BILL ANALYSIS �
AB 1728
Page 1
Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1728 (Garcia) - As Introduced: February 14, 2014
SUBJECT : Political Reform Act of 1974.
SUMMARY : Makes all officials who are elected to local water
boards subject to existing provisions of state law limiting
contributions to officials from entities with business before
the agency involving a license, permit, or other entitlement for
use. Specifically, this bill :
1)Provides that local government agencies that are formed
pursuant to the Water Code are subject to the following
provisions of the Levine Act of 1982 (Act), even if the
members of the agency are directly elected by the voters:
a) A prohibition against accepting, soliciting or directing
a contribution of more than $250 from a party or
participant with a matter pending before the agency
involving a license, permit, or other entitlement for use
during the time the matter is pending before the agency and
for three months following the date a final decision is
rendered in the matter.
b) A requirement to disclose on the record of a proceeding
the receipt of any contribution of more than $250 from a
party to or participant in the proceeding in the 12
previous months if the proceeding involves a license,
permit, or other entitlement for use.
c) A prohibition against making, participating in making,
or attempting to influence the decision in any proceeding
involving a license, permit, or other entitlement for use
if the officer received a contribution of more than $250
from a party or participant in the proceeding in the 12
months before the proceeding and the officer did not return
that contribution within 30 days of knowing, or the time
the officer should have known, of the contribution and the
proceeding.
2)Provides that for the purposes of proceedings before a local
government agency formed pursuant to the Water Code, the term
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"license, permit, or other entitlement for use" includes all
contracts except those that are competitively bid.
3)Specifies that a person who is paid to act on another person's
behalf in a proceeding that is otherwise covered by the Act,
triggers the restrictions of the Act.
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
(PRA).
2)Prohibits any officer of an agency, as defined, from
accepting, soliciting or directing a contribution of more than
$250 from a party or participant with a matter pending before
the agency involving a license, permit, or other entitlement
for use during the time the matter is pending before the
agency and for three months following the date a final
decision is rendered in the matter.
3)Requires any officer of an agency, as defined, who received a
contribution of more than $250 from a party or participant
with a matter pending before the agency involving a license,
permit, or other entitlement for use in the 12 months before
the proceeding, to disclose the contribution on the record of
the proceeding.
4)Prohibits any officer of an agency, as defined, who received a
contribution of more than $250 from a party or participant
with a matter pending before the agency involving a license,
permit, or other entitlement for use in the 12 months before
the proceeding from making, participating in making, or
attempting to influence the decision in the proceeding.
Allows an officer to participate in the proceeding if the
officer returns the contribution within 30 days of knowing, or
the time the officer should have known, of the contribution
and the proceeding.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
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1)Purpose of the Bill : According to the author, "AB 1728
requires members of local water boards excuse themselves from
decisions when contributors are involved. AB 1728 includes
officials of local government agencies formed pursuant to the
provisions of the Water Code and applies to proceedings to
award licenses or permits for use."
2)Levine Act of 1982 : The Act, named after its author
Assemblymember Mel Levine, restricts campaign contributions
made to officers of most state and local agencies by parties
to a proceeding pending before those agencies. Enacted in
1982, the Act was a response to reports that members of a
state agency sought to raise money from individuals and
entities that had permit requests pending before the agency.
The Act is unique among the provisions of the PRA in that it
is the only area in which a campaign contribution can be the
basis for a disqualifying conflict of interest. The PRA
otherwise does not treat campaign contributions as a potential
basis for conflicts of interest.
The Act is narrowly drafted to apply only to decisions made by
agencies with membership that is not directly elected by
voters, and only to proceedings involving licenses, permits,
or other entitlements for use. Proceedings of a more general
nature and with broader applicability are not covered by the
Act.
The Act generally does not apply to the judicial branch, local
governmental bodies whose members are elected directly by the
voters, members of the Legislature and the Board of
Equalization, or constitutional officers. However, when an
officer who is otherwise exempted serves as a voting member of
an agency that is subject to the Act, then the contribution
restrictions of the Act do apply to that officer. For
example, someone elected to a county board of supervisors is
not subject to the Act simply for sitting on the board of
supervisors; but, if that official also sits on a regional
transit agency, which is subject to the Act, then the officer
would be required to comply with the contribution restrictions
that apply to all other members of the regional transit
agency.
