2005 California Financial Code Sections 210-217 Article 2. Commissioner of Financial Institutions

210.  The chief officer of the Department of Financial Institutions
is the Commissioner of Financial Institutions.  The Commissioner of
Financial Institutions is the head of the department and, except as
otherwise provided in this code, is subject to the provisions of the
Government Code relating to department heads, but need not reside in
Sacramento.
210.5.  As of the operative date of this section:
   (a) In this section, "order" means any approval, consent,
authorization, exemption, denial, prohibition, requirement, or other
administrative action, applicable to a specific case.
   (b) The office of the Superintendent of Banks and the State
Banking Department are abolished.  All powers, duties,
responsibilities, and functions of the Superintendent of Banks and
the State Banking Department are transferred to the Commissioner of
Financial Institutions and the Department of Financial Institutions,
respectively.  The Commissioner of Financial Institutions and the
Department of Financial Institutions succeed to all the rights and
property of the Superintendent of Banks and the State Banking
Department, respectively; the Commissioner of Financial Institutions
and the Department of Financial Institutions are subject to all the
debts and liabilities of the Superintendent of Banks and the State
Banking Department, respectively, as if the Commissioner of Financial
Institutions and the Department of Financial Institutions had
incurred them.  Any action or proceeding by or against the
Superintendent of Banks or the State Banking Department may be
prosecuted to judgment, which shall bind the Commissioner of
Financial Institutions or the Department of Financial Institutions,
respectively, or the Commissioner of Financial Institutions or the
Department of Financial Institutions may be proceeded against or
substituted in place of the Superintendent of Banks or the State
Banking Department, respectively.  References in the Constitution of
the State of California or in any statute or regulation to the
Superintendent of Banks or to the State Banking Department mean the
Commissioner of Financial Institutions or the Department of Financial
Institutions, respectively.  All agreements entered into with, and
orders and regulations issued by, the Superintendent of Banks or the
State Banking Department shall continue in effect as if the
agreements were entered into with, and the orders and regulations
were issued by, the Commissioner of Financial Institutions or the
Department of Financial Institutions, respectively.
   (c) The office of the Savings and Loan Commissioner and the
Department of Savings and Loan are abolished.  All powers, duties,
responsibilities, and functions of the Savings and Loan Commissioner
and the Department of Savings and Loan are transferred to the
Commissioner of Financial Institutions and the Department of
Financial Institutions, respectively.  The Commissioner of Financial
Institutions and the Department of Financial Institutions succeed to
all the rights and property of the Savings and Loan Commissioner and
the Department of Savings and Loan, respectively; the Commissioner of
Financial Institutions and the Department of Financial Institutions
are subject to all the debts and liabilities of the Savings and Loan
Commissioner and the Department of Savings and Loan, respectively, as
if the Commissioner of Financial Institutions and the Department of
Financial Institutions had incurred them.  Any action or proceeding
by or against the Savings and Loan Commissioner or the Department of
Savings and Loan may be prosecuted to judgment, which shall bind the
Commissioner of Financial Institutions or the Department of Financial
Institutions, respectively, or the Commissioner of Financial
Institutions or the Department of Financial Institutions may be
proceeded against or substituted in place of the Savings and Loan
Commissioner or the Department of Savings and Loan, respectively.
References in the Constitution of the State of California or in any
statute or regulation to the Savings and Loan Commissioner or to the
Department of Savings and Loan mean the Commissioner of Financial
Institutions or the Department of Financial Institutions,
respectively.  All agreements entered into with, and orders and
regulations issued by, the Savings and Loan Commissioner or the
Department of Savings and Loan shall continue in effect as if the
agreements were entered into with, and the orders and regulations
were issued by, the Commissioner of Financial Institutions or the
Department of Financial Institutions.
