath of office, or without giving
the required bond, is guilty of a misdemeanor, as
specified. (Government Code 1303.)
Unless otherwise provided, before any officer enters on
the duties of his office, he shall take and subscribe the
oath or affirmation set forth in Section 3 of Article XX of
the Constitution of California. (Government Code 1360.)
See Comment #5, below, for the entire oath.
Every person who, while taking and subscribing to the
oath or affirmation required by this chapter, states as
true any material matter which he knows to be false, is
guilty of perjury, and is punishable by imprisonment in the
state prison not less than one nor more than fourteen
years. (Government Code 1368 - added by Stats. 1953, Ch.
1250.)
Every officer authorized by law to make or give any
certificate or other writing is guilty of a misdemeanor if
he makes and delivers as true any certificate or writing
containing statements which he knows to be false.
(Government Code 6203.)
"Willfully," when applied to the intent with which an
act is done or omitted, implies simply a purpose or
willingness to commit the act, or make the omission
referred to. It does not require any intent to violate
law, or to injure another, or to acquire any advantage.
(Penal Code 7 - 1.)
"Knowingly" imports only a knowledge that the facts
exist which bring the act or omission within the provisions
of this code. It does not require any knowledge of the
unlawfulness of such act or omission. (Penal Code 7 -
5.)
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Under existing law , any person who testifies under oath before
any competent tribunal, including any legislative committee, and
willfully makes a knowingly false statement is guilty of the
crime of perjury. (Penal Code 118.) Perjury is a felony,
generally punishable by imprisonment in the state prison for
two, three or four years. (Penal Code 126.)
Existing law states that perjury occurs when a person "willfully
and contrary to the oath, states as true any material matter
which he or she knows to be false." (Penal Code 118.)
This bill does the following:
Requires that reports submitted to the Legislature
include a signed statement by the head of the agency, or
chair of the board of commission, declaring under penalty
of perjury (a felony) that the contents of the report are
true, accurate, and complete to the best of his or her
knowledge.
Applies only to those individuals appointed by the
Governor and confirmed by the Senate (including fulltime
state employees; persons not regular employees but
compensated; and persons who service without compensation)
and provides that it shall not be construed to apply to any
elected official of the state, or any official whose duties
are prescribed by the California Constitution.
Provides that for the Franchise Tax Board the executive
officer of the board shall sign the statement and for the
Board of Equalization, the executive director shall sign
the statement.
COMMENTS
1. Need for This Bill
The author indicates:
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The failure in current law is the lack of a mechanism to
ensue that the Legislature receives true, accurate, and
complete information from these submitted reports. The
Legislature cannot legislate effectively without having all
of the facts when making the decisions for the people of
California.
2. How Would This Bill Work ?
As indicated above, perjury occurs when a person "willfully and
contrary to the oath, states as true any material matter which
he or she knows to be false." (Penal Code 118.)
This bill requires that the specified persons declare under
penalty of perjury "that the contents of the report are true,
accurate, and complete to the best of his or her knowledge" so
that any perjury would appear to be committed as though the
person submitting the report answered falsely - regarding any
material matter which he or she knows to be false - to three
questions: Are the contents of the report true to the best of
your knowledge; are they accurate to the best of your knowledge;
and are they complete to the best of your knowledge.
If this bill is intended to elicit the kind of information that
might be elicited at a committee hearing, it may be asserted
that other questions would be as valid, if not more so, than
those posed in this bill. For example: did you read this
report; did you talk to others about this report; did you make
any inquiries of others about this report and if so were there
any responses which raised any concerns about this report; if
so, what concerns were raised; and do you have 100% confidence
in the persons who prepared this report?
It may be that everyone is presumed to know the definition of
perjury, however anyone might ascertain whether or not that is
true or not by asking themselves what the definition is or by
asking others.
The following California Jury Instructions may help understand
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perjury in operation:
California Jury Instructions, Criminal, 7th Ed.
7.21 PERJURY UNDER PENALTY OF PERJURY''--DEFINED (Penal
Code 118)
[Defendant is accused [in Count[s] ] of having committed
the crime of perjury, a violation of section 118 of the
Penal Code.]
