BILL ANALYSIS
AB 1671
Page 1
Date of Hearing: April 7, 2010
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1671 (Jeffries) - As Amended: March 10, 2010
SUBJECT : County board of supervisors: vacancy: appointment.
SUMMARY : Authorizes a quorum of a board of supervisors (board)
within 90 days from the date of vacancy to appoint an individual
to fill the vacancy, to call a special election, or to vote to
have the Governor appoint a person to fill the vacancy.
Specifically, this bill :
1)Authorizes a quorum of a board within 90 days from the date of
vacancy to appoint an individual to fill the vacancy, to call
a special election, or to vote to have the Governor appoint a
person to fill the vacancy.
2)Requires the Governor to appoint an individual to fill the
vacancy within 30 days after the board's 90-day period to
appoint an individual or call a special election has lapsed or
within 30 days of the board's authorizing vote to have the
Governor fill the vacancy.
EXISTING LAW requires the Governor to fill a vacancy on any
county board of supervisors with that appointee holding office
until the election and qualification of his or her successor.
FISCAL EFFECT : Unknown
COMMENTS :
1)Since laws were first codified in California in 1872, there
have been provisions governing how to fill a vacancy on a
board. In 1872, the county judge was designated the
appointer. In 1880, the Legislature tried to change the
appointer from the county judge to a superior judge, but that
was overturned by the Supreme Court as unconstitutional.
Then in 1883, the duty to appoint was moved to the state level
and put in the hands of the Governor.
In 1887, the law was changed to require the board to hold a
special election on the fifth Tuesday after the vacancy
AB 1671
Page 2
occurred to fill the office for the unexpired term unless a
general election was to be held 90 days after the vacancy
occurred. The law still authorized the Governor to make the
appointment as well. This language was reaffirmed by the
Legislature in 1891 and 1893.
In 1907, the Legislature tweaked the existing law and returned
to giving the Governor the sole authority to fill a vacancy
until the election and qualification of a successor. The
election of the supervisor was required to be held at the next
general election unless the unexpired term ended on the first
Monday after the first day of January succeeding the general
election.
In 1947, the Legislature moved the county government
organization provisions from the Political Code, where they
had been since 1872, to the Government Code (Stats. 1947,
Chap. 424). When that happened, the language to fill a
vacancy on a board changed yet again to read as it exists
today in Section 25060 of the Government Code. That language
simply requires the Governor to fill the vacancy with the
appointee holding office until the election and qualification
of his or her successor.
2)Furthermore, in 1947 when the Legislature reorganized all the
provisions pertaining to county governance in the Government
Code, it also declared counties to be the largest political
division of the state, statutorily codifying what had been in
the California Constitution since 1879, the year the original
1849 Constitution was scrapped and rewritten. Section 1(a) of
Article XI of the California Constitution declares the state
is divided into counties, which are legal subdivisions of the
state.
The California Supreme Court has had several opportunities
throughout the decades to interpret this section of the
California Constitution. In Younger v. Board of Supervisors,
(1979) 93 Cal.App.3d 864, 870, the court observed: "Since
counties constitute merely political subdivisions of the state
[Hicks v. Board of Supervisors, (1977) 69 Cal.App.3d 228, 242;
Byers v. Board of Supervisors, (1968) 262 Cal.App.2d 148,
155], they have independently only such legislative authority
that has been expressly conferred by the Constitution and laws
AB 1671
Page 3
of the state. If the latter sources are silent in regard to
the delegation of such authority, the authority must still
rest with the Legislature." Also, in County of Los Angeles v.
County of Orange, (1893) 97 Cal. 329, 330, the California
Supreme Court stated: "Counties are merely local subdivisions
of the State created by the Legislature for governmental
purposes, and are denominated public corporations for the
reason that they are but parts of the machinery employed in
carrying on political affairs of the State."
These court decisions lay out the legal principle that as
political subdivisions of the state, counties legally answer
to the Legislature and are not purely local institutions. As
part of that constitutional authority, the Legislature has
decided during the last 138 years to give that authority to
fill a vacancy on a board to a third party ranging from the
county judge, the superior judge, the governor, to the
electorate of the county in question. The Legislature has
never given a local board the legal ability to fill a
political seat that is part of the state's direct political
structure.
3)AB 1671 would apply only to general law counties. Currently,
there are 14 charter counties. Each of these charters
designates how a vacancy on its board is to be filled, ranging
from calling a special election to appointment by the board
within 60 days with the Governor filling the vacancy after
that 60 days. San Francisco's charter calls for the mayor to
appoint someone to fill the vacancy with a special election to
be called unless a regular election is scheduled to occur less
than one year but at least 120 days after the vacancy.
4)According to the author, over the past few years, many vacant
board seats have sat empty upon the current supervisor
vacating that seat. Often times, the Governor, who retains
sole power of appointment to fill a vacancy, takes many months
to finally appoint a new supervisor. The author says that,
not only does this not serve the constituents of that
supervisorial district in any good manner, but it allows a
state official, the Governor, to control the affairs of a
local elected body. According to the author, local government
should have the power to run local affairs - specifically,
appointing someone to fill a vacancy on the board as quickly
as possible. The author says AB 1671 empowers counties by
giving sitting supervisors the power to fill a supervisor
AB 1671
Page 4
vacancy in an efficient and quick manner. AB 1671 will
provide boards with many options for them to decide how to
fill a vacancy. The author says boards should have the power
to fill their own vacancies and should not have to wait for
the Governor to fill a vacancy.
5)At no point since California first codified its laws in 1872
did the Legislature give a board the power to unilaterally
fill a vacancy on its own body. Because counties are both
constitutionally and statutorily declared to be legal
divisions of the state, having the Governor, who is the head
of the state, fill a vacancy on a board flows naturally. The
Committee may wish to consider whether it is appropriate to
ignore 138 years of precedent and now give the power to fill a
vacancy to the board. The Committee may wish to consider if
it might be more prudent to establish a time limit for the
Governor to make a board appointment instead of handing the
power solely over to the board.
6)Support Arguments : Supporters of AB 1671 might argue having a
board fill its own vacancy supports local control. Having the
Governor appoint someone to a local board when the Governor
has no personal knowledge of that particular county or its
board promotes special interest lobbying to get a particular
person appointed.
7)Opposition Arguments : One might consider whether having a
board fill its own vacancy would promote cronyism over
qualifications. Having the Governor, who is a neutral third
party, fill the vacancy ensures local officials do not become
corrupt in their appointments. Also, as a political division
of the state, the Governor is the legal chain of command to do
the appointing. Furthermore, boards have never been allowed
in the history of the state to fill their own vacancies.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Association of Counties
Regional Council of Rural Counties
Opposition
None on file
AB 1671
Page 5
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958