   (d) All powers, duties, responsibilities, and functions of the
Commissioner of Corporations and the Department of Corporations with
respect to credit unions, the credit union business, industrial loan
companies, or the industrial loan business are transferred to the
Commissioner of Financial Institutions and the Department of
Financial Institutions, respectively.  The Commissioner of Financial
Institutions and the Department of Financial Institutions succeed to
all the rights and property of the Commissioner of Corporations and
the Department of Corporations, respectively, with respect to credit
unions, the credit union business, industrial loan companies, or the
industrial loan business; the Commissioner of Financial Institutions
and the Department of Financial Institutions are subject to all the
debts and liabilities of the Commissioner of Corporations and the
Department of Corporations, respectively, with respect to credit
unions, the credit union business, industrial loan companies, or the
industrial loan business, as if the Commissioner of Financial
Institutions and the Department of Financial Institutions had
incurred them.  Any action or proceeding by or against the
Commissioner of Corporations or the Department of Corporations with
respect to credit unions, the credit union business, industrial loan
companies, or the industrial loan business may be prosecuted to
judgment, which shall bind the Commissioner of Financial Institutions
or the Department of Financial Institutions, respectively, or the
Commissioner of Financial Institutions or the Department of Financial
Institutions may be proceeded against or substituted in place of the
Commissioner of Corporations or the Department of Corporations,
respectively.  References in the Constitution of the State of
California or any statute or regulation to the Commissioner of
Corporations or to the Department of Corporations with respect to
credit unions, the credit union business, industrial loan companies,
or the industrial loan business mean the Commissioner of Financial
Institutions or the Department of Financial Institutions,
respectively.  All agreements entered into with, and orders and
regulations issued by, the Commissioner of Corporations or the
Department of Corporations in the exercise of authority under any law
relating to credit unions, the credit union business, industrial
loan companies, or the industrial loan business, shall continue in
effect as if the agreements were entered into with, and the orders
and regulations were issued by, the Commissioner of Financial
Institutions or the Department of Financial Institutions.
211.  The commissioner is appointed by the Governor, and holds
office at the pleasure of the Governor.  The appointment of the
commissioner is subject to confirmation by the Senate.
212.  The commissioner shall be a citizen of the United States and a
resident of the state for at least three years prior to his or her
appointment.  The commissioner shall be chosen solely for his or her
qualifications and fitness to perform the duties of his or her
office.
213.  The annual salary of the commissioner is provided for by
Chapter 6 (commencing with Section 11550) of Part 1 of Division 3 of
Title 2 of the Government Code.
214.  Before entering upon the duties of his or her office, the
commissioner shall take and subscribe to the constitutional oath of
office and file the same with the Secretary of State.
215.  The commissioner is responsible for the performance of all
duties, the exercise of all powers and jurisdiction, and the
assumption and discharge of all responsibilities vested by law in the
department.  The commissioner has and may exercise all the powers
necessary or convenient for the administration and enforcement of,
among other laws, the laws described in Section 200.  The
commissioner may issue such rules and regulations consistent with law
as he or she may deem necessary or advisable in executing the
powers, duties, and responsibilities of the department.
216.  (a) The commissioner may make the agreements that he or she
deems necessary or appropriate in exercising his or her powers.
   (b) (1) The agreements authorized under subdivision (a) may
include, but are not limited to, agreements with agencies of this
state, of other states of the United States, of the United States, or
of foreign nations that regulate financial institutions, relating to
examinations of banks, savings associations, credit unions,
industrial loan companies, and other matters.
   (2) Any agreement with a government agency that regulates
financial institutions is exempt from the advertising and competitive
bidding requirements of the Public Contract Code.
216.3.  (a) For purposes of this section, the following definitions
apply:
   (1) "Applicable law" means:
   (A) With respect to any bank, Division 1.5 (commencing with
Section 4800), and any of the following provisions of Division 1
(commencing with Section 99) of the Financial Code:
   (i) Article 5 (commencing with Section 270) of Chapter 2.
   (ii) Article 3 (commencing with Section 640) of Chapter 5.
   (iii) Article 4.5 (commencing with Section 670) of Chapter 5.
