Bill Text: CA SB330 | 2015-2016 | Regular Session | Amended
Bill Title: Public officers: contracts: financial interest.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-11-30 - From Assembly without further action. [SB330 Detail]
Download: California-2015-SB330-Amended.html
BILL NUMBER: SB 330 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 18, 2015
AMENDED IN ASSEMBLY JULY 7, 2015
AMENDED IN SENATE JUNE 1, 2015
INTRODUCED BY Senator Mendoza
FEBRUARY 23, 2015
An act to amend, repeal, and add Section 1091 of the Government
Code, relating to public officers.
LEGISLATIVE COUNSEL'S DIGEST
SB 330, as amended, Mendoza. Public officers: contracts: financial
interest.
(1) Existing law prohibits Members of the Legislature, and state,
county, district, judicial district, and city officers or employees
from being financially interested in a contract, as specified, made
by them in their official capacity or by any body or board of which
they are members, subject to specified exceptions. Existing law
identifies certain remote interests that are not subject to this
prohibition and other situations in which an official is not deemed
to be financially interested in a contract, including, among others,
that of a parent in the earnings of his or her minor child for
personal services. Existing law makes a willful violation of this
prohibition a crime.
This bill would, on and after January 1, 2017, instead include
within the definition of remote interests that of a public officer
who is an elected member of any state or local body, board, or
commission, if that public officer's spouse, child, parent, sibling,
or the spouse of the child, parent, or sibling, has a financial
interest in any contract made by that public officer in his or her
official capacity, or by any body, board, or commission of which that
public officer is a member.
(2) Existing law imposes a criminal penalty for every officer or
person who willfully violates the prohibitions against making or
being financially interested in contracts, as specified.
This bill would additionally provide that a member who knows
and fails to disclose his or her remote interest in a contract, as
defined, or knows and willfully fails to disclose the fact of his or
her remote interest in a contract, as defined, is subject to criminal
penalty. By expanding these prohibitions, this bill would
create a new crime, and thus, would impose a state-mandated local
program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1091 of the Government Code is amended to read:
1091. (a) An officer shall not be deemed to be interested in a
contract entered into by a body or board of which the officer is a
member within the meaning of this article if the officer has only a
remote interest in the contract and if the fact of that interest is
disclosed to the body or board of which the officer is a member and
noted in its official records, and thereafter the body or board
authorizes, approves, or ratifies the contract in good faith by a
vote of its membership sufficient for the purpose without counting
the vote or votes of the officer or member with the remote interest.
(b) As used in this article, "remote interest" means any of the
following:
(1) That of an officer or employee of a nonprofit entity exempt
from taxation pursuant to Section 501(c)(3) of the Internal Revenue
Code (26 U.S.C. Sec. 501(c)(3)), pursuant to Section 501(c)(5) of the
Internal Revenue Code (26 U.S.C. Sec. 501(c)(5)), or a nonprofit
corporation, except as provided in paragraph (8) of subdivision (a)
of Section 1091.5.
(2) That of an employee or agent of the contracting party, if the
contracting party has 10 or more other employees and if the officer
was an employee or agent of that contracting party for at least three
years prior to the officer initially accepting his or her office and
the officer owns less than 3 percent of the shares of stock of the
contracting party; and the employee or agent is not an officer or
director of the contracting party and did not directly participate in
formulating the bid of the contracting party.
For purposes of this paragraph, time of employment with the
contracting party by the officer shall be counted in computing the
three-year period specified in this paragraph even though the
contracting party has been converted from one form of business
organization to a different form of business organization within
three years of the initial taking of office by the officer. Time of
employment in that case shall be counted only if, after the transfer
or change in organization, the real or ultimate ownership of the
contracting party is the same or substantially similar to that which
existed before the transfer or change in organization. For purposes
of this paragraph, stockholders, bondholders, partners, or other
persons holding an interest in the contracting party are regarded as
having the "real or ultimate ownership" of the contracting party.
