Today we’ll take a look at some key differences in four common legislative floor operations at the end of the legislative session versus earlier in the session.

Concurrence

Under Assembly Rule 77, a vote to concur in any Senate amendments to an Assembly Bill must meet the same vote threshold required for the bill itself to pass. This is generally a simple majority vote unless otherwise specified. However, the concurrence vote cannot be taken until the bill has been on the unfinished business file for one calendar day; this is known as the one-day waiting period. This does not apply to the last two days of the legislative session. Assembly Rule 77 can and does get suspended, as recently as the end of the 2020 legislative session.

The California Senate has no one-day waiting period. Senate Rule 29 still requires that the amended measure being returned to Senate from the Assembly with amendments appear in the unfinished business file of the Senate Daily File, and that Senators be provided with analysis of the amended Senate Bill, but there is no requirement in the Senate’s rules for one day to pass.

Floor Amendments

The two houses of the California Legislature operate slightly differently in how they amend the other house’s bills on the floor. In the Assembly, they are required to submit amendments the night before the Friday deadline, i.e. Thursday evening at 5:00 PM, although at the end of the session, the desk is known to stay open later to process the crush of amendments coming in. On Friday, the Floor Manager, that is the Assembly Member who is managing or presenting the Senate Bill on the Assembly floor, has to stand up on the floor and present the proposed amendments and seek approval for those amendments. Approval can either be made with the unanimous consent of the members or by a roll call vote. Any member can request a roll call vote. And in that case, the bill is amended by a majority of those present and voting.

In the Senate, amendments are not presented on the floor. Instead, amended bills are placed on the second reading file and amendments are processed by the Senate Desk. This effectively meant that, during the end of the 2021 session, amendments to ABs were made through 5 pm on the Friday before the last week of session.

Batching and the Consent Calendar

In recent years, the term “batching” has come up increasingly on the Assembly floor. It’s a process that once unanimous consent is received on the floor, permits a single vote for multiple bills or amendments to be adopted. It’s used, occasionally, when both the Democratic and Republican caucuses both have a support recommendation and no Republican legislators have abstained or voted no on the bill in committee or on the floor. It is most similar to the Senate’s special consent calendar.

Going Past Midnight

This question always arises at the end of session, as the clock ticks closer and closer to midnight, can legislative business be conducted after midnight on the last day of session?

In an even-numbered year, an election year, this question is clearly answered by California’s Constitution. Article IV, Section 10, Subdivision C states the Legislature must conduct work by midnight, August 31. There are three types of bills that are exceptions to this mandate.

However, in odd-numbered years, the date of adjournment is set by the Joint Rules of the Assembly and Senate. In past years, in following with its custom and practice, the Senate will work past the midnight deadline without suspending the Joint Rule. The Assembly, however, generally passes a resolution suspending the Joint Rule. Do they need to do that? I don’t think so. As a general principle of California’s separation of power doctrine, the judicial branch won’t consider a legal challenge to a statute that is alleged to have violated internal rule of procedure of either of the houses of the Legislature

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

With the 2021 legislative session at a close, we can now turn our attention to the actions Governor Newsom can take on the bills that were passed at the conclusion of the session on September 10. Governor Newsom can consider bills under October 10.

As a quick reminder, there are three actions that the governor can take on legislation on his or her desk. The governor can sign the bill into law. They can veto the bill. Or they can allow the bill to become law without a signature, California’s so-called pocket signature rule.

In this third year of Governor Newsom’s term, he received just over 800 bills to act on. That number was slightly depressed by the coronavirus pandemic compared to his first year in office. So far, he has acted on 159 of the 800 bills. During his first year in office, just over 1,000 bills were sent to Governor Newsom’s desk and he vetoed 16.5% of them. In his second year, where the pandemic reduced the number of bills introduced by 76%, just over 425 bills reached the governor’s desk. Newsom vetoed 13% of those bills.

How does this compare historically to other governors in the era of bill introduction limits? Since the 1990’s, when bill introduction limits were introduced, a typical year would have between 850 and 2,100 bills reach the Governor’s desk. Governor Pete Wilson usually received between 1,050 and 1,700 bills. His lowest veto rate was 8%, and his highest veto rate was 24%. In Governor Davis’s five years in office, he received between 950 and 1,450 bills and vetoed between 6% and 25%. Governor Schwarzenegger received between 900 and 1,250 bills during his term. He vetoed between 22% and 35% of bills. And most recently Governor Brown, in his second stint as governor, received between 850 and 1,200 bills annually, vetoing between 10 to 15% of them.