Every person who (testifies, declares, etc.) under penalty
of perjury in any of the cases in which (testimony,
declarations, etc.) under penalty of perjury [is] [are]
permitted by law, willfully states as true any material
matter which he or she knows to be false, is guilty of the
crime of perjury in violation of Penal Code section 118.
A false statement is material if [it could probably
influence the outcome of the proceedings in which it is
uttered. Whether it actually had that effect is
irrelevant.]
It is alleged the defendant made the following false
statement[s]:
In order to prove this crime, each of the following
elements must be proved:
1. A person (testified, declared, etc.) under penalty of
perjury and willfully stated as true, matter which was
false;
2. The (testimony, declaration, etc.) under penalty of
perjury was made in circumstances permitted by law, [and
was [signed by the defendant and] delivered to another
person by the (accused, affiant, etc.) with the specific
intent that it be uttered or published as true];
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3. The person knew the statement was false and was being
made under penalty of perjury;
4. The false statement was material; and
5. The person making the statement had the specific intent
to (testify, declare, etc.) falsely under penalty of
perjury.
Section 7.22 PERJURY--STATEMENTS MADE IN ABSENCE OF
KNOWLEDGE
An unqualified statement that something is true, when the
person making the statement does not know whether it is
true or not true, is equal to a knowing false statement.
Section 7.24 PERJURY--WILLFULNESS AND KNOWLEDGE REQUIRED
Perjury requires that the statement be made willfully by a
person who knows that the statement is being made under
[oath] [penalty of perjury] and who [knows or believes that
the statement is false] [or] [is aware that [he] [she] is
ignorant of the truth or falsity of the statement]. A
statement made under an actual mistake and in a belief that
it is true is not perjury even though the statement is
false.
The word "willfully'' simply means a purpose or willingness
to commit the act or make the omission referred to.
3. Testimony Under Oath Before a Legislative Committee - Effect
of This Bill
As noted in the purpose section above, under existing law, any
person who testifies under oath before any competent tribunal,
including any legislative committee, and willfully makes a
knowingly false statement is guilty of the crime of perjury.
(Penal Code 118.) Perjury is a felony. (Penal Code 126.)
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Given that the Legislature could hold a hearing and ask that the
person submitting a report testify under oath, one might argue
that this bill is no different than doing so and asking the
three questions noted in Comment #2, above. However, testimony
under oath would allow the person testifying and the legislators
at the hearing to engage in a dialogue which might result in
further clarity about the statements being made about the
report.
In addition, the Assembly Committee on Business and Professions
analysis of this bill for a hearing on April 19, 2005, included
the following:
This bill presumably will enhance the accuracy of important
information provided to the Legislature. For example, in
December 2004, the State Auditor released its report
"Department of Transportation: Various Factors Increased
Its Cost Estimates for Toll Bridge Retrofits, and Its
Program Management Needs Improving," which identified
numerous issues associated with its bridge retrofit program
and the lack of complete reporting of the cost overruns
related to the East Span of the San Francisco Oakland Bay
Bridge project. The State Auditor's report stated:
"Although state law requires Caltrans to periodically
report the program's status and notify the Legislature of
program cost overruns, Caltrans did not report cost
overruns it should have known of until they were
staggering.
"With the sole bid for the signature span's superstructure
expiring on September 30, 2004, Caltrans gave the
Legislature about six weeks to develop a funding solution
to the $3.2 billion cost overrun."
This bill would establish potential criminal penalties for
failure to provide accurate information in a state agency
report to the Legislature. The penalty for perjury is
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punishable by up to 4 years in state prison.
Notwithstanding the laudable desire of the Legislature to obtain
complete, truthful, and accurate reports, it is not entirely
clear what the nexus might be with this bill's new criminal
penalty. As noted above in this analysis, this bill would not
apply to "should have known" issues and it does not require that
the person submitting the report himself or herself verify the
accuracy of each and every facet of each and every report. This
bill does not require that each and every person who contributed
to the subject report "verify" the information in the report nor
does it apply any criminal sanctions to those subordinates. The
only persons who would be required to comply with this bill are
"those individuals appointed by the Governor and confirmed by
the Senate" which would include a number of "regular" state
employees as well as some persons who are not state employees
but who are paid in their appointed positions as well as some
who are not. For example, Director of the Department of General
Services is a fulltime paid state employee; the Chairman of the
California Medical Assistance Commission who is a member of the
Commission and all of the members receive a "salary" but the
positions are not "fulltime" regular state employment; and the
Little Hoover Commission whose Chair, along with the other
members of the Commission, serves without compensation.
