TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-505
of :
: March 20, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE PHILLIP S. CRONIN, COUNTY COUNSEL, COUNTY OF
FRESNO, has requested an opinion on the following questions:
1. May a member of a county board of supervisors or an elected county treasurer contribute
personal funds to his or her own reelection campaign while serving as a member of a county treasury
oversight committee?
2. May a member of a county board of supervisors or an elected county treasurer raise
funds for his or her own reelection campaign while serving as a member of a county treasury oversight
committee?
3. May a member of a county board of supervisors or an elected county treasurer contribute
to the other's reelection campaign while serving as a member of a county treasury oversight committee?
4. May a member of a county board of supervisors or an elected county treasurer raise
funds for the other's reelection campaign while serving as a member of a county treasury oversight
committee?
5. May a member of a county board of supervisors or an elected county treasurer endorse
the candidacy of the other or attend or speak at a public campaign event in support of his or her own
candidacy or in support of the other's candidacy for reelection while serving as a member of a county treasury
oversight committee?
6. May a member of a county board of supervisors become a member of a county treasury
oversight committee if he or she has been employed by a family-owned business which has contributed to his
or her reelection campaign or to the reelection campaign of the elected county treasurer?
CONCLUSIONS
1. A member of a county board of supervisors or an elected county treasurer may
1 of 8
y p y y
contribute personal funds to his or her own reelection campaign while serving as a member of a county
treasury oversight committee.
2. A member of a county board of supervisors or an elected county treasurer may raise
funds for his or her own reelection campaign while serving as a member of a county treasury oversight
committee.
3. A member of a county board of supervisors or an elected county treasurer may
contribute to the other's reelection campaign while serving as a member of a county treasury oversight
committee.
4. A member of a county board of supervisors or an elected county treasurer may not raise
funds for the other's reelection campaign while serving as a member of a county treasury oversight
committee.
5. A member of a county board of supervisors or an elected county treasurer may endorse
the candidacy of the other or attend or speak at a public campaign event in support of his or her own
candidacy or in support of the other's candidacy for reelection while serving as a member of a county treasury
oversight committee.
6. A member of a county board of supervisors may not become a member of a county
treasury oversight committee if he or she has been employed by a family-owned business which has made
contributions to his or her reelection campaign or to the reelection campaign of the elected county treasurer.
ANALYSIS
In late 1994, Orange County and the Orange County Investment Pool filed petitions for
bankruptcy protection under Chapter 9 of the federal Bankruptcy Code. (11 U.S.C.
§§ 901-946.) Following legislative committee hearings into the causes of the bankruptcy, the Legislature
enacted several laws governing the investment of funds belonging to local government agencies. Included
among the new laws were provisions establishing county treasury oversight committees. (Gov. Code, §§
27130-27137.) Foontnote No. 1 The six questions presented for resolution concern the statutory requirements
for membership on such committees and whether these statutory requirements are constitutional.
A county treasury oversight committee is established under the terms of section 27131:
"The board of supervisors in each county or city and county shall, if the county or
city and county is investing surplus funds, establish a county treasury oversight committee. The
board of supervisors, in consultation with the county treasurer, shall determine the exact size of
the committee, which shall consist of from 3 to 11 members, and the categories from which the
members shall be represented, as specified in subdivisions (a) to (g), inclusive, of Section 27132.
Members shall be nominated by the treasurer and confirmed by the board of supervisors."
Section 27132 in turn provides:
"The county treasury oversight committee, pursuant to Section 27131, shall consist of
members appointed from the following:
"(a) The county treasurer.
"(b) The county auditor, auditor-controller, or finance director, as the case may be.
"( ) A i i db h b d f i
2 of 8
"(c) A representative appointed by the county board of supervisors.
"(d) The county superintendent of schools or his or her designee.
"(e) A representative selected by a majority of the presiding officers of the governing
bodies of the school districts and community college districts in the county.
"(f) A representative selected by a majority of the presiding officers of the legislative
bodies of the special districts in the county that are required or authorized to deposit funds in the
county treasury.
"(g) Up to five other members of the public.
"(1) A majority of the other public members shall have expertise in, or an academic
background in, public finance.
"(2) The other public members shall be economically diverse and bipartisan in
political registration."
Sections 27131 and 27132 allow each county to determine, within certain limitations, the size of the county
treasury oversight committee and its composition. A county may choose to have a committee comprised
solely of members of the general public, solely of government officials, or a combination of both. Pursuant to
Section 27131, these choices are made by the board of supervisors in consultation with the county treasurer.
