BILL ANALYSIS
AB 1993
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1993 (Strickland) - As Amended: April 6, 2010
As Proposed to be Amended
SUBJECT : reports TO LEGISLATURE: declarations
KEY ISSUE : SHOULD WRITTEN REPORTS REQUIRED BY STATUTE OR
REQUESTED BY A MEMBER OF THE LEGISLATURE AND SUBMITTED TO THE
LEGISLATURE INCLUDE A SIGNED DECLARATION BY THE HEAD OF THE
ENTITY SUBMITTING THE REPORT ATTESTING TO THE FACTUAL ACCURACY
OF THE REPORT?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill represents the fourth try to enact legislation 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.
The previous legislative efforts all passed the Legislature, but
were vetoed by the Governor.
Similar to the prior bills, this bill requires that certain
written reports submitted to the Legislature include a signed
statement by the head of the entity submitting the report that
the factual contents of the report are true, accurate, and
complete, to the best of his or her knowledge. This bill passed
out of the Assembly Business & Professions Committee on an 11-0
vote.
SUMMARY : Requires written reports submitted to the Legislature
to include a signed statement by the head of the entity
declaring that the factual contents of the report are true and
establishes a civil penalty for false statements. Specifically,
this bill :
1)Requires every written report submitted to the Legislature, a
member of the Legislature, or a committee of the Legislature
to include a signed statement by the head of the entity
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submitting the report declaring that the factual contents are
true, accurate, and complete to the best of his or her
knowledge. Specifies who must sign reports for the Franchise
Tax Board and the Board of Equalization. Specifies that the
head of the entity includes elected officials of state
government and any state official whose duties are prescribed
by the state constitution.
2)States that the declaration in the signed statement as to the
truth, accuracy, and completeness of the factual contents of
the written report shall not apply to any predictions,
forecasts, recommendations, or opinions contained in the
report.
3)Defines "written report" to be either:
a) A document required by statute to be prepared and
submitted to the Legislature, a member of the Legislature,
or a committee of the Legislature; or,
b) A document, summary, or statement requested by a member
of the Legislature.
EXISTING LAW :
1)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. Unless stated
otherwise, all further statutory references are to that code.)
2)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.
(Section 1303.)
3)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. (Section 1360.)
4)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
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one nor more than fourteen years. (Section 1368.)
5)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 to be false. (Section
6203.)
6)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.)
COMMENTS : This bill represents the fourth try to enact
legislation 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. The
previous legislative efforts passed the Legislature, but were
vetoed by the Governor.
Similar to the prior bills, this bill requires that certain
written reports submitted to the Legislature include a signed
statement by the head of the entity submitting the report that
the factual contents of the report are true, accurate, and
complete, to the best of his or her knowledge.
According to the author, this bill is necessary to ensure that
the Legislature receives accurate and trustworthy information on
which to base policy decisions:
The Legislature makes important decisions based on
reports submitted by various public agencies and
departments. Today, the heads of state departments
and agencies have no legal obligation to provide
factual, truthful information to the Legislature.
This bill will ensure that all entities and the
officials in charge of them are held accountable.
Congress passed the Sarbanes-Oxley Act in response to
financial scandals of the early 2000's (e.g. Enron,
WorldCom, etc.). As a result, federal law now
requires CEOs to certify financial reports to company
shareholders under penalty of perjury. . . .
AB 1993
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This bill will bring state agency certification in
line with what private 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 state and local entities, and they
deserve the same accountability from the officials
appointed to manage public funds.
Three Previous Versions of This Bill Have Been Passed by The
Legislature and Vetoed by the Governor : This bill contains
provisions similar to those in AB 1625 (Klehs) of 2005, AB 2404
(Klehs) of 2006, and AB 1135 (Strickland) of 2007, all of which
passed the Legislature, but were vetoed by Governor
Schwarzenegger.
AB 1625 (Klehs) of 2005 only applied to individuals appointed by
the Governor and confirmed by the Senate, and imposed a criminal
penalty for its violation. In his veto message for AB 1625, the
Governor stated that he would "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."
AB 2404 (Klehs) of 2006 replaced the criminal penalty with a
civil penalty. The Governor again vetoed this bill, stating:
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 State
Controller contain signed statements attesting to
their accuracy, this bill would create and
inconsistent system in which some of the 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
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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.
AB 1135 (Strickland) of 2007 applied to all elected officials at
the state government level, seemingly addressing some of the
Governor's issues with AB 1625 and AB 2404. However, the
Governor vetoed it, again noting that "this bill would create an
inconsistent system in which some of the information submitted
by the Administration is subject to declarations of truth while
all other information used in the legislature's deliberative
process is not." As amended, AB 1993 appears to address the
governor's concerns by expanding the certification requirement
to all entities submitting a written report, whether required by
statute or requested by a member, to the Legislature, member of
the Legislature, or a legislative committee.
This Bill Only Requires a Declaration as the Truth, Accuracy,
and Completeness of the Factual Contents of a Written Report :
This bill 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. This bill
specifically states that the declaration does 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 those 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 or her knowledge. In
this sense, it is unclear that this bill would require
individuals 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.
The Author Proposes to Amend the Bill to Delete the 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, as currently in print, imposes of maximum civil
AB 1993
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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.
However, as currently drafted, this provision could create a
conflict between the Attorney General and the heads of state
agency - which could include the Attorney General himself, if
the report came from the Attorney General's office - who
declared as true any material matter that they knew to be false
in a report to the Legislature. Therefore, the author has
agreed to delete the civil penalty (subdivision (e)) from the
bill.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334