BILL ANALYSIS �
SB 952
Page 1
Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 952 (Torres) - As Amended: June 17, 2014
SENATE VOTE : 37-0
SUBJECT : Prohibited financial interests: aiding and abetting.
SUMMARY : Prohibits an individual from aiding or abetting a
violation of Government Code section 1090 (section 1090), and
related laws. Specifically, this bill :
1)Prohibits an individual from aiding or abetting a Member of
the Legislature or a state, county, district, judicial
district, or city officer or employee in either of the
following crimes:
a) Being financially interested in a contract made by the
member, officer, or employee in his or her official
capacity, or by any body or board on which the member,
officer, or employee is a member; or,
b) Being purchasers at any sale or vendors at any purchase
made by the member or officer in his or her official
capacity.
2)Prohibits an individual from aiding or abetting a Treasurer,
Controller, city or county officer, or their deputy or clerk,
in 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. Provides that this provision does not apply to
evidences of indebtedness issued to or held by an officer,
deputy, or clerk for services rendered by them, nor to
evidences of the funded indebtedness of the state, county, or
city.
3)Provides that a person who willfully violates this bill 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.
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EXISTING LAW :
1)Prohibits members of the Legislature and state, county,
district, judicial district, and city officers or employees,
pursuant to section 1090, 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. Prohibits state,
county, district, judicial district, and city officers or
employees from being purchasers at any sale made by them in
their official capacity, or from being vendors at any purchase
made by them in their official capacity.
2)Prohibits, pursuant to Government Code section 1093 (section
1093), the 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.
3)Provides that a person who willfully violates section 1090 or
1093 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 the state.
4)Provides that a contract made in violation of section 1090 may
be voided by any party to the contract, except for the officer
who had an interest in the contract in violation of section
1090.
5)Provides, in general, that all persons who aid and abet in the
commission of a crime are principals in any crime so
committed.
FISCAL EFFECT : According to the Senate Appropriations
Committee, 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.
COMMENTS :
1)Purpose of the Bill : According to the author:
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Senate Bill 952 prohibits an individual from aiding or
abetting a public officer or public employee in
entering into unlawful contracts, and expands
penalties to also apply to those individuals who
violate those provisions.
California's bribery laws are in need of updating.
California residents are entitled to equip prosecutors
with all necessary charging tools to prevent, pursue
and prosecute the theft of public funds or bribery of
public officials.
While current law prohibits government officials from
entering into unlawful contracts (Govt. Code 1090),
the law is not clear on whether individuals with a
financial interest in a contract who aid and abet
those government officials are prohibited from doing
so and criminally liable.
On May 9, 2011 a special grand jury in San Bernardino
County issued a 29 count indictment against members
and staff of the San Bernardino County Board of
Supervisors (Board) and Colonies Partners, L.P.
(Colonies). The indictment (The People of the State
of California v. Paul Biane, et al (2011) FSB 1102102)
alleges that Colonies conspired to bribe public
officials in return for their votes to approve a
settlement between Colonies and the County of San
Bernardino (County) for $102 million.
The Colonies case is being prosecuted jointly by
California Attorney General Kamala Harris and San
Bernardino County District Attorney Mike Ramos.
The defense has filed several legal challenges at the
trail court and appellate level since the indictment
was filed in 2011. Those challenges over the course of
four years have stymied the prosecution's efforts to
bring the case to a jury trial.
Several legal challenges reached the California State
Supreme Court and were decided in favor of the
prosecution in December 2013. SB 952 clarifies that a
private individual is prohibited and can be held
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criminally liable for aiding and abetting government
officials in entering unlawful contracts under Govt.
Code 1090.
SB 952 will strengthen the laws governing bribery of
public officials and help bolster public trust in
government.
2)Overview of Section 1090 : Section 1090 generally prohibits a
public official or employee from making a contract in his or
her official capacity in which he or she has a financial
interest. In addition, a public body or board is prohibited
from making a contract in which any member of the body or
board has a financial interest, even if that member does not
participate in the making of the contract. Violation of this
provision is punishable by a fine of up to $1,000 or
imprisonment in the state prison, and any violator is forever
disqualified from holding any office in the state. The
prohibitions against public officers being financially
interested in contracts that are contained section 1090 date
back to the second session of the California Legislature
(Chapter 136, Statutes of 1851).