Footnote No. 2
The Legislature has required in section 27133 that a county treasury oversight committee
annually prepare an investment policy which must contain the following elements:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) The criteria for selecting security brokers and dealers from, to, or through whom
the county treasury may purchase or sell securities or other instruments. The criteria shall
prohibit the selection of any broker, brokerage, dealer, or securities firm that has, within any
consecutive 48-month period following January 1, 1996, made a political contribution in an
amount exceeding the limitations contained in Rule G-37 of the Municipal Securities
Rulemaking Board, to the local treasurer, any member of the governing board of the local
agency, or any candidate for those offices.
"(d) Limits on the receipt of honoraria, gifts, and gratuities from advisors, brokers,
dealers, bankers, or other persons with whom the county treasury conducts business by any
member of the county treasury oversight committee. These limits may be in addition to the limits
set by a committee member's own agency, by state law, or by the Fair Political Practices
Commission."
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
While the forgoing statute is aimed at insuring independence of county treasury oversight committee
members from the "investment industry," independence from political influence is the target of sections
27132.1 and 27132.2. These two statutes are the focus of the six questions to be resolved. Section 27132.1
provides:
"A member may not be employed by an entity that has (a) contributed to the
campaign of a candidate for the office of local treasurer, or (b) contributed to the campaign of a
candidate to be a member of a legislative body of any local agency that has deposited funds in
the county treasury in the previous three years or during the period that the employee is a
3 of 8
the county treasury, in the previous three years or during the period that the employee is a
member of the committee."
Section 27132.2 states:
"A member may not directly or indirectly raise money for a candidate for local
treasurer or a member of the governing board of any local agency that has deposited funds in the
county treasury while a member of the committee."
The questions posed are based upon the assumptions that a member of a board of supervisors and an elected
county treasurer are members of a county treasury oversight committee and that each is also a candidate for
reelection. We have been asked whether sections 27132.1 and 27132.2 are applicable to certain political
activities of these members.
1. Contributing to One's Own Campaign
The first question is whether a member of a board of supervisors or an elected county
treasurer serving as a member of a county treasury oversight committee may contribute to his or her own
reelection campaign.
There is nothing in the language of sections 27132.1 or 27132.2 that governs, much less
prohibits, the making of campaign contributions. Section 27132.1 relates to employment by entities that make
certain contributions. Section 27132.2 deals with raising campaign funds, which is not the same as
contributing funds. Fund raising involves the solicitation of contributions.
We conclude that a member of a county board of supervisors or an elected county treasurer
serving as a member of a county treasury oversight committee may contribute to his or her own reelection
campaign.
2. Raising Funds for One's Own Campaign
We next consider whether a supervisor or an elected treasurer serving as a member of a
county treasury oversight committee may raise funds for his or her own reelection campaign.
Section 27132.2 prohibits any member of a county treasury oversight committee from
raising funds directly or indirectly for a candidate for the office of treasurer, or a candidate who is "a member
of the governing board of a local agency that has deposited funds in the county treasury . . . ." The latter
phrase includes a supervisor serving on a county treasury oversight committee who is a candidate for
reelection.
When "statutory language is . . . clear and unambiguous there is no need for construction,
and courts should not indulge in it." (Rojo v. Kliger (1990) 52 Cal.3d 65, 73.) The plain meaning of section
27132.2 applies the prohibition to any member of a county treasury oversight committee, including a
supervisor or elected treasurer who is running for reelection.
However, prohibiting a supervisor or treasurer from raising funds for his or her own
reelection campaign raises serious constitutional issues. "In California, the right to hold public office has
long been recognized as a valuable right of citizenship." (Helena Rubenstein Internat. v. Younger (1977) 71
Cal.App.3d 406, 418; see Clements v. Fashing (1982) 457 U.S. 957, 963-966.) The right to run for office
necessarily includes the right to campaign and to raise funds for that campaign.
In Buckley v. Valeo (1976) 424 U.S. 1, 14, the court noted that political campaign
contribution and expenditure limitations "operate in an area of the most fundamental First Amendment
activities " (See also Citizens Against Rent Control v Berkeley (1981) 454 U S 290 294 ) In Planning &
4 of 8
activities. (See also Citizens Against Rent Control v. Berkeley (1981) 454 U.S. 290, 294.) In Planning &
Conservation League, Inc. v. Lungren (1995) 38 Cal.App.4th 497, 505, the Court of Appeal stated:
"The First Amendment to the United States Constitution prohibits any law `abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.' This prohibition is applicable to the states
by virtue of the Fourteenth Amendment. [Citation.]
"The First Amendment protects not only the rights of speech and petition but also the right to
contribute financial and other support to a political candidate or a ballot measure. [Citation.] In
addition, the freedom to speak or to petition the government could hardly be protected from
Government interference without a correlative associational freedom to engage in group effort
toward these ends. [Citations.]
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Those categories of speech and association related to campaigns for political office
or issue-based elections reside at the core of the First Amendment. [Citations.] `When a law
burdens core political speech, we apply `exacting scrutiny,' and we uphold the restriction only if
it is narrowly tailored to serve an overriding state interest. [Citation.]' [Citation.]" (Italics added,
fn. omitted.)
