Bill Text: CA AB1090 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Public officers: conflicts of interest: contracts.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2013-10-08 - Chaptered by Secretary of State - Chapter 650, Statutes of 2013. [AB1090 Detail]

Download: California-2013-AB1090-Introduced.html

---

BILL NUMBER: AB 1090	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Fong

                        FEBRUARY 22, 2013

   An act to amend Section 1097 of, and to add Sections 1097.1,
1097.2, 1097.3, and 1097.4 to, the Government Code, relating to
public officers.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1090, as introduced, Fong. Public officers: conflicts of
interest: contracts.
   The Political Reform Act of 1974 establishes the Fair Political
Practices Commission as the agency responsible for enforcing the act.
The act authorizes the Commission to seek and impose administrative
and civil penalties against persons who violate the act, as
prescribed.
   Existing law 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.
Existing law makes a willful violation of this prohibition a crime.
   This bill would also make a person who violates the prohibition
against being financially interested in a contract, or who causes
another person to violate or who aids and abets another person in
violating the prohibition, subject to administrative and civil fines,
as specified. The bill would authorize the Commission to enforce
these violations by bringing an administrative or civil action
against a person who is subject to the prohibition, as specified.
   The Political Reform Act of 1974, an initiative measure, provides
that the Legislature may amend the act to further the act's purposes
upon a 2/3 vote of each house and compliance with specified
procedural requirements.
   This bill would declare that it furthers the purposes of the act.

   Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1097 of the Government Code is amended to read:

   1097.   Every   (a)     An
 officer or person prohibited by the laws of this state from
making or being interested in contracts, or from becoming a vendor or
purchaser at sales, or from purchasing  script 
 scrip  , or other evidences of indebtedness, including any
member of the governing board of a school district, who willfully
violates any  of the provisions of such  
provision of those  laws  ,  is punishable by a
fine of not more than one thousand dollars ($1,000), or by
imprisonment in the state prison, and is forever disqualified from
holding any office in this state. 
   (b) An officer or person prohibited by the laws of this state from
making or being interested in contracts, or from becoming a vendor
or purchaser at sales, or from purchasing scrip, or other evidences
of indebtedness, including any member of the governing board of a
school district, who violates any provision of those laws, who causes
any other person to violate any provision of those laws, or who aids
and abets any other person in the violation of any provision of
those laws shall be liable in an administrative action commenced by
the Commission as provided in Section 1097.1 or a civil action
commenced by the Commission as provided in Section 1097.2.  

