BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 1135 A
Assemblymember Strickland B
As Amended July 3, 2007
Hearing Date: July 10, 2007 1
Government Code 1
KB:rm 3
5
SUBJECT
State government: reports: declarations
DESCRIPTION
This bill would require that written reports submitted to
the Legislature or executive body include a signed
statement by the head of an agency or department that the
factual contents of the report are true, accurate, and
complete, to the best of his/her knowledge. This bill also
would provide that any person who declares as true any
material matter that he/she knows to be false shall be
liable for a civil penalty not to exceed $20,000, which
shall be exclusively assessed and recovered in a civil
action by the Attorney General.
BACKGROUND
This bill represents the third consecutive year that a bill
has been introduced in response to a series of hearings in
which it was found that CalTrans had provided inaccurate
information to the State Legislature and withheld
information concerning the retrofit of the eastern span of
the Bay Bridge project.
In 2005, AB 1625 (Klehs) would have required written
reports that are required to be submitted by any state
agency, board, or commission to include a signed statement
by the head of the agency or chair of the board or
commission, declaring, under the penalty of perjury, that
the contents of the report are true, accurate, and complete
(more)
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to the best of his/her knowledge. AB 1625 was vetoed by
the Governor, who stated:
"I absolutely believe that the Legislature, indeed all
elected officials, must base their decisions on information
that is true, accurate, and complete. This bill, requiring
legislative reports be submitted under penalty of perjury,
only applies to individuals appointed by the Governor and
confirmed by the Senate, and to the executive officer of
the Franchise Tax Board and the executive director of the
Board of Equalization.
The law already protects against falsified reports to the
Legislature. Department heads must take oaths of office,
and various Government and Penal Code provisions set forth
duties, obligations, and penalties for the accurate and
truthful execution of the operation of state government.
Further, the Legislature may already require individuals
appearing before it to testify under oath, and false
testimony is a felony.
I will consider similar legislation that applies to all
written materials used in the course of legislative
deliberations that applies to any official of the State,
elected or appointed by the Governor, the Legislature or
any other constitutional officer."
In 2006, AB 2404 (Klehs) was introduced containing similar
provisions as AB 1625, but with several differences. AB
1625 contained language that explicitly stated that the
bill did not apply to any elected official of the state, or
any official whose duties are prescribed by the California
Constitutions. AB 2404 removed those exemptions. AB 2404
also added provisions that required mandatory reports to be
submitted to the State Controller by local agencies to also
include a statement signed under penalty of perjury. AB
2404 was also vetoed by the Governor, who stated:
"Although I agree that the Legislature should base their
decisions on sound information that is true, accurate and
complete, I believe that this bill is the wrong approach.
By requiring that only mandatory reports submitted to the
Legislature and [the] State Controller contain signed
statements attesting to their accuracy, this bill would
create an inconsistent system in which some of the
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information considered in the legislative process is
subject to declarations of truth, while the majority of the
written material used in the legislative process is
accepted as truth without such verification.
The Legislature already has the authority to question the
accuracy of a report by requiring those responsible for
submitting the report to attest to the accuracy of the
report under oath. Given this legislative oversight and
the fact that state law already makes it a misdemeanor for
a state or local official to submit a written report
containing false information to the State Controller, this
measure is unnecessary."
CHANGES TO EXISTING LAW
Existing law provides that 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 Section 1222.)
Existing law provides that 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. (Government Code Section 1303.)
Existing law provides that, 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 California Constitution.
(Government Code Section 1360.)
Existing law provides that every person who, while taking
and subscribing the oath or affirmation, 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 Section 1368.)
Existing law provides that 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
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to be false. (Government Code Section 6203.)
Existing law provides that 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 Section 118.)
This bill would provide that every written report required
to be submitted to the Legislature, a Member of the
Legislature, or any state legislature or executive body by
any state agency or department must include a signed
statement by the head of that agency or department
declaring that the factual contents of the report are true,
accurate, and complete to the best of his/her knowledge.
This bill would declare that the provisions of this bill
apply to the head of every state agency or department,
including but not limited to, elected state officials, and
any state official whose duties are prescribed by the
California Constitution.
This bill would provide that with respect to the Franchise
Tax Board, the signed statement shall be made by the
board's executive officer, and with respect to the State
Board of Equalization the signed statement shall be made by
the executive director.
This bill would provide that any person who declares as
true any material matter that he/she knows to be false
shall be liable for a civil penalty not to exceed $20,000.
This bill would provide that the civil penalty shall be
exclusively assessed and recovered in a civil action by the
Attorney General.
This bill would provide that the declaration in the signed
statement as to the truth, accuracy, and completeness of
the contents of the written report shall not apply to any
predictions, forecasts, recommendations, or opinions
contained in the report.