(3) That of an employee or agent of the contracting party, if all
of the following conditions are met:
(A) The agency of which the person is an officer is a local public
agency located in a county with a population of less than 4,000,000.
(B) The contract is competitively bid and is not for personal
services.
(C) The employee or agent is not in a primary management capacity
with the contracting party, is not an officer or director of the
contracting party, and holds no ownership interest in the contracting
party.
(D) The contracting party has 10 or more other employees.
(E) The employee or agent did not directly participate in
formulating the bid of the contracting party.
(F) The contracting party is the lowest responsible bidder.
(4) That of a parent in the earnings of his or her minor child for
personal services.
(5) That of a landlord or tenant of the contracting party.
(6) That of an attorney of the contracting party or that of an
owner, officer, employee, or agent of a firm that renders, or has
rendered, service to the contracting party in the capacity of
stockbroker, insurance agent, insurance broker, real estate agent, or
real estate broker, if these individuals have not received and will
not receive remuneration, consideration, or a commission as a result
of the contract and if these individuals have an ownership interest
of 10 percent or more in the law practice or firm, stock brokerage
firm, insurance firm, or real estate firm.
(7) That of a member of a nonprofit corporation formed under the
Food and Agricultural Code or a nonprofit corporation formed under
the Corporations Code for the sole purpose of engaging in the
merchandising of agricultural products or the supplying of water.
(8) That of a supplier of goods or services when those goods or
services have been supplied to the contracting party by the officer
for at least five years prior to his or her election or appointment
to office.
(9) That of a person subject to the provisions of Section 1090 in
any contract or agreement entered into pursuant to the provisions of
the California Land Conservation Act of 1965.
(10) Except as provided in subdivision (b) of Section 1091.5, that
of a director of, or a person having an ownership interest of, 10
percent or more in a bank, bank holding company, or savings and loan
association with which a party to the contract has a relationship of
borrower or depositor, debtor or creditor.
(11) That of an engineer, geologist, or architect employed by a
consulting engineering or architectural firm. This paragraph applies
only to an employee of a consulting firm who does not serve in a
primary management capacity, and does not apply to an officer or
director of a consulting firm.
(12) That of an elected officer otherwise subject to Section 1090,
in any housing assistance payment contract entered into pursuant to
Section 8 of the United States Housing Act of 1937 (42 U.S.C. Sec.
1437f) as amended, provided that the housing assistance payment
contract was in existence before Section 1090 became applicable to
the officer and will be renewed or extended only as to the existing
tenant, or, in a jurisdiction in which the rental vacancy rate is
less than 5 percent, as to new tenants in a unit previously under a
Section 8 contract. This section applies to any person who became a
public official on or after November 1, 1986.
(13) That of a person receiving salary, per diem, or reimbursement
for expenses from a government entity.
(14) That of a person owning less than 3 percent of the shares of
a contracting party that is a for-profit corporation, provided that
the ownership of the shares derived from the person's employment with
that corporation.
(15) That of a party to litigation involving the body or board of
which the officer is a member in connection with an agreement in
which all of the following apply:
(A) The agreement is entered into as part of a settlement of
litigation in which the body or board is represented by legal
counsel.
(B) After a review of the merits of the agreement and other
relevant facts and circumstances, a court of competent jurisdiction
finds that the agreement serves the public interest.
(C) The interested member has recused himself or herself from all
participation, direct or indirect, in the making of the agreement on
behalf of the body or board.
(16) That of a person who is an officer or employee of an
investor-owned utility that is regulated by the Public Utilities
Commission with respect to a contract between the investor-owned
utility and a state, county, district, judicial district, or city
body or board of which the person is a member, if the contract
requires the investor-owned utility to provide energy efficiency
rebates or other type of program to encourage energy efficiency that
benefits the public when all of the following apply:
(A) The contract is funded by utility consumers pursuant to
regulations of the Public Utilities Commission.
(B) The contract provides no individual benefit to the person that
is not also provided to the public, and the investor-owned utility
receives no direct financial profit from the contract.
