McGeorge Adjunct Professor Chris Micheli

 

 

 

 

 

 

 

Today we’ll take a brief look at how to have effective meetings with legislators and their staff. First, note that there are basically two types of meetings you can have with elected or appointed officials, relationship-building meetings and policy meetings.

Relationship building meetings are an important first step prior to meeting on a policy matter. These can consist of taking the legislator or his or her staff on a tour of your facility, hosting them for a town hall, or having them write an article for your organization’s newsletter.

Policy meetings are used to discuss public policy issues such as bills, regulations, issues, or to seek an official act. Some common asks made in policy meetings are to introduce or coauthor a bill, to vote for or against a measure, or to talk with another legislator about a bill or regulation.

So, what are some do’s and don’ts for having effective meetings with legislators and their staff? Here are my tips for what to do prior to, during, and after meetings to ensure that the meetings are effective.

Prior to Meeting

DO

  • Schedule the meeting with the legislator – generally 2-3 weeks in advance
  • Research the legislator you are meeting with
  • Determine what your ask will be

DON’T

  • Forget to confirm the meeting a few days in advance.
  • Dress inappropriately. This is a business meeting.
  • Go in without practicing what you and others in your group, if there are other joining you, are going to say
During the Meeting

DO

  • Be polite.
  • Be flexible. If you need meet in the hallway instead of an office, or with a staff member instead of the legislator, happily go along with the changes.
  • Personalize your message and explain why the issue you are talking about matters to you.

Don’t

  • Be late.
  • Discuss any political campaigning or political contributions in legislative offices or with legislative staff.
  • Make vague or generalized requests of the legislator or their staff.
After the Meeting

DO

  • Send a thank you note for taking the time to meet
  • Follow up
  • Be a resource

DON’T

  • Overstay your welcome. If there are ongoing issues, it’s appropriate to check back in every few months.
  • Be impatient.
  • Forget to acknowledge any positions the legislator has taken in the past, such as if they committed to voting yes or no on a particular measure.

A full transcript of today’s podcast can be found here.

McGeorge Adjunct Professor Chris Micheli

In California’s Government Code there are a number of sections of law that prohibit specified political activities of public employees.

Government Code section 3201 specifies that the Legislature makes a finding that political activities of public employees are of significant statewide concern and that the provisions of this section of the law supersede all other provisions of general law on this topic.

Section 3202 specifies that this area of the law applies to all officers and employees of either a state or a local agency and defines those terms. Section 3203, with certain exceptions,basically says that no restriction is to be placed on the political activities of any officer or employee of a state or local agency unless it’s necessary to meet federal law.

Section 3205 essentially prohibits an officer or employee of a local agency from soliciting, directly or indirectly, a political contribution from any officer and employee of that agency or from a person on an employment list, et cetera. Now, this same prohibition applies to candidates for elected office of a local agency, and a violation of this section is punishable as a misdemeanor.

Then section 3206 specifies that no officer or employee of a local agency may participate in political activities of any kind, while he or she is in uniform. Section 3207 provides that any city, county, or a city and county in San Francisco’s case, may prohibit or otherwise restrict officers and employees engaging in political activity during working hours, or political activities on the premises of the local agency.

Section 3208 states that the limitations in this area of the law are the only restrictions on the political activities of state employees.

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

McGeorge Adjunct Professor Chris Micheli

Article IV of the California Constitution deals with the Legislature, and there are several sections that are applicable to ethical conduct by members of the Legislature. These provisions are found primarily in Sections 4 and 5 of California’s Constitution.

Article IV, Section 4 contains a prohibition on certain earned income. It essentially prohibits a member of the Legislature from knowingly receiving any form of income, salary, wages, or commissions from a lobbyist or lobbying firm, or from any person who during the previous 12 months had had a contract with the Legislature. Additionally, any member who knowingly receives any salary, wages, commissions, or other earned income from a lobbyist employer may not for a period of one year following the receipt, vote upon, make, participate in making, or in any way attempt to use his or her official position to influence any actions or decisions of the Legislature.

