BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
SB 952 (Torres) - Prohibited financial interests: aiding and
abetting.
Amended: As Introduced Policy Vote: Public Safety 6-0
Urgency: No Mandate: Yes
Hearing Date: May 23, 2014 Consultant: Jolie Onodera
SUSPENSE FILE.
Bill Summary: SB 952 would specifically prohibit an individual
from aiding or abetting a public officer or person in violating
the law prohibiting financial conflicts of interest, and would
extend the penalties under existing law to apply to the
individual who willfully aids or abets, as specified.
Fiscal Impact: Potential increase in state costs for prison
terms for aiding or abetting a public officer. To the extent
three or four individuals are sentenced to state prison under
the provisions of this bill, annual costs would be in the range
of $90,000 to $125,000 (General Fund) assuming an average
in-state contract bed cost of $31,000.
Background: Current law prohibits members of the Legislature,
state, county, district, judicial district and city officers or
employees from having a financial interest in any contract made
by them in their official capacity, or by any body or board of
which they are members. Additionally, current law prohibits
state, county, district, judicial district and city officers or
employees from being purchasers at any sale or vendors at any
purchase made by them in their official capacity. Finally,
current law prohibits the State Treasurer and Controller, county
and city officers, and their deputies and clerks from purchasing
or selling, or in any manner receiving for their own or any
other person's use or benefit, any state, county or city
warrants, scrip, orders, demands, claims, or other evidences of
indebtedness against the state, or any county or city thereof.
A person found in violation of any of the above prohibitions is
punishable by a fine of not more than $1,000 or by imprisonment
in the state prison, and is forever disqualified from holding
any office in this state. (GC �� 1090, 1093, 1097)
SB 952 (Torres)
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Although current law provides that all persons concerned in the
commission of a crime, whether it be a felony or misdemeanor,
and whether they directly commit the act constituting the
offense, or aid and abet in its commission, are principals in
any crime so committed (PC � 31), the courts have held that
there is no aider and abettor liability under GC � 1090 (D'Amato
v. Superior Court (2008) 167 Cal.App.4th 861). The Fourth
District Court of Appeals followed this holding in an
unpublished decision in People v. Baine (2012) Cal.App. Unpub.
LEXIS 8038:
"We share our colleagues' view that the Legislature intended
Government Code section 1090 to exclude criminal liability on
either a conspiracy or an aiding and abetting theory for anyone
other than public officials and public employees with a
financial interest in the underlying contract."
Proposed Law: This bill would specifically prohibit an
individual from aiding or abetting a public official or person
from violating the law prohibiting financial conflicts of
interest under GC �� 1090 and 1093, and would extend the penalty
provisions under GC � 1097 to aiders and abettors.
Prior Legislation: AB 1059 (Wieckowski) 2013 would have extended
the application of existing financial interest prohibitions on
public officers and employees to independent contractors who
perform a public function, and specifically provide when an
independent contractor, or an owner, officer, employee, or agent
of the independent contractor, has a financial interest in a
contract. This bill was not heard by a committee.
AB 850 (de la Torre) 2009 would have provided that no person
shall knowingly induce or participate in or conspire with a
public official to violate the law prohibiting financial
conflicts of interest in the award of public contracts. This
bill failed in the Assembly Committee on Appropriations.
Staff Comments: According to statistics provided by the
Department of Justice (DOJ), 32 arrests under GC � 1090 resulted
in 11 convictions over three years from 2011 through 2013. CDCR
also indicates there have been 14 commitments to state prison
over the past three years with GC � 1097 as a subordinate
SB 952 (Torres)
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offense. It is unknown how many convictions under the
governmental conflict of interest codes would have been impacted
by the liability extended to aiders and abettors under the
provisions of this bill, nor how many potential aiders/abettors
would have been potentially charged for each conviction, but to
the extent three or four individuals are sentenced to state
prison in any one year, annual costs would be in the range of
$90,000 to $125,000, assuming the average contract bed cost of
$31,000 (based on the estimated in-state contract bed cost per
year reflected in the 2014-15 Governor's Budget). Future costs
would be dependent on the number of applicable commitments and
any changes in the cost of contracted bed space to the extent it
continues to be utilized by CDCR.
The U.S. Supreme Court has ordered the CDCR to reduce prison
crowding to 137.5 percent of the prison system's design capacity
by February 28, 2016. Although public safety realignment has
achieved significant reductions in the prison population, and
the 2014-15 Governor's Budget projects meeting the population
cap in the near-term, the analysis by the Legislative Analyst's
Office suggests that CDCR's long-term prison caseload will
likely exceed this cap. Because California's institutions
already exceed the population limit, any near-term and future
increases to the state's prison population would require the
state to pursue one of several options including contracting-out
for additional bed space or releasing current inmates early onto
parole.