BILL ANALYSIS
AB 1671
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Date of Hearing: April 21, 2010
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1671 (Jeffries) - As Amended: April 12, 2010
SUBJECT : County board of supervisors: vacancy: appointment.
SUMMARY : Requires the Governor, whenever a vacancy occurs in
any board of supervisors (board) to fill the vacancy within 90
days. Specifically, this bill :
1)Requires the Governor, whenever a vacancy occurs in any board
to fill the vacancy within
90 days.
2)Requires, if the Governor fails to fill a vacancy within 90
days, a board within 90 days of the last day the Governor
could have made an appointment to make an appointment of its
own, to call a special election, or to have the Governor
appoint an individual within 30 days.
3)Requires, if the Governor fails to fill the vacancy within 30
days of being authorized to do so by the board, the board to
appoint an individual within 90 days of the last day the
Governor could have made the original appointment, call a
special election, or vote to leave the vacancy open until the
next regular election at which a successor may be elected.
4)Requires any person appointed or elected to hold office to do
so until the election and qualification of his or her
successor at the next general election unless the term expires
on the first Monday after January 1 succeeding the election.
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
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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
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.
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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
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
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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
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.
6)The timelines in AB 1671 are strict and definite. The
Governor has 90 days from the vacancy to make the original
appointment. If the Governor does not make an appointment,
within 180 days of the vacancy, the board, if it chooses,
would have to make an appointment. If the Governor has a
second chance to make an appointment, he or she would have 30
days from the board's authorizing vote to fill the vacancy.
The board has no deadline as to when it would have to
authorize the Governor to have a second chance or to call a
special election.
If the Governor does not make an appointment during his or her
second chance, which is 30 days, the board would be able to
make an appointment itself, but it would have to be within 180
days of the vacancy. Therefore, it is possible that, if a
board does not keep careful track of the timelines involving
the Governor's second chance at making the appointment, the
board would be left with only two options rather than three:
calling a special election or leaving the vacancy unfilled
until the next regular election.
The Committee may wish to consider whether it is prudent to not
place a deadline on all three of the board's original options.
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The Committee also may wish to consider whether it wants to
give the Governor a second chance at making the appointment
when the Governor already missed the original 90-day deadline.
7)Technical Amendments : Staff notes paragraph (4) of subdivision
(b) instead should be numbered as a subparagraph of paragraph
(3) of subdivision (b) for purposes of clarifying the board's
options.
8)Support Arguments : Supporters of AB 1671, California State
Association of Counties and Regional Council of Rural
Counties, say, in recent years, the Governor has taken several
months to make appointments. Counties have many
responsibilities, and having a situation such as this for any
length of time is untenable.
Opposition Arguments : The opposition might argue that only one
body, either the Governor or the board, should have the
authority to fill a vacancy rather than splitting it between
two options. The opposition also might say it is inconsistent
to give the Governor a timeline and not give the board clear
timelines on all of its options for filling a vacancy.
REGISTERED SUPPORT / OPPOSITION :
Support
CA State Association of Counties
Regional Council of Rural Counties
Opposition
None on file
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958