BILL ANALYSIS �
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB
706
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: torres
VERSION:
8/22/11
Analysis by: Art Bauer FISCAL: yes
Hearing date: August 30, 2011 URGENCY:
YES
SUBJECT:
Pasadena METRO Gold Line Construction Authority (Construction
Authority)
DESCRIPTION:
This bill exempts the Metro Gold Line Construction Authority
board members from the incompatible office statute.
ANALYSIS:
Legislation in 1998 created the Pasadena METRO Blue Line
Construction Authority to oversee the planning, design, and
construction of a light rail line, referred to as the Gold Line
(previously the Blue Line) between downtown Los Angeles and
Pasadena. At that time, the Los Angeles County Metropolitan
Transportation Authority (METRO) was encountering substantial
financial difficulties with the construction of its first subway
segment, the Red Line, and was in the early stages of planning
and engineering for the Blue Line. The purpose of the
Construction Authority was to isolate METRO's Red Line project
from the Blue Line project and ensure that the Red Line would be
not delayed as METRO addressed its own financial problems.
The Construction Authority is currently constructing an
eleven-mile extension of the Gold Line east from Pasadena to
Azusa that will open for service in 2015. The Construction
Authority will eventually extend the Gold Line from Azusa to
Montclair via Claremont.
Existing law:
1. Creates the Pasadena METRO Blue Line Construction
Authority governed by a six member board of whom five are
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voting members and one is non-voting member appointed as
follows:
a. Three members, one each appointed by the city
councils of the cities of Los Angeles, Pasadena, and
South Pasadena.
b. One member appointed by the San Gabriel
Valley Council of Governments.
c. One member appointed by the Los Angeles County
Metropolitan Transportation Authority.
d. One non-voting member appointed by the
Governor.
2. Authorizes the Construction Authority to do all things
necessary to plan and construct a rail transit system to
Claremont, including acquiring property through purchase or
eminent domain and entering into joint agreements with
local agencies and private firms for projects "adjacent to,
or physically or functionally related to, the project."
3. Requires the Construction Authority to adopt a code of
conduct for board members and employees that governs the
receipt of gifts, disclosure of political contributions,
and the conditions for board members to recuse themselves
from participating in policy decision-making.
4. Prohibits a public officer, including, but not limited
to, an appointed or elected member of a governmental board,
commission, committee, or other body, from simultaneously
holding two public offices that are incompatible.
5. Specifies that offices are incompatible when any of the
following circumstances are present:
a. Either of the offices may audit, overrule,
remove members of, dismiss employees of, or exercise
supervisory powers over the other office or body.
b. Based on the powers and jurisdiction of the
offices, there is a possibility of a significant clash
of duties or loyalties between the offices.
c. Public policy considerations make it
improper for one person to hold both offices.
6. States that if compelled or expressly authorized by law,
a public officer may simultaneously hold two public offices
that are incompatible.
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7. Specifies that when two public offices are incompatible,
a public officer will be deemed to have forfeited the first
office upon acceding to the second.
8. Exempts incompatible office doctrine from applying to a
position of employment, including a civil service position.
This bill :
1. Changes the name of the Pasadena Metro Blue Line
Construction Authority to Metro Gold Line Foothill
Extension Construction Authority.
2. Authorizes the cities of South Pasadena and Pasadena to
each appoint one nonvoting member.
3. Requires each appointing authority to appoint an
alternative member to serve in the absence of the primary
appointee.
4. Construction Authority board members, alternative
members, officers, consultants, and employees of the
Authority shall not be considered financially interested by
virtue of serving on the Authority's board, being an
employee of the agency, or a consultant to the agency, or
holding similar positions with local jurisdictions through
which the Gold Line Extension traverses. In addition:
a. Holders of the enumerated positions are
permitted to participate in decisions regarding the
development of the Gold Line Extension by the
Construction Authority without such participation
constituting a financial conflict of interest.
b. Officers or employees of the Construction
Authority or the local agencies through which the Gold
Line Extension traverses are exempt from the existing
statutory provisions governing incompatible employment
activity.
5. Exempts from the incompatible office provision:
a. Board members of the Construction Authority
who may simultaneously serve on the city council or
board that appointed them to the Construction
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Authority and employees of the agencies.
b. Board members and employees of cities through
which the local agencies through which the Gold Line
Extension traverses.
COMMENTS:
1. Purpose . A private party is unhappy with the
Construction Authority over its acquisition of property.
The aggrieved party has filed a quo warrant request with
the Attorney General, seeking authorization from her to sue
an office holder to determine if that individual is
simultaneously holding two offices that are incompatible
and should be removed from office. Statue requires a
request to the Attorney General to sue on these grounds to
prevent frivolous suits from being filed. Should the
private party obtain permission to sue, the action is
brought in the name of the People of the State of
California. It is not a private action. Moreover, the
Attorney General remains in control of the action and may
dismiss it over the objection of the private party.<1>
The Attorney General in an opinion issued last year on the
subject of incompatible offices wrote:
Unless "expressly authorized by law," public
offices are incompatible where there is a
possibility of significant clash of duties or
loyalties between the offices," or when "public
policy considerations make it improper for one
person to hold both offices." In the event that
one person holds two incompatible offices, the
person is deemed to have forfeited the first
office upon acceding to the second.<2>
The Attorney General also wrote in this opinion that
holding two offices does not necessarily constitute an
incompatibility.