(C) The person has recused himself or herself from all
participation in making the contract on behalf of the state, county,
district, judicial district, or city body or board of which he or she
is a member.
(D) The contract implements a program authorized by the Public
Utilities Commission.
(c) This section is not applicable to any officer interested in a
contract who influences or attempts to influence another member of
the body or board of which he or she is a member to enter into the
contract.
(d) The willful failure of an officer to disclose the fact of his
or her interest in a contract pursuant to this section is punishable
as provided in Section 1097. That violation does not void the
contract unless the contracting party had knowledge of the fact of
the remote interest of the officer at the time the contract was
executed.
(e) This section shall be repealed on January 1, 2017.
SEC. 2. Section 1091 is added to the Government Code, to read:
1091. (a) An officer shall not be deemed to be interested in a
contract entered into by a body or board of which the officer is a
member within the meaning of this article if the officer has only a
remote interest in the contract and if the fact of that interest is
disclosed to the body or board of which the officer is a member and
noted in its official records, and thereafter the body or board
authorizes, approves, or ratifies the contract in good faith by a
vote of its membership sufficient for the purpose without counting
the vote or votes of the officer or member with the remote interest.
(b) As used in this article, "remote interest" means any of the
following:
(1) That of an officer or employee of a nonprofit entity exempt
from taxation pursuant to Section 501(c)(3) of the Internal Revenue
Code (26 U.S.C. Sec. 501(c)(3)), pursuant to Section 501(c)(5) of the
Internal Revenue Code (26 U.S.C. Sec. 501(c)(5)), or a nonprofit
corporation, except as provided in paragraph (8) of subdivision (a)
of Section 1091.5.
(2) That of an employee or agent of the contracting party, if the
contracting party has 10 or more other employees and if the officer
was an employee or agent of that contracting party for at least three
years prior to the officer initially accepting his or her office and
the officer owns less than 3 percent of the shares of stock of the
contracting party; and the employee or agent is not an officer or
director of the contracting party and did not directly participate in
formulating the bid of the contracting party.
For purposes of this paragraph, time of employment with the
contracting party by the officer shall be counted in computing the
three-year period specified in this paragraph even though the
contracting party has been converted from one form of business
organization to a different form of business organization within
three years of the initial taking of office by the officer. Time of
employment in that case shall be counted only if, after the transfer
or change in organization, the real or ultimate ownership of the
contracting party is the same or substantially similar to that which
existed before the transfer or change in organization. For purposes
of this paragraph, stockholders, bondholders, partners, or other
persons holding an interest in the contracting party are regarded as
having the "real or ultimate ownership" of the contracting party.
(3) That of an employee or agent of the contracting party, if all
of the following conditions are met:
(A) The agency of which the person is an officer is a local public
agency located in a county with a population of less than 4,000,000.
(B) The contract is competitively bid and is not for personal
services.
(C) The employee or agent is not in a primary management capacity
with the contracting party, is not an officer or director of the
contracting party, and holds no ownership interest in the contracting
party.
(D) The contracting party has 10 or more other employees.
(E) The employee or agent did not directly participate in
formulating the bid of the contracting party.
(F) The contracting party is the lowest responsible bidder.
(4) That of a public officer who is an elected member of any state
or local body, board, or commission, if that public officer's
spouse, child, parent, sibling, or the spouse of the child, parent,
or sibling, has a financial interest in any contract made by that
public officer in his or her official capacity, or by any body,
board, or commission of which that public officer is a member.
The member knows and fails to disclose, his or her interest in a
contract pursuant to this paragraph is punishable as provided in
Section 1097. If the member knows and willfully fails to disclose the
fact of his or her interest in a contract pursuant to
this paragraph is punishable as provided in Section 1097. That
violation does not void the contract unless the contracting party had
knowledge of the fact of the remote interest of the officer at the
time the contract was executed.
(5) That of a landlord or tenant of the contracting party.
