BILL ANALYSIS �
AB 1716
Page 1
Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1716 (Garcia) - As Introduced: February 13, 2014
SUBJECT : Political Reform Act of 1974: Postemployment activity
restrictions.
SUMMARY : Makes former local administrative officials subject
to the permanent ban on "switching sides" in a governmental
proceeding that currently applies to state administrative
officials. Specifically, this bill :
1)Prohibits a former local administrative official, after the
termination of his or her employment or term of office, from
doing either of the following for compensation:
a) Acting as an agent or attorney for, or otherwise
representing, any person other than the former official's
agency, before a court, local government agency, state
administrative agency, or officer or employee of those
courts or agencies, by making an appearance or an oral or
written communication with the intent to influence a
judicial, quasi-judicial, or other proceeding, if both of
the following apply:
i) The former local administrative official's agency is
a party or has a direct and substantial interest; and,
ii) The proceeding is one in which the former local
administrative official participated; or,
b) Aiding, advising, counseling, or assisting in
representing any other person, except the local government
agency, in any proceeding in which the official would be
prohibited from appearing as detailed above.
2)Provides that the prohibitions outlined above do not apply to
the following:
a) To prevent a former official from making or providing a
statement based on the official's own special knowledge in
the area that is the subject of the statement, provided
that no compensation is received other than that regularly
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provided by law or regulation for witnesses;
b) To communications made solely for the purpose of
furnishing information by a former official if the court or
agency to which the communication is directed makes the
following findings in writing:
i) The former official has outstanding and otherwise
unavailable qualifications;
ii) The former official is acting with respect to a
matter that requires such qualifications; and,
iii) The public interest is served by the participation
of the former official; or,
c) With respect to appearances or communications in a
proceeding in which the court or agency has issued a final
order, decree, decision, or judgment but has retained
jurisdiction if the local government agency that formerly
employed the official gives consent by making both of the
following determinations:
i) At least five years has elapsed since the
termination of the former official's employment or term
of office; and,
ii) The public interest will not be harmed.
3)Provides that the restrictions of this bill do not apply to
any person who left government service before the effective
date of this bill.
4)Defines "local administrative official," for the purposes of
this bill, to mean every member, officer, employee, or
consultant of a local government agency who as a part of his
or her official responsibilities engages in any judicial,
quasi-judicial, or other proceeding in other than a purely
clerical, secretarial, or ministerial capacity.
EXISTING LAW :
1)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the Political Reform Act
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(PRA).
2)Prohibits former state administrative officials from being
compensated to work on proceedings that they participated in
while working for the state. This "switching sides" ban
prohibits appearances and communications to represent any
other person, as well as aiding, advising, counseling,
consulting, or assisting in representing any other person, for
compensation, before any state administrative agency in a
proceeding involving specific parties (such as a lawsuit, a
hearing before an administrative law judge, or a state
contract) if the official previously participated in the
proceeding.
3)Permits a court or agency to exclude any person found to have
violated the "switching sides" ban, as detailed above, from
any further participation in the proceeding, as specified.
4)Makes violations of the PRA subject to administrative, civil,
and criminal penalties.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
Pursuant to Government Code sections 87401 and 87402,
State administrative officials are prohibited from
providing aid, advice, or consultation in any judicial
or quasi-judicial proceedings where the State of
California is a party, after they have left state
service.
Essentially, state officials are subject to a lifetime
ban from 'switching sides' or being compensated for
appearances, or helping others in making such
appearances for entities that are engaged in
[adversarial] proceedings with the state [entity] of
which they were previous[ly] [employed] -eliminating
the possibility of being able to profit from
[privileged] information they may have acquired during
their previous employment with the State of
California.
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AB 1716 amends existing law to also ban local
administrative officials from switching sides where
their former agency was a party to the proceeding in
which the official was involved.
2)"Revolving Door" Restrictions : Existing law restricts the
post-governmental activities of certain former public
officials. These restrictions are commonly known as a
"revolving door ban." There are two main types of revolving
door restrictions in the PRA that may apply to former public
officials.
A one-year ban prohibits certain officials, for one year after
leaving public service, from representing any other person by
appearing before or communicating with, for compensation,
their former agency in an attempt to influence agency
decisions that involve the making of general rules (such as
regulations or legislation), or to influence certain
proceedings involving a permit, license, contract, or
transaction involving the sale or purchase of property or
goods. Members of the Legislature, members of state boards
and commissions with decision-making authority, local elected
officials, and individuals who manage public investments are
examples of people who are subject to the one-year ban. (A
related, but slightly different, one-year ban applies to
former air pollution control district and air quality
management district members.) When originally adopted, this
one-year ban applied primarily to former state employees, but
subsequent legislation (see "Previous Legislation," below)
also made the one-year ban applicable to specified former
local officials.
The second main type of revolving door restriction permanently
prohibits former state administrative officials from being
paid to work on proceedings that they participated in while
working for the state. The ban prohibits appearances and
communications to represent any other person, as well as
aiding, advising, counseling, consulting or assisting in
representing any other person, for compensation, before any
state administrative agency in a proceeding involving specific
parties (such as a lawsuit, a hearing before an administrative
law judge, or a state contract) if the official previously
participated in the proceeding. This permanent ban on
"switching sides" does not apply to local officials, though
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some local jurisdictions have adopted similar rules. This
bill would make that permanent ban applicable to local
jurisdictions.
3)Is There a Problem ? There is nothing in existing law to
prohibit a city or county from adopting prohibitions on
switching sides in a proceeding that are similar to those that
currently apply to state officials. In fact, at least two
cities, Los Angeles and San Francisco, have adopted
prohibitions on switching sides in a proceeding that are
similar to those proposed by this bill, while other local
jurisdictions have adopted policies that limit the ability of
former local officials to switch sides in a proceeding, but in
ways that differ from the ban proposed by this bill.
The author contends that a single, statewide policy against
switching sides is appropriate in order to ensure that former
local officials cannot use insider information that they
obtained from working on a project for their government
employer in a way that harms the public interest or otherwise
unfairly advantage a third party. Notwithstanding those
concerns, the author has not provided any information to
indicate that the absence of a prohibition against "switching
sides" has resulted in inappropriate behavior at the local
level. Furthermore, this bill would make the FPPC responsible
for enforcement of another revolving door prohibition for
local governmental entities, potentially straining the FPPC's
resources. Given this, it is unclear whether it is desirable
to adopt a single approach at the state level to prohibit the
switching of sides in local governmental proceedings.
4)Previous Legislation : SB 8 (Soto), Chapter 680, Statutes of
2005, prohibits a local elected official from lobbying the
local government agency of which that official was a member
for a period of one year after leaving office.
5)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
None on file.
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094