BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AB 2146 HEARING DATE: 6/19/12
AUTHOR: COOK ANALYSIS BY: D. CHESIN
AMENDED: 5/7/12
FISCAL: YES
SUBJECT
Political Reform Act of 1974: local campaign reform: County
of San Bernardino
DESCRIPTION
Existing law creates the Fair Political Practices
Commission (FPPC), and makes it responsible for the
impartial, effective administration and implementation of
the Political Reform Act (PRA).
Existing law requires a local government agency that adopts
or amends a local campaign finance ordinance to file a copy
of the ordinance with the FPPC.
Existing law prohibits a local government agency from
enacting a campaign finance ordinance that imposes campaign
reporting requirements that are additional to or different
from those set forth in the PRA for elections held in its
jurisdiction unless the additional or different
requirements apply only to the candidates seeking election
in that jurisdiction, their controlled committees or
committees formed or existing primarily to support or
oppose their candidacies, and to committees formed or
existing primarily to support or oppose a candidate or to
support or oppose the qualification or passage of a local
ballot measure which is being voted on only in that
jurisdiction, and to city or county general purpose
committees active only in that city or county,
respectively.
Existing law provides that violations of the PRA are
subject to specified administrative, civil, and criminal
penalties.
This bill permits San Bernardino County and the FPPC to
enter into an agreement that provides for the FPPC to
enforce a local campaign finance ordinance enacted by the
county. Specifically, this bill :
1)Provides that, upon mutual agreement between the FPPC and
the Board of Supervisors of San Bernardino County, the
FPPC is authorized to assume primary responsibility for
the administration and enforcement of a local campaign
finance ordinance passed by the Board of Supervisors.
The FPPC would be authorized to be the civil prosecutor
responsible for the civil enforcement of such an
ordinance. As the civil prosecutor, the FPPC may do both
of the following:
Investigate possible violations of the ordinance;
and,
Bring administrative actions in accordance with the
PRA and the administrative adjudication provisions of
the Administrative Procedure Act.
1)Requires any local campaign finance ordinance for San
Bernardino County that is enforced by the FPPC to comply
with the PRA.
2)Requires the Board of Supervisors of San Bernardino
County to consult with the FPPC prior to adopting and
amending any local campaign finance ordinance that will
be enforced by the FPPC.
3)Permits the Board of Supervisors of San Bernardino County
and the FPPC to enter into any agreements necessary and
appropriate to carry out the provisions of this bill,
including agreements pertaining to any necessary
reimbursement of state costs by the county for the costs
incurred in enforcing the county's campaign finance
ordinance.
4)Permits the Board of Supervisors of San Bernardino County
or the FPPC to terminate, at any time, an agreement made
pursuant to this bill for the FPPC to enforce the
county's campaign finance ordinance.
5)Makes legislative findings and declarations as to the
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necessity of a special statute for San Bernardino County
due to the need to avoid an appearance of corruption in
the county's electoral process.
6)Requires the FPPC to report to the Legislature with
specified information on or before January 1, 2017, if
the FPPC enters into such an agreement with San
Bernardino County.
7)Provides that this bill would sunset on January 1, 2018.
BACKGROUND
Local Campaign Ordinances and the PRA : Under existing law,
local government agencies have the ability to adopt
campaign ordinances that apply to elections within their
jurisdictions, though the PRA imposes certain limited
restrictions on those local ordinances. For instance, SB
726 (McCorquodale), Chapter 1456, Statutes of 1985, limited
the ability of local jurisdictions to impose campaign
filing requirements that differed from those in the PRA,
permitting such requirements only when they applied solely
to candidates and committees whose activity is restricted
primarily to the jurisdiction in question. This provision
sought to avoid the necessity of a candidate or committee
active over a wider area being required to adhere to
several different campaign filing schedules. Similarly,
AB 1430 (Garrick), Chapter 708, Statutes of 2007,
prohibited local governments from adopting rules governing
member communications that are different than the rules
that govern member communications at the state level.
Aside from these restrictions, however, local government
agencies generally have a significant amount of latitude
when developing local campaign finance ordinances that
apply to elections in those agencies' jurisdictions. Any
jurisdiction that adopts or amends a local campaign finance
ordinance is required to file a copy of that ordinance with
the FPPC, and the FPPC has begun posting those ordinances
on its website. The FPPC's website currently includes
campaign finance ordinances from 17 different counties and
from 130 different cities.
