BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 910


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          Date of Hearing:  April 15, 2015


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB 910  
          (Harper) - As Amended March 19, 2015


          SUBJECT:  Political Reform Act of 1974:  local enforcement.


          SUMMARY:  Authorizes the Fair Political Practices Commission  
          (FPPC) to administer and enforce a local campaign finance  
          ordinance upon mutual agreement between the FPPC and a local  
          agency, as specified.  Specifically, this bill:  


          1)Defines a local agency to mean a city, county, or city and  
            county.


          2)Permits the FPPC to enter into a mutual agreement with the  
            governing body of a local agency to enforce a local campaign  
            finance ordinance.  Provides that the FPPC, upon mutual  
            agreement between the FPPC and the governing body of a local  
            agency, is authorized to assume primary responsibility for the  
            impartial, effective administration, implementation, and  
            enforcement of a local campaign finance ordinance of the local  
            agency if the agreement has been approved by either of the  
            following:


             a)   The governing body of the local agency; or, 









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             b)   A majority of the voters in the local agency who voted  
               on the agreement. 


          3)Provides, upon approval of an agreement mentioned above, that  
            the FPPC shall be the civil prosecutor responsible for the  
            civil enforcement of the local campaign finance ordinance of  
            the local agency pursuant to this bill.  Permits the FPPC, as  
            the civil prosecutor of the local agency's campaign finance  
            ordinance, to do all of the following with respect to the  
            local campaign finance ordinance:


             a)   Provide advice;


             b)   Investigate possible violations;


             c)   Bring administrative actions in accordance with the  
               provisions of this bill; and,


             d)   Bring civil actions.


          4)Provides that the FPPC shall not be required to obtain  
            authorization from the city or district attorney of the local  
            agency to bring an administrative or civil action pursuant to  
            the provisions of this bill. 


          5)Requires a local campaign finance ordinance of the local  
            agency enforced by the FPPC to comply with the provisions of  
            this bill.


          6)Requires the governing body of the local agency to consult  








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            with the FPPC prior to adopting and amending any local  
            campaign finance ordinance that is subsequently enforced by  
            the FPPC pursuant to this bill.


          7)Permits the governing body of the local agency and the FPPC to  
            enter into any agreement necessary and appropriate to carry  
            out the provisions of this bill, including agreements  
            pertaining to any necessary reimbursement of state costs with  
            county funds for costs incurred by the FPPC in administering,  
            implementing, or enforcing a local campaign finance ordinance  
            pursuant to the provisions of this bill.


          8)Prohibits an agreement entered into pursuant to the provisions  
            of this bill from containing any form of a cancellation fee, a  
            liquidated damages provision, or other financial disincentive  
            to the exercise of the right to terminate the agreement,  
            except that the FPPC may require the governing body of the  
            local agency to pay the FPPC for services rendered and any  
            other expenditures reasonably made by the FPPC in anticipation  
            of services to be rendered pursuant to the agreement in the  
            event that the governing body of the local agency terminates  
            the agreement. 


          9)Permits the governing body of the local agency, at any time,  
            by ordinance or resolution, to terminate an agreement made  
            pursuant to this bill for the FPPC to administer, implement,  
            or enforce a local campaign finance ordinance or any provision  
            thereof.


          10)Requires the FPPC, if an agreement is entered into pursuant  
            to this bill, to report to the Legislature regarding the  
            performance of that agreement on or before January 1, 2019,  
            and submit that report in compliance with existing law.   
            Requires the FPPC to develop the report in consultation with  
            the local agency.  Requires the report to include, by not be  








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            limited to, all of the following:


             a)   The status of the agreement;


             b)   The estimated annual cost savings, if any, for the local  
               agency;


             c)   A summary of relevant annual performance metrics,  
               including measures of utilization, enforcement, and  
               customer satisfaction; 


             d)   Any public comments submitted to the FPPC or the local  
               agency relative to the operation of the agreement; and,


             e)   Any legislative recommendations.


