BILL ANALYSIS
AB 1676
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1676 (Fuentes) - As Amended: March 24, 2010
AS PROPOSED TO BE AMENDED
SUBJECT : Elected officials: residency requirements.
SUMMARY : Prohibits a member of the Legislature, or a person
elected to county office, city office, or school office, from
moving outside the jurisdiction that he or she represents during
his or her term of office. Specifically, this bill :
1)Requires a person who is elected to the Legislature or to
county office, city office, or school office to continue to
maintain his or her place of residence within the jurisdiction
in which voters are qualified to vote for the office during
his or her term of office. Provides that a person does not
violate this provision if, after being elected for a term of
office, the boundaries of the jurisdiction in which voters are
qualified to vote for the office are changed during that term
of office.
2)Provides that a person who violates the provisions of this
bill shall immediately forfeit his or her office and is
disqualified from holding any state or local public office for
a period of three years. Provides that this penalty shall
apply retroactively to all persons holding county office, city
office, or school office at the time of the effective date of
this bill.
3)Provides that for any person serving a term of office
commencing on or after November 2, 2010 who violates the
provisions of this bill, that person also shall be subject to
a civil penalty not to exceed $1,000 or by imprisonment in a
county jail not exceeding six months, a fine not exceeding
$1,000, or by both the fine and imprisonment.
4)Makes the provisions of this bill effective for Members of the
Legislature only for terms commencing on or after December 3,
2012.
5)Permits an action to enforce the provisions of this bill for a
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violation to be brought by the Attorney General (AG), the
district attorney or county counsel of a county for a
violation involving a district located wholly or partially
within that county, or the city attorney of a city for a
district located wholly or partially within that city.
6)Contains a severability clause.
EXISTING LAW :
1)Requires a person to be a registered voter and otherwise
qualified to vote for an office at the time that nomination
papers are issued in order to be eligible to be elected to
that office, unless otherwise specifically provided.
2)Requires a county supervisor, in any county where supervisors
are elected by district, to reside in the district from which
he or she was elected during his or her incumbency. Requires
a city councilmember, in any city where council members are
elected by districts or from districts, to reside in the
district from which he or she was elected during his or her
incumbency. Requires a member of a county board of education,
in any county where board members are elected by trustee area,
to be an elector of the trustee area during his or her term of
office.
3)Permits a county charter or a city charter to provide for the
method of election of local elected officials and the
procedures for removal of local elected officials.
4)Provides that a local office for which local residence is
required by law becomes vacant if the official who holds that
office ceases to be an inhabitant of the district, county, or
city for which the officer was chosen or appointed.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
Existing law requires that a person running for office
reside in the district that they aspire to represent for a
proscribed period of time in order to be qualified. The
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law is unclear as to whether they must continue to reside
in the district after they are elected. This lack of
clarity is problematic for a number of reasons. First, the
people of a district have a right to be represented by
someone who lives in their district and understands the
unique needs and desires of the constituents. Further,
most constituents presume that they are being represented
by someone who lives in their district, and this belief is
logical given the requirement of residency in the district
to run for the seat. Finally, the public good is best
advanced when representatives are in touch with their
constituents. To allow elected officials to live in areas
potentially far removed from the district they were elected
to represent frustrates the goals of representative
democracy.
2)Author's Amendments : The author's office has worked with
committee staff to address several areas of potential concern
raised by the committee staff and by various opponents of this
bill. As a result of those efforts, the author has agreed to
accept the following amendments:
a) Offices Covered : The author has agreed to amend this
bill to make it applicable only to members of the
Legislature, county office, city office, and school office,
instead of making it applicable to every elective state or
local office other than judge. These amendments are
intended to address concerns raised by various water and
irrigation districts, as well as to more narrowly tailor
the bill to the offices that the author wants to cover.
The author has therefore agreed to amend the bill as
follows:
On page 2, line 4, strike out "state or local public office"
and insert:
the Legislature, or to a county office, city office, or
school office,
On page 3, line 6, strike out "state or local public office"
and insert:
county office, city office, or school office
On page 3, strike out line 10.
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b) Effective Date : The author has agreed to amend this
bill to remove the urgency clause (so that the earliest it
would become effective is January 1, 2011) and to make the
bill applicable for Members of the Legislature only for
terms beginning on or after December 3, 2012. The author
has therefore agreed to amend the bill as follows:
On page 3, strike out line 4, and on line 5, strike out
"subdivisions", and insert:
(e) For Members of the Legislature, this section shall
apply only to terms commencing on or after December 3,
2012. Subdivisions
On page 3, strike out lines 24 to 38, inclusive, and strike
out page 4.
c) Enforcement : To clarify which entities would be
responsible for enforcement of this bill, the author has
agreed to amend this bill to specify that the district
attorney or county counsel of a county may enforce the bill
for a violation involving a district that is located wholly
or partially within that county, that a city attorney of a
city may enforce the bill for a violation involving a
district that is located wholly or partially within the
city, and that the AG may enforce the bill for a violation
anywhere in the state. The author has therefore agreed to
amend the bill as follows:
On page 3, strike out lines 1 to 3, inclusive, and insert:
(d) An action to enforce this section for a violation may
be brought by the Attorney General, by the district
attorney or county counsel of a county for a violation
involving a district located wholly or partially within
that county, or by the city attorney of a city for a
violation involving a district located wholly or partially
within that city.
