McGeorge Adjunct Professor Chris Micheli

Assembly Bill 673 was authored by Assemblymember Wendy Carrillo. It was signed into law by Governor Gavin Newsom on October 10 and enacted as Chapter 716.

The bill contains one section which provides several amendments to Labor Code Section 210. The purpose of this provision of law is to provide penalties for the failure to pay wages to workers in the state of California.

First, the bill adds a new category of failure to pay wages that are subject to this penalty in Labor Code Section 210. Second, the bill removes the description of a civil penalty. Third, it provides that the penalties may be recovered under Labor Code Section 210, either by the employee as a statutory penalty or by the Labor Commissioner as a civil penalty through its citation process. The procedures for issuing, contesting and enforcing judgments for these citations issued by the Labor Commissioner are set forth in existing law and the same as. Fourth, this new law specifies that an employee can only recover the statutory penalties provided in Section 210 or to enforce a civil penalty under the Private Attorneys General Act, PAGA statute, but not for both, for the same violation of the Labor Code.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

In today’s post I will go over some tips for writing effective advocacy letters for bills and resolutions weaving their way through the Legislature or Congress.

  1. If you’re a constituent, identify yourself as such. Most elected officials feel quite compelled to respond to constituent mail versus out-of-district mail.
  2. Try to be brief and keep it simple. Keep your letter to just a page, or two at the very most. Be direct. Remember to request what action you want your elected representative to take.
  3. State your position in the opening paragraph of your advocacy letter. State it again in the closing paragraph too.
  4. Personalize your letter. Try to avoid using form letters with just one or two changes. Personalized letters carry much more weight with legislators and their staff. Explain how the legislation or resolution would impact you, or your business, or your area.
  5. Always be polite. Don’t be rude. No threats. Politicians respond better to praise than criticism.
  6. Try not to enclose additional material. The information is usually rarely read.
  7. Never exaggerate or lie. Stick to the facts and your own personal experiences only.
  8. Make sure your letter is delivered in a timely fashion. An advocacy letter doesn’t do any good if it reaches your legislator after the bill has been voted on.
  9. Try to get other groups to sign on to your letter or to send similar letters.
  10. Send a copy of your advocacy letter to any other members of the relevant committee.

I hope these general tips help you write more effective advocacy letters.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

An important but often overlooked component of the lobbying profession, even involving bills, is working with relevant state agencies or departments to secure a favorable recommendation on a bill that you’re lobbying either for or against. Administrative agencies, departments, boards, and commissions of state government can often be important players in public policy development both as it relates to pending legislation that’s being considered by the Legislature, and ultimately by the Governor.

Because they’re a part of the executive branch of government, these state agencies are generally directly accountable to the Governor. As a result, they play an important role in advising the Governor and his or her staff on pending measures. As such, those involved in legislative advocacy must engage with these administrative agencies, often early in the legislative process, to ensure that the agencies and departments are aware of your client’s position and their view on particular bills. The recommendations of these state administrative agencies, just like their federal counterparts, carry great weight in the executive branch and ultimately with the Governor and his or her staff when they’re making final decisions on whether to sign or veto these measures.

The Department of Finance makes a recommendation to either sign or veto every bill that reaches the Governor’s desk that has a fiscal impact to the state’s general fund. If it has an adverse impact on the fiscal health of the state, then you can probably expect a veto request by DOF and most often a veto by the Governor if you look at the last few administrations. In other words, regardless of whether the Governor is a Democrat or a Republican, the DOF appears to have tremendous sway over the final outcome of measures.

State agencies, departments, boards, and commissions provide both informal and formal advice on pending legislation. The informal advice can be transmitted to the Governor’s office as simply as with a phone call or an in-person conversation or an email. The formal advice comes in the form of a written analysis of the bill that’s usually accompanied by a recommendation for an official position. It is important for lobbyists to determine what the views of the relevant state agency or department are, and what they are likely to advise the Governor’s staff about a particular bill, early in the legislative process.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

Senate Bill 707 by Senator Bob Wieckowski was signed on October the 13th as Chapter 870. The new law deals with arbitration agreements.

Section 1 of the bill notes that it is the intent of the Legislature to affirm three different state court decisions regarding a company’s failure to pay arbitration fees that constitute a breach of the arbitration agreement. There are also six legislative findings and declarations in Section 1 of SB 707.

Section 2 of this bill amends Section 1280 of the Code of Civil Procedure by adding three definitions for consumer, drafting party, and employee. Section 3 of the bill amends Section 1281.96 of the Code of Civil Procedure to add specified information that needs to be collected. Under existing law, a private arbitration company that administers or is otherwise involved in a consumer arbitration must collect and publish at least quarterly and make available to the public on its internet website a single cumulative report that contains specified information regarding each consumer arbitration within the preceding five years. SB 707 adds a twelfth category of specified information.