          11)Contains a January 1, 2020 sunset date.


          EXISTING LAW:  


          1)Creates the FPPC, and makes it responsible for the impartial,  
            effective administration and implementation of the PRA.

          2)Requires a local government agency that adopts or amends a  
            local campaign finance ordinance to file a copy of the  
            ordinance with the FPPC.

          3)Prohibits a local government agency from enacting a campaign  
            finance ordinance that imposes campaign reporting requirements  
            that are additional to or different from those set forth in  
            the PRA for elections held in its jurisdiction unless the  








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            additional or different requirements apply only to the  
            candidates seeking election in that jurisdiction, their  
            controlled committees or committees formed or existing  
            primarily to support or oppose their candidacies, and to  
            committees formed or existing primarily to support or oppose a  
            candidate or to support or oppose the qualification or passage  
            of a local ballot measure which is being voted on only in that  
            jurisdiction, and to city or county general purpose committees  
            active only in that city or county, respectively.

          4)Authorizes the FPPC, until January 1, 2018, upon mutual  
            agreement between the FPPC and the San Bernardino County Board  
            of Supervisors, to have primary responsibility for the  
            impartial, effective administration, implementation, and  
            enforcement of a local San Bernardino County campaign finance  
            reform ordinance.  Requires the San Bernardino County Board of  
            Supervisors to consult with the FPPC prior to adopting and  
            amending any local campaign finance reform ordinance that is  
            subsequently enforced by the FPPC.

          5)Authorizes the FPPC, pursuant to the aforementioned agreement,  
            to investigate possible violations of the San Bernardino  
            County campaign finance reform ordinance and bring  
            administrative actions against persons who violate the  
            ordinance, as specified.  

          6)Permits the San Bernardino County Board of Supervisors and the  
            FPPC to enter into any agreements necessary and appropriate  
            for the operation of these provisions, including agreements  
            for reimbursement of state costs with county funds, as  
            specified.  Permits the San Bernardino County Board of  
            Supervisors or the FPPC, at any time, by ordinance or  
            resolution, to terminate any agreement for the FPPC to  
            administer, implement, or enforce the local campaign finance  
            reform ordinance or any provision thereof.

          7)Requires the FPPC to report to the Legislature with specified  
            information on or before January 1, 2017, if the FPPC enters  
            into such an agreement with the San Bernardino County Board of  








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            Supervisors.

          FISCAL EFFECT:  Unknown


          COMMENTS:  


          1)Author's Amendments:  After the committee deadline for  
            amending this bill prior to today's committee hearing, the  
            author submitted amendments to add co-authors and make minor,  
            technical changes to the bill.  Those amendments, which are  
            reflected in this analysis, are entirely nonsubstantive.

          2)Purpose of the Bill:  According to the author:


               AB 910 will enable cities and counties, upon approval by  
               voters within the affected jurisdiction to contract with  
               the Fair Political Practice Commission (FPPC) for the  
               administration and enforcement of local campaign finance  
               laws.



               The Political Reform Act of 1974 allows local governments  
               to adopt more stringent campaign finance laws for elections  
               within their jurisdiction.  



               The FPPC has broad authority across the state to enforce  
               the Political Reform Act, but it does not assume primary  
               responsibility for a local government's additional campaign  
               finance laws.  












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               Instead, the county board of supervisors or the city  
               council must monitor local ordinances or create an Ethics  
               Commission with this authority. 

               Implementing either of these options can be cost  
               prohibitive for local governments.


               This bill is modeled after legislation from 2012, which  
               authorized the FPPC to contract with the County of San  
               Bernardino to assume primary responsibility for the  
               County's campaign finance laws.



               AB 910 extends these provisions to any participating city  
               or county upon voter approval and authorizes the FPPC to  
               become the civil prosecutor responsible for the civil  
               enforcement of local campaign finance violations.