3)Residency Requirements : Existing state law establishes a
variety of residency requirements for holding elective state
or local office, which vary depending on the office sought or
held. For most elective state and local offices, residency
requirements apply at the time a person is running for office,
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either at the time a candidate takes out nomination papers or
for some specified period of time before the election. In
many cases, existing law also explicitly requires elected
officials to maintain their residency in a district or
jurisdiction once in office. For instance, existing state law
provides that when members are elected by district, rather
than at-large, county supervisors (Government Code Section
25041), city councilmembers (Government Code Section 34882),
and members of a county board of education (Education Code
Section 1000) must live in the district or trustee area that
they represent. In cases where members are elected at-large,
state law typically requires elected officials to live within
the jurisdiction which they represent.
In describing the purpose of this bill, the author argues that
existing law is unclear as to whether an elected official must
continue to reside in their district after they are elected.
As noted above, however, state law generally does require
local elected officials to continue to reside in the district
they were elected to represent during their term of office.
It appears that the issue that the author has identified is
not due to any ambiguity in state law, but is due to the fact
that the provisions of state law that require local elected
officials to reside in their districts may not apply to
charter cities and charter counties. For instance, the Los
Angeles City Charter does not explicitly require members of
the city council to continue to live in their districts during
their term of office. Section 407 (a) of the Los Angeles City
Charter requires only that a candidate for city council be a
resident of the council district from which he or she is
nominated or elected for at least 30 days prior to the first
day on which candidates can file a declaration of intention to
run for office.
If Los Angeles were a general law city, as opposed to a charter
city, state law would require the members of that body to
remain residents of their districts during their term in
office. It is only because Los Angeles is a charter city, and
because the city charter does not include such a requirement,
that it is unclear whether a member of the Los Angeles city
council is required to live in the district he or she was
elected to represent during that member's term of office.
Additionally, due to the greater authority over local affairs
that is granted to charter cities and charter counties, it is
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not clear whether the provisions of this bill would apply to
elected officials in charter cities and counties. The
California Constitution generally provides that legally
adopted charters supersede any laws that are inconsistent with
the provisions of the charter. Additionally, the Constitution
provides that county and city charters shall provide, among
other things, for the method of election of local elected
officials and for procedures for removal of such officials
from office. As such, it is unclear whether the provisions of
this bill would be applicable in charter cities and charter
counties, particularly in charter cities and counties that
have adopted local residency requirements and have chosen not
to require elected officials to maintain residency in their
districts during the entire term of office.
4)Retroactivity : Certain provisions of this bill -
specifically, the requirement that an elected official forfeit
office if he or she moves out of his or her district and the
three-year ban on holding office for such officials - apply
retroactively in certain cases. These provisions could be
considered to be an impermissible ex post facto law, in
violation of Article I, Section 9 of the California
Constitution and of Article I, Section 9 of the United States
Constitution.
Additionally, notwithstanding the determination of whether or
not the restriction on holding office would be considered an
impermissible ex post facto law, the committee may wish to
consider whether making the law applicable retroactively is
appropriate. Given the retroactive applicability of the
forfeiture of office and three year ban on holding public
office in this bill, an elected official who moved outside the
district that he or she represents could have his or her right
to hold office impaired even if there was no requirement that
the official continue to live in his or her district at the
time the official moved, or at the time the official was
elected to office. In order to give officials and voters the
ability to make fully informed decisions about whether to run
for office and about the most appropriate candidate to hold
office, it may be appropriate to make the application of this
bill prospective only to terms of office where the election
occurs after the effective date of the bill.
5)Other Remedies : It could be argued that imposing criminal
penalties on an elected official for moving outside the
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jurisdiction that he or she represents and imposing a
three-year ban on such officials serving in public office is
too severe a penalty when other remedies exist if voters are
unhappy with the actions of an elected official. As noted
above, existing law already establishes a procedure for a seat
to be declared vacant if a local official who holds an office
for which local residence is required by law ceases to be an
inhabitant of the district, county, or city for which the
officer was chosen. Additionally, to the extent that the
voters in a district are concerned about their representation
due to the fact that their representative has moved or may
have moved out of the district that he or she represents,
those voters have the power of the recall to remove that
person from office. This bill, however, could force a person
out of office even if his or her constituents approved
overwhelmingly of the job performance of the elected official,
and wanted that person to continue to represent them. If the
AG, a county counsel, a district attorney, or a city attorney
decided to pursue an action against an elected official for
moving out of the jurisdiction that he or she represents over
the objections of that official's constituents, those
constituents could be denied representation until such time
that the seat could be filled, and the local jurisdiction
could be forced to incur the costs of a special election to
fill that vacancy.
6)Opposition : A number of special districts and associations
representing special districts have submitted arguments in
opposition to this bill either arguing that the bill should
not apply to certain special districts that are landowner
voter districts or that the bill should not impose a ban from
public office and civil and criminal penalties. All of these
opponents have taken an "oppose unless amended" position.
Among the amendments sought by the districts and associations
are amendments to (1) limit application of the bill to state
office, (2) exempt landowner voter districts from the bill,
(3) remove the ban on holding office and the civil and
criminal penalties, or (4) require land ownership instead of
residency in a landowner voter district.
Among the author's amendments that are being presented in
committee today is an amendment to make the bill applicable
only to members of the Legislature, county office, city
office, or school office. With these amendments, this bill
would no longer be applicable to the districts that have
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opposed this bill.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal Employees
(AFSCME)
Opposition
California Central Valley Flood Control Association (unless
amended)
Desert Water Agency (unless amended)
East Valley Water District (unless amended)
El Dorado Irrigation District (unless amended)
North Delta Water Agency (unless amended)
Valley Ag Water Coalition (unless amended)
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094