The incompatible office statute is a common law rule that
-------------------------
<1> See http://ag.ca.gov/opinions/nature_of_remedy.php at the
Attorney General's website.
<2> Attorney General's Opinion No. 10-903, November 30, 2010,
page 3. The quotation marks bracket language in Government Code
1099 pertaining to the occupation of incompatible offices
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SB 274 (Romero), Statutes of 2005, codified.
2. Why is this bill needed ? The Construction Authority is
an interagency public authority comprised of thirteen
cities located in the corridor. The cities are Los
Angeles, South Pasadena, Pasadena, Arcata, Monorvia,
Durate, Irwinndale, Azusa, Glendora, San Dimas, La Verne,
Pomona, and Claremont. The governing board is made up of
representatives from the cities that are essentially
responsible for ensuring the overall integrity of the
project and that it is developed with the best interest of
the communities in mind. The sponsors believe that these
activities are not incompatible with the offices held
simultaneously by the board members and do not constitute a
conflict of interest for the board members and the staff of
the local corridor agencies.
To this end, this bill exempts city elected officials and
the governing board members of the Construction Authority
as well as city staffs and consultants retained either by
the Construction Authority or the cities from the
incompatible office provisions.
A related concern is the statutory provisions governing
conflicts of interest associated with contracts between the
Construction Authority and member agencies approved by
elected officials who may sit on the Authority and a city
council as well as the involvement of city management in
decisions related to the extension of the Gold Line. The
Construction Authority is concerned that board members
voting on contracts that may benefit the cities they
represent may be a conflict of interest. Existing law
prohibits local elected officials from having a financial
interest in any contracts they may vote on. Similarly,
existing law establishes conditions limiting the activities
of public employees related the outside activities of
employee that may be incompatible, inconsistent, or in
conflict with their duties as local agency employees. This
bill exempts members of the governing board from provisions
of law that precludes voting on contracts that they have a
financial interest in when voting on contracts of the
Construction Authority within the corridor. It also
exempts city employees and consultants from similar
financial interest provisions.
According to the bill's sponsors, there are several
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agreements, memoranda of understanding, and other similar
documents regarding the construction of the rail in each
city that are negotiated between the staff of the
Construction Authority and the management of the cities and
then approved by the Construction Authority governing board
and the city councils. The sponsors of the bill want to
ensure that these activities will not be misconstrued as
being inconsistent with existing law.
It is important to recognize that through joint exercise of
powers agreements, memoranda of understanding, and other
collaborative processes, California local governments
interact with each other to pursue shared goals on a
variety of programs and projects. In regard to light rail
transit, it should also be noted that the agency that
planned and built California's first light rail transit
project, the San Diego Metropolitan Transit Board, had a
governing board whose membership was made up of mayors or
council members from cities though which the service
operates. This was never viewed as a conflict or
inappropriate. The fact that the Construction Authority
believes its must seek an exemption to the codes that
govern conflicts is the exception rather than the rule in
California.
3. Concerns with the bill . The committee staff is
concerned that the bill is overreaching with regard to whom
exemptions from the incompatible office doctrine and from
financial conflicts of interest. It is reasonable to
exempt board members who are elected officials from the
incompatible office statute when the very intent of the
agency make is to have a dual policy making role the local
officials. Extending this provision is really unnecessary
for managers and staff of the corridor cities. Public
employees typically enjoy broad latitude to carry of the
policies of their governing boards. This entails working
with other agencies, negotiating agreements, and other
related interagency activities, and it is considered in the
public interest for employees to have this latitude.
Exempting them from this is inimical to effectively
implementing policy. In addition, exempting private
consulting firms that may have many projects, not
necessarily related to the Gold Line, with cities in the
corridor is a very broad exemption. In fact, there is no
precedent for doing this.
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In light of the above, the committee may wish to consider
the following amendments regarding the conflict issues:
a. Limit the provisions of the incompatible
office exemption to the board members, their
alternates, and representatives of the extension
cities. This amendment would exclude city employees
(who are already excluded by existing law) and
consultants.
b. Remove city employees and consultants from the
exemption from conflict of interest rules related to
contracts between the Construction Authority and the
local agency with whom they work or are under
contract.
c. Exempt members of the governing board from
provisions of law that preclude voting on contracts in
which they have a financial interest when the
Construction Authority contracts with the corridor
cities.
4. Other amendments . Two additional amendments are
proposed by the Construction Authority. Staff concurs.
They are:
a. Define the extension cities as including
Arcata, Monorvia, Durate, Irwinndale, Azusa, Glendora,
San Dimas, La Verne, Pomona, and Claremont.
b. Add two non-voting members appointed by the
cities of Pasadena and South Pasadena. The bill's
provisions governing appointments does not require the
appointees to come from the city council of the
appointing authority. Both Pasadena and South
Pasadena have been each appointing a member from the
extension cities. With this amendment they will
continue this practice, but will be able to appoint
two non-voting members each.
It should be noted that the amendments proposed in Comment
3 and Comment 4 were developed collaboratively between
committee staff and the Authority's general counsel and its
representatives.
Assembly Votes are not applicable.
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POSITIONS: (Communicated to the Committee before noon on
Monday,
August 29, 2011)
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SUPPORT: City of Azusa
City of Glendora
City of Irwindale
City of La Vern
City of Ontario
City of Pasadena
Los Angeles County Metropolitan Transportation
Authority
Metro Gold Line Foothill Extension Construction
Authority (Sponsor)
OPPOSED: None received.