BILL ANALYSIS �
AB 706
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 706 (Torres)
As Amended September 1, 2011
2/3 vote. Urgency
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|ASSEMBLY: | |(May 2, 2011) |SENATE: |40-0 |(September 6, |
| | | | | |2011) |
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(vote not relevant)
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|COMMITTEE VOTE: |8-0 |(September 8, 2011) |RECOMMENDATION: |concur |
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Original Committee Reference: RLS.
SUMMARY : Renames the Pasadena Metro Blue Line Construction
Authority (Authority), adds two additional non-voting members to
the governing board of the Authority, specifies circumstances under
which board members and alternate members of the Authority shall
not be considered financially interested, and exempts board and
alternate members from specified incompatible office and
incompatible activity statutes.
The Senate amendments delete the Assembly version of this bill, and
instead:
1)Change the name of the Authority, formerly known as the Pasadena
Metro Blue Line Construction Authority, to the Metro Gold Line
Foothill Extension Construction Authority.
2)Redefine the Authority's "project" to be the Los Angeles-Pasadena
Foothill Extension Gold Line light rail project, formerly known
as the Los Angeles Pasadena Metro Blue Line.
3)Define "extension cities" to include the cities of Arcadia,
Monrovia, Duarte, Irwindale, Azusa, Glendora, San Dimas, La
Verne, Pomona, and Claremont.
4)Add two nonvoting members, for a total of three nonvoting
members, to the Governing Board of the Authority to be appointed
by the city councils of the Cities of Pasadena and South
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Pasadena, with each city appointing one nonvoting member.
5)Allow each appointing entity to appoint an alternate member to
serve in the member's absence.
6)Provide that Authority board members and alternative members are
not considered financially interested, pursuant to existing law,
by virtue of their holding office with the Authority and
simultaneously holding office with an appointing member of the
Authority, or holding a similar position with an extension city.
7)Provide that any member who holds a position is permitted to
participate in decisions and agreements regarding the development
of the Gold Line Extension without such participation
constituting a financial conflict of interest, and are exempt
from existing law governing incompatible employment activity.
8)State that provisions of the bill are declaratory of existing law
as they pertain to conflicts of interest, incompatible offices,
or incompatible activities and the ability of board members and
alternate members to participate in decisions and agreements
regarding the Pasadena Metro Blue Line Construction Authority,
any of the appointing entities, and any of the extension cities.
9)Provide for reimbursement to local agencies and school districts
if the Commission on State Mandates determines that the
provisions of the bill contain costs mandated by the state.
10)State that the bill is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety, in
order to avoid delays in the construction of the Metro Gold Line
Foothill Extension Construction Authority Phase 2A project, and
shall go into immediate effect.
EXISTING LAW :
1)States (Government Code Section 1090) that members of the
Legislature, state, county, district, judicial district, and city
officers or employees shall not be financially interested in any
contract made by them in their official capacity, or by any body
or board of which they are members. Nor shall state, county,
district, judicial district, and city officers or employees be
purchasers at any sale or vendors at any purchase made by them in
their official capacity.
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2)Prohibits (in Government Code Section 1099) 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:
3)Specifies 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; and,
c) Public policy considerations make it improper for one
person to hold both offices.
4)States a public officer may simultaneously hold two public
offices that are incompatible if compelled or expressly
authorized by law.
5)Specifies a public officer will be deemed to have forfeited the
first office upon acceding to the second when two public offices
are incompatible.
6)Prohibits the provisions dealing with incompatible offices from
applying to a governmental body that has only advisory powers.
7)Specifies nothing in law dealing with incompatible offices is
intended to expand or contract the common law rule prohibiting an
individual from holding incompatible public offices. It is
intended courts interpreting these provisions be guided by
judicial and administrative precedent concerning incompatible
public offices developed under the common law.
8)Clarifies the provisions dealing with incompatible offices do not
apply to a position of employment, including a civil service
position for the purposes of a common law incompatible offices
analysis.
9)Provides (Government Code Section 1126) that a local agency
officer or employee shall not engage in any employment, activity,
or enterprise for compensation which is inconsistent,
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incompatible, in conflict with, or inimical to his or her duties
as a local agency officer or employee or with the duties,
functions, or responsibilities of his or her appointing power or
the agency by which he or she is employed, as specified.
10)Creates the Pasadena Metro Blue Line Construction Authority and
provides that the Authority has all of the power necessary for
planning, acquiring, leasing, developing, jointly developing,
owning, controlling, using, jointly using, disposing of,
designing, procuring, and building the project, as specified.
11)Specifies the duties of the Authority, and the composition of
the governing board of the Authority, as follows:
a) A governing board consisting of five voting members and one
nonvoting member is appointed as follows:
i) Three members appointed by the City Councils of the
Cities of Los Angeles, Pasadena, and South Pasadena, with
each city council appointing one member by a majority vote
of the membership of that city council;
ii) One member appointed by the President of the Governing
Board of the San Gabriel Valley Council of Governments,
subject to confirmation by that board;
iii) One member appointed by the Los Angeles County
Metropolitan Transportation Authority (LACMTA); and,
iv) One nonvoting member appointed by the Governor.
