BILL ANALYSIS �
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Date of Hearing: March 23, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 33 (Jeffries) - As Amended: March 8, 2011
SUBJECT : County board of supervisors: vacancy: appointment.
SUMMARY : Requires the Governor, whenever a vacancy occurs in
any board of supervisors (board), to fill the vacancy within 90
days. Specifically, this bill :
1)Requires the Governor, whenever a vacancy occurs in any board,
to fill the vacancy within 90 days.
2)Requires, if the Governor fails to fill a vacancy within 90
days, a board within the next
90 days to make an appointment of its own, to call a special
election, or to leave the seat vacant until the next regularly
scheduled election.
3)Requires, if the Governor fails to fill the vacancy within 90
days and the board fails to act within the next 90 days, the
vacancy to remain open until the next regular election at
which time a successor may be elected.
4)Requires 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 : None
COMMENTS :
1)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
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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
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.
2)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
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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 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 139 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.
3)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. For example, 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.
4)According to the author, over the past few years, many vacant
board seats have sat empty for long periods upon the current
supervisor vacating that seat. Often times, the Governor, who
retains sole power of appointment to fill a vacancy has taken
upwards of six months to appoint a new supervisor. The author
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says this bill would allow constituents to have adequate
representation on their boards and avoid difficulties for
counties with super-majority vote requirements for fiscal
matters.
5)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.
6)AB 1671 (Jeffries, 2010) contained identical provisions. This
Committee passed AB 1671 on a 5-2 vote. However, the Governor
vetoed AB 1671, saying:
"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."
7)Support arguments: Supporters, California State Association
of Counties, Regional Council of Rural Counties, and American
Federation of State, County and Municipal Employees, say
imposing a 90-day timeline on the Governor to make
appointments with an option for the counties to fill the
vacancy on their own provides much-needed flexibility.
Opposition arguments: The opposition might argue that deviating
from the long-standing precedent of not allowing boards to
fill their own vacancies should be continued and creating a
bifurcated appointment process might lead to confusion among
the public as to which governmental entity they should be
providing input to.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
CA State Association of Counties
Regional Council of Rural Counties
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Opposition
None on file
Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. /
(916) 319-3958