Does Senator Pan Have a Conflict of Interest by Proposing and Advocating for SB 276?

Does Senator Pan Have a Conflict of Interest by Proposing and Advocating for SB 276?

I will tell you up-front that I will not answer the titled question in this post because I do not have personal knowledge about Senator’s Pan’s finances and business affairs. However, I will say that I have NOT seen any evidence of a conflict of interest, as that term is defined by the relevant California law.

The real purpose of this post is 1. to provide the vaccine concerned community with the actual law, and 2. to respectfully suggest that you all conflating the legislators’ statutory and rule-based conflict of interest obligations, with the the completely different issue of whether it is right for politicians, especially influential politicians, to take campaign contributions from industries which have business interests before the legislators, and whether a legislator should sponsor legislation that will benefit an industry which has made campaign contributions to the sponsor.

To put it another way, I am writing this post (to the annoyance of many I assume) because I see a great deal of unsupported allegations and incorrect analysis complaining about the conflict of interest of Senator Pan and others. And like I keep telling you folks, you have to be right about what you say.

We all know that corporations and commerical ventures give money to politicians to influence what laws are written and what the laws say. It might not be right or moral, but it is legal. Deal with it! The fact that Senator Pan received the highest amount of campaign contributions from Pharma is not illegal, nor is it a conflict of interest. It just means that Phama thinks he is the most important player in its areas of interest, and/or he has a fundraiser with good access to Pharma. That is the way the system works in the U.S. If you don’t like it, change it, or move someplace purer.

What if Senator Pan makes alot of money from Pharma for something other than campaign contributions?

As long as he is not taking a bribe, it is not illegal. Roughly, a bribe/public corruption is money (or other things of value) offered and accepted on the specific promise/agreement that the government official will help pass or kill a bill (or executive act for the executive branch) that will directly benefit the entity which gave the money, or basically a quid pro quo.

You might recall the recent case of former Virgina Governor Bob McDonnell whose bribery/public corruption conviction was overturned, even though he accepted all kinds of gifts (including a rolex) from someone who would directly benefit from something the Governor could do. Even that was not enough for a public corruption conviction to stick. There has to be an explicit and provable quid pro quo. Here is an article about the case to show you what public corruption is not (according to the Supreme Court). https://www.nytimes.com/2016/09/09/us/us-ends-corruption-case-against-former-virginia-governor.html

Working in the California Legislature is a part-time job. All these folks have other jobs, and I am sure that some of their jobs intersect with legislation, and further the interests of the industries which give campaign money, but that is not make it illegal or a conflict of interest.

So what would be a conflict?

Let’s start with the Legislative Rule:

“A public official shall not participate in any action or decision by the legislature, including votes, if a conflict of interest exists. Cal. Gov’t Code § 87102.5.Legislators may not participate, by voting or any other action, on the floor of either house, or in committee or elsewhere, in the enactment or defeat of legislation in which he or she has a personal interest.” Joint Rule 44.

Here is Government Code, Section 87102.5 (I am giving the whole section so you can work through the issues yourselves.)