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

There are multiple players who take part in setting education policy in the state of California.

Article IX, which focuses on education, of the California Constitution has sixteen sections. Section 2 provides that a Superintendent of Public Instruction, sometimes referred to as SPI, shall be elected by the qualified electors of the state at each gubernatorial election. And no Superintendent of Public Instruction may serve more than two terms. The SPI is a nonpartisan office, although it’s worth noting that it was originally partisan.

The SPI directs all the functions of the Department of Education, and the SPI executes the policy set forth by the Department or the Board of Education, and the SPI chairs the Board of Education. Generally, they viewed as the state’s chief spokesperson for the public schools who provides education policy and direction to the local school districts. And he or she serves as an ex-officio member of the CSU community college and UC higher education systems.

Next is the State Board of Education, SBE, which was established in 1852. SBE is the governing and policy-making body of the California Department of Education. The board itself is comprised of 11 members, and note that both the Constitution and state statutes assign the State Board of Education a variety of different responsibilities.

The SBE has also adopted statewide academic standards for content and student performance in all the major topics: English, language arts, history, social science, math, science, visual and performing arts, and even physical education. Now 10 of the board’s 11 members are appointed by the governor for staggered four-year terms. They’re subject to confirmation by the state Senate, but not by majority vote. Instead, by a two-thirds vote, and that has to occur within one year of their appointment to the board.

The 11th member is also appointed by the governor and subject to Senate confirmation. However, that individual serves a one-year term and is a California public high school student. Note that the student does enjoy full voting rights and all the rights and privileges of the board membership. The only difference, again, is he or she serves a one-year term.

Then there is the Department of Education, CDE. CDE is under the direction of the Superintendent and the CDE implements the policies that have been adopted by the State Board of Education.

The Constitution also spells out the role that Legislature has in education policy in California as well.

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

California, like all other states and the federal government, have a system for the employment of individuals, our public employee system. Many of the provisions for California’s public employee system are spelled out in our state’s constitution.

Article VII was added to the California Constitution by Proposition 14 on the June 8, 1976, ballot. It contains eleven sections.

  • Section 1 – Civil Service includes every officer and employee of the state except for those provided for elsewhere in the Constitution. Permanent appointment and promotion in civil service must be made under a general system based on merit by use of competitive examinations.
  • Section 2 – establishes the State Personnel Board
  • Section 3 – requires the State Personnel Board to enforce civil services statutes, and gives the Board other duties
  • Section 4 – Exempts from civil service individuals who are employed or appointed by the Legislature; employed by council or commissions in the judicial branch; elected by the people of California; members of Boards and Commissions; selected by Boards and Commissions or appointed by the Governor; state officers appointed by the Governor; employees of the Governor’s or Lieutenant Governor’s office; and many others.
  • Section 5 – Temporary civil service appoints may be made to a position where there is not an employment list, but no person may serve in such a role for more than nine months in a twelve consecutive month period.
  • Section 6 – The Legislature may provide preferences for veterans and surviving spouses of veterans
  • Section 7 – Prohibits a person holding a lucrative office under the United States or another power from holding a civil office
  • Section 8 – Every person who has been convicted of having given or offered a bribe to procure personal election or appointment is prohibited from holding any office of profit in California.
  • Section 9 – any person or organization that advocates for the overthrow of the government of the US by force or other illegal means, or who advocates support of a foreign government against the United States can’t hold office or employment.
  • Section 10 – No person who is found liable in a civil action for making libelous or slanderous statements against an opposing candidate at the state or local level can retain the seat to which they’ve been elected if the libel or slander was a major contributing cause in the defeat of an opposing candidate.
  • Section 11 – Prohibits the Legislature’s retirement system from paying any retirement allowance to any person who entered office after January 1, 1987.

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

The California Air Resources Board, also known by its acronym, CARB, has a number of roles. Those roles include protecting the public from harmful effects of air pollution, as well as developing programs and actions to fight climate change in the state of California.