Because the Act does not apply to local governmental bodies
whose members are elected directly by the voters, the Act
applies to some special districts, but not others.
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3)Water Districts : According to information from the 2010
report, "What's So Special About Special Districts? (Fourth
Edition)," prepared by the Senate Committee on Local
Government, there are more than 700 different water districts
of various types in California. In most cases, the governing
boards of these water districts are elected, and as a result
are not subject to the provisions of the Act. There are at
least some water districts, however, that are governed by
appointed boards of directors, or by boards of directors that
are a combination of elected and appointed members. Those
districts are subject to the Act under existing law.
This bill makes all districts that are formed pursuant to the
Water Code subject to the Act, regardless of whether the
district is governed by an elected board or an appointed
board. As a result, this bill would significantly increase
the number of governmental entities that are subject to the
restrictions in the Act.
4)Is There a Problem ? In background material provided by the
author in support of the need for this bill, the author argues
that the expansion of the Act to include proceedings before
water boards that are governed by elected members is
appropriate in light of the state's drought and the
development of a water bond proposal that may include funding
for a number of water projects throughout the state. The
author argues that this bill is a "modest expansion" of the
Act that is needed to prevent corruption and the appearance
thereof in decision making by elected water boards around the
state.
As noted above, however, the Act is unique in that it is the
only area of the PRA where campaign contributions can create a
conflict of interest that require an official to recuse
himself or herself from participating in a governmental
action. That restriction was narrowly tailored to address a
situation where members of a state agency actively solicited
campaign contributions from lists of individuals who had
applications for licenses and permits pending before the
agency. In arguing for the need for the restrictions imposed
by this bill, the author has provided a news article
referencing a case in which the Central Basin Municipal Water
District (District) awarded a contract to a nonprofit
organization, when the President of that organization and his
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family members had made campaign contributions to four of the
five board members. The members of the District are directly
elected by voters, so it is not subject to the restrictions of
the Act. If the District had been subject to the Act,
however, it is unclear based on the information included in
the article whether or not the provisions of the Act would
have been triggered with respect to the contract that was
awarded to the nonprofit organization. The committee has not
been made aware of other situations where elected members of
water districts have engaged in the types of behavior that led
to the adoption of the Act in 1982. It is unclear whether the
expansion of the Act in the manner that is proposed by this
bill is appropriately tailored to address the author's
concerns.
5)Technical Issue : One provision of this bill appears to
specify that a person who is paid to act on another person's
behalf in a proceeding that is otherwise covered by the Act,
triggers the restrictions of the Act. However, the Act and
related regulations that have been adopted by the FPPC already
provide that the restrictions in the Act apply when an agent
of a person supports or opposes a decision on behalf of that
person. As a result, the effect of the language on page 5,
lines 3 to 8 of this bill, is unclear. In light of that fact,
committee staff recommends that those provisions be deleted
from this bill.
6)Previous Legislation : AB 1241 (Norby) of 2011 would have
exempted officials who are directly elected to an agency from
the Act for agencies that are governed by a board that
contains both elected and appointed members. AB 1241 was
approved by the Assembly on a 65-6 vote, but failed passage on
the Senate Floor on a 19-20 vote.
AB 2164 (Norby) of 2010 was substantially similar to AB 1241.
AB 2164 was approved by the Assembly on a 60-2 vote, but was
held in the Senate Committee on Elections, Reapportionment,
and Constitutional Amendments.
7)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,
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must further the purposes of the initiative and require a
two-thirds vote of both houses of the Legislature.
8)Double-Referral : After this bill was referred to this
committee by the Assembly Rules Committee, the Assembly Rules
Committee instructed that this bill should be referred to the
Assembly Local Government Committee upon approval by this
committee. Accordingly, any motion to approve this bill should
provide for the bill to be re-referred to the Assembly Local
Government Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094