               Contracting with the FPPC gives local governments the  
               ability to bring in an experienced, independent, and  
               impartial entity to investigate possible violations and  
               bring administrative or civil action against violators.


          3)San Bernardino County:  In 2012, the Legislature passed and  
            the Governor signed AB 2146 (Cook), Chapter 169, Statutes of  
            2012, which permitted San Bernardino County and the FPPC to  
            enter into an agreement that provides for the FPPC to enforce  
            the County's local campaign finance reform ordinance.  Prior  
            to this the FPPC did not enforce any local campaign finance  
            ordinances.  According to previous analyses, the County of San  
            Bernardino, which had been the subject of several high-profile  
            corruption cases, was in the process of developing a campaign  
            finance ordinance.  Rather than appoint an ethics commission,  








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            which could present financial as well as conflict of interest  
            challenges, the County proposed to contract with the FPPC to  
            enforce their local campaign finance ordinance.  Moreover, the  
            County determined that it was in the best interest of the  
            County to retain the services of the FPPC to provide for the  
            enforcement and interpretation of San Bernardino County's  
            local campaign finance ordinance as the FPPC has special  
            skills, knowledge, experience, and expertise in the area of  
            enforcement and interpretation of campaign laws necessary to  
            effectively advise, assist, litigate, and otherwise represent  
            the County on such matters.  As a result, the FPPC and San  
            Bernardino County entered into a mutual agreement, from  
            January 1, 2013 through December 31, 2014, for the FPPC to  
            provide the County campaign enforcement and interpretation  
            services for the impartial, effective administration,  
            implementation, and enforcement of the San Bernardino's  
            campaign finance reform ordinance. According to the FPPC, San  
            Bernardino County and the FPPC have entered into a new two  
            year mutual agreement.   



          This bill is similar to the provisions of AB 2146 (Cook),  
            however, this bill adds a few new elements to these  
            provisions.  First, this bill provides that the FPPC is  
            authorized to assume primary responsibility for the impartial,  
            effective administration, implementation, and enforcement of  
            the local campaign finance ordinance of the local agency if  
            the agreement is approved by either the governing body of the  
            local agency or a majority of the voters in the local agency  
            who voted on the agreement.  According to background  
            information provided by the author's office, in November 2014,  
            Orange County voters approved Measure E, which authorized the  
            County to contract with the FPPC for the administration and  
            enforcement of its local campaign finance ordinance, commonly  
            referred to as TINCUP.  Consequently, this bill and this  
            particular provision is an attempt to fulfill the will of  
            Orange County voters.  









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          Additionally, this bill expands the duties of the FPPC, as the  
            civil prosecutor of the local agency's campaign finance  
            ordinance, to provide advice and bring civil actions.   
            Finally, this bill provides that the FPPC shall not be  
            required to obtain authorization from the city or district  
            attorney of the local agency to bring an administrative or  
            civil action.  This provision may be problematic as it sets  
            different rules for different local agencies that the FPPC may  
            contract with.  
          4)Local Campaign Ordinances and the PRA:  Under existing law,  
            local government agencies have the ability to adopt campaign  
            ordinances that apply to elections within their jurisdictions,  
            though the PRA imposes certain limited restrictions on those  
            local ordinances.  For instance, SB 726 (McCorquodale),  
            Chapter 1456, Statutes of 1985, limited the ability of local  
            jurisdictions to impose campaign filing requirements that  
            differed from those in the PRA, permitting such requirements  
            only when they applied solely to candidates and committees  
            whose activity is restricted primarily to the jurisdiction in  
            question.  This provision sought to avoid the necessity of a  
            candidate or committee active over a wider area being required  
            to adhere to several different campaign filing schedules.   
            Similarly, AB 1430 (Garrick), Chapter 708, Statutes of 2007,  
            prohibited local governments from adopting rules governing  
            member communications that are different than the rules that  
            govern member communications at the state level.  