CARB is part of a coordinated three tier approach to cleaning up air pollution in California. The US EPA sets nationwide air quality and emission standards, as well as oversees state efforts and enforcement. Then CARB focuses on California’s unique air quality challenges. It sets the state’s own, stricter emission standards for a wide range of statewide pollution sources, including vehicles, fuels and consumer products. And then there are 35 local air pollution control districts that regulate emissions from businesses and stationary facilities. And these range from oil refineries to auto body shops and even dry cleaners.

CARB is governed by a 16 member board. 12 of those members are appointed by the Governor and confirmed by the State Senate. Of those 12 only one, the Chair of CARB, server on the board full-time. As far as the other eleven members are concerned five must serve on local air districts, four are experts in fields that shape air quality rules, and two are members of the public. The Governor can choose any of the members to serve as Chair of the board. The remaining four CARB members include two people representing environmental justice, or EJ, communities – one of whom is appointed by the Senate Committee on Rules and one by the Speaker of the Assembly – and two non-voting members are appointed for legislative oversight – one each appointed by Senate Rules and the Assembly Speaker.

CARB is established in Health and Safety Code Division 26, Part 2. It’s found in quite a few sections, from section 39500 to 39961. These sections cover many of the Air Resources Board’s duties, which include permit assistance, goods movement, emission reduction program, cruise ships and ocean-going ships, school bus idling, and idling at schools, toxic air contaminants, coordination with federal acts, identification of toxic air contaminants, control of these toxic air contaminants, special provisions for infants and children, its scientific review panel, Greenhouse Gas Reduction Fund Investment Plan and Communities Revitalization Act, global warming, and many other critical projects to reduce air pollution and protect public health.

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

One way to determine the legislative intent behind a particular bill is to review a letter to the Daily Journal for that measure. While you may find the same letter for a bill in the Daily Journal of both houses, generally a letter related to an Assembly Bill is found in the Assembly Daily Journal and a letter related to a Senate Bill is found in the Senate Daily Journal. These letters are used by the author of the bill to, among other things, explain ambiguity in the measure or explain the purpose of the particular changes in the law that are being done by the bill.

In either house, the process of submitting a letter is a pretty formal matter. The letter has to be on the legislator’s letterhead and signed by the legislator. The general custom and practice of both houses of the California Legislature is to have the respective leadership staff, meaning both the majority and minority party staff, review the contents of these proposed letters to the Journal and determine whether either party has an objection. If staff and leadership on both sides of the aisle approve of the contents, then the letter is published. But what happens is approval is not received by folks on both sides of the aisle?

In this case, the author of the letter, the legislator, can request that the letter be printed by a roll call vote of the house. If such a request is made, then it only takes a simple majority of those present and voting to approve the printing of that letter in the respective house’s Daily Journal. And while only a simple majority is necessary, usually letters to the Journal are passed with unanimous consent.

California courts can use these letters to help determine the intent of the Legislature. Although different versions of the bill, committee analyses, floor analyses, and other items of extrinsic evidence are generally given greater weight than these letters to the Journal. Nonetheless, for advocates and practitioners, these journal letters may frankly be the best indicator that’s available regarding the intent of the bill’s author.

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

The judicial branch of government is generally reluctant to review the record-keeping practices of the Legislature that is used to determine the validity of statutes. This limitation on judicial inquiry is known as the enrolled bill rule. It’s a legal doctrine that holds that if an act in the Legislature is “properly enrolled, authenticated, and filed,” then it is presumed that all of the required and necessary steps for passage of legislation were in fact properly taken by the Legislature. Interestingly, the courts have generally said even the Daily Journal of the Assembly and Senate can’t be utilized to impeach that authentication process. More on that later.

The rule comes from the enumerated separation of powers doctrine in Article III, Section 3 of the California Constitution. While there has been some criticism of this legal principle, the courts have ruled as recently as 2009 that the enrolled bill rule is still in full force and effect in California.