Section 4 of the bill adds Section 1281.97 to the Code of Civil Procedure. It says that either employment or consumer arbitrations that require the drafting party to pay certain fees and costs before the arbitration can proceed, that the drafting parties deem to be a material breach of the agreement is in default and thereby waives its rights to compel arbitration if the fees or costs to initiate an arbitration are not paid within 30 days after their due date. If the drafting party materially breaches the agreement and is in default then the consumer or the employee can either withdraw the claim from arbitration or they can proceed to civil court, or they can compel arbitration, in which case the drafting party must pay all the fees and costs. Section 5 adds Section 1281.98 to the Code of Civil Procedure and is similar to Section 4.

Section 6 of the bill adds new Code of Civil Procedure section 1281.99. This new section requires a court to impose a monetary sanction against a drafting party that materially breaches an arbitration agreement.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

One of the controversial occurrences that occurs during the legislative sessions of the California Legislature are so-called gut and amend bills. According to the Legislative Counsel, these measures are defined as “when amendments to a bill remove the current contents in their entirety and replace them with different provisions.”

These types of amendments raise the legislative issue of germaneness, which generally refers to whether a proposed amendment is relevant to the subject matter that’s currently contained in that particular measure. While the Legislative Counsel in California may opine on the issue of germaneness, the determination of germaneness is generally decided by the presiding officer of the Assembly or Senate.

In addition, we have to consider the appropriateness of gut and amend bills in the context of Prop. 54 that was adopted by the voters and requires a bill to be in print for 72 hours before the final version of the bill can be voted upon by members of the Legislature. Now, because that ballot measure added the word “any” before the types of amendments, the 72-hour rule means it applies to both substantive and technical amendments.

Prop. 54 has to be taken into account at the end of the legislative session when dealing with gut and amend bills. Each house of the Legislature has rules related to determining whether these amendments are, in fact, germane to the current contents of the bill.

In the Assembly there is Assembly Rule 92. It basically says that an amendment to any bill, other than a bill stating legislative intent to make necessary statutory changes to implement the budget bill, is not in order when the amendment relates to a different subject than, or is intended to accomplish a different purpose than, or requires a title that’s essentially different than the original bill.

The Senate has Senate Rule 23(e) which draws a distinction to amendments to rewrite a bill. Here, the first inquiry is whether the amendment is germane to the current version of the bill, but adds a new subject to the bill that’s different from but relates to the current contents of the bill. Subdivision (f) of Senate Rule 23 acknowledges these new bills when an amendment creates a new bill if the amendment changes the subject of the bill to a new or entirely different subject.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

California Assembly Bill 9 was signed in to law on October 10 and enacted as Chapter 709. The new law extends the limitation period for employment discrimination claims.

AB 9 extends to three years the statute of limitation for complaints alleging employment discrimination, and it specifies that the operative date of the verified complaint is to be the date that the intake form was filed with the Labor Commissioner.

Additionally, the bill make confirming changes to current provisions that grant a person allegedly aggrieved by an unlawful practice, who first obtains knowledge of the facts of the alleged unlawful practice after the expiration of the limitation period. The legislation further provides that complaints alleging a violation of the Unruh Civil Rights Act shall not be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.

However, a complaint alleging any other violation of Article One of Chapter Six shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate had occurred. Also, the bill states legislative intent that its provisions are not to be interpreted as reviving lapsed claims.

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

McGeorge Adjunct Professor Chris Micheli

Most capitol observers are only aware of the majority vote and the two thirds super majority vote requirements for California legislation. However, there are actually several other categories of vote requirements on bills that come before the Legislature. The other categories are the three fourths vote, the 70% vote, and the four fifths vote.

The three fourths vote – which requires 30 votes in the Senate and 60 votes in the Assembly – is required to waive the requirement in the California Constitution that a bill may not be heard or acted upon until the 31st day after its introduction. This vote threshold also applies to a motion to postpone the reconsideration of a vote beyond the first legislative day succeeding the day the motion to reconsider was made.

The 70% vote requirement – 28 votes in the Senate and 56 votes in the Assembly – applies to:

  • Bills amending the statutory provisions – other than the bond provisions – of the California Stem Cell Research and Cures Act, which was known as Prop 71 when voters approved it
  • Bills amending the statutory provisions of the Victim’s Bill of Rights.

The final category, the four fifths vote – requiring 32 votes in the Senate and 64 votes in the Assembly – applies to the following measures:

  • Bills to amend the Tobacco Tax and Health Restoration Act of 1988, also known as Prop 99
  • Any bill to amend the Clean Air and Transportation Act of 1990, also known as Prop 116 and
  • Any bill to amend the California Wildlife Protection Act of 1990, also known as Prop 117.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

The California Legislature works on the basis of deadlines for moving measures including bills, resolutions and constitutional amendments through the legislative process. This is in stark contrast to the US Congress that does not have similar deadlines. The Assembly Chief Clerk and the Senate Secretary each maintain information related to these legislative deadlines.

Most statutes take effect on January 1. The Legislature generally convenes the first week in January. The budget bill must be submitted by the Governor by January 10th. There’s a deadline in late January for the last day to submit bill drafting requests to the office of the Legislative Counsel. And February is the last day for bills to be introduced for that year.

