BILL ANALYSIS �
AB 1431
Page 1
Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1431 (Gonzalez) - As Amended: March 19, 2014
SUBJECT : School district and community college administrators:
conflict of interest.
SUMMARY : Prohibits a school or community college district
administrator from soliciting campaign contributions for
district board members and candidates for the district board,
except as specified. Specifically, this bill :
1)Prohibits an administrator of a school district or of a
community college district from knowingly soliciting,
accepting, or receiving a political contribution from any
person for the campaign of an elected official of the district
employing the administrator, or for a candidate for that
office, unless the person making the contribution is a member
of the same school labor organization as the administrator.
2)Requires the Fair Political Practices Commission (FPPC) to
enforce the provisions of this bill.
EXISTING LAW :
1)Creates the FPPC, and makes it responsible for the impartial,
effective administration and implementation of the Political
Reform Act (PRA).
2)Prohibits a member of the FPPC, during his or her tenure, from
participating in or contributing to an election campaign, or
from seeking election to any other public office during his or
her term of appointment.
3)Prohibits school district or community college district funds,
services, supplies, or equipment from being used for the
purpose of urging the support or defeat of any candidate,
including, but not limited to, any candidate for election to
the governing board of the district.
4)Prohibits a person who holds, or who is seeking election or
appointment to, the governing board of a school district or
community college district from using, or promising or
AB 1431
Page 2
threatening to use, the power of office to positively or
adversely affect any person's compensation or position within
the district based on the vote or political activities of that
person.
5)Prohibits restrictions from being placed on the political
activities of officers or employees of a school district or
community college district, except as otherwise provided in
specified provisions of state law or as necessary to meet
requirements of federal law.
6)Prohibits an officer or employee of a local agency, other than
a school district, from soliciting a political contribution
from an officer or employee of that agency, except as
specified.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Bill : According to the author:
Assembly Bill 1431 seeks to prohibit administrators at
school and community college districts from soliciting
funds for the campaigns of candidates - including
incumbents - for the board elections to govern the
districts where they are employed. Most recently,
administrators' practice of soliciting campaign funds
for board members was held as the common thread in 3
major government corruption cases in San Diego County.
This bill will reduce the real and perceived conflicts
of interest that is created by this dynamic and has
contributed to these major corruption scandals in
California's school districts and community college
districts.
2)Hatch Act : Enacted in response to allegations that federal
government employees were using their positions to assist
candidates for federal office in the late 1930s, the federal
Hatch Act (5 U.S.C. �� 7321-7326) generally restricts certain
political activities of most civilian federal government
employees. The nature of the political activities that are
restricted under the Hatch Act vary, depending on the position
held by an employee. Employees in intelligence and
enforcement agencies, for instance, typically are subject to
AB 1431
Page 3
broader restrictions on political activities than other public
employees. Individuals who violate the Hatch Act are subject
to "removal, reduction in grade, debarment from Federal
employment for a period not to exceed 5 years, suspension,
reprimand, or an assessment of a civil penalty not to exceed
$1,000."
One provision of the Hatch Act prohibits federal employees from
soliciting, collecting, or receiving political contributions,
except from other members of the same federal labor
organization under certain conditions. The provisions of this
bill are modeled after that portion of the Hatch Act.
It should be noted, however, that the provisions of this bill
that allow school administrators to solicit contributions from
members of the same school labor organization as the
administrator are more lenient than the related provision in
the Hatch Act. While the Hatch Act does include an exception
to permit federal employees to solicit contributions from
members of the same federal labor organization, that exception
applies only if the person being solicited is not a
subordinate employee, and only if the solicitation is for a
contribution to the labor organization's political action
committee. This bill does not impose similar restrictions on
contributions that are solicited by a school or community
college district administrator from a member of the same labor
organization as the administrator.
3)Constitutional Issues : It could be argued that this bill
violates the United States and California Constitutions'
guarantees to free speech and freedom of association. While
the right to freedom of speech is not absolute, when a law
burdens core political speech, the restrictions on speech
generally must be "narrowly tailored to serve an overriding
state interest," McIntyre v. Ohio Elections Commission (1995),
514 US 334.
As noted above, this bill is modeled after a provision of the
Hatch Act which prohibits certain federal employees from
soliciting, collecting, or receiving political contributions.
The United States Supreme Court has upheld prior versions of
the Hatch Act that restricted the political activities of
federal employees even more broadly than the current version
of the Hatch Act does. In Civil Service Commission v. Letter
Carriers (1973), 413 U.S. 548, the Supreme Court upheld a
AB 1431
Page 4
provision of the Hatch Act that prohibited federal employees
from taking "an active part in political management or in
political campaigns." In upholding that provision, the court
found that "plainly identifiable acts of political management
and political campaigning on the part of federal employees may
constitutionally be prohibited" by Congress in recognition of
the governmental interests that are advanced by that policy.