   (c) The Commission shall not commence an administrative or civil
action pursuant to subdivision (b) against a person if a criminal
prosecution is being pursued against that person pursuant to
subdivision (a).  
   (d) If two or more persons are responsible for a violation of this
section, they shall be jointly and severally liable. 
   (e) For purposes of this section and Sections 1097.1, 1097.2,
1097.3, and 1097.4, "Commission" means the Fair Political Practices
Commission. 
  SEC. 2.  Section 1097.1 is added to the Government Code, to read:
   1097.1.  (a) Upon the sworn complaint of a person or on its own
initiative, the Commission may investigate possible violations of
Section 1090 relating to any officer or person subject to that
section. Within 14 days after receipt of a complaint, the Commission
shall notify in writing the person who made the complaint of the
action, if any, the Commission has taken or plans to take on the
complaint, together with the reasons for such action or nonaction. If
no decision has been made within 14 days, the person who made the
complaint shall be notified of the reasons for the delay and shall
subsequently receive notification as provided above.
   (b) The Commission shall not make a finding of probable cause to
believe Section 1090 has been violated unless, at least 21 days prior
to the Commission's consideration of the alleged violation, the
person alleged to have violated Section 1090 is notified of the
alleged violation by service of process or registered mail with
return receipt requested, provided with a summary of the evidence,
and informed of his or her right to be present in person and
represented by counsel at any proceeding of the Commission held for
the purpose of considering whether probable cause exists for
believing the person violated Section 1090. Notice to the alleged
violator shall be deemed made on the date of service, the date the
registered mail receipt is signed, or if the registered mail receipt
is not signed, the date returned by the post office. A proceeding
held for the purpose of considering probable cause shall be private
unless the alleged violator files with the Commission a written
request that the proceeding be public.
   (c) If the Commission determines there is probable cause to
believe Section 1090 has been violated, it may hold a hearing to
determine if a violation has occurred. Notice shall be given and the
hearing conducted in accordance with the Administrative Procedure Act
(Chapter 5 (commencing with Section 11500) of Part 1 of Division 3
of Title 2). The Commission shall have all the powers granted by that
chapter. If the Commission determines that no violation has
occurred, it shall issue a letter so stating. If the Commission
determines on the basis of a hearing that a violation has occurred,
it shall issue an order requiring the violator to cease and desist
violation of Section 1090, pay a monetary penalty of up to five
thousand dollars ($5,000) per violation to the Commission for deposit
in the General Fund of the state, or both.
   (d) If the Commission rejects the decision of an administrative
law judge made pursuant to Section 11517, the Commission shall state
the reasons in writing for rejecting the decision.
   (e) The Commission may subpoena witnesses, compel their attendance
and testimony, administer oaths and affirmations, take evidence and
require by subpoena the production of books, papers, records, or
other items material to the performance of the Commission's duties or
exercise of its powers under this section.
   (f) The Commission may refuse to excuse a person from testifying,
or from producing books, records, correspondence, documents, or other
evidence in obedience to a subpoena of the Commission
notwithstanding an objection that the testimony or evidence required
of him or her may tend to incriminate that person. An individual
shall not be prosecuted in any manner or subjected to any penalty or
forfeiture for or on account of any transaction, act, matter, or
thing concerning which he or she is compelled, after having claimed
his or her privilege against self-incrimination, to testify or
produce evidence, except that the individual so testifying shall not
be exempt from prosecution and punishment for perjury committed in so
testifying. Immunity shall not be granted to a witness under this
section unless the Commission has notified the Attorney General of
its intention to grant immunity to the witness at least 30 days in
advance or unless the Attorney General waives this requirement.
   (g) An interested person may seek judicial review of any action of
the Commission under this section.
   (h) The Commission shall not commence an administrative action
pursuant to this section against a person who is subject to Section
1090 alleging a violation of that section if the Commission has
commenced a civil action pursuant to Section 1097.2 against that
person for the same violation.
   (i) An administrative action shall be brought pursuant to this
section no later than five years after the date on which the
violation occurred.
   (1) For purposes of this subdivision, the commencement of the
administrative action shall be the date of the service of the
probable cause hearing notice, as required by subdivision (b), upon
the person alleged to have violated Section 1090.
   (2) If the person alleged to have violated Section 1090 engages in
the fraudulent concealment of his or her acts or identity, the
five-year period shall be tolled for the period of concealment. For
purposes of this subdivision, "fraudulent concealment" means the
person knows of material facts related to his or her duties under
Section 1090 and knowingly conceals them in performing or failing to
perform those duties, for the purpose of defrauding the public of
information to which it is entitled.
   (3) If, upon being ordered by a superior court to produce any
documents sought by a subpoena in any administrative action under
this section, the person alleged to have violated Section 1090 fails
to produce documents in response to the order by the date ordered to
comply therewith, the five-year period shall be tolled for the period
of the delay from the date of filing of the motion to compel until
the date the documents are produced.
  SEC. 3.  Section 1097.2 is added to the Government Code, to read:
   1097.2.  (a) The Commission may file a civil action against a
person subject to the prohibitions identified in Section 1090. A
person held liable for a violation of Section 1090 shall be subject
to a civil fine payable to the Commission for deposit in the General
Fund of the state in an amount not to exceed three times the value of
the financial benefit received by the person, as determined by the
trier of fact.
   (b) The Commission shall not commence a civil action pursuant to
this section alleging a violation of Section 1090 if the Commission
has commenced an administrative action pursuant to Section 1097.1
against the person for the same violation.
   (c) A civil action brought by the Commission pursuant to this
section shall be filed not more than four years after the date the
violation occurred.
  SEC. 4.  Section 1097.3 is added to the Government Code, to read:
   1097.3.  (a) In addition to any other remedies available, the
Commission may obtain a judgment in superior court for the purpose of
collecting any unpaid monetary penalties, fees, or civil penalties
imposed pursuant to Section 1097.1 or 1097.2. The action may be filed
as a small claims, limited civil, or unlimited civil case, depending
on the jurisdictional amount. The venue for this action shall be in
the county where the monetary penalties, fees, or civil penalties
were imposed. In order to obtain a judgment in an action under this
section, the Commission shall show, following the procedures and
rules of evidence as applied in ordinary civil actions, all of the
following:
   (1) The monetary penalties, fees, or civil penalties were imposed
following the procedures set forth in Section 1097.1 or 1097.2.
   (2) The defendant or defendants in the action were notified, by
actual or constructive notice, of the imposition of the monetary
penalties, fees, or civil penalties.
   (3) A demand for payment has been made by the Commission and full
payment has not been received.
   (b) A civil action brought pursuant to subdivision (a) shall be
commenced within four years after the date on which the monetary
penalty, fee, or civil penalty was imposed.
  SEC. 5.  Section 1097.4 is added to the Government Code, to read:
   1097.4.  (a) If the time for judicial review of a final Commission
order or decision issued pursuant to Section 1097.1 has lapsed, or
if all means of judicial review of the order or decision have been
exhausted, the Commission may apply to the clerk of the superior
court for a judgment to collect the penalties imposed by the order or
decision, or the order as modified in accordance with a decision on
judicial review.
   (1) The application, which shall include a certified copy of the
order or decision, or the order as modified in accordance with a
decision on judicial review, and proof of service of the order or
decision, constitutes a sufficient showing to warrant issuance of the
judgment to collect the penalties. The clerk of the court shall
enter the judgment immediately in conformity with the application.
   (2) An application made pursuant to this section shall be made to
the clerk of the superior court in the county where the monetary
penalties, fees, or civil penalties were imposed by the Commission.
   (3) A judgment entered in accordance with this section has the
same force and effect as, and is subject to all the provisions of law
relating to, a judgment in a civil action and may be enforced in the
same manner as any other judgment of the court in which it is
entered.
   (4) The Commission may bring an application pursuant to this
section only within four years after the date on which the monetary
penalty, fee, or civil penalty was imposed.
   (b) The remedy available under this section is in addition to
those available under Section 1097.3 or any other law.
  SEC. 6.  The Legislature finds and declares that this bill furthers
the purposes of the Political Reform Act of 1974 within the meaning
of subdivision (a) of Section 81012 of the Government Code.