Buckley v. Valeo, supra, 424 U.S. at 23, held that limits on campaign expenditures impose significantly more
severe restrictions on protected freedoms of political expression and association than do limitations on
financial contributions. The court found unconstitutional that portion of the Federal Election Campaign Act
of 1971 (2 U.S.C. § 431 et seq.) which imposed limits on expenditures.
It follows from these First Amendment principles that a candidate may not be prohibited by
statute from raising funds for his or her own campaign, either personally or through a campaign committee. If
there is a right to expend funds without limit on a political campaign, there must also be a right to raise funds
for that campaign, since the former would be meaningless without the latter.
We conclude that section 27132.2 may not be applied so as to prevent a supervisor or
elected treasurer who serves on a county treasury oversight committee from raising funds for his or her own
campaign.
3. Contributing to the Campaign of Another
The third question we are asked to address is whether, if a supervisor and elected treasurer
are both serving on a county treasury oversight committee, may either contribute to the campaign of the
other. As with our analysis of the first question, we find nothing in section 27132.1 or section 27132.2 that
prohibits the making of contributions. Rather, the prohibition is on fund raising, which involves the
solicitation of contributions. Each member may contribute to the campaign of the other, subject to any limits
on contributions established by other laws. (See, e.g., §§ 85301-85313.)
4. Raising Funds for the Campaign of Another
Next we are asked whether a supervisor or elected treasurer serving on a county treasury
oversight committee may raise funds for the reelection campaign of the other.
Preliminarily we note that the Legislature has not defined the particular activities that are
encompassed by the phrase: "A member may not directly or indirectly raise money for a candidate . . ."
contained in section 27132.2. To "raise" in this context generally means "to bring together: collect, gather,
levy (the government raised large sums for highway construction by a tax on gasoline sales) (the budget
5 of 8
levy (the government raised large sums for highway construction by a tax on gasoline sales) (the budget . . .
is raised by registration fees, ticket sales, and grants . . . ." (Webster's Third New Internat. Dict. (1971) p.
1877.) Specifically with respect to raising funds for charitable purposes, the Legislature has identified three
different aspects to fund raising activities: solicitation, receipt, and control of funds, assets, or property. (§
12599, subd. (a).) While the Legislature has used the term "indirectly" in section 27132.2, we believe that the
activities must nonetheless involve the solicitation, receipt, or control of campaign funds by the committee
member. Such activities as giving political campaign speeches or making endorsements would thus not be
covered, if a solicitation is not made by the committee member, even though the activities might have the
incidental effect of producing political contributions.
Section 27132.2 explicitly prohibits a committee member from raising funds for a candidate
for treasurer or for a member of the governing board of a local agency that has deposited funds in the county
treasury. Therefore neither the treasurer nor the supervisor serving on the committee may raise funds for the
campaign of the other unless there is some constitutional impediment precluding application of section
27132.1 in such circumstances.
It may at first appear that this question must necessarily be answered in the same manner as
the second question above dealing with fund raising for one's own campaign. Certainly there are common
considerations. The First Amendment and associational rights of every person would seem to allow fund
raising for a political campaign. The court in Buckley v. Valeo, supra, 424 U.S. at 65-66, noted:
"As we have seen, group association is protected because it enhances `[e]ffective
advocacy.' [Citation.] The right to join together `for the advancement of beliefs and ideas,'
[citation], is diluted if it does not include the right to pool money through contributions, for
funds are often essential if `advocacy' is to be truly or optimally `effective.'"
Nevertheless, there are significant differences between prohibiting the raising of funds for
oneself and prohibiting a very limited number of people from engaging in fund raising for another's campaign
for certain specified offices. In the first place, the right to run for political office would be severely impacted
if a candidate could not personally engage in fund raising for his or her own campaign. No such effect would
be likely from the limitations contained in section 27132.2, which would limit the right of at most 10 people
in each county to act as fund raisers for another person. Moreover, allowing committee members to raise
money for the campaigns of other persons who are responsible for depositing funds in the treasury or
determining investment policy would permit the type of relationship which the Legislature sought to avoid in
enacting this statutory scheme. (See § 27133.) It would lead, at least, to the appearance of a lack of
independence on the part of the committee members, a danger not present when a member is raising funds for
his or her own campaign.
The strictures on fund raising found in section 27132.2 appear no more onerous than those
imposed upon judges by the California Code of Judicial Ethics adopted by the Supreme Court, which
provides in Canon 5:
"Judges are entitled to entertain their personal views on political questions. They are
not required to surrender their rights or opinions as citizens. They shall, however, avoid political
activity that may create the appearance of political bias or impropriety. Judicial independence
and impartiality should dictate the conduct of judges and candidates for judicial office.