In April there is the last day for policy committees to hear and report fiscal bills to fiscal committees. Two weeks thereafter will be the last day for policy committees to hear and report to the floor non-fiscal bills. There will be the last day for fiscal committees to hear and report bills to the floor, generally in late May.

The first week in June will generally be the last day to pass bills out of the house of origin. The budget bill must be passed by midnight, June the 15th. In late June or early July will be the last day for policy committees to hear and report fiscal bills for referral to the fiscal committee.

Generally, either the month of July or mid-July to mid-August in odd-numbered years will be the summer recess assuming that the budget bill has been passed. The Legislature will reconvene from the summer recess for generally four to five weeks. At that time there’ll be the last day for fiscal committees to meet and report bills to the floor. The last two weeks will be floor session only or generally no committee may meet absent a rule waiver.

The last day of session is August 31st in the even-numbered year or roughly mid-September in the odd-numbered year is the last day for any bill to be passed and the start of the interim recess upon adjournment in the odd-numbered year. The Governor will have 30 days to sign or veto bills that were passed by the Legislature to him or her at that point.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

To those who are not operating in or around the California State Capitol, sponsored bills are relatively unknown. However the media often focus on sponsored bills in a critical manner making matters confusing. In Congress, the term sponsor means the legislator whose name is on the bill. However in the California Legislature, the legislator whose name is on the bill is called the author rather than the sponsor. In California, sponsor refers to the individual or the group who brought the bill to the legislator, who then authors the measure on behalf of that sponsor.

The media’s claim is that legislators and legislative staff don’t fully understand the contents of a sponsored bill, and that the sponsor gets to call all the shots related to that sponsored bill. Or worse, the media will claim that legislators or their staff do not even have to do any work for a sponsored bill.

These criticisms are unwarranted. Legislators often solicit bill ideas from individuals or groups. Some legislators sponsor “There Ought to be a Law” contests, or solicit ideas by other means. Of course, legislators are expected to be responsive to their constituents, to community groups, or other organizations from their district or around the state. All of these groups are examples of sponsors who bring forth ideas for legislation to be considered by the California Legislature.

Even with a sponsored bill, the author and his or her staff must do a lot of work for the bill, just as if they were the ones who came up with the original idea for that bill. They have to work with the Legislative Counsel’s Office to draft or revise the bill language and any amendments, they also have to develop the bill’s fact sheet, which usually discloses the bill’s author, and sponsor, and other relevant information that’s used to promote the bill. Even if the sponsor writes the initial materials, they’re almost always revised by the author and the author’s staff. In addition, the author’s staff will complete the committee background materials, they’ll write talking points, they’ll solicit groups to support the measure, they’ll deal with opposition to the bill, they’ll work with the committee staff, the floor staff, leadership staff, and of course, they themselves will advocate for the bill with staff of other legislators in both houses.

Ultimately, the sponsor’s name is not on the bill, the legislator’s name is. By the way, sponsors are always listed on policy committee analyses so that other legislators and members of the public know who brought forth the bill to the particular legislator. In California there’s a fair amount of transparency when it comes to the legislative process, as opposed to a number of other states that don’t even list supporters and opponents of bills, let alone the sponsoring organization or individual. Moreover, it’s rare that a bill analysis will not call out a potentially self-serving piece of legislation that benefits the sponsor of that particular bill.

You can find a full transcript of today’s podcast here.

McGeorge Adjunct Professor Chris Micheli

A fundamental purpose of both the federal and California Administrative Procedure Acts is to allow public participation in the federal and state rulemaking processes.

Providing notice to the public of the proposed rulemaking as well as an opportunity to be heard during the rulemaking process is key to having meaningful public participation in the quasi-legislative actions of executive branch agencies. However, with any exemption from the formal rulemaking process, that exemption precludes any meaningful public participation because notice to the public is lacking and therefore so is the ability for interested parties to participate in and ultimately to advocate for or against proposed regulations or changes to existing regulations.

All regulations are subject to the APA unless expressly exempted by statute. According to the Office of Administrative Law, OAL, the following are some of the common examples of exemptions to the APA including a local rule, internal management, forms, audit guidelines, the only legally tenable interpretation, rates, prices and tariffs, legal rulings of tax counsel and precedent decisions. I would add to this list the use of statutory exemptions created by the Legislature. It’s my belief that the California Legislature should refrain from abrogating public participation and input into the rulemaking process.

The OAL should always have the ability to be a check on these numerous rulemaking bodies and the hundreds of regulatory changes that they go through each year in order to ensure that these entities are properly complying with the relevant laws and regulations.

These statutory exemptions also represent an unwarranted delegation of authority being made by the Legislature to the executive branch of government. Instead of ensuring that the Legislature remains an equal branch of state government, by granting this exemption to a regulatory agency to bypass the APA, it’s my belief that the Legislature weakens its position towards its otherwise coequal branch the executive branch of state government.

You can find a full transcript of today’s podcast here.