Section 5 of Article IV deals with a prohibition on honorariums – essentially a payment for making a speech, meeting with, writing an article for, etc. some outside group. Section 5 prohibits members of the Legislature from accepting honorariums.

Other parts of California’s Legislative Code of Ethics are found in Title II, Division 2, Part 1, Chapter 1, or Article 2 of California’s Government Code. Government Code section 8920 says, “A member of the Legislature, a state elected or appointed officer, or a judge or justice, may not while serving in that particular position, have any interest financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity, or incur any obligation of any nature that is in substantial conflict with the proper discharge of his or her duties.” Government Code Section 8920 also states “A member of the Legislature may not participate by voting or any other action on the floors or in committee or anywhere else for the passage or defeat of Legislation in which he or she has a personal interest,” but there are some specified circumstances that are exceptions to that rule.

Government Code Section 8924 says that an employee of either house of the Legislature is subject to the same prohibitions that members of the Legislature are subject to.

I cover more of the Government Code and constitutional provisions that make up California’s Legislative Code of Ethics in today’s podcast.

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

What does “separation of powers” mean in the state of California? Similar to the federal government, it essentially means that the powers of government are provided to separate branches of government to operate.

These powers are set forth in the California Constitution and are granted to the three branches of government: legislative, executive, and judicial. The separation of powers doctrine essentially provides that those who exercise power in one branch of government cannot exercise the powers of the other two branches of government.

While the United States Constitution does not contain any express language dealing with the separation of powers of the federal government, California’s separation of powers doctrine is set forth in Article III, Section 3 of the state constitution. Section 3 provides specifically that the powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by the state constitution.

Article IV, Section 1 of the California Constitution provides the legislative power of the state is vested in the California Legislature, which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum. Thereafter in Article V, Section 1, the state constitution provides the supreme executive power of this state is vested in the governor. The governor shall see that the law is faithfully executed. In Article VI, Section 1 provides that the judicial power of the state is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record. In the California Constitution, the three branches of state government are clearly established, and their roles are specified.

As a result, the separation of powers can be readily ascertained, but the three branches sometimes operate in a manner that may overlap another branch’s role in government. For example, in the legislative process, while the legislature writes and passes the bills, the governor can sign or veto those measures. Once enacted, the courts can validate or invalidate those laws passed by the legislature and signed by the governor. In addition, while the courts generally interpret the laws, so too the executive branch, through its administrative agencies, will interpret the laws and enforce them by adopting regulations. That is exercising their quasi-legislative role to implement the statutes that were enacted by the legislature. When a state agency enforces the statute or gives meaning to the law, it exercises a quasi-judicial role and, therefore, partially overlaps with the judicial branch’s jurisdiction.

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

McGeorge Adjunct Professor Chris Micheli

So, what essentially are appropriations measures? Unfortunately, while California law does not define the term, it is used frequently in the law. California’s Legislative Counsel defines an appropriation as an amount of money made available for expenditure by a specific entity for a specific purpose from the General Fund or some other designated state fund or account.

California’s Constitution mentions appropriations in multiple locations. In Article IV Sections 8 and 10 there is mention of appropriations for the usual and current expenses of the state. Article IV Section 12 mentions appropriations for the salaries and expenses of the Legislature. Nonetheless, the state constitution also does not define the term “appropriation.”

Despite its use in numerous other Articles of the California Constitution and throughout many of California’s Codes, there is no formalized definition. The most common working definition of an appropriation bill, sometimes called a spending bill, is essentially any measure that authorizes or makes an expenditure of government funds.

At the state level, appropriations measures require adoption by the Legislature and approval by the Governor. In California, the main appropriations measure is the annual state budget bill. Article IV, Section 12d of the California Constitution provides that the budget bill is the only measure that may contain more than one item of appropriation. In addition, appropriations from the General Fund of the state, except for appropriations for the public schools and appropriations in the budget and trailer bills that make appropriations related to the budget bill, must be passed by a 2/3 majority vote of both houses of the Legislature.

These are the essential rules regarding appropriations measures, again, without any constitutional or statutory definition of what precisely constitutes an appropriations measure.