AS PASSED BY THE ASSEMBLY , this bill would have designated the
second full week of April of each year, commencing in 2012, as
California Public Safety Telecommunicators Week for the purpose of
heightening citizen awareness of the great important of 911 service
and its role in keeping the public safe.
FISCAL EFFECT : According to the Senate Appropriations Committee,
there are no fiscal costs to the state.
COMMENTS : The Pasadena Metro Blue Line Construction Authority was
statutorily created (SB 1847 (Schiff), Chapter 1021, Statutes of
1998) to oversee the planning, design, and construction of a light
rail line, referred to as the Gold Line (formerly the Blue Line),
between downtown Los Angeles and Pasadena. The Authority is
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currently constructing an eleven-mile extension of the Gold Line
east from Pasadena to Azusa that is proposed to open for service in
2015. This bill changes the name of the Authority, formerly known
as the Pasadena Metro Blue Line Construction Authority to the Metro
Gold Line Foothill Extension Construction Authority.
The existing governing board of the Authority is comprised of six
members of whom five are voting members and one is a non-voting
member. Of the voting members, three are appointed by the city
councils of the Cities of Los Angeles, Pasadena, and South
Pasadena, one member is appointed by the San Gabriel Valley Council
of Governments, and one member is appointed by the Los Angeles
County Metropolitan Transportation Authority. The non-voting
member is appointed by the Governor.
This bill authorizes the Cities of South Pasadena and Pasadena to
each appoint one nonvoting member, bringing the total of nonvoting
members from one to three, and requires every appointing entity to
appoint an alternate member to serve in the absence of the primary
appointee on the Authority's governing board.
This bill defines the term "extension cities" to include the Cities
of Arcadia, Monrovia, Duarte, Irwindale, Azusa, Glendora, San
Dimas, La Verne, Pomona, and Claremont. The bill also specifies
that Authority board members and alternate members are not
considered financially interested, pursuant to provisions in
existing law, by virtue of their holding office with the Authority
and simultaneously holding office with an appointing member of the
Authority, or holding a similar position with an extension city.
Additionally, the bill provides that any member who holds such a
position is permitted to participate in decisions and agreements
regarding the development of the Gold Line Extension without such
participation constituting a financial conflict of interest, and
are exempt from existing law governing incompatible employment
activity. The bill states that provisions contained in the
legislation are declaratory of existing law related to conflicts of
interest, incompatible office and incompatible activities, and the
ability of board members and alternate members to participate in
the decisions and agreements regarding the Authority, any of the
appointing entities, and any of the extension cities.
In 1850, the Legislature adopted the English common law to guide
the California courts, to the extent the common law is consistent
with the United States Constitution, the California Constitution,
or state statutory laws. The common law prohibits holding
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incompatible offices.
Many court decisions and Attorney Generals' opinions have
interpreted and applied the prohibition against incompatible
offices. The Attorney General restated this doctrine in a 1999
opinion: "Offices are incompatible, in the absence of statutes
suggesting a contrary result, if there is any significant clash of
duties or loyalties between the offices, if the dual office holding
would be improper for reasons of public policy, or if either
officer exercises supervisory, auditory, or removal power over the
other."
Section 1099 of the Government Code was added by SB 274 (Romero),
Chapter 254, Statutes of 2005, to codify the common law doctrine of
office incompatibility. The intent of the bill was the idea that
the codification of the common law would give better notice to
potential office holders in advance of any potential conflicts.
According to the author, a property owner along the right-of-way
for the proposed Phase II Project has recently called into question
the membership of the Authority. The property owner contends that
the positions of a member of a city council and Authority board
member are incompatible, in violation of Government Code Section
1099, and has filed a quo warrant request with the Attorney General
(AG), seeking authorization from the AG to sue an office holder to
determine if that individual is simultaneously holding two offices
that are incompatible. The author notes that if successful in his
bid to have the existing Authority members removed due to the 1099
violation, all but two members of the Authority would be affected.
Support arguments: Supporters argue that the bill's provisions
remove any ambiguity about incompatible office issues between city
council members representing the cities along the construction
corridor and board members of the Authority, allowing persons to
serve simultaneously on each governing board. Supporters note that
a similar clarification has been granted in other such situations
by the Legislature, and in this case, the disruption of the
Authority's membership may lead to delays in the Authority's Gold
Line Extension Project.
Opposition arguments: Opposition argues that the bill's provisions
will wipe out lawsuits and a complaint pending with the Attorney
General on the Authority's members and potential conflicts of
interest and related incompatible office holding and activities.
Opposition to the bill notes that the Mayor of Monrovia and
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numerous other local officials sit on the Authority's board in a
manner contrary to the enabling statute and that the last minute
"gut and amend" approach should be reviewed carefully.
Analysis Prepared by : Debbie Michel / L. GOV. / (916) 319-3958
FN: 0002866