As far as I can tell, the enrolled bill rule dates back to 1866, in the case of Sherman v. Story. In its decision, the Court refused to consider any uncontradicted legislative journals as well as oral testimony that alleged that certain proposed amendments that were rejected by the California Assembly, we mistakenly incorporated into the final version of the bill that passed the State Senate. In 1901, in the case of County of Yolo v. Colgan, the Court rejected a claim based on an entry in the Senate Daily Journal that noted the bill did not have enough votes to pass. Despite the bill in question not having the necessary 21 votes, the Court ruled that the separation of powers doctrine vested the powers to determine whether or not the appropriate formalities of passing a bill had been complied with in the Legislature. In Planned Parenthood Affiliates v. Swoap in 1985, the matter at hand was a section of the budget bill, Section 33.35 to be precise, was removed in conference committee. However, in the final signed version of the budget bill Section 33.35 was included by mistake. Its inclusion was challenged but because of the enrolled bill rule, the Court determined that it lacked the power to strike the erroneously included section.

There is one narrow exception to the enrolled bill rule. That exception is found in the Levin decision. Basically, the Levin decision stated that the exception to the enrolled bill rule applies when there is a procedural defect in the adoption of local charter amendments that could be evidenced on the face of the resolution that was adopted by the Legislature.

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

 

The Department of General Services, known by its acronym of DGS, is a centralized business management hub where the state government can utilize specialized techniques and skills as necessary to ensure a high level of efficiency and economy. These services include, but are not limited to, planning, acquisition, construction, and maintenance of state buildings and property; purchasing; printing; architectural services; administrative hearings; government claims; and accounting services. The Department of General Services shall develop and enforce policy and procedures as it deems proper to ensure effective operation of all functions performed by the department and to conserve the rights and interests of the state.

DGS has the following divisions and offices, including Procurement Division, Real Estate Services, Facilities Management Division, the State Architect, the Office of Administrative Hearings, the Interagency Support Division, including Fleet and Asset Management, the Office of State Publishing, the Building Standards Commission, and the Commission on Disability Access. In the DGS Administration Division, there is Enterprise Technology Solutions, the Office of Fiscal Affairs, Human Resources, Business Acquisition Services, and Risk and Insurance Management. There is also the DGS’s Director’s Office which includes Sustainability, Audit Services, Legal Services, Planning and Research, Legislative Affairs, and Public Affairs.

DGS is responsible for government claims duties, state property, buildings and grounds, state projects, state burial grounds, state land settlement, state building energy retrofits, Rector dam, integrated pest management, administration of state records, state forms management, the California State Contracts Register, small business procurement and contracting, the Office of the State Printer, the Golden State Financial Marketplace Program, the Office of the State Architect, purchasing of prescription drugs for government agencies, and the Commission on Disability Access. It’s a pretty wide variety of roles and responsibilities that have been placed on the Department of General Services by way of California’s Government Code.

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

 

In 1994, California created the Bergeson-Peace Infrastructure and Economic Development Bank, more commonly known as Ibank. The IBank is California’s only general purpose financing authority. It helps finance public infrastructure and private development that promotes a healthy climate for jobs, contributes to a strong economy, and improves the quality of life in California communities.

The IBank is part of the GO-Biz office, which is short for the Governor’s Office of Business and Economic Development. The IBank is governed by a five-member board of directors. A full-time executive director runs day-to-day operations. The IBank issues a number of different bonds to finance its programs. There are also a number of different programs within the IBank, including the Infrastructure State Revolving Fund Program.

The IBank also issues loan guarantees in partnership with seven different collaborating financial development corporations, or FDCs, in California. According to the IBank, since its inception it has financed more than $55 billion in infrastructure and economic development projects in California.

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

California’s Department of Consumer Affairs, more commonly known as DCA, is responsible for protecting California consumers. The DCA does this through oversight enforcement and licensure of professions. By regulating the professional licenses, DCA protects consumers from unscrupulous and unqualified professionals and professionals from unfair competition by unlicensed practitioners.

The DCA is comprised of 37 different boards, bureaus, and commissions, which are found in Business and Professions Code § 100. All of these different boards, bureaus, and commissions ensure private businesses and professionals engaged in these activities are properly licensed. Each of these boards or bureaus are required by statute to meet twice per year, once in Northern California and once in Southern California. These meetings are open to the public, including licensed professionals the board or bureau regulates.

These boards, bureaus and commissions are required to establish minimum qualifications and levels of competency for licensure. Most importantly, these DCA boards, bureaus, and commissions are responsible for addressing any grievances that are filed by consumers regarding alleged unprofessional conduct or even incompetence fraud or unlawful activity.

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