   (iv) Article 6 (commencing with Section 690) of Chapter 5.
   (v) Chapter 6 (commencing with Section 750).
   (vi) Chapter 10 (commencing with Section 1200).
   (vii) Article 1 (commencing with Section 1400) of Chapter 11.
   (viii) Chapter 12 (commencing with Section 1500).
   (ix) Chapter 13.5 (commencing with Section 1700).
   (x) Section 1936.
   (xi) Section 1937.
   (xii) Section 1938.
   (xiii) Section 1939.
   (xiv) Section 1945.
   (xv) Section 1951.
   (xvi) Section 3359.
   (xvii) Chapter 19 (commencing with Section 3500).
   (xviii) Chapter 21.5 (commencing with Section 3750).
   (xix) Chapter 22 (commencing with Section 3800).
   (B) With respect to any savings association, any provision of
Division 1.5 (commencing with Section 4800) and Division 2
(commencing with Section 5000).
   (C) With respect to any issuer of traveler's checks, any provision
of Chapter 14A (commencing with Section 1851) of Division 1.
   (D) With respect to any insurance premium finance company, any
provision of Division 7 (commencing with Section 18000).
   (E) With respect to any business and development corporation, any
provision of Division 15 (commencing with Section 31000).
   (F) With respect to any credit union, any of the following
provisions:
   (i) Section 14252.
   (ii) Section 14253.
   (iii) Section 14255.
   (iv) Article 4 (commencing with Section 14350) of Chapter 3 of
Division 5.
   (v) Section 14401.
   (vi) Section 14404.
   (vii) Section 14408, only as that section applies to gifts to
directors, volunteers, and employees, and the related family or
business interests of the directors, volunteers, and employees.
   (viii) Section 14409.
   (ix) Section 14410.
   (x) Article 5 (commencing with Section 14600) of Chapter 4 of
Division 5.
   (xi) Article 6 (commencing with Section 14650) of Chapter 4 of
Division 5, excluding subdivision (a) of Section 14651.
   (xii) Section 14803.
   (xiii) Section 14851.
   (xiv) Section 14858.
   (xv) Section 14860.
   (xvi) Section 14861.
   (xvii) Section 14863.
   (G) With respect to any person licensed to transmit money abroad,
any provision of Chapter 14 (commencing with Section 1800).
   (H) With respect to any person licensed to sell payment
instruments, any provision of Division 16 (commencing with Section
33000).
   (2) "Licensee" means any bank, savings association, credit union,
transmitter of money abroad, issuer of payment instruments, issuer of
traveler's checks, insurance premium finance agency, or business and
industrial development corporation that is authorized by the
commissioner to conduct business in this state.
   (b) Notwithstanding any other provision of this code that applies
to a licensee or a subsidiary of a licensee, after notice and an
opportunity to be heard, the commissioner may, by order that shall
include findings of fact which incorporates a determination made in
accordance with subdivision (e), levy civil penalties against any
licensee or any subsidiary of a licensee who has violated any
provision of applicable law, any order issued by the commissioner,
any written agreement between the commissioner and the licensee or
subsidiary of the licensee, or any condition of any approval issued
by the commissioner.  Notwithstanding any other provision of law,
neither the commissioner nor any employee of the department shall
disclose or permit the disclosure of any record, record of any
action, or information contained in a record of any action, taken by
the commissioner under the provisions of this section, unless the
action was taken pursuant to paragraph (2) of subdivision (b), to
persons other than federal or state government employees who are
authorized by statute to obtain the records in the performance of
their official duties, unless the disclosure is authorized or
requested by the affected licensee or the affected subsidiary of the
licensee.  The commissioner shall have the sole authority to bring
any action with respect to a violation of applicable law subject to a
penalty imposed under this section.
   Except as provided in paragraphs (1) and (2), any penalty imposed
by the commissioner may not exceed one thousand dollars ($1,000) a
day, provided that the aggregate penalty of all offenses in any one
action against any licensee or subsidiary of a licensee shall not
exceed fifty thousand dollars ($50,000).
