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SB-292 Counties: contract legal counsel: auditor-controller.(2017-2018)

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Date Published: 04/06/2017 04:00 AM
SB292:v98#DOCUMENT

Amended  IN  Senate  April 05, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 292


Introduced by Senator Bates
(Principal coauthor: Senator coauthors: Senators Mendoza and Nguyen)
(Principal coauthors: Assembly Members Brough and Daly)

February 09, 2017


An act to amend Sections 24054 and 29611 of, to add Section 26881.5 to, and to add Article 5 (commencing with Section 26950) to Chapter 4 of Part 3 of Division 2 of Title 3 of, Section 31000.6 of the Government Code, and to amend Section 424 of the Penal Code, relating to local government.


LEGISLATIVE COUNSEL'S DIGEST


SB 292, as amended, Bates. Counties: officers: auditor. contract legal counsel: auditor-controller.
Existing law requires a county board of supervisors, upon request of the county assessor or sheriff, to contract with legal counsel to assist the assessor or sheriff with duties for which the district attorney or county counsel would have a conflict of interest in representing the assessor or sheriff. In the event the board of supervisors does not concur with the assessor or sheriff that a conflict of interests exists, existing law authorizes the county assessor or sheriff to initiate an ex parte proceeding before the presiding judge of the superior court, as provided.
This bill would extend these provisions to additionally require the board of supervisors to contract with legal counsel to assist the auditor-controller, as described above. By adding to the duties of county boards of supervisors with respect to contracts for legal counsel, this bill would impose a state-mandated local program.
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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

(1)Existing law holds any officer who authorizes the illegal payment of any claim or demand upon or against the treasury of any county personally liable to the person damaged by that illegal action, as specified.

This bill would provide that this provision does not apply to any person holding the position of elected auditor-controller who has made a decision related to a claim or charge in the course and scope of his or her duties.

(2)Existing law enumerates the officers of a county, including the office of the auditor, prescribes their duties, and permits a county board of supervisors to consolidate, separate, and reconsolidate their duties, as specified. Existing law generally prescribes the duties of the county auditor and requires the county auditor or auditor-controller, as specified, to be the chief accounting officer of the county.

This bill would prohibit the county auditor-controller from drawing a warrant for an illegal claim or charge, including transfers, as specified. This bill would require the county auditor-controller to draw a warrant if a court has ordered payment pursuant to an order that has become effective, as specified.

The bill would authorize an elected county auditor to retain legal counsel to provide advice upon any matter upon which the elected county auditor is required to act or that falls within the duties of the elected county auditor. The bill would additionally authorize an elected county auditor to hire one or more executive assistants, as specified.

(3)Existing law provides that the necessary expenses incurred by the auditor and treasurer in the defense and prosecution of any action brought by or against them to test the validity or constitutionality of any act of the Legislature or of the board of supervisors or of any order providing for the payment of any funds held in the county treasury are county charges.

This bill would provide that the necessary expenses incurred by the auditor or treasurer in the defense and prosecution of any action brought by or against them, based upon any decision to pay or not pay a claim or charge, are also county charges.

(4)Existing law provides for imprisonment in the state prison for a person responsible for public moneys who, among other offenses, willfully refuses or omits to pay over or transfer public money, as specified. Existing law further provides that a person convicted for any of these offenses is prohibited from holding office in this state.

This bill would, for certain of these offenses, provide that those offenses are not punishable under current law by imprisonment and disqualification from holding any office in this state unless an order has been issued and is effective pursuant to a civil finding that the officer or other person had a duty to perform a specified action, and the officer or other person has refused to perform that action.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 31000.6 of the Government Code is amended to read:

31000.6.
 (a) Upon request of the assessor or assessor, auditor-controller, or the sheriff of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor or assessor, auditor-controller, or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or assessor, auditor-controller, or the sheriff.
(b) In the event that the board of supervisors does not concur with the assessor or assessor, auditor-controller, or the sheriff that a conflict of interest exists, the assessor or assessor, auditor-controller, or the sheriff, after giving notice to the county counsel or the district attorney, may initiate an ex parte proceeding before the presiding judge of the superior court. The county counsel or district attorney may file an affidavit in the proceeding in opposition to, or in support of, the assessor’s or assessor’s, auditor-controller’s, or the sheriff’s position.
(c) The presiding superior court judge that determines in any ex parte proceeding that a conflict actually exists, must, if requested by one of the parties, also rule whether representation by the county counsel or district attorney through the creation of an “ethical wall” is appropriate. The factors to be considered in this determination of whether an “ethical wall” should be created are: (1) equal representation, (2) level of support, (3) access to resources, (4) zealous representation, or (5) any other consideration that relates to proper representation.
(d) If a court determines that the action brought by the assessor or assessor, auditor-controller, or sheriff is frivolous and in bad faith, the assessor’s office or office, auditor-controller’s office, or sheriff’s office shall pay their own legal costs and all costs incurred in the action by the opposing party. As used in this section, “bad faith” and “frivolous” have the meaning given in Section 128.5 of the Code of Civil Procedure.
(e) If the presiding judge determines that a conflict of interest does exist, and that representation by the county counsel or district attorney through the creation of an ethical wall is inappropriate, the board of supervisors shall immediately employ legal counsel to assist the assessor or assessor, the auditor-controller, or the sheriff.
(f) As used in this section, “conflict of interest” means a conflict of interest as defined in Rule 3-310 of the Rules of Professional Conduct of the State Bar of California, as construed for public attorneys.
(g) This section shall also apply to any matter brought after an assessor or assessor, auditor-controller, or sheriff leaves office if the matter giving rise to the need for independent legal counsel was within the scope of the duties of the assessor or assessor, auditor-controller, or sheriff while in office, and the assessor or assessor, auditor-controller, or sheriff would have been authorized under this section to request the appointment of independent legal counsel.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.Section 24054 of the Government Code is amended to read:
24054.