WOULD THIS BILL MAKE A POSITIVE CHANGE IN THE REPORTS RECEIVED
BY THE LEGISLATURE? ARE THE RISKS TO A PERSONS REPUTATION,
EMPLOYMENT, AND OTHER GENERAL REQUIREMENTS IN LAW SUFFICIENT TO
ACHIEVE THOSE GOALS IF MANAGEMENT IS FUNCTIONING CORRECTLY?
WOULD THIS BILL MAKE A POSITIVE CHANGE IN THE INFORMATION
PROVIDED BY OTHERS WITHIN THE REPORT ITSELF?
WOULD THIS BILL BE EXPECTED TO HAVE ANY EFFECT UPON THE
WILLINGNESS OF PERSONS, ESPECIALLY THOSE WHO ARE NOT FULL-TIME
STATE EMPLOYEES, TO ACCEPT SUCH APPOINTMENTS ESPECIALLY IF IT IS
NOT CLEAR WHAT THE EFFECT OF THIS BILL MIGHT BE?
As noted in the purpose section above:
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Every willful omission to perform any duty enjoined by
law upon any public officer, or person holding any public
trust or employment, where no special provision is made for
the punishment of such delinquency, is punishable as a
misdemeanor. (Government Code 1222.)
GIVEN THAT THIS CRIME APPLIES TO STATE AND PUBLIC OFFICERS, IS
THIS BILL NECESSARY?
4. Possible Amendments to This Bill
This bill makes a violation of the new "report" requirement a
felony by referring to perjury. Numerous sections in existing
law require that both persons certify information being
submitted and then provide that "any person who certifies as
true any material matter pursuant to this paragraph which he or
she knows to be false is guilty of a misdemeanor."
WOULD IT BE APPROPRIATE TO MAKE AN AMENDMENT INCORPORATING THE
"CRIME" INTO THE NEW SECTION ADDED IN THIS BILL? WOULD IT BE
APPROPRIATE TO MAKE A VIOLATION OF THE NEW SECTION A MISDEMEANOR
RATHER THAN A FELONY?
5. AFSCME Support for This Bill
The AFSCME letter in support of this bill suggests, for example,
that this bill "will effectively require that the head of each
reporting body be consistently involved in the preparation of
each report issued to the Legislature."
As noted in this analysis, it may not be clear that this bill
will require that the persons required to sign the statement do
anything beyond what they may or may not do now.
WOULD THIS BILL REQUIRE GREATER INVOLVEMENT IN REPORTS BY THE
"HEAD" OF EACH AGENCY? IF SO, HOW?
6. Oath of Office
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The following is the Oath of Office required of the appointees
covered by this bill - California Constitution, Article 20,
Section 3:
Members of the Legislature, and all public officers and
employees, executive, legislative, and judicial, except
such inferior officers and employees as may be by law
exempted, shall, before they enter upon the duties of their
respective offices, take and subscribe the following oath
or affirmation:
"I, ______, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States
and the Constitution of the State of California against all
enemies, foreign and domestic; that I will bear true faith
and allegiance to the Constitution of the United States and
the Constitution of the State of California; that I take
this obligation freely, without any mental reservation or
purpose of evasion; and that I will well and faithfully
discharge the duties upon which I am about to enter.
"And I do further swear (or affirm) that I do not advocate,
nor am I a member of any party or organization, political
or otherwise, that now advocates the overthrow of the
Government of the United States or of the State of
California by force or violence or other unlawful means;
that within the five years immediately preceding the taking
of this oath (or affirmation) I have not been a member of
any party or organization, political or otherwise, that
advocated the overthrow of the Government of the United
States or of the State of California by force or violence
or other unlawful means except as follows:
________________________________________________________________
(If no affiliations, write in the words "No
Exceptions")
and that during such time as I hold the office of
______________ ________________________________ I will not
advocate nor become
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(name of office)
a member of any party or organization, political or
otherwise, that advocates the overthrow of the Government
of the United States or of the State of California by force
or violence or other unlawful means."
And no other oath, declaration, or test, shall be required
as a qualification for any public office or employment.