          Aside from these restrictions, however, local government  
            agencies generally have a significant amount of latitude when  
            developing local campaign finance ordinances that apply to  
            elections in those agencies' jurisdictions.  Any jurisdiction  
            that adopts or amends a local campaign finance ordinance is  
            required to file a copy of that ordinance with the FPPC, and  
            the FPPC posts those ordinances on its website.  

          Several cities and counties have adopted campaign finance  
            ordinances, some of which are very extensive.  In some cases,  








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            those ordinances include campaign contribution limits,  
            reporting and disclosure requirements that supplement the  
            requirements of the PRA, temporal restrictions on when  
            campaign funds may be raised, and voluntary public financing  
            of local campaigns, among other provisions.  In many cases,  
            local campaign finance ordinances are enforced by the district  
            attorney of the county or by the city attorney.  In at least a  
            few cases, however, local jurisdictions have set up  
            independent boards or commissions to enforce the local  
            campaign finance laws.

          The FPPC does not currently enforce any local campaign finance  
            ordinances other than San Bernardino County's.  The FPPC can  
            and does, however, bring enforcement actions in response to  
            violations of the PRA that occur in campaigns for local  
            office, even in cases where the local jurisdiction brings  
            separate enforcement actions for violations of a local  
            campaign finance ordinance.
          5)Criminal, Civil, and Administrative Enforcement of the PRA and  
            Local Campaign Ordinances:  Violations of the PRA are subject  
            to administrative, civil, and criminal penalties.  Generally,  
            the Attorney General (AG) and district attorneys have  
            responsibility for enforcing the criminal provisions of the  
            PRA, though any elected city attorney of a charter city also  
            has the authority to act as the criminal prosecutor for  
            violations of the PRA that occur within the city.  The FPPC,  
            the AG, district attorneys, and elected city attorneys of  
            charter cities all have responsibility for enforcement of the  
            civil penalties and remedies provided under the PRA, depending  
            on the nature and location of the violation, while any member  
            of the public also has the ability to file a civil action to  
            enforce the civil provisions of the PRA, subject to certain  
            restrictions.  The FPPC has the sole authority to bring  
            administrative proceedings for enforcement of the PRA.  When  
            the FPPC determines on the basis of such a proceeding that a  
            violation of the PRA has occurred, it can impose monetary  
            penalties of up to $5,000 per violation, in addition to  
            ordering the violator to cease and desist violation of the PRA  
            and to file any reports, statements, or other documents or  








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            information required by the PRA.

          In the case of local campaign ordinances, there is no single  
            approach as to the types of penalties that are available for  
            the violations of those ordinances.  Many local ordinances  
            provide for misdemeanor or civil penalties for violations,  
            while some ordinances do not establish any penalties for  
            violations.  In some local jurisdictions that have independent  
            boards or commissions to enforce the local campaign finance  
            ordinances, those boards or commissions have the authority to  
            bring administrative enforcement proceedings, similar to the  
            authority the FPPC has under the PRA.

          6)Is Expansion of the Law too Soon?  As mentioned above, in  
            2012, AB 2146 (Cook), was enacted to permit San Bernardino  
            County and the FPPC to enter into an agreement for the FPPC to  
            enforce the County's local campaign finance reform ordinance.   
            Among other provisions, AB 2146 also required the FPPC, if it  
            entered into an agreement with the San Bernardino County Board  
            of Supervisors, to report to the Legislature with specified  
            information on or before January 1, 2017.  Current law  
            requires the report to include, but not be limited to, the  
            status of the agreement, the estimated annual cost savings, if  
            any, for the County of San Bernardino, a summary of relevant  
            annual performance metrics, as specified, any public comments  
            submitted relative to the operation of the agreement, and any  
            legislative recommendations.  The committee is not aware that  
            any report has been submitted from the FPPC to the  
            Legislature.  The committee may wish to consider whether it is  
            prudent to expand the law to allow more participating cities  
            or counties to authorize the FPPC to administer and enforce  
            their local campaign finance ordinances when the Legislature  
            has not received a report detailing the effectiveness of the  
            current agreement between the FPPC and San Bernardino County.