(a)Except as provided in subdivision (b), any officer authorizing, aiding to authorize, auditing, allowing, or paying any claim or demand upon or against the treasury of any county, or any fund thereof, in violation of law or of the constitution is liable personally and upon his official bond to the person damaged by that illegal action, to the extent of his or her loss by reason of the nonpayment of his or her claim.

(b)This section does not apply to any person holding the position of elected county auditor-controller who has made a decision related to a claim or charge in the course and scope of his or her duties.

SEC. 2.Section 26881.5 is added to the Government Code, to read:
26881.5.

(a)If an illegal claim or charge is made, the county auditor-controller shall not draw a warrant for that claim or charge. This section shall apply to a transfer, including, but not limited to, a transfer pursuant to Section 31582.

(b)This section shall apply regardless of whether the position of county auditor-controller is defined in that county as ministerial or discretionary.

(c)The county auditor-controller shall draw a warrant if a court has ordered payment pursuant to an order that has become effective as either a final order or pursuant to Section 1110b of the Code of Civil Procedure.

SEC. 3.Article 5 (commencing with Section 26950) is added to Chapter 4 of Part 3 of Division 2 of Title 3 of the Government Code, to read:
5.Personnel of the Auditor
26950.

Notwithstanding Article 2 (commencing with Section 26520) of Chapter 1, an elected county auditor may retain legal counsel to provide advice upon any matter upon which the elected county auditor is required to act or that falls within the duties of the elected county auditor.

26951.

An elected county auditor may hire one or more executive assistants, pursuant to the procedures specified in Section 24102, who shall serve at the pleasure of the elected county auditor. Selection of any executive assistant shall not be subject to approval by the board of supervisors. An executive assistant shall be compensated at no more than the maximum amount authorized for executive assistants of the board of supervisors.

SEC. 4.Section 29611 of the Government Code is amended to read:
29611.

The necessary expenses incurred by the auditor and treasurer in the defense and prosecution of any action brought by or against them to test the validity or constitutionality of any act of the Legislature or of the board of supervisors, of any order providing for the payment of any funds held in the county treasury, or based upon any decision to pay or not pay a claim or charge are county charges.

SEC. 5.Section 424 of the Penal Code is amended to read:
424.

(a)(1)Except as provided in paragraph (2), each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who does any of the following is punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state:

(A)Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another.

(B)Loans the same or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law.

(C)Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same.

(D)Fraudulently alters, falsifies, conceals, destroys, or obliterates any account.

(E)Willfully refuses or omits to pay over, on demand, any public moneys in his or her hands, upon the presentation of a draft, order, or warrant drawn upon these moneys by competent authority.

(F)Willfully omits to transfer the same, when transfer is required by law.

(G)Willfully omits or refuses to pay over to any officer or person authorized by law to receive the same, any money received by him or her under any duty imposed by law so to pay over the same.

(2)An offense described in subparagraph (E), (F), or (G) of paragraph (1) shall only be punishable by imprisonment in state prison and disqualification from holding any office in this state pursuant to that paragraph if both of the following have occurred:

(A)A court has first filed an order in a civil proceeding finding that the officer or other person had a duty to act as specified in subparagraph (E), (F), or (G) of paragraph (1) and that order has become effective as either a final order or pursuant to Section 1110b of the Code of Civil Procedure.

(B)That officer or other person has refused to perform the act specified in subparagraph (E), (F), or (G) of paragraph (1), after the order has become effective as either a final order or pursuant to Section 1110b of the Code of Civil Procedure.

(b)As used in this section, “public moneys” includes the proceeds derived from the sale of bonds or other evidence or indebtedness authorized by the legislative body of any city, county, district, or public agency.

(c)This section does not apply to the incidental and minimal use of public resources authorized by Section 8314 of the Government Code.