COMMENT
1. Stated need for the bill
The author states:
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"Recently, during California's Joint Legislative Audit
Committee hearings reviewing the Bay Bridge project, it
was found that CalTrans and other agency heads withheld
information or misrepresented vital facts in their
reports to the Legislature. Under California law, the
officials had no liability for their actions. Other
types of public reports, including the Annual Road Report
and the Annual Street Report, are already filed under
certification and penalty of perjury. It does not make
sense to require certification from some agencies and not
others."
"This bill would ensure that all state agencies or
departments and the officials in charge of them are held
accountable to the same standards. In addition, the bill
would bring state agency certification in line with what
public companies are already required to do by federal
law- remain accountable to their shareholders in
providing accurate financial information. California
taxpayers are the shareholders in the state and local
entities. They deserve the same accountability from the
officials appointed to manage public funds."
2.This bill would only require a declaration as the truth,
accuracy, and completeness of the factual contents of a
written report
This bill differs from AB 1625 and AB 2404 in that it
only requires a signed declaration to attest to the
truth, accuracy, and completeness of the factual
contents, and not the entire contents of a written
report. In fact, this bill specifically states that the
declaration shall not apply to any predictions,
forecasts, recommendations, or opinions contained in the
written report. Narrowing the scope of the declaration
to only apply to factual contents is appropriate, as any
predictions, recommendations, or opinions made in written
reports are normally based on their factual content.
However, nothing in this bill would require persons
signing the declaration to verify the accuracy of the
factual contents of the report. A person would only need
to declare that the factual content is accurate and
complete to the best of his/her knowledge.
If the executive officer or department head has no
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independent knowledge or specific expertise on the
subject, then he/she could arguably rely on the actual
written report and briefing from his/her staff to
determine that the factual content is accurate and
complete. In this sense, it is unclear that this bill
would require persons signing the declaration to do
anything beyond what they may already do now, and thus
whether it will be an effective mechanism for increasing
truth and accuracy in written reports.
3.This bill would impose a civil penalty for material
misrepresentations
Prior versions of this bill required declarations to be
filed under penalty of perjury and imposed criminal
penalties for material misrepresentations. This bill
would impose of maximum civil penalty of $20,000 on any
person who declares as true any material matter that he
or she knows to be false. The civil penalty would be
exclusively assessed and recovered in a civil action
brought by the Attorney General on behalf of the people
in the State of California.
Under this bill, a person would only be liable if he/she
intentionally misrepresented material matter. However,
as noted above, nothing in this bill requires a person
signing the declaration to verify the accuracy of a
report's factual content. Thus, a person could still
declare that the factual contents of a report are
complete and accurate, even if the report contains
misrepresentations of which he/she is unaware. In this
instance, a person would arguably not be liable because
the declaration was honest and made to the best of
his/her knowledge. Further, the employee or staff member
who was actually responsible for including the material
misrepresentation in the written report would not be
liable for the civil penalty under this bill. Again,
this type of scenario makes it questionable as to whether
this bill will effectively increase truth and accuracy in
written reports.
4.Opposition
The Department of Consumer Affairs and the Department of
Mental Health have expressed opposition to this measure
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on the basis that it is unnecessary given the extensive
protections already in place to ensure accurate reporting
and communications in state government. For example,
requirements for executing an oath of office or oath of
allegiance for state employees, appointees, elected
officials, and Constitutional officers found in the
Government Code require faithful discharge of all
assigned duties, and impose misdemeanor penalties for
delinquency in the performance of those duties.
Additionally, penalties for committing perjury and
willfully signing false statements are found in the
Government and Penal Codes. The opponents assert that
"the civil penalty provision contained in this measure
would not obviate any criminal charges that may be filed
and is not considered a necessary deterrent given the
range of punishments already found in law."
Support: None Known
Opposition: Department of Mental Health; Department of
Consumer Affairs
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: AB 2404 (Klehs) of the 2005-06 session
would have required written reports that are
required to be submitted by any state agency,
board, or commission to include a signed
statement by the head of the agency or chair
of the board or commission, declaring, under
the penalty of perjury, that the contents of
the report are true, accurate, and complete
to the best of his/her knowledge. This bill
was vetoed by the Governor.
AB 1625 (Klehs) of the 2005-06 session would
have required written reports that are
required to be submitted to the Legislature
by any state agency, board, or commission to
include a signed statement by the head of the
agency, chair of the board or commission, or
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executive director, declaring, under the
penalty of perjury that the contents of the
report are true, accurate, and complete to
the best of his/her knowledge. This bill was
vetoed by the Governor.
Prior Vote: Asm. Business & Professions Committee (Ayes 8,
Noes 1)
Asm. Appropriations Committee (Ayes 12, Noes 4)
Asm. Floor (Ayes 72, Noes 0)
Senate Governmental Organization Committee (Ayes
8, Noes 0)
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