Among other interests, the court noted that placing
restrictions on the political activities of federal employees
helps the government to operate effectively and fairly, by
protecting against enforcement and execution of the law in a
manner that favors specific political parties or groups;
ensures that elections "play their proper part in
representative government," by preventing the government
workforce from being used as a "powerful, invincible, and
perhaps corrupt political machine"; and protects government
employees from improper influences by making sure that
employees are "free from pressure and from express or tacit
invitation to vote in a certain way or perform political
chores in order to curry favor with their superiors rather
than to act out their own beliefs."
The restrictions placed on school and community college
administrators under this bill are narrower than the Hatch Act
restrictions that were upheld by the Supreme Court in Civil
Service Commission v. Letter Carriers . This bill prohibits
school and community college administrators from soliciting
campaign contributions only for members of and candidates for
the governing board of the district by which the administrator
is employed, but does not restrict the ability of school and
community college administrators to solicit contributions for
candidates for other offices.
4)Definition of Administrator : This bill proposes to restrict
the political activities of school district and community
college district administrators, but it does not define the
term "administrator" for the purposes of this bill.
Furthermore, there does not appear to be a general definition
in the Education Code of the term "administrator" in the
context of school districts or community college districts.
Without a definition of that term, it is unclear exactly which
school officials would be affected by this bill. In light of
that fact, the committee may wish to consider whether the term
"administrator" should be defined for the purposes of this
bill.
AB 1431
Page 5
5)No Penalty Specified & Suggested Amendments : While this bill
provides for the FPPC to enforce its provisions, the new
restrictions created by this bill are not a part of the PRA.
As a result, any violations of the restrictions imposed by
this bill would not be subject to the penalties available for
violations of the PRA. Furthermore, this bill does not
specify any penalty or remedy for violations of the bill. In
light of that fact, the scope of the FPPC's enforcement
authority is unclear, and if the FPPC determined that a
violation of the provisions of this bill had occurred, it is
unclear whether the FPPC would be able to impose any penalty
whatsoever against the violator.
If it is the author's intent that violations of the provisions
of this bill would be subject to the penalties that currently
apply for violations of the PRA, the committee and the author
may wish to consider amending this bill to move the
restrictions on fundraising activities out of the Education
Code, and place those restrictions into the PRA instead. With
that amendment, a violation of the provisions of this bill
would be subject to potential civil or administrative fines of
up to $5,000 per violation or, in the case of knowing or
willful violations of the provisions of the bill, to potential
misdemeanor penalties and fines of up to $10,000 per
violation.
6)School Administrator Candidates & Suggested Amendments :
Existing law prohibits an employee of a school district from
being sworn into office as a member of that school district's
governing board unless that person first resigns as an
employee. Similarly, an employee of a community college
district must resign his or her position as an employee prior
to being sworn into office as a member of the community
college district's governing board. Nothing in state law,
however, prohibits a school district administrator or a
community college administrator from being a candidate for the
governing board of the district by which they are employed.
By prohibiting school and community college district
administrators from soliciting campaign contributions for
candidates for the district board, this bill appears to
prohibit an administrator who is a candidate for the governing
board of the district in which the administrator is employed
from soliciting any contributions on his or her own behalf.
AB 1431
Page 6
The author's stated purpose for this bill-to reduce the
potential for conflicts of interest that may exist when an
administrator solicits contributions on behalf of a candidate
or board member that will oversee the work of the
administrator-do not appear to be served by restricting an
administrator from soliciting campaign funds for his or her
own candidacy. In light of that fact, the author and the
committee may wish to consider an amendment to specify that
the provisions of this bill shall not prohibit a school or
community college administrator from soliciting campaign
contributions for his or her own candidacy.
7)Arguments in Support : In support of this bill, the County of
San Diego writes:
AB 1431?would prohibit school district and community
college district administrators from soliciting funds
for campaign or legal defense funds for an elected
official of the district employing the administrator,
or any candidate for an elected office of the
district.
This longstanding practice has become all too common
and has resulted in scandals and criminal charges for
some school districts within the San Diego County
region. It allows administrators inappropriate
influence over their own job security by assisting in
campaign fundraising for their board members and
allows current board members to pressure
administrators into campaign fundraising. We want to
ensure that elected officials are devoting their time
and public resources to the public good, and we
believe AB 1431 is a good step in that direction.
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 must further the purposes of the
initiative and require a two-thirds vote of both houses of the
Legislature. Although this bill does not directly amend the
PRA, it does so indirectly because it makes the FPPC
responsible for enforcing the provisions of this bill. As a
result, this bill requires a two-thirds vote for passage on
AB 1431
Page 7
the Assembly and Senate Floors.
9)Double-Referral : This bill has been double-referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
County of San Diego
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094