BILL ANALYSIS �
AB 2609
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2609 (Hueso) - As Amended: April 11, 2012
SUBJECT : Fish and Game Commission.
SUMMARY : Adds members of the Fish and Game Commission (FGC) to
a statutorily-designated list of high-ranking public officials
who are subject to the most expansive disclosure requirements
under the Political Reform Act (PRA), and imposes additional
substantive new requirements on the operation and organization
of the FGC. Specifically, this bill :
1)States legislative findings and declarations regarding the
expansion in the scope of the FGC's responsibilities, and
states legislative intent that the Governor and Senate Rules
Committee consider certain minimum qualifications in making
and confirming appointments to the FGC. The criteria to
consider include providing for diversity in background and
geographic representation of the commission, the appointee's
interest and background in wildlife and natural resources
management, the appointee's experience in public policy
decision making, and the appointee's experience with and
knowledge of related scientific disciplines.
2)Requires that FGC commissioners annually elect a president and
vice president by a vote of at least three commissioners (a
majority of the five-member commission). Prohibits a
commissioner from serving as president or vice president for
more than two consecutive years. Provides that the president
or vice president may be removed from the position of
president or vice president at any time by a vote of three
commissioners. Provides that in the event of a vacancy in the
position of president or vice president, the FGC shall fill
that vacancy at the next regularly scheduled meeting.
3)Repeals a requirement located in the Fish and Game Code that
the FGC adopt a conflict of interest code. Repeals a
provision of the Fish and Game Code that prohibits a former
commissioner of the FGC, for a period of 12 months after
leaving office, from acting as an agent or attorney for, or
otherwise representing, any person before the FGC by making a
formal or informal appearance before, or any oral or written
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communication to, the FGC.
4)Adds members of the FGC to a statutorily-designated list of
high-ranking public officials, including members of the Public
Utilities Commission (PUC), members of the Fair Political
Practices Commission (FPPC), and members of the California
Coastal Commission (CCC), among others, who are subject to the
most expansive disclosure requirements under the PRA.
5)Requires the FGC to adopt a code of conduct that requires
commissioners to adhere to specified principles. Requires the
FGC, by July 1, 2013, to adopt rules governing the business
practices and processes of the FGC.
EXISTING LAW :
1)Establishes the FGC as a five member commission appointed by
the Governor and subject to confirmation by the Senate.
Provides that members of the FGC serve six-year terms and
until their successors are appointed and qualified. Permits
the Legislature to delegate to the FGC such powers relating to
the protection and propagation of fish and game as the
Legislature sees fit. Provides that a member of the FGC may
be removed by concurrent resolution adopted by a majority of
the members of each house of the Legislature.
2)Requires members of the FGC to elect one of the members as
president and one as vice president of the commission.
However, regulations adopted by the FGC require that the
commissioner with the most seniority shall be president, with
certain exceptions.
3)Lists certain high-ranking public officials (known as "87200
filers") who are subject to the most expansive disclosure
requirements under the PRA. Provides that these 87200 filers
include elected state officers, judges, members of the PUC,
members of the FPPC, members of the CCC, members of county
boards of supervisors, district attorneys, mayors, and members
of city councils, among others.
4)Requires an 87200 filer to file periodic statements of
economic interests (SEIs) disclosing his or her investments,
interests in real property, and income (including gifts).
5)Requires an 87200 filer who has a financial interest in a
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governmental decision, with limited exceptions, to do all of
the following immediately prior to the consideration of a
matter in which the filer has a conflict of interest:
a) Publicly identify the financial interest that gives rise
to the conflict of interest in detail sufficient to be
understood by the public;
b) Recuse himself or herself from discussing and voting on
the matter; and,
c) Leave the room until after the discussion, vote, and any
other disposition of the matter is concluded, unless the
matter is placed on the portion of the agenda reserved for
uncontested matters.
6)Requires every state and local governmental agency to adopt
and promulgate a conflict of interest code. Requires each
conflict of interest code to include a specific enumeration of
the positions within the agency, with the exception of 87200
filers, that involve the making or participation in the making
of decisions which may foreseeably have a material effect on
any financial interest. Requires each person who holds such
an enumerated position to file periodic SEIs disclosing his or
her financial interests in accordance with the provisions of
the conflict of interest code. Explicitly requires the FGC to
adopt and approve a conflict of interest code pursuant to
these provisions of the PRA.
7)Prohibits a public official at any level of state or local
government from making, participating in the making, or in any
way attempting to use his or her official position to
influence a governmental decision in which the official knows
or has reason to know that he or she has a financial interest,
as defined.