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

McGeorge adjunct professor Chris Micheli and veteran lobbyist Ray LeBov, both contributors here on CAP⋅impact, are releasing a first-of-its-kind college-level textbook on lobbying and advocacy in California. The book, A Practitioner’s Guide to Lobbying and Advocacy in California, was written entirely by more than 40 practicing California lobbyists and politicos and covers topics ranging from Getting and Retaining Clients (Ch. 20) to Best Practices for Lobbying (Ch. 15) to Use of Ballot Measures in Lobbying (Ch. 44).

In addition to editing the textbook and professional manual Chris Micheli wrote or co-wrote fourteen of the book’s forty-five chapters. A Practitioner’s Guide to Lobbying and Advocacy in California also features chapters written by McGeorge alumni and respected lobbyists and election lawyers including Thomas Hiltachk (JD ’87), Sarah Lang (JD ’13), and Mike Belote (JD ’87) as well as a chapter written by McGeorge adjunct professor Thomas Nussbaum.

A Practitioner’s Guide to Lobbying and Advocacy in California is available in hard copy and electronically from Kendall Hunt Publishing Company.

McGeorge Adjunct Professor Chris Micheli

Title I, Division 4, Chapter 7, Article 2 of the California Government Code provides for impeachment of officials by the California Legislature.

The process is spelled out through multiple sections of the California Government Code. The Code provides that state officers elected on a statewide basis, including members of the Board of Equalization and judges of state courts, are subject to impeachment for any misconduct in office and that the Senate, when sitting as the court of impeachment, is a court of record and that the officers of the Senate are the officers of that court.

All impeachments must be made by resolution, adopted, originated in, and conducted by managers who are elected by the Assembly. Those managers are to prepare the articles of impeachment, present them at the bar of the Senate, and prosecute them. The trial is conducted before the Senate sitting as a court of impeachment. When an officer is impeached by the Assembly, the articles of impeachment must be delivered to the President of the Senate, the Lieutenant Governor. If the Lieutenant Governor is impeached, a notice of that impeachment must be immediately given to the Senate so that another President of the Senate may be chosen.

California’s Government Code requires the defendant to answer the articles of impeachment. If they plead guilty or refuse to plead, the Senate must render judgment of conviction against them. If the defendant pleads not guilty, the Senate must try them. It requires a two-thirds vote of the California State Senate to convict. Further, if the judgment of suspension is given during the continuance of the judgement then the defendant is disqualified from receiving any salaries, fees, or anything else of that particular office.

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

McGeorge Adjunct Professor Chris Micheli

Every bill in the California Legislature has four keys, which are all determined by the Office of Legislative Counsel. Keys are a feature of every California bill, same as a title, a bill number, and enacting clause. The four keys to a bill – which can be found at the end of the Legislative Counsel’s Digest are: vote, appropriation, fiscal committee, and local program.

Vote

The vote key specifies the vote threshold the bill has to clear in order to pass. Most bills in the California Legislature require a simple majority vote to pass – 21 votes in the Senate or 41 votes in the Assembly – but some require a 2/3 vote, or in rare instances a 4/5 vote, to pass.

Appropriation

This key provides the answer to the question “Does this bill appropriate funds?” If the bill results in an appropriation from the state’s General Fund or any Special Fund, the appropriation key will read yes. If the bill does not appropriate funds, it will be keyed no.

Fiscal Committee

The Joint Rules of the Assembly and Senate, specifically Joint Rule 10.5, help guide the Legislative Counsel when keying for fiscal committee. If the bill is keyed yes in fiscal committee, then the measure is supposed to be sent to the fiscal committee in each house, which in both houses is the Appropriations Committee. If it is not keyed fiscal the bill is generally referred to a policy committee or two for hearings. There are four reasons in Joint Rule 10.5 that guide whether a bill is keyed fiscal:

  • The bill appropriates money,
  • The bill results in a substantial expenditure of state money,
  • The bill results in a substantial increase or loss of revenue for the state, or
  • The bill results in a substantial reduction in expenditures of state money by reducing, transferring, or eliminating any existing responsibilities of any state agency, program, or function.
Local Program

California’s Constitution requires the state to reimburse local agencies and school districts for certain costs that are mandated by the state. As a result, if the state’s Commission on State Mandates determines that the bill contains costs that are mandated by the state of California, then reimbursement of those costs must be made pursuant to California’s Government Code. The most common example of a state-mandated local program is when a bill expands the definition of a crime. Obviously, a bill that imposes a state-mandated local program would be keyed yes.

