The California Gambling Control Commission (“CGCC”) consists of five members appointed by the Governor and confirmed by the Senate. The Commission is vested with jurisdiction and supervision over gambling establishments in California. The CGCC is responsible for setting policy, establishing regulations, issuing gambling licenses, and acting as the administrator of gaming revenues that are deposited into the Indian Gaming Special Distribution Fund. The Commission also is the trustee of the Indian Gaming Revenue Sharing Trust and administers the provisions of the Gambling Control Act and the Tribal State Gaming Compacts.

The CGCC oversees approximately 89 different licensed card rooms in the state of California. It also has regulatory and administrative responsibilities over 60 tribal casinos. In addition to the CGCC, California state law provides special jurisdiction over gambling activities to the federal Gambling Control Bureau. It’s worth noting, the Bureau is the entity responsible for conducting criminal background investigations and auditing gaming establishments.

You can find the full transcript of the audio in today’s podcast here.

California’s state tax system involves five different departments:

(1) the Franchise Tax Board (FTB)

(2) California Department of Tax and Fee Administration (CDTFA)

(3) the Employment Development Department (EDD)

(4) State Board of Equalization (SBE)

(5) Office of Tax Appeals (OTA)

Although the EDD is the largest tax agency in California, the FTB is probably the most well-known. The FTB’s mission is to help taxpayers file tax returns timely, accurately, and to pay the correct amount of fund services important to Californians. The Board consists of the Controller, the Director of the Department of Finance, and the Chairperson of the State Board of Equalization. By statute, the Board retains all the duties, powers, purposes, responsibilities, and jurisdiction of the former Franchise Tax Commissioner. The FTB appoints an executive officer who is then confirmed by a two-thirds vote in the Senate.

The CDTFA was established in 2017 as part of the state budget accord and it took over most of the duties, powers and responsibilities that were previously held by the State Board of Equalization. The law requires CDTFA’s headquarters to be in Sacramento, and the Governor appoints a Director, the Chief Deputy Director, and the Chief Counsel. The CDTFA is responsible for administering the State’s sales and use tax, fuel and tobacco taxes, as well as a variety of other taxes and fees that fund specified state programs. In addition, it is the stated mission of CDTFA to make life better for Californians by fairly and efficiently collecting the revenue that supports essential public services of the state.

The EDD is the one of the largest state departments with employees at hundreds of service locations. For more than 70 years, EDD has connected millions of job seekers and employers in an effort to build the economy in California. According to the Unemployment Insurance Code, the EDD is vested with the duties, purposes, responsibilities, and jurisdiction that had previously been exercised by the State Department of Benefit Payments. The EDD is administered by an Executive Officer and is vested with the duties, purposes, responsibilities, and jurisdiction previously exercised by the Director of Benefit Payments. The EDD is required to investigate, examine, and make reports for the parties that are responsible for the administration and public funds for services that are administered by the EDD.

The State Board of Equalization, or SBE, is the only tax agency that is found in the California Constitution. The SBE is governed by a five-voting member board, which are designated as the State Controller, as well as four members who are elected to four-year terms. No SBE member can serve more than two terms.

The Office of Tax Appeals was created by the Taxpayer Transparency and Fairness Act of 2017. The mission of the OTA is to provide a fair, objective, and timely process for appeals from California taxpayers. The OTA is under the control of a director who is appointed by the Governor, and the Governor also gets to appoint a Chief Deputy Director and a Chief Counsel. The Director is subject to confirmation by the California State Senate and the Director is required to administer and direct the day-to-day operations of OTA, including staffing, the hearing offices, and the appeals hearings so that taxpayer appeals can be heard and resolved in a timely and efficient manner.

Each OTA office establishes a Tax Appeals Boards, and each of these panels of tax appeals consist of three administrative law judges (ALJ) and the ALJs are designated by the OTA Director. These ALJs have to be active members of the state bar, at least for the prior five years, and they have to have knowledge and experience regarding the administration and operation of both federal and state tax and fee laws. Also, these ALJs are required to subscribe and follow the Code of Judicial Ethics that’s been adopted by the California Supreme Court. The OTA has the authority to handle all the appeals that were transferred from the State Board of Equalization to the Office of Tax Appeals.