“(a) The remedies provided in Chapter 3 (commencing with Section 83100) shall apply to any Member of the Legislature who makes, participates in making, or in any way attempts to use his or her official position to influence any of the following governmental decisions in which he or she knows or has reason to know that he or she has a financial interest:
(1) Any state governmental decision, other than any action or decision before the Legislature, made in the course of his or her duties as a member.
(2) Approval, modification, or cancellation of any contract to which either house or a committee of the Legislature is a party.
(3) Introduction as a lead author of any legislation that the member knows or has reason to know is nongeneral legislation.
(4) Any vote in a legislative committee or subcommittee on what the member knows or has reason to know is nongeneral legislation.
(5) Any rollcall vote on the Senate or Assembly floor on an item which the member knows is nongeneral legislation.
(6) Any action or decision before the Legislature in which all of the following occur:
(A) The member has received any salary, wages, commissions, or similar earned income within the preceding 12 months from a lobbyist employer.
(B) The member knows or has reason to know the action or decision will have a direct and significant financial impact on the lobbyist employer.
(C) The action or decision will not have an impact on the public generally or a significant segment of the public in a similar manner.
(7) Any action or decision before the Legislature on legislation that the member knows or has reason to know will have a direct and significant financial impact on any person, distinguishable from its impact on the public generally or a significant segment of the public, from whom the member has received any compensation within the preceding 12 months for the purpose of appearing, agreeing to appear, or taking any other action on behalf of that person, before any local board or agency.
(b) For purposes of this section, all of the following apply:
(1) Any action or decision before the Legislature means any vote in a committee or subcommittee, or any rollcall vote on the floor of the Senate or Assembly.
(2) Financial interest means an interest as defined in Section 87103.
(3) Legislation means a bill, resolution, or constitutional amendment.
(4) Nongeneral legislation means legislation that is described in Section 87102.6 and is not of a general nature pursuant to Section 16 of Article IV of the Constitution.
(5) A Member of the Legislature has reason to know that an action or decision will have a direct and significant financial impact on a person with respect to which disqualification may be required pursuant to subdivision (a) if either of the following apply:
(A) With the knowledge of the member, the person has attempted to influence the vote of the member with respect to the action or decision.
(B) Facts have been brought to the members personal attention indicating that the action or decision will have a direct and significant impact on the person.
(6) The prohibitions specified in subdivision (a) do not apply to a vote on the Budget Bill as a whole, or to a vote on a consent calendar, a motion for reconsideration, a waiver of any legislative rule, or any purely procedural matter.
(7) A Member of the Legislature has reason to know that legislation is nongeneral legislation if facts have been brought to his or her personal attention indicating that it is nongeneral legislation.
(8) Written advice given to a Member of the Legislature regarding his or her duties under this section by the Legislative Counsel shall have the same effect as advice given by the commission pursuant to subdivision (b) of Section 83114 if both of the following apply:
(A) The member has made the same written request based on the same material facts to the commission for advice pursuant to Section 83114 as to his or her duties under this section, as the written request and facts presented to the Legislative Counsel.
(B) The commission has not provided written advice pursuant to the members request prior to the time the member acts in good faith reliance on the advice of the Legislative Counsel.”
https://california.public.law/codes/ca_gov’t_code_section_87102.5

(There are some other laws, but I think this is the main and most relevant one)

I have heard that Senator Pan makes a very great deal of money.

That is not illegal, and it is not a conflict of interest.

Honestly, the whole notion that he or anyone else can have a conflict of interest because he/they take money from “Pharma” or “Big Oil” or even the Nutritional Supplement industry is ridiculous. That’s not what a conflict of interest or a bribe is; That is legal campaign contributions from an industry source. What big contributions show is who is on the side of that particular industry.

So, if you want to call-out Senator Pan because you don’t like the fact that he and almost all other legislators take large campaign contributions from big powerful industries, or because he, like most Congressfolk, seems to do Pharma’s bidding, ok, but he’s just doing what most of them are doing.

That is not a conflict of interest and it certainly isn’t bribery or public corruption. If it were, you’d have to throw them all out of office and lock’em all up!
Hmmm.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

3 thoughts on “Does Senator Pan Have a Conflict of Interest by Proposing and Advocating for SB 276?

  1. Thanks Rick. So the fact that he is a pediatrician by day and his compensation is based on administering vaccines, while bringing legislation that will increase the number of kids getting vaccines, does not constitute a conflict of interest? Guessing not since SB 277 got through, plus I’m sure Pan isn’t issuing any MEs so maybe this won’t increase his number of vaccinations given in his practice?

  2. I understand your legal point. However, if we don’t keep speaking like this, then all of these industries will keep buying our government. It is having some effect as some politicians who pledge to not take industry money (like fossil fuel), are earning credits with voters. It might not be impactful enough to set a trend, prosecute anyone, but we also as a nation can’t keep going with our bought politicians. They may not be directly taking a bribe or what not, but these industries absolutely expect something in return. I can see though if you think it might be harming the fight against SB 276 specifically

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