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San Bernardino County currently has a local campaign
finance ordinance, though it is very limited in scope.
Specifically, the ordinance merely establishes a voluntary
campaign expenditure limit for candidates for local office.
It does not provide any incentive for candidates to adopt
that voluntary limit, nor does it establish penalties for
candidates who agree to abide by the voluntary limits but
subsequently make campaign expenditures in excess of those
limits.
Other cities and counties have adopted campaign finance
ordinances that are much more extensive. In some cases,
those ordinances include campaign contribution limits,
reporting and disclosure requirements that supplement the
requirements of the PRA, temporal restrictions on when
campaign funds may be raised, and voluntary public
financing of local campaigns, among other provisions. In
many cases, local campaign finance ordinances are enforced
by the district attorney of the county or by the city
attorney. In at least a few cases, however, local
jurisdictions have set up independent boards or commissions
to enforce the local campaign finance laws.
The FPPC does not currently enforce any local campaign
finance ordinances as it would for San Bernardino if this
bill were adopted. The FPPC can and does, however, bring
enforcement actions in response to violations of the PRA
that occur in campaigns for local office, even in cases
where the local jurisdiction brings separate enforcement
actions for violations of a local campaign finance
ordinance.
Criminal, Civil, and Administrative Enforcement of the PRA
and Local Campaign Ordinances : As noted above, violations
of the PRA are subject to administrative, civil, and
criminal penalties. Generally, the Attorney General (AG)
and district attorneys have responsibility for enforcing
the criminal provisions of the PRA, though any elected city
attorney of a charter city also has the authority to act as
the criminal prosecutor for violations of the PRA that
occur within the city. The FPPC, the AG, district
attorneys, and elected city attorneys of charter cities all
have responsibility for enforcement of the civil penalties
and remedies provided under the PRA, depending on the
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nature and location of the violation, while any member of
the public also has the ability to file a civil action to
enforce the civil provisions of the PRA, subject to certain
restrictions. The FPPC has the sole authority to bring
administrative proceedings for enforcement of the PRA.
When the FPPC determines on the basis of such a proceeding
that a violation of the PRA has occurred, it can impose
monetary penalties of up to $5,000 per violation, in
addition to ordering the violator to cease and desist
violation of the PRA and to file any reports, statements,
or other documents or information required by the PRA.
In the case of local campaign ordinances, there is no
single approach as to the types of penalties that are
available for the violations of those ordinances. Many
local ordinances provide for misdemeanor or civil penalties
for violations, while some ordinances (including the
current ordinance for San Bernardino County) do not
establish any penalties for violations. In some local
jurisdictions that have independent boards or commissions
to enforce the local campaign finance ordinances, those
boards or commissions have the authority to bring
administrative enforcement proceedings, similar to the
authority the FPPC has under the PRA.
COMMENTS
1.According to the author , many counties and cities
across California have enacted campaign finance
rules to create a level playing field for candidates
and to stem the influence of "big money" in local
politics. As a result, locally appointed ethics
commissions often enforce campaign finance rules
adopted by local governments. The County of San
Bernardino, which has been the subject of several
high-profile corruption cases, is in the process of
developing a campaign finance ordinance that would
establish contribution limits that mirror those
applied to State Senate and Assembly candidates.
Rather than appointing an ethics commission, which
could present financial as well as
conflict-of-interest challenges, the County proposes
to contract with the FPPC to enforce the rules.
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AB 2146 would authorize the County of San Bernardino
to contract with the FPPC to enforce San Bernardino
County's local campaign finance ordinance. This
would only occur after a mutual agreement between
the FPPC and the San Bernardino County Board of
Supervisors has been reached.
Contracting with the FPPC is an ideal solution for
several reasons. Counties that have ethics
commissions or other formal entities spend as much
as $3.5 million annually to police ethical behavior.
Contracting with the FPPC is a cost effective
alternative to an ethics commission and a prudent
use of taxpayer resources. Additionally,
contracting with the FPPC provides oversight by an
impartial and independent third party and eliminates
potential conflict of interest that could arise from
the creation of an internal agency by the Board of
Supervisors.
PRIOR ACTION
Assembly Local Government Committee: 8-0
Assembly Elections and Redistricting Committee: 7-0
Assembly Appropriations Committee: 17-0
Assembly Floor: 70-0
POSITIONS
Sponsor: County of San Bernardino
Support: California State Association of Counties
Fair Political Practices Commission
Oppose: None received
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