You can find the full transcript of the audio in today’s podcast here.

 

 

 

 

The California Building Standards Commission (CBSC) is tasked with the development, adoption, approval, publication, and implementation of California’s building codes. The Commission was established in 1953. The Commission is in the Department of General Services, which falls under the Government Operations Agency.

The CBSC consists of the Secretary of the Government Operations Agency and ten other members appointed by the Governor and confirmed by the Senate. The Secretary of the Government Operations Agency chairs the CBSC. Members hold office until the appointment of their successors, which must occur within 180 days of their term expiring.

The members of the Commission represent different stakeholder groups including:

-design professionals

-the building and construction industry

-local government building officials

-fire and safety officials

-labor officials

-public at large.

Four members on the Commission focus on building construction, including an architect, a mechanical or electrical engineer, a structural engineer, and a licensed contractor. Then three members are appointed from the general public, at least one of whom is a person with physical disabilities. A member from organized labor from the building trades, a member who’s a local building official, and a member who is a local fire official. CBSC members serve without compensation.

You can find the full transcript of the audio in today’s podcast here.

California’s Agricultural Labor Relations Board (ALRB) was created in 1975. It was created to ensure peace in the fields of California by guaranteeing justice for all agricultural workers and stability in agricultural labor relations. Among its duties, the ALRB provides orderly processes for protecting, implementing, and enforcing rights and responsibilities of employees, employers, and labor organizations.

Section 1140.2 actually sets forth some important legislative findings and declarations: “It’s hereby stated to be the policy of the State of California to encourage and protect the right of agricultural employees to full freedom of association, self-organization and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from interference, restraint, or coercion of employers of labor or agents in the designation of such representatives or in self-organization, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” For this purpose, this part is adopted to provide for collective bargaining rights for agricultural employees. The Act regulates:

-the organization of the board

-the Board’s investigatory powers

-the rights of agricultural employees

-unfair labor practices

-the regulation of secondary boycotts

-labor representatives and elections

-the prevention of unfair labor practices

The Board itself consists of five members that are appointed by the Governor and confirmed by the Senate. Board Members have five-year staggered terms and the Governor designates one of those five members to serve as the chair. A member may be removed by the Governor for only two reasons: neglect of duty or malfeasance in office. The Governor also appoints the Board’s general counsel and the Senate confirms their four-year term.

The Board’s principal office is in Sacramento, but the Board may meet and exercise any or all of its powers anywhere in California. It can also establish offices in other cities that it deems necessary. Section 1142.5 of the Labor Code requires the board to maintain at its principal office a telephone line staffed 24 hours a day, seven days a week. This provides interested persons with information concerning their rights and responsibilities. It is also a way to refer individuals to the appropriate agency or entity for advice regarding any situation that may arise out of an agricultural labor dispute.

The Labor Code requires the ALRB, at the end of every fiscal year, to detail the cases that the Board heard, decisions that the Board rendered, and the name, salaries, and duties of all the employees and officers that the Board employs or supervises. This report is made in writing to the Legislature and Governor by June 30. Section 1144 provides authority to adopt rules and regulations as may be necessary by the Board itself. And the Section 1145 provides that the ALRB may appoint an executive secretary and attorneys, hearing officers, administrative law officers and other employees that it may need or find necessary for performing their duties.

You can find the full transcript of the audio in today’s podcast here.

You might be surprised to know that news coverage of California government agencies is actually covered in California statute. In 1965, two sections were added to California’s Government Code to address the topic.

It’s two code sections, Government Code Sections 6090 and 6091. 6090 contains a statement of legislative findings and intent, that it’s the public policy in the state, that public administrative agencies exist to aid in the conduct of the people’s business, and that the proceedings of public administrative agencies should be conducted openly in an orderly manner so that the public may remain informed. Section 6090 of the Government Code goes on to specify that in enacting this Chapter, the Legislature finds and declares that the orderly use of broadcasting, telecasting, and photographic equipment and proceedings of public administrative agencies serves this public purpose.