"A. Political Organizations
"Judges and candidates for judicial office shall not
"(1) act as leaders or hold any office in a political organization;
"(2) k h f liti l i ti did t f j di i l ffi
6 of 8
"(2) make speeches for a political organization or candidate for nonjudicial office or
publicly endorse or publicly oppose a candidate for nonjudicial office;
"(3) personally solicit funds for a political organization or nonjudicial candidate; or
make contributions to a political party or political organization or to a nonjudicial candidate in
excess of five hundred dollars in any calendar year per political party or political organization or
candidate, or in excess of an aggregate of one thousand dollars in any calendar year for all
political parties or political organizations or nonjudicial candidates." (Italics added.)
The Supreme Court has thus established an ethical standard for judges that precludes fund
raising for any non-judicial candidate. Section 27132.2, on the other hand, limits fund raising by
members of a county treasury oversight committee only for specified offices.
Section 27132.2 is also more narrowly circumscribed in its limitations than the
federal rules applicable to the political activities of federal employees. The federal limitations
were upheld by the court in CSC v. Letter Carriers (1973) 413 U.S. 548. While section 27132.2
infringes upon the right of a committee member to engage in certain political activities, its ban
upon fund raising for others is a legitimate method of achieving the Legislature's goals of
assuring the political and financial independence of each committee member.
We conclude that section 27132.2's ban on fund raising for others does not
unconstitutionally infringe upon the rights of a county supervisor or elected treasurer serving on
a county treasury oversight committee. The statutory fund raising prohibition precludes each
from soliciting funds for the other.
5. Non-financial Support for a Candidate
We next consider whether a member of a county board of supervisors or an
elected county treasurer, while serving as a member of a county treasury oversight committee,
may endorse the other's candidacy or attend or speak at a public campaign event in support of his
or her own candidacy or in support of the other's candidacy for reelection.
Since nothing in the language of sections 27132.1 or 27132.2 makes reference
to non-financial support, whether by way of endorsement, attending campaign events, or making
speeches, there is no prohibition on these activities. As we explained in answer to the fourth
question, "indirect" fund raising is prohibited where the committee member solicits, receives, or
controls the funds in some manner. Speeches without soliciting funds by the committee member
are not proscribed.
6. Employment By Entity That Has Made Campaign Contributions
The final question we address focuses upon section 27132.1. We are asked
whether a member of a county board of supervisors may become a member of a county treasury
oversight committee if he or she has been employed by a family-owned business that has
contributed to his or her reelection campaign or to the reelection campaign of the elected county
treasurer. Section 27132.1 precludes a committee member from employment by an entity which
has contributed to the campaign of the treasurer or the campaign of a candidate for the governing
board (e.g., board of supervisors) which has deposited funds in the county treasury. The plain
language of the statute would preclude membership on the county treasury oversight committee
in the circumstances set forth. We consider whether it may be constitutionally applied.
The question assumes that an employing entity has made a contribution of the
type described and that the entity is a "family business." We take the term "family business" to
7 of 8
mean one owned by the immediate family of the candidate. May a contribution from family
financial resources disqualify a person from membership on a county treasury oversight
committee?
Although Buckley v. Valeo, supra, 424 U.S. 1, noted that the Federal Election
Campaign Act of 1971 (2 U.S.C. § 431 et seq.) limited the use of the candidate's personal funds
and those of the candidate's immediate family, it found unconstitutional only the limits on the
use of the candidate's personal funds. The court did not find that the "immediate family" had a
constitutional right to use resources without regard to contribution limits. Indeed, we see no
reason why the family of a candidate should be treated differently from other persons who are
not themselves candidates in applying laws governing political contributions.
Buckley v. Valeo, supra, 424 U.S. at 23-38, upheld the constitutionality of limits
on campaign contributions. We are aware of no "family exemption" from those limits that would
justify treating contributions by a "family business" differently from contributions by any other
entity. Therefore, section 27231.1 is applicable when the contribution is from a "family
business" rather than from the candidate's personal funds.
We also note that none of the considerations applicable to a candidate's use of
personal funds for his or her own campaign are affected when one candidate contributes to
another. Consequently, if a county treasury oversight committee member's employing "family
business" is contributing to a candidate other than the one employed by the business, section
27132.1 is clearly applicable.
*****
Footnote No. 1
All undesignated section references hereafter are to the Government Code.
Footnote No. 2
The financial powers of a board of supervisors (§§ 25250-25265) include the authority to create funds and transfer money
from one fund to another (§ 25252) and to examine the books and accounts of the treasurer (§§ 27100-27101); a county
treasurer (§§ 27000-27101) receives and keeps all money belonging to the county (§ 27000) and may invest funds (§
53565).
8 of 8