BILL ANALYSIS
AB 2164
Page 1
Date of Hearing: May 4, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2164 (Norby) - As Amended: April 28, 2010
SUBJECT : Political Reform Act of 1974.
SUMMARY : Exempts officials who are elected to local and state
agencies from provisions of state law limiting contributions to
those officials from entities with business before the agency
involving a license, permit, or other entitlement for use.
Specifically, this bill exempts an officer of an agency who is
elected to that agency from the following provisions of the
Levine Act of 1982 (Act):
1)A prohibition against accepting, soliciting or directing a
contribution of more than $250 from a party or participant
with a matter pending before the agency involving a license,
permit, or other entitlement for use during the time the
matter is pending before the agency and for three months
following the date a final decision is rendered in the matter.
2)A requirement to disclose on the record of a proceeding the
receipt of any contribution of more than $250 from a party to
or participant in the proceeding in the 12 previous months if
the proceeding involves a license, permit, or other
entitlement for use.
3)A prohibition against making, participating in making, or
attempting to influence the decision in any proceeding
involving a license, permit, or other entitlement for use if
the officer received a contribution of more than $250 from a
party or participant in the proceeding in the 12 months before
the proceeding and the officer did not return that
contribution within 30 days of knowing, or the time the
officer should have known, of the contribution and the
proceeding.
EXISTING LAW :
1)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the Political Reform Act
(PRA).
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2)Prohibits any officer of an agency, as defined, from
accepting, soliciting or directing a contribution of more than
$250 from a party or participant with a matter pending before
the agency involving a license, permit, or other entitlement
for use during the time the matter is pending before the
agency and for three months following the date a final
decision is rendered in the matter.
3)Requires any officer of an agency, as defined, who received a
contribution of more than $250 from a party or participant
with a matter pending before the agency involving a license,
permit, or other entitlement for use in the 12 months before
the proceeding, to disclose the contribution on the record of
the proceeding.
4)Prohibits any officer of an agency, as defined, who received a
contribution of more than $250 from a party or participant
with a matter pending before the agency involving a license,
permit, or other entitlement for use in the 12 months before
the proceeding from making, participating in making, or
attempting to influence the decision in the proceeding.
Allows an officer to participate in the proceeding if the
officer returns the contribution within 30 days of knowing, or
the time the officer should have known, of the contribution
and the proceeding.
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
Current language in Section 84308 of the Government Code is
overly broad in that the definition of an "agency" that is
subject to additional restrictions includes any agency that
has appointed members. It exempts "local government
agencies whose members are directly elected by the voters,"
but the FPPC has interpreted this in their regulations to
mean that the agency must be made up entirely of directly
elected members, and that even one appointed member
disqualifies the entire agency from exemption. This means
that a county board of supervisors or a city council that
has a member appointed to fill a vacancy could possibly
fall under the Levine Act. Also, there is no exemption made
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for directly elected members of local agencies.
AB 2164 would clarify Section 84308 so that directly
elected members of agencies are exempt from the Levine Act.
By striking the words "elected or" from the definition of
"officer," members of local agencies that have been
directly elected to their posts will not fall under the
added restrictions of the Levine Act. However, all members
that have been appointed to their posts will still be
subject to the Levine Act, as originally intended.
2)The Levine Act of 1982 : The Act, named after its author
Assemblymember Mel Levine, restricts campaign contributions
made to officers of most state and local agencies by parties
to a proceeding pending before those agencies. Enacted in
1982, the Act was a response to reports that members of a
state agency sought to raise money from individuals and
entities that had permit requests pending before the agency.
The Act is unique among the provisions of the PRA in that it
is the only area in which a campaign contribution can be the
basis for a disqualifying conflict of interest. The PRA
otherwise does not treat campaign contributions as a potential
basis for conflicts of interest.
The Act is narrowly drafted to apply only to decisions made by
agencies with membership that is not directly elected by
voters, and only to proceedings involving licenses, permits,
or other entitlements for use. Proceedings of a more general
nature and with broader applicability are not covered by the
Act.
The Act generally does not apply to the judicial branch, local
officials elected directly by the voters, members of the
Legislature and the Board of Equalization, or constitutional
officers. However, when an officer otherwise exempted serves
as a voting member of an agency that is subject to the Act,
then the contribution restrictions of the Act do apply to that
officer, as well. For example, someone elected to a county
board of supervisors would not be subject to the Act simply
for sitting on the board of supervisors; but, if that official
also sits on a regional transit agency, which is subject to
the Act, then the officer would be required to comply with the
contribution restrictions that apply to all other members of
the regional transit agency.
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3)Elected vs. Appointed Agency Officials : This bill would
exempt officials who are elected to the agency on which they
serve from the provisions of the Act, therefore making the Act
applicable only to officials who are appointed to the agency
on which they serve. While this may appear to be a
significant change to who is subject to the Act, the number of
officials impacted is likely to be relatively modest. That's
because the Act currently does not apply to any local
governmental agency whose members are directly elected by the
voters, nor does the Act apply to the Legislature, the Board
of Equalization, or constitutional officers. As a result,
most officials who are elected to the agency on which they
serve already are exempted from the provisions of the Act with
respect to decisions made by that agency.
The only officials who would be affected by this bill are
officials who serve as officers of an agency that is governed
by a board that contains both elected and appointed members.
Such boards are relatively uncommon in California; committee
staff is aware of only nine districts in the state that have
both elected and appointed members, and one of those districts
(the Santa Clara Valley Water District) will transition to a
board comprised entirely of elected members later this year.
The eight other districts known to the committee to have
boards comprised of both appointed and directly elected
members are the Colusa Basin Drainage District, the Honey Lake
Valley Groundwater Management District, the Monterey Peninsula
Water Management Agency, the Mono County Tri-Valley
Groundwater Management District, the Orange County Water
District, the Pajaro Valley Water Management Agency, the Scott
Valley & Shasta Valley Watermaster District, and the
Shasta-Tehama County Watermaster District. Those eight
districts have a combined total of 59 members, 39 of which are
elected, and 20 of which are appointed. As such, if this bill
becomes law, it is expected that it would affect fewer than
four dozen officials in the state.
Under the Act and under regulations adopted by the FPPC, all
members of these boards are subject to the provisions of the
Act. Under this bill, those agency officials who were
appointed would still be subject to the provisions of the Act,
but those agency officials who were directly elected to the
agency would not be subject to the Act.
As noted above, the Act is drafted to apply only to decisions
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made by agencies with membership that is not directly elected
by voters. It could be argued that this bill is consistent
with that policy because it would exempt only officials who
are directly elected to an agency from the Act.
On the other hand, while this bill would make the Act applicable
equally to all elected members of agencies, it would mark the
first time that the Act applied to some officials on an agency
board, but not all officials on that board. The committee may
wish to consider whether it is more desirable to have the Act
apply consistently with respect to an official's elected or
appointed status, or whether it is more desirable to have the
Act applied in the same manner for all members of an agency's
board.
4)Political Reform Act of 1974 : California voters passed an
initiative, Proposition 9, in 1974 that created the FPPC and
codified significant restrictions and prohibitions on
candidates, officeholders and lobbyists. That initiative is
commonly known as the PRA. Amendments to the PRA that are not
submitted to the voters, such as those contained in this bill,
must further the purposes of the initiative and require a
two-thirds vote of both houses of the Legislature.
REGISTERED SUPPORT / OPPOSITION :
Support
3 individuals
Opposition
Fair Political Practices Commission (prior version)
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094