BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 2164 HEARING DATE:
6/29/10
AUTHOR: NORBY ANALYSIS BY:
Darren Chesin
AMENDED: 4/28/2010
FISCAL: NO
SUBJECT
Political Reform Act: conflicts of interest
DESCRIPTION
Existing law provides that the Political Reform Act (PRA)
may be amended to further its purposes by a two-thirds vote
of each house of the Legislature and signed by the
Governor.
Existing law prohibits an officer of specified government
agencies from accepting, soliciting or directing a campaign
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 while the
matter is pending before the agency and for three months
following the date a final decision is rendered in the
matter.
Existing law requires any officer of one of these agencies
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.
Existing law prohibits any officer of one of these agencies
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. The officer may participate in
the proceeding if he or she returns the contribution within
30 days of knowing, or the time the officer should have
known, of the contribution and the proceeding.
Existing law provides, for the purposes of these conflict
of interest requirements, that "agency" means any state or
local governmental agency but does not include the judicial
branch of government, local governmental agencies whose
members are directly elected by the voters, the
Legislature, the Board of Equalization, or constitutional
officers. However, these conflict of interest requirements
do apply to any person who is a member of an exempted
agency but is acting as a voting member of another agency.
Existing law provides, for the purposes of these conflict
of interest requirements, that "officer" means any elected
or appointed officer of an affected agency, any alternate
to an elected or appointed officer of an affected agency,
and any candidate for elective office in an affected
agency.
Existing law , pursuant to regulations of the Fair Political
Practices Commission (FPPC), provides that the exemption
for the officers of local governmental agencies who are
directly elected by the voters applies only to agencies
whose entire membership consists of officers directly
elected by the voters to serve on that agency.
This bill exempts officials who are elected to affected
agencies from these conflict of interest requirements
(whether or not the entire membership consists of officers
directly elected by the voters to serve on that agency).
BACKGROUND
The Levine Act of 1982 . The Levine Act, named after its
author former Assembly Member Mel Levine, restricts
campaign contributions made to officers of specified state
and local agencies by parties to a proceeding pending
before those agencies. Enacted in 1982, the Levine 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 Levine Act
is unique among the provisions of the PRA in that it is the
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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 Levine 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 Levine Act.
The Levine 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 Levine Act, then the contribution
restrictions do apply to that officer, as well. For
example, someone elected to a county board of supervisors
would not be subject to the Levine 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
Levine Act, then the officer would be required to comply
with the contribution restrictions that apply to all other
members of that regional transit agency as it relates to
matters before that regional transit agency.
So, Who Exactly Would this Bill Affect ? This bill would
exempt officials who are elected to the agency on which
they serve from the provisions of the Levine Act, therefore
making it applicable only to officials who are appointed to
the agency on which they serve. 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
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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.
COMMENTS
1.According to the author , current law 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. AB 2164
would clarify the law so that directly elected members of
agencies are not held to a double standard because they
serve on an agency with mixed membership.
2.Is this Bill Equitable ? Under this bill, affected agency
officials who were appointed would still be subject to
the provisions of the Levine Act, but those agency
officials who were directly elected to the same agency
would not be subject to the Levine Act. This could lead
to a somewhat absurd situation whereby an elected member
of an affected board would be permitted to accept
contributions in excess of $250 from a person with a
matter before the board but an appointed member of the
same board who is running for a completely different
office would be prohibited from accepting that same
contribution. The author argues that all agency members
who are directly elected should be exempt from the Levine
Act restrictions. Is it not more equitable to treat all
members of a given board the same under the Levine Act?
3.Does this Bill Violate the PRA ? The PRA may only be
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amended by the Legislature to further its purposes. It
is unclear if this bill, which exempts a class of elected
officials from an existing conflict of interest
provision, furthers the purposes of the PRA.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 5-0
Assembly Floor: 60-2
POSITIONS
Sponsor: Author
Support: California Special Districts Association
Marina Coast Water District
Orange County Board of Supervisors
Orange County Water District
Oppose: None received
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