8)Prohibits a member of a state administrative agency from
receiving compensation to lobby the agency that he or she
represented on behalf of another person for a period of one
year after leaving office, as specified. Defines "state
administrative agency" for these purposes to include every
state commission. Separately prohibits a former commissioner
of the FGC, for a period of 12 months after leaving office,
from acting as an agent or attorney for, or otherwise
representing, any person before the FGC by making a formal or
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informal appearance before, or any oral or written
communication to, the FGC.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
The Fish and Game Commission was formed in 1870 to
preserve and regulate fish in California waters. In
the last 142 years, the Commission's jurisdiction has
greatly expanded to include the conservation and
regulation of fish and wildlife resources.
Commissioners carry over 200 powers and duties,
including filling quasi-judicial roles associated with
the revocation or suspension of licenses and permits
for violations of sports and commercial laws and
regulations. As the Commission's powers have grown,
it is necessary to change its practices and processes
to align them with these enhanced powers.
The Fish and Game Commission's members must be held to
a higher ethical standard, commensurate with their
scope of work, duties and responsibilities. AB 2609
will require Commissioners to fully disclose their
assets and interests under section 87200 of the
Political Reform Act of 1974, similar to other state
boards and commissions. This bill will also require
the Commissioners to adopt a code of conduct using the
principles listed as minimum guidelines. This will
ensure that they discharge their duties faithfully and
ethically and act in the public's best interest at all
times.
AB 2609 will also encourage the Governor and Senate to
select Commissioners with experience in and knowledge
of wildlife and natural resources management programs,
public policy and decision making, among others. It
is imperative that Commissioners possess the minimum
qualifications to properly and professionally handle
the matters of the Commission.
This bill will require the adoption of business
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practices and processes so that the Commission is
consistent in its daily and formal activities.
Finally, AB 2609 establishes a new process by which a
president and vice president are elected and removed
to truly reflect the will of the majority. A
president and vice president may be elected and
removed with the concurrent vote of at least three
Commissioners. This change is also consistent with
how a president and vice president are elected in
other state boards and commissions, including the
Coastal Commission and the Milton Marks Commission on
California State Government Organization and Economy.
2)"87200 Filers" vs. "87300 Filers" : As noted above, existing
law designates certain high-ranking public officials who are
subject to the most expansive disclosure requirements under
the PRA. These officials are commonly referred to as "87200
filers" after the section of state law (Section 87200 of the
Government Code) in which the officials subject to those
requirements are designated.
However, 87200 filers are not the only public officials that are
subject to the PRA's disclosure and conflict of interest
rules. Every public official who holds a position that is
enumerated in his or her agency's conflict of interest code as
a position that involves the making or participation in the
making of decisions which may foreseeably have a material
effect on the financial interests of that official is required
to file periodic SEIs disclosing his or her financial
interests. These filers are sometimes referred to as "87300
filers" after the section of state law (Section 87300 of the
Government Code) that requires governmental agencies to adopt
conflict of interest codes. Additionally, existing state law
prohibits any public official, whether that official is an
87200 filer, an 87300 filer, or neither an 87200 nor an 87300
filer, from making or participating in the making of any
governmental decision in which he or she has a financial
interest.
This bill proposes to add members of the FGC to the
statutorily-established list of 87200 filers. Currently,
members of the FGC are enumerated in the FGC's conflict of
interest code, and thus are 87300 filers. This change would
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have two primary effects on the members of the FGC.
First, members of the FGC would be subject to somewhat broader
disclosure when they file their SEIs; currently board members
must disclose only those interests that fall within one of the
disclosure categories listed in the FGC's conflict of interest
code, but as 87200 filers, board members would be required to
disclose all investments, interests in real property, and
income, with certain limited exceptions.
Second, adding members of the FGC to the list of 87200 filers
would mean that if a member of the FGC had a conflict of
interest in a matter before the commission, that member would
have to publicly identify the financial interest and leave the
room until after the discussion of that matter had finished.
It should be noted, however, that members of the FGC are
already prohibited under existing law from participating in
the making of any governmental decision in which they have a
financial interest, and that this bill would not change that
prohibition.
3)Conflict of Interest Code : One provision of this bill repeals
subdivision (a) of Section 106 of the Fish and Game Code,
which requires the FGC to adopt and approve a conflict of
interest code pursuant to the provisions of the PRA. The
repeal of this provision has no practical effect, since all
state and local agencies, including the FGC, are required to
have a conflict of interest code pursuant to Section 87300 of
the Government Code. For the purposes of this requirement,
the FGC is considered an "agency" by the FPPC. In fact, the
current conflict of interest code for the FGC was adopted by
the FGC and approved by the FPPC in 2005, a year before
Section 106 of the Fish and Game Code was enacted into law.
As a result, even if this bill is signed into law, the FGC
will continue to be required to have a conflict of interest
code as is the case with all other state and local government
agencies, notwithstanding the repeal of subdivision (a) of
Section 106 of the Fish and Game Code. In fact, the only
substantive change that this bill will have with respect to
the conflict of interest code for the FGC is that the code
will no longer be required to include members of the FGC in
the list of identified positions of individuals who are
required to file SEIs pursuant to the code, since those
members will become 87200 filers under this bill.