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

McGeorge Adjunct Professor Chris Micheli

Just like in 2019, because of the enactment of Senate Bill 3 in 2016, California’s minimum wage went up again. On January 1st, the state’s minimum was increased for all sizes of business and small employers saw their third wage hike in recent years.

Under this state law the minimum wage for all industries is increasing from $10 an hour on January 1, 2016, all the way to $15 per hour. Pursuant to SB 3, the minimum wage for all industries will be increased to $15 per hour by January 1, 2022 if it’s for a business that employs 26 or more employees. That amount of $15 will be delayed until January 1, 2023 for businesses employing 25 or fewer employees. These are generally referred to as small employers.

Currently, it’s $12 per hour, except for small employers for whom it is $11 per hour. Now, the law does provide that the scheduled increases may be temporarily suspended by the Governor based upon him or her making certain determinations. Additionally, the law requires the Director of Finance, after the last scheduled minimum wage increase, to annually adjust the minimum wage under a specified formula. In the meantime, the wage amount will go up incrementally each year.

Note that there has been concern with increasing the minimum wage because of its impact elsewhere. With the enactment of SB 3, there will be an increase of over $15,000 in wages per exempt employee in just a few short years. In addition, businesses will likely see their worker compensation premiums go up, as well as increased cost for things like uniform or tool reimbursement, and overtime.

While the California business community had argued that SB 3 should contain a regional minimum wage, this proposal was rejected by the Legislature. Some can appreciate that certain cities and counties in California may be able to afford an increased minimum wage, whereas other cities and counties are still struggling with high levels of unemployment. Employers in these areas will find it much more difficult to sustain such an increase in their labor costs.

McGeorge Adjunct Professor Chris Micheli

California is the home to over 200 state agencies, departments, boards, and commissions that can make public policy through their authority to adopt regulations. California’s Office of Administrative Law (OAL) has a list of the state agencies that have adopted regulations and also provides direct access to the California Code of Regulations (CCR). The CCR is organized under 28 different subject matter titles.

The authority of state agencies and departments to adopt public policy, that is their rulemaking process, is defined and restricted by the authorizing statute, which can be general or specific. Statutes usually prescribe each agency’s authority to adopt policy and it’s an established principle of administrative law that an agency cannot exceed its legally prescribed authority to regulate. However, many statutes confer broad powers to some state agencies regarding matters that directly affect the general public.

Interested parties have significant access to the rulemaking activities of state agencies by virtue of California’s Administrative Procedure Act (APA). For example, every state entity is required to annually adopt its rulemaking calendar, which is published on their websites. This is pursuant to state statute. Moreover, agencies establish interested parties’ mailing lists for notices of rulemaking activities by that particular agency or department.

There are four required documents during the preliminary activity stage which are needed to initiate the formal rulemaking process – the proposed text, the initial statement of reasons (aka ISOR), the fiscal impact statement and then the notice of proposed rulemaking.

Next begins the 45-day opportunity to submit written, faxed or email comments on all or any part of a proposed rulemaking when the notice of proposed rulemaking is published in the California Regulatory Notice Register. The notice of proposed rulemaking is also mailed to interested parties and it’s posted on the rulemaking agency’s website.

Under the APA an agency has an option as to whether it wishes to hold a public hearing on a proposed rulemaking. However, if an agency does not schedule a public hearing, and an interested party submits a written request for a public hearing within 15 days prior to the close of the written comments period, then the agency must hold that public hearing. Because of this requirement agencies usually schedule a public hearing at the outset of the rulemaking process.

I cover more of the rulemaking process in today’s podcast, and you can find a full transcript of the podcast here.