"Public officer and employee" includes every officer and
employee of the State, including the University of
California, every county, city, city and county, district,
and authority, including any department, division, bureau,
board, commission, agency, or instrumentality of any of the
foregoing.
7. Federal Law
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Existing federal law does the following (18 United States Code
1001):
1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever,
in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the
United States, knowingly and willfully--
(1) falsifies, conceals, or covers up by any trick, scheme,
or device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or
fraudulent statement or entry; shall be fined under this
title, imprisoned not more than 5 years or, if the offense
involves international or domestic terrorism (as defined)
imprisoned not more than 8 years, or both.
(b) Subsection (a) does not apply to a party to a judicial
proceeding, or that party's counsel, for statements,
representations, writings or documents submitted by such
party or counsel to a judge or magistrate in that
proceeding.
(c) With respect to any matter within the jurisdiction of
the legislative branch, subsection (a) shall apply only
to--
(1) administrative matters , including a claim for payment,
a matter related to the procurement of property or
services, personnel or employment practices, or support
services, or a document required by law, rule, or
regulation to be submitted to the Congress or any office or
officer within the legislative branch ; or
(2) any investigation or review, conducted pursuant to the
authority of any committee, subcommittee, commission or
office of the Congress, consistent with applicable rules of
the House or Senate. (Emphasis added.)
8. Opposition to This Bill
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The Board of Behavioral Sciences (Board) opposes this bill,
stating that the Board's chair is not routinely involved in the
board's ongoing operations, and therefore it would not be fair
to require the chair to sign such reports under penalty of
perjury. The Board's Executive Officer states that its
executive officer is involved and responsible for the board's
ongoing operations and would be better suited to signing such
reports under penalty of perjury.
The Board has suggested an amendment that would include
"executive officer" along with this bill's requirement that the
written report be signed under penalty of perjury by the "head
of that agency, or chair of the board or commission," which
would have the affect of permitting those state agencies that
have an executive officer in addition to a chairperson to have
the option of having the report signed by either one.
9. Three Strikes Issue - However Remote
This bill creates specific new felony penalties for violations
of its provisions. In previous years, a majority of the members
of this committee generally declined to create new felonies for
non-violent conduct. It is likely that very few of the persons
subject to the felony penalty in this bill would have a prior
qualifying strike conviction, but not impossible.
Under the Three Strikes law, where a defendant has two prior
serious or violent felonies, he or she shall receive a term of
at least 25 years to life in the sentence for the commission of
any new felony, including grand theft (an alternate
felony/misdemeanor). Where the defendant has a single prior
serious or violent felony, he or she shall receive a doubled
term in the sentence for the commission of any new felony.
Where a defendant has been convicted of an alternate
felony/misdemeanor that has been charged and prosecuted as a
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felony by the District Attorney, the sentencing court has the
discretion to deem the offense to be a misdemeanor pursuant to
the decision of the Court in People v. Superior Court (Alvarez)
(1996) 14 Cal.4th 968 and Penal Code section 17, subdivision (b)
unless the dismissal is arbitrary and contrary to substantial
justice.
Where a defendant has been convicted of a straight felony, the
court's ability to ameliorate the severity of the Three Strikes
law is much more limited. A court has discretion to dismiss one
or more prior "strikes," but only where the defendant's record
and the current conviction establish that the defendant should
be treated as though he or she does not fall under the terms of
the Three Strikes law. (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497-530-531; People v. Williams (1998) 17
Cal.4th 198.)
It would, of course, be possible to make violations of this bill
a misdemeanor.
10. Another "Cal Trans" Report Bill - Solely a Historical Note
AB 887 (Daucher) contained the following language as introduced
which was subsequently deleted from the bill:
There is hereby established in state government the
Transportation Entrepreneurial Government Program as a
two-year pilot project to be administered by the Department
of Transportation.
? The purposes of the program are to encourage the
following:
? (b) Elimination of non-value-added ritualistic activities
that are not central to the mission of the department as
determined by each division within the department. One
example of a non-value-added ritualistic behavior is
writing reports that are not used.
It may be asserted that this language would have applied to both
reports which might be exceedingly relevant and pertinent to the
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department's business - and ignored by "higher ups" - as well as
reports which were prepared without any real relevance and value
in today's world.
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