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4)Revolving Door Restrictions : One provision of this bill
repeals subdivision (b) of Section 106 of the Fish and Game
Code, which prohibits a FGC commissioner from lobbying the FGC
on behalf of another person for a period of 12 months after
leaving office. Notwithstanding the fact that this bill
repeals that provision, a similar provision in the PRA
nonetheless will continue to restrict the post-governmental
activities of individuals who previously served on the FGC.
Unlike the restrictions that this bill proposes to repeal,
however, the post-governmental restrictions that are contained
in the PRA include exceptions for individuals who are
appearing before their former agencies on behalf of other
public agencies, under specified circumstances. These
exceptions appear to work well with other public agencies, so
it seems appropriate to make those exceptions applicable to
the FGC.
5)Election of FGC President & Possible Amendment : Although an
existing provision of state statute requires the members of
the FGC to elect a president and a vice president, the FGC has
adopted a regulation that provides for the president and vice
president to be selected based on seniority. This regulation
appears to be inconsistent with the statute, because the
regulation seeks to prescribe the results of the "election"
for president and vice president regardless of how individual
commissioners actually vote. To the extent that this
regulation is inconsistent with the statute, it is invalid.
In fact, this apparent conflict was highlighted during the
selection of the current FGC president in February of this
year. Pursuant to the regulation that was previously adopted,
the FGC was required to select a new president at the February
meeting. During the discussion of that agenda item,
commissioners raised questions about whether the FGC
regulation that provides for the president and vice president
to be determined based on seniority was consistent with the
requirement that an election be conducted to choose those
officers. Ultimately, the current president was elected with
the votes of just two commissioners, while two others
abstained and one was absent. After initially determining
that the motion to elect the president had failed for the lack
of a majority of the quorum of the commission, the commission
subsequently reversed that determination and instead decided
that a vote of 2-0 was sufficient to install the new
president.
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This bill seeks to provide greater specificity to guide the
process for the selection of a president and a vice president
of the FGC. Specifically, this bill explicitly requires the
president and vice president to be elected by at least three
of the five members of the FGC. Additionally, this bill
provides that the president or vice president similarly may be
removed from the position of president or vice president by a
vote of three members, and establishes a procedure for a
vacancy to be filled in the position of president or vice
president. Finally, this bill would prohibit a person from
serving as president or vice president for more than two
consecutive years, a restriction that is identical to one that
is already contained in regulations adopted by the FGC.
To the extent that the author and the committee wish to end the
practice of the FGC designating the president and vice
president based on seniority, however, further amendments to
the statute may be warranted. Although the regulation
providing for the president and vice president to be
determined based on seniority appears to be inconsistent with
the statute that requires an election for these positions, the
FGC nonetheless adopted that regulation, apparently under the
belief that such a policy was authorized by the statute. In
order to provide greater clarity to the FGC that it cannot, by
regulation, annul a statute that requires the president and
vice president of the FGC to be elected, the author and the
committee may wish to consider an amendment to make it clear
that, except for the limit on a person serving no more than
two consecutive terms as president or vice president, the FGC
may not adopt a regulation or policy that restricts which
commissioners are eligible to elected as president or vice
president.
6)Arguments in Support : In support of this bill, the Ocean
Conservancy writes:
The Fish and Game Commission plays a critical role in
the formulation of important policies affecting our
coastal and ocean resources such as fisheries and
wildlife. The magnitude of these responsibilities
requires that commissioners be held to the highest
standards.
We are pleased that AB 2609 recognizes the importance
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of commissioners and seeks to ensure that they are
strong representatives and ambassadors of California's
natural resources stewardship values. We also believe
this bill is consistent with the trajectory of the
current Fish and Wildlife Strategic Vision process
being undertaken by a broad array of stakeholders and
resource management thought-leaders, including Ocean
Conservancy.
This bill will require the Fish and Game Commission to
adopt a code of conduct, guiding commissioners to
adhere to prescribed principles, and adopt rules
related to the business practices and processes of the
commission. It would also prohibit a president or vice
president from serving more than 2 consecutive years.
AB 2609 would clarify the Legislature's intent that
only commissioners of the highest levels of knowledge
and expertise should be appointed to the Fish and Game
Commission.
7)Double-Referral : On April 10, 2012, this bill was approved by
the Assembly Water, Parks & Wildlife Committee on an 8-4 vote.
8)Political Reform Act of 1974 : California voters passed an
initiative, Proposition 9, in 1974 that created the FPPC and
codified significant restrictions and prohibitions on
candidates, officeholders and lobbyists. That initiative is
commonly known as the PRA. Amendments to the PRA that are not
submitted to the voters, such as those contained in this bill,
must further the purposes of the initiative and require a
two-thirds vote of both houses of the Legislature.
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REGISTERED SUPPORT / OPPOSITION :
Support
Endangered Habitats League
Humane Society of the United States
Ocean Conservancy
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094