   (1) If the commissioner determines that any licensee or subsidiary
of the licensee has recklessly violated any applicable law, any
order issued by the commissioner, any provision of any written
agreement between the commissioner and the licensee or subsidiary, or
any condition of any approval issued by the commissioner, the
commissioner may impose a penalty not to exceed five thousand dollars
($5,000) per day, provided that the aggregate penalty of all
offenses in an action against any licensee or subsidiary of a
licensee shall not exceed seventy-five thousand dollars ($75,000).
   (2) If the commissioner determines that any licensee or subsidiary
of the licensee has knowingly violated any applicable law, any order
issued by the commissioner, any provision of any written agreement
between the commissioner and the licensee or subsidiary, or any
condition of any approval issued by the commissioner, the
commissioner may impose a penalty not to exceed ten thousand dollars
($10,000) per day, provided that the aggregate penalty of all
offenses in an action against any licensee or subsidiary of a
licensee shall not exceed 1 percent of the total assets of the
licensee or subsidiary of a licensee subject to the penalty.
   (c) Nothing in this section shall be construed to impair or impede
the commissioner from pursuing any other administrative action
allowed by law.
   (d) Nothing in this section shall be construed to impair or impede
the commissioner from bringing an action in court to enforce any law
or order he or she has issued, including orders issued under this
section.  Nothing in this section shall be construed to impair or
impede the commissioner from seeking any other damages or injunction
allowed by law.
   (e) In determining the amount and the appropriateness of
initiating a civil money penalty under subdivision (b), the
commissioner shall consider all of the following:
   (1) Evidence that the violation or practice or breach of duty was
intentional or was committed with a disregard of the law or with a
disregard of the consequences to the institution.
   (2) The duration and frequency of the violations, practices, or
breaches of duties.
   (3) The continuation of the violations, practices, or breaches of
duty after the licensee or subsidiary of the licensee was notified,
or, alternatively, its immediate cessation and correction.
   (4) The failure to cooperate with the commissioner in effecting
early resolution of the problem.
   (5) Evidence of concealment of the violation, practice, or breach
of duty or, alternatively, voluntary disclosure of the violation,
practice, or breach of duty.
   (6) Any threat of loss, actual loss, or other harm to the
institution, including harm to the public confidence in the
institution, and the degree of that harm.
   (7) Evidence that a licensee or subsidiary of a licensee received
financial gain or other benefit as a result of the violation,
practice, or breach of duty.
   (8) Evidence of any restitution paid by a  licensee or subsidiary
of a licensee of losses resulting from the violation, practice, or
breach of duty.
   (9) History of prior violations, practices, or breaches of duty,
particularly where they are similar to the actions under
consideration.
   (10) Previous criticism of the institution for similar actions.
   (11) Presence or absence of a compliance program and its
effectiveness.
   (12) Tendency to engage in violations of law, unsafe or unsound
banking practices, or breaches of duties.
   (13) The existence of agreements, commitments, orders, or
conditions imposed in writing intended to prevent the violation,
practice, or breach of duty.
   (14) Whether the violation, practice, or breach of duty causes
quantifiable, economic benefit or loss to the licensee or the
subsidiary of the licensee.  In those cases, removal of the benefit
or recompense of the loss usually will be insufficient, by itself, to
promote compliance with the applicable law, order, or written
agreement.  The penalty amount should reflect a remedial purpose and
should provide a deterrent to future misconduct.
   (15) Other factors as the commissioner may, in his or her opinion,
consider relevant to assessing the penalty or establishing the
amount of the penalty.
   (f) The amounts collected under this section shall be deposited in
the appropriate fund of the department.  For purposes of this
subdivision, the term "appropriate fund" means the fund to which the
annual assessments of fined licensees, or the parent licensee of the
fined subsidiary, are credited.
217.  The authority vested in the Superintendent of Banks under
subdivision (2) of Section 1 of Article XV of the California
Constitution is delegated to the commissioner.