New California Law Authorizes FPPC to Provide Advice or Opinions, Investigate and Enforce Violations of Government Code Section 1090

by Best Best & Krieger LLP
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AB 1090 Will Take Effect January 1, 2014

AB 1090, signed by Governor Brown this week, authorizes the Fair Political Practices Commission (FPPC) to investigate or initiate an administrative or civil action (including significant fines) against an officer or other person for violation of Government Code section 1090. Government Code section 1090 prohibits public officials and employees from having financial interests in any contract made by them in their official capacity, or by any body or board of which they are members. The bill, which is effective January 1, 2014, requires that the District Attorney in the county in which the alleged violation occurred authorize the FPPC to pursue the action, but prohibits the FPPC from filing a civil action if the Attorney General or District Attorney is pursuing a criminal prosecution of the person.

AB 1090 also authorizes any local government official or employee to request advice or an opinion from the FPPC regarding his or her duties under Section 1090. The FPPC is required to send a copy of the request to the Attorney General and the local District Attorney prior to proceeding with the advice or opinion. The FPPC’s advice or opinion can be offered by the requester, but not by other persons, as evidence of good faith conduct in an enforcement proceeding initiated by the FPPC.

The bill also adds an additional “non-interest” exception for the interest of a Board member in a contract for “public services” with a special district that requires a person to be a landowner or represent a landowner to serve on the board, as long as the contract is on the same terms as if he or she were not a board member. “Non-interest” exceptions, found in Government Code section 1091.5, are narrow circumstances in which the Legislature has determined that certain interests of a public official or employee are not considered interests for purposes of Section 1090. For purposes of this new exception, “public services” is defined as the powers and purposes generally provided under the Water Code sections relating to irrigation districts, California water districts, water storage districts, or reclamation districts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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