BILL ANALYSIS �
AB 1728
Page 1
Date of Hearing: April 23, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 1728 (Garcia) - As Amended: April 8, 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):
a) A prohibition on officers of an agency 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;
and,
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)Finds and declares that this bill furthers the purposes of the
Political Reform Act (PRA) of 1974, as specified.
EXISTING LAW :
1)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the PRA.
2)Provides, pursuant to the PRA, for a number of campaign
contribution and expenditure reporting requirements that
candidates for office must follow, as well as gift limits and
conflict-of-interest prohibitions that public officials must
observe.
3)Provides, pursuant to the Act, the following:
a) 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.
b) 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.
c) 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
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officer should have known, of the contribution and the
proceeding.
d) Defines, for the purposes of a) through c), above,
"agency" to mean any state agency or local government
agency, except for the courts or any agency in the judicial
branch of government, local governmental agencies whose
members are directly elected by the voters, the
Legislature, the Board of Equalization, or constitutional
officers. However, the provisions of a) through c), above,
apply to any person who is a member of an exempted agency
but is acting as a voting member of another agency.
4)Prohibits members of the Legislature, state, county, district,
judicial district, and city officers or employees from being
financially interested in any contract made by them in their
official capacity, or by any body or board of which they are
members.
FISCAL EFFECT : This bill is keyed fiscal.
COMMENTS :
1)Purpose of this bill . This bill expands state law that
restricts contributions to agency officials from entities with
business before the agency involving a license, permit, or
other entitlement for use, to include all officials who are
elected to local water boards. This bill is author-sponsored.
2)Author's statement . According to the author, "AB 1728
requires members of local water boards to 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."
3)Background . The Act restricts campaign contributions to
officers of most state and local agencies by parties to a
proceeding 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
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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 exempt from the Act 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.
4)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
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the number of governmental entities that are subject to the
restrictions in the Act.
A number of water districts have been formed pursuant to the
Water Code appendix, which is outside the statutes of the
Water Code. The Committee may wish to ask the author if the
intent of this bill is to capture all water districts and, if
so, may wish to amend the bill to clarify which entities are
subject to the bill's provisions.
5)Policy concerns . The California Special Districts
Association, in opposition, states, "Existing statute already
establishes restrictions for all local elected officials
related to conflicts of interest as well as gift and
contribution reporting requirements. In addition, current
statute addresses protocol for when a local water agency has
both elected and appointed officials serving on their board.
However, AB 1728 would single-out all directly elected local
water agency board members and apply overlapping restrictions.
"Further, the Fair Political Practices Commission (FPPC) has
already spoken to the issue for when local elected officials
also serve in an appointed capacity for another agency of any
service type. In their Advice Letter A-12-072, dated May 29,
2012, the FPPC offers that elected officials would be subject
to the Levine Act for their appointed service, despite their
status as an elected official for another public agency."
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 held
on the Senate Floor.
AB 2164 (Norby) of 2010 was substantially similar to AB 1241.
AB 2164 was held in the Senate Elections, Reapportionment, and
Constitutional Amendments Committee.
7)Two-thirds vote . California voters in 1974 passed an
initiative, Proposition 9, 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
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two-thirds vote of both houses of the Legislature.
8)Arguments in support . None on file.
9)Arguments in opposition . Opponents contend that current law
provides sufficient campaign finance reporting requirements,
gift reporting requirements, and conflict-of-interest
protections and that this bill proposes an unbalanced
application of new regulations.
10)Double-referral . This bill was heard by the Elections and
Redistricting Committee on
April 1, 2014, where it passed with a 5-0 vote
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
Association of California Water Districts
California Special Districts Association
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958