          Furthermore, the committee may wish to consider whether such an  
            expansion of the FPPC's workload could negatively impact the  
            ongoing enforcement of the PRA.  Because there is no guarantee  
            that local campaign finance ordinances will be consistent with  








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            the general framework of the PRA, each additional local  
            ordinance that the FPPC is asked to enforce could add  
            complexity to the FPPC's work.  Moreover, while the added  
            complexity of a single ordinance and a single jurisdiction  
            likely can be handled by the FPPC without much difficulty,  
            this bill allows for the FPPC to enter into similar  
            arrangements with other jurisdictions, adding complexity of  
            tracking and enforcing multiple (potentially inconsistent)  
            ordinances in multiple jurisdictions, which could harm the  
            FPPC's ability to focus on its primary responsibility of  
            enforcing the PRA.

          On the other hand, this bill does require a mutual agreement be  
            made between the city council or board of supervisors of the  
            participating city or county and the FPPC.  Moreover, this  
            bill gives the FPPC discretion on whether or not they will  
            choose to enter into an agreement with a city or county to  
            administer and enforce its local campaign finance ordinance.  

          7)Arguments in Support:  In support, the Orange County Board of  
            Supervisors, writes:


               Orange County voters approved this proposal with the  
               passage of Measure E in November 2014, which received 57%  
               of the vote.  The bill is modeled after legislation enacted  
               in 2012 with AB 2146 (Cook), Chapter 169 of 2012, which  
               authorized FPPC civil enforcement of San Bernardino  
               County's campaign reform laws.  


          8)Arguments in Opposition:  In opposition, the Orange County  
            Employees Association (OCEA), writes:


               The OCEA takes issue with the county potentially  
               contracting with the FPPC because they are concerned the  
               county's finance law, known as TINCUP, would be invalidated  
               because it's stricter than state law?








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               It is not surprising that the Orange County Board of  
               Supervisors would be pushing legislation allowing the Fair  
               Political Practices Commission to investigate and enforce  
               campaign finance laws in the region.  This would, in their  
               minds, eliminate the need to establish an office of ethics  
                                                           and compliance in Orange County.  Additionally, besides  
               increasing the contribution limits above what is currently  
               allowed in Orange County per TINCUP, the FPPC would be  
               limited to civil, not criminal enforcement.  This is not  
               the direction nor is it the recommendation by Orange County  
               Grand Jury, which issued two reports on the subject.  
          9)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,  
            must further the purposes of the proposition and require a  
            two-thirds vote of each house of the Legislature.


          10)Related Legislation:  AB 1083 (Eggman), which is also being  
            heard in this committee today, is similar to this bill.  AB  
            1083 permits the City Council of the City of Stockton and the  
            FPPC to enter into an agreement that provides for the FPPC to  
            enforce a local campaign finance ordinance passed by the City  
            Council of the City of Stockton.



          11)Previous Legislation:  AB 2146 (Cook), Chapter 169, Statutes  
            of 2012, permitted San Bernardino County and the FPPC to enter  
            into an agreement that provides for the FPPC to enforce the  
            County's local campaign finance ordinance.










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            SB 1226 (Correa) of 2014, authorized any city or county to  
            enter into an agreement with the FPPC to administer and  
            enforce a local campaign finance ordinance.  The bill was  
            gutted and amended in the Assembly Appropriations Committee.


          12)Double Referral:  This bill is double-referred to the  
            Assembly Local Government Committee. 






































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          REGISTERED SUPPORT / OPPOSITION:




          Support


          Orange County Board of Supervisors




          Opposition


          Orange County Employees Association


          Four individuals




          Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094