Section 6091 specifically allows radio and television stations to broadcast and telecast the proceedings of all meetings of state, county, and municipal administrative agencies that are required by law to be open to the public. This does not include any adjudicative – i.e. enforcement or quasi-judicial – activities. The quasi-legislative, or rulemaking, activities, are generally open to the public and therefore subject to this Code section.

The law does require that cameras and other equipment used in these meetings or hearings must operate silently and that they don’t require any sort of ancillary lighting that could be disruptive at the agency public hearing. However, it allows the administrative agency to waive those silent operation requirements of the camera and other equipment if they so desire. The administrative agency’s presiding officer is able to require the pooling of equipment when that presiding officer deems it necessary in order to limit the number of pieces of equipment so that the presiding officer can conduct an orderly meeting or hearing.

The last piece of this Government Code section is that the law provides that meetings or hearings of these administrative agencies in which they consider the appointment, employment, or dismissal of a public officer or employee, or again, the adjudicative matter to hear appeals or complaints or charges brought against individuals are not subject to these provisions of the California Government Code.

You can read the transcript of the audio in today’s post here.

In 1990, California voters created the California Citizens’ Compensation Commission by passing Prop 112. The Commission’s purpose is to set the salaries and benefits of California’s elected officials – taking the power out of the hands of the Legislature and Governor and putting it in the hands of the people. In 2009, another ballot measure passed, precluding the Commission from raising the salaries of elected officials during the years in which the state has a budget deficit.

The California Citizens’ Compensation Commission is comprised of seven members, all of whom are appointed by the Governor for staggered six-year terms. State law requires the Commission to meet every year by June 30. The decisions are then effective in December of that same year.

Per the California Constitution, three members of the Commission must be with specified expertise, two who have experience in the business community, and two who are either officers or members of a labor organization. Subdivision C of Section 8 of Article III of the Constitution requires the Governor to strive in so far is practical to provide a balanced representation of the geographic, gender, racial, and ethnic diversity of the state of California when appointing Commissioners. It further specifies that current and former officers and employees of the state are ineligible to be appointed to the Commission.

You can find the full transcript of the audio in this post here.

The state constitution provides a number of voting rights for its residents. These are found in Article II, which was most recently amended by Prop 14 on June 9, 1976. Article II includes several sections related to voters and voting and is mainly focused on the forms of direct democracy: initiative, referendum, and recall.

Section 2 of Article II provides that a U.S. Citizen, 18 years of age or older, who is a resident of California may vote. Section 2.5 specifies that a voter who cast a vote in an election that follows the laws of the state shall have his or her vote counted. Section 3 of Article II provides that the Legislature shall define residents and provide for registration for voters, and to provide for free elections. Section 4 states that the Legislature must prohibit the improper practices that affect elections as well as provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony.

Section 5 of Article II provides that a voter-nomination primary election be conducted. This is for the purpose of selecting candidates for congressional seats, as well as state elected offices in California. All voters may vote at a voter-nominated primary election for any candidate for congressional, and state elected office without regard to their political party preference provided that the voter is qualified to vote for candidates. The candidates then who are the top two vote-getters at this voter-nominated primary election for the congressional and state elected offices shall compete in the ensuing general election in November, and again, this is regardless of party preference of the candidates.

Section 6 states that all judicial, school, county, and city offices, as well as the statewide Superintendent of Public Instruction, shall be non-partisan races. And then Section seven requires that voting be done in secret.

You can read the full transcript of today’s podcast here.

For those of you who need to research the legislative intent of a bill that was enacted into law in California, you need to look at a number of options to conduct your research. I will describe some of those avenues here.

First, be sure that you have a general understanding of how bills are enacted in California. Second, decide how much time you have to spend researching. Is this an urgent request where you only have a couple of hours, or do you have a little bit of time. In California, like in most states, legislative intent can be kind of elusive. While leginfo.ca.gov has plenty of information, it only has information on bills going back to 1993. If the legislation was written or enacted prior to 1993, you may have to pay a visit to the State Archives.

After this, start reviewing California legislative history resources. Leginfo has the bill, all the versions of the bills, texts the committee and for analysis, the votes and the history at the California State Archives, they have author files, committee files, governor’s chapter bill files, some of the party files, including the Assembly Republican Caucus, the Senate Floor analysis files, sometimes agency files, at times studies from outside groups like the California Law Revision Commission.

