BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Alex Padilla, Chair
BILL NO: AB 1716 HEARING DATE: 6/17/14
AUTHOR: GARCIA ANALYSIS BY: Darren Chesin
AMENDED: AS INTRODUCED
FISCAL: YES
SUBJECT
Political Reform Act of 1974: Postemployment activity
restrictions
DESCRIPTION
Existing law , pursuant to the Political Reform Act (PRA),
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.
Existing law 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.
This bill additionally 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
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:
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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.
BACKGROUND
"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
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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 some local jurisdictions have adopted similar
rules. This bill would make that permanent ban applicable to
local jurisdictions.
COMMENTS
1.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 previously 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.
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.Previous Legislation : SB 8 (Soto), Ch. 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.
PRIOR ACTION
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Assembly Elections and Redistricting Committee: 6-0
Assembly Appropriations Committee: 15-1
Assembly Floor: 73-1
POSITIONS
Sponsor: Author
Support: None received
Oppose: None received
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