(6) That of an attorney of the contracting party or that of an
owner, officer, employee, or agent of a firm that renders, or has
rendered, service to the contracting party in the capacity of
stockbroker, insurance agent, insurance broker, real estate agent, or
real estate broker, if these individuals have not received and will
not receive remuneration, consideration, or a commission as a result
of the contract and if these individuals have an ownership interest
of 10 percent or more in the law practice or firm, stock brokerage
firm, insurance firm, or real estate firm.
(7) That of a member of a nonprofit corporation formed under the
Food and Agricultural Code or a nonprofit corporation formed under
the Corporations Code for the sole purpose of engaging in the
merchandising of agricultural products or the supplying of water.
(8) That of a supplier of goods or services when those goods or
services have been supplied to the contracting party by the officer
for at least five years prior to his or her election or appointment
to office.
(9) That of a person subject to the provisions of Section 1090 in
any contract or agreement entered into pursuant to the provisions of
the California Land Conservation Act of 1965.
(10) Except as provided in subdivision (b) of Section 1091.5, that
of a director of, or a person having an ownership interest of, 10
percent or more in a bank, bank holding company, or savings and loan
association with which a party to the contract has a relationship of
borrower or depositor, debtor or creditor.
(11) That of an engineer, geologist, or architect employed by a
consulting engineering or architectural firm. This paragraph applies
only to an employee of a consulting firm who does not serve in a
primary management capacity, and does not apply to an officer or
director of a consulting firm.
(12) That of an elected officer otherwise subject to Section 1090,
in any housing assistance payment contract entered into pursuant to
Section 8 of the United States Housing Act of 1937 (42 U.S.C. Sec.
1437f) as amended, provided that the housing assistance payment
contract was in existence before Section 1090 became applicable to
the officer and will be renewed or extended only as to the existing
tenant, or, in a jurisdiction in which the rental vacancy rate is
less than 5 percent, as to new tenants in a unit previously under a
Section 8 contract. This section applies to any person who became a
public official on or after November 1, 1986.
(13) That of a person receiving salary, per diem, or reimbursement
for expenses from a government entity.
(14) That of a person owning less than 3 percent of the shares of
a contracting party that is a for-profit corporation, provided that
the ownership of the shares derived from the person's employment with
that corporation.
(15) That of a party to litigation involving the body or board of
which the officer is a member in connection with an agreement in
which all of the following apply:
(A) The agreement is entered into as part of a settlement of
litigation in which the body or board is represented by legal
counsel.
(B) After a review of the merits of the agreement and other
relevant facts and circumstances, a court of competent jurisdiction
finds that the agreement serves the public interest.
(C) The interested member has recused himself or herself from all
participation, direct or indirect, in the making of the agreement on
behalf of the body or board.
(16) That of a person who is an officer or employee of an
investor-owned utility that is regulated by the Public Utilities
Commission with respect to a contract between the investor-owned
utility and a state, county, district, judicial district, or city
body or board of which the person is a member, if the contract
requires the investor-owned utility to provide energy efficiency
rebates or other type of program to encourage energy efficiency that
benefits the public when all of the following apply:
(A) The contract is funded by utility consumers pursuant to
regulations of the Public Utilities Commission.
(B) The contract provides no individual benefit to the person that
is not also provided to the public, and the investor-owned utility
receives no direct financial profit from the contract.
(C) The person has recused himself or herself from all
participation in making the contract on behalf of the state, county,
district, judicial district, or city body or board of which he or she
is a member.
(D) The contract implements a program authorized by the Public
Utilities Commission.
(c) This section is not applicable to any officer interested in a
contract who influences or attempts to influence another member of
the body or board of which he or she is a member to enter into the
contract.
(d) The willful failure of an officer to disclose the fact of his
or her interest in a contract pursuant to this section is punishable
as provided in Section 1097. That violation does not void the
contract unless the contracting party had knowledge of the fact of
the remote interest of the officer at the time the contract was
executed.
(e) This section shall become operative on January 1, 2017.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