Various provisions of state law provide exceptions to, or
limitations on, section 1090. Among other provisions, state
law provides that an officer shall not be deemed to be
financially interested in a contract if the officer has only a
"remote interest" in the contract and if certain other
conditions are met. Similarly, another section of state law
provides that an officer or employee is not deemed to be
interested in a contract if his or her financial interest
meets one of a number of different enumerated conditions.
3)Aider and Abettor Liability and Government Code Section 1090 :
As noted above, under California law, a person who aids and
abets in the commission of a crime generally can be found
guilty of the underlying crime if certain conditions are met.
Notwithstanding this fact, courts have held that there is no
aider and abettor liability under section 1090. In D'Amato v.
Superior Court (2008) 167 Cal. App. 4th 861, the Court of
Appeal for the Fourth Appellate District, Division Three,
suggested that the separation of powers doctrine precludes
criminal prosecutions of public officials for aiding and
abetting a violation of section 1090, absent clear legislative
intent to permit such prosecutions. In its decision, the
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court wrote:
Assessing criminal liability against a public official
for aiding and abetting a violation of section 1090
necessarily requires inquiry into the public
official's subjective motivations when the prosecution
is based on the official's legislative acts.
Specifically, Penal Code section 31 provides: "All
persons concerned in the commission of a
crime,?whether they directly commit the act
constituting the offense, or aid and abet in its
commission, or, not being present, have advised and
encouraged its commission,?are principals in any crime
so committed." To be criminally liable, an aider and
abettor must "act with knowledge of the criminal
purpose of the perpetrator and with an intent or
purpose either of committing, or of encouraging or
facilitating commission of, the offense." (People v.
Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60,
674 P.2d 1318], italics added.) Thus, to obtain a
conviction under an aider and abettor theory, it is
not sufficient to demonstrate merely that the
defendant assisted the perpetrator with knowledge of
the perpetrator's unlawful purpose; the prosecutor
also must prove the defendant's "'fundamental purpose,
motive and intent [was] to aid and assist the
perpetrator in the latter's commission of the crime.'"
(Id. at p. 556, italics added.)
The court did not conclude that the Legislature was prohibited
from making it a crime to aid and abet a violation of section
1090. Instead, the court noted that "the 'common-law
principles of legislative and judicial immunity?should not be
abrogated absent clear legislative intent to do so,'" and the
court concluded that the language of section 1090 suggested
that the Legislature had not intended to provide for aider and
abettor liability for violations of section 1090. The court
wrote:
[T]he Legislature's wording of section 1090 evinces
the intent to exclude aider and abettor liability.
Specifically, "where the Legislature has dealt with
crimes which necessarily involve the joint action of
two or more persons, and where no punishment at all is
provided for the conduct, or misconduct, of one of the
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participants, the party whose participation is not
denounced by statute cannot be charged with criminal
conduct on either a conspiracy or aiding and abetting
theory. [Citation.] So, although generally a defendant
may be liable to prosecution for conspiracy as an
aider and abettor to commit a crime even though he or
she is incapable of committing the crime itself, the
rule does not apply where the statute defining the
substantive offense discloses an affirmative
legislative policy the conduct of one of the parties
shall go unpunished. [Citation.]" [Citation.] (Id. at
873; see also In re Meagan R. (1996) 42 Cal.App.4th
17, 24.)
4)Previous Legislation : AB 1090 (Fong), Chapter 650, Statutes
of 2013, authorizes the Fair Political Practices Commission
(FPPC) to bring civil and administrative enforcement actions
for violations of Section 1090, and requires the FPPC to
provide opinions and advice with respect to Section 1090.
AB 850 (De La Torre) of 2009, would have provided that no person
shall knowingly induce or participate in or conspire with a
public official to violate Section 1090. AB 850 was held on
the Assembly Appropriations Committee's suspense file.
REGISTERED SUPPORT / OPPOSITION :
Support Opposition
California District Attorneys AssociationNone on file.
California Police Chiefs Association
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094