For legislation post-January 2018, courtesy of Prop 54, the California Assembly and Senate have to make video and audio recordings of all legislative committee hearings and floor sessions. Another helpful tool is looking into media coverage at the time of the statute’s debate and adoption. The news may help explain what the purpose of the bill was, or what particular problem or issue it was trying to address. Next, you may want to contact the legislator who was the bill’s author, as well as the committees the bill was assigned to, so you can know the bill’s history and check those as well.

You can read the full transcript of today’s audio here.

When drafting bills and amendments in this state, there are a number of key reminders that are worth reviewing. At a most basic level, every bill draft should clearly describe who’s required or allowed to do what, what’s required, or allowed to be done. Any necessary definitions should be provided. Any exemptions, penalties, and administrative issues such as record-keeping should be set forth.

There are several shortfalls that often occur with bill and amendment drafting that you should strive to avoid. Some of these shortfalls include using too much legalese, a failure to use terms consistently, and using unclear language.

There are some key reminders to keep in mind when you begin drafting legislation or amendments to legislation.

  • Spend sufficient time thinking through the bill. Think through the issues presented in the proposed legislation and how those issues will be addressed.
  • Be consistent throughout. Consistency is key. And consistency applies to not only the language  but also the organization of the statutory scheme that you’re dealing with. The language and organization of the legislation you are drafting should be consistent with the entire area of law that it fits into.
  • Use the active voice. It is important to identify the who and the what in the statute, such as the person required to do something and the mandate that is being imposed on them. That is best accomplished by using the active voice.
  • Use the singular term. You reduce the likelihood of confusion and ambiguity by using the singular term instead of the plural. A plural term, for example, could be interpreted to require more than one person to engage in certain conduct in order for there to be a violation of the law.
  • Refrain from using gendered terms. If a proposed law applies to all persons, there is no reason to use gendered terms like he or she. Additionally, using the plural term they could add confusion to readers trying to interpret and abide by the statute. It’s better to use gender-neutral terms like person, licensee, applicant, etc.
  • Use the present tense of verbs. Not using the present tense could create confusion as to whether or not the proposed statute applies retroactively.
  • Be concise. Use short, simple sentences. Try to avoid unnecessary language. Be direct. As long as you properly convey the intent of the proposed language, you should be okay.
  • Properly deal with statutory references. Make sure that the new statute is properly integrated with existing laws.

You can read the transcript of today’s audio here.

There are two types of approaches to interpreting statutes; literalism and purposive. Literalism is generally defined as the interpretation of words in their usual or most basic sense, while purposive is generally defined as the interpretation of words based upon having or being done with a purpose. If you look at a historical context for legal systems based upon common law and derived from the English tradition, literalism is the basis for most legislative interpretation, while those systems based upon the civil law tradition mainly utilize the purposive technique to interpreting statutes.

These two main approaches to statutory interpretation are based upon either using the words of a statute based upon their literal meaning, that’s where we come up with the literalism theory, or using the words of a statute based upon their intended purpose or the purposive approach to statutory interpretation. The plain meaning rule is derived from this theory of statutory interpretation. Under this approach, a court takes a literal approach to legislative interpretation when the statutory language is hopefully precise and doesn’t contain ambiguity.

On the other hand, according to purposive interpretation, the purpose of the text is not part of the text itself. Instead, the judge determines the purpose of the statute, based upon information that the judge has obtained to ascertain the intent of the legislature.

In my mind, these two main theories of statutory interpretation result in judges and bill drafters being intertwined. This is because judges have developed their approaches to interpretation on the basis of the way legislation is drafted. In turn, legislative counsel are influenced by judicial practice on interpretation.

In the end, both theories of interpretation are intended to ensure that the judicial branch is interpreting the statute in the manner desired by the legislative branch of government. Statutory interpretation is intended to respect the fact that the Legislature is the supreme lawmaker in the land. Of course, judicial problems arise when the judiciary branch attempts to determine the intent of the Legislature when examining the language of a statute that is at the center of a legal dispute. In many instances, it’s difficult to ascertain the intent of the legislative branch from just the words of the text itself.

You can read the transcript of the audio in today’s post here.