Revolving door limitations in California

There are rules for those leaving government service, which we refer to as the “revolving door” between the public and private sectors. Article IV, Section 5(e) of the California Constitution provides that “the Legislature shall enact laws that prohibit a Member of the Legislature whose term of office commences on or after December 3, 1990, from lobbying, for compensation, as governed by the Political Reform Act of 1974, before the Legislature for 12 months after leaving office.”

Legislative Branch Officials and the Revolving Door Limitation
In addition, Government Code Title 9, Chapter 7, Article 4 concerns the disqualification of former officers and employees. It begins with Section 87406(a), which is known as the “the Milton Marks Postgovernment Employment Restrictions Act of 1990.”

Section 87406(b)(1) provides that “a Member of the Legislature, for a period of one year after leaving office, shall not, for compensation, act as agent or attorney for, or otherwise represent, any other person by making any formal or informal appearance, or by making any oral or written communication, before the Legislature, any committee or subcommittee thereof, any present Member of the Legislature, or any officer or employee thereof, if the appearance or communication is made for the purpose of influencing legislative action.”

In addition, Section 87406(b)(2) specifies that “a Member of the Legislature who resigns from office, for a period commencing with the effective date of the resignation and concluding one year after the adjournment sine die of the session in which the resignation occurred, shall not, for compensation, act as agent or attorney for, or otherwise represent, any other person by making any formal or informal appearance, or by making any oral or written communication, before the Legislature, any committee or subcommittee thereof, any present Member of the Legislature, or any officer or employee thereof, if the appearance or communication is made for the purpose of influencing legislative action.”

These provisions of the California Government Code are found in the Political Reform Act of 1974, which places restrictions upon legislators and other public officials when they leave government service. Basically, after leaving the Legislature, a former member of the State Senate or State Assembly has a one-year ban on certain activities. The one-year ban on legislators is extended if he or she resigns from office before the expiration of his or her term.

According to the Fair Political Practices Commission, the post-employment activities of a former state legislator are restricted in that the former legislator cannot, for one year, be paid to communicate with their former colleagues in the Legislature in an attempt to influence certain actions or proceedings. If the legislator resigns from office, then the one-year ban begins with the date of the resignation and ends one year after the adjournment sine die of the legislative session in which his or her resignation occurred.

There is also a ban on influencing prospective employers. In other words, a public official is prohibited from making, participating in making, or influencing a governmental decision that directly relates to a prospective employer.

Executive Branch Officials and the Revolving Door Limitation
Similar to the “revolving door” limitation on state legislators found in Article IV, Section 5(e) of the California Constitution, executive branch officials of state government are also subject to this limitation when these officials leave government service. It is often referred to as the “revolving door” between the public and private sectors.

Article V, Section 14(e) provides that “the Legislature shall enact laws that prohibit a state officer, or a secretary of an agency or director of a department appointed by the Governor, who has not resigned or retired from state service prior to January 7, 1991, from lobbying, for compensation, as governed by the Political Reform Act of 1974, before the executive branch of state government for 12 months after leaving office.”

This provision of the state Constitution applies to the elected constitutional officers as well as agency secretaries (i.e., members of the Governor’s cabinet) and department directors, who are appointed by the Governor and confirmed by the State Senate. Article V, Section 14(f) defines “state officer” as the Governor, Lieutenant Governor, Attorney General, Controller, Insurance Commissioner, Secretary of State, Superintendent of Public Instruction, Treasurer, and the members of the State Board of Equalization.

In addition, there are statutory provisions that provide further guidance on the revolving door limitation. Government Code Title 9, Chapter 7, Article 4 concerns the disqualification of former officers and employees. It begins with Section 87406(a), which is known as the “the Milton Marks Postgovernment Employment Restrictions Act of 1990.”

Similar to the provisions of the Milton Marks Act related to legislators, Government Code Section 87406(c) – applicable to the nine elected state officers – specifies that:

An elected state officer, other than a Member of the Legislature, for a period of one year after leaving office, shall not, for compensation, act as agent or attorney for, or otherwise represent, any other person by making any formal or informal appearance, or by making any oral or written communication, before any state administrative agency, or any officer or employee thereof, if the appearance or communication is for the purpose of influencing administrative action, or influencing any action or proceeding involving the issuance, amendment, awarding, or revocation of a permit, license, grant, or contract, or the sale or purchase of goods or property. For purposes of this subdivision, an appearance before a “state administrative agency” does not include an appearance in a court of law, before an administrative law judge, or before the Workers’ Compensation Appeals Board.

In addition, a similar prohibition applies to certain employees of state agencies. Government Code Section 87406(d)(1) provides:

A designated employee of a state administrative agency, any officer, employee, or consultant of a state administrative agency who holds a position that entails the making, or participation in the making, of decisions that may foreseeably have a material effect on any financial interest, and a member of a state administrative agency, for a period of one year after leaving office or employment, shall not, for compensation, act as agent or attorney for, or otherwise represent, any other person, by making any formal or informal appearance, or by making any oral or written communication, before any state administrative agency, or officer or employee thereof, for which the individual worked or represented during the 12 months before leaving office or employment, if the appearance or communication is made for the purpose of influencing administrative or legislative action, or influencing any action or proceeding involving the issuance, amendment, awarding, or revocation of a permit, license, grant, or contract, or the sale or purchase of goods or property. For purposes of this paragraph, an appearance before a state administrative agency does not include an appearance in a court of law, before an administrative law judge, or before the Workers’ Compensation Appeals Board. The prohibition of this paragraph only applies to designated employees employed by a state administrative agency on or after January 7, 1991.

Finally, elsewhere in the Political Reform Act, and similar to provisions applicable to state legislators, there is also a ban on influencing prospective employers. In other words, a state executive branch officer or official is prohibited from making, participating in making, or influencing a governmental decision that directly relates to a prospective employer of that officer or official.