BILL ANALYSIS
AB 1671
Page 1
GOVERNOR'S VETO
AB 1671 (Jeffries)
As Amended May 17, 2010
2/3 vote
LOCAL GOVERNMENT 5-2 APPROPRIATIONS 16-0
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|Ayes:|Smyth, Arambula, Knight, |Ayes:|Fuentes, Conway, Ammiano, |
| |Logue, Hill | |Bradford, Coto, Davis, |
| | | |Hill, Hall, |
| | | |Harkey, Miller, Nielsen, |
| | | |Norby, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Torrico |
|-----+--------------------------+-----+--------------------------|
|Nays:|Caballero, Solorio | | |
| | | | |
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|ASSEMBLY: |68-0 |(May 20, 2010) |SENATE: |34-0 |(August 9, |
| | | | | |2010) |
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SUMMARY : Requires the Governor, whenever a vacancy occurs in
any board of supervisors (board) to fill the vacancy within 90
days. Specifically, this bill requires:
1)If the Governor fails to fill a vacancy within 90 days, a
quorum of the 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 vote to leave
the seat vacant until the next regularly scheduled election.
2)The vacancy to remain open until the next regular election if
the Governor fails to fill the vacancy within 90 days and a
quorum of the board fails to make an appointment, to call a
special election, or to vote to leave the seat vacant until
the next regularly scheduled election within 90 days of the
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last day the Governor could have made the appointment.
3)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 with that appointee holding office until the
election and qualification of his or her successor.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)State costs, if any, would be minor and absorbable.
2)Potential costs to local governments if boards chose to call a
special election following inaction by the governor. If not
consolidated with another election, a special election could
cost up to several hundreds of thousands of dollars, depending
on the size of the county. Costs would not be state
reimbursable.
COMMENTS : 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 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
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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 (Statutes 1947, Chapter
424). When that happened, the language to fill a vacancy on a
board changed yet again to read as it exists today in Government
Code Section 25060. 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.
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. California
Constitution Section 1(a) of Article XI 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 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
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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.
This bill 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.
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
that this bill empowers counties by giving sitting supervisors
the power to fill a supervisor vacancy in an efficient and quick
manner. This bill 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
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have to wait for the Governor to fill a vacancy.
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.
Support arguments: Supporters of this bill, the 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.
GOVERNOR'S VETO MESSAGE :
"This bill would require a Governor to fill a vacancy on a
county board of supervisors within 90 days, and if no
appointment has been made by that time, grant the authority to
appoint a replacement or call a special election to the county
board of supervisors.
"I am not convinced that this bill is necessary. Current law
already allows counties the ability to adopt a charter by a
countywide vote that provides alternative procedures for filling
a vacancy on the board of supervisors. If a county wishes to
change the manner in which a vacancy is filled, that is the more
appropriate manner in which to accomplish such a change."
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958
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FN: 0006824