The Partnership’s Push to Increase State Funding to Prevent Domestic Violence

As a heads up, this podcast was recorded early last week, before Governor Brown revealed his January budget proposal. Some of the conversation is dated in that regard, now that this post is going up after the budget proposal was revealed. That aside, the conversation I had with Erin Scott – Board Chair, California Partnership to End Domestic Violence (The Partnership) – is still very much relevant.

Erin Scott – Board Chair, California Partnership to End Domestic Violence – sitting down with Jon Wainwright at The Partnership’s office in Sacramento.

Funding for domestic violence work in California has remained steady for the past few years at roughly $20.6 million annually. That funding comes out of the General Fund. and covers emergency response for domestic violence survivors and has become a part of California’ social safety net. It’s essential funding, but there’s more that could be done. Put another way, current funding only allows nonprofit organizations that serve domestic violence survivors to react to the problem of domestic violence. The Partnership is leading a push this year to double the amount of money in the General Fund being spent on domestic violence work with the new $20.6 million being spent on domestic violence prevention and addressing the longer term root causes of the issue.

As I mentioned before, our conversation was recorded before the budget proposal was revealed. Since then, the Governor’s budget proposal has been revealed, and the state’s investment in domestic violence crisis services remained steady at $20.6 million. In a statement following the announcement of the budget proposal Kathy Moore, Executive Director for The Partnership said,

We appreciate the state’s consistent investment … over the last 10 years,  but it’s simply not enough. […] On any given day, about half of the 5,410 domestic violence victims being served in California access emergency shelter, while the other half receive non-residential services – things like legal assistance, children’s counseling and other complimentary services. Yet average data also shows there are over 1,086 unmet requests for services every day. Continuing to band-aid these families crises with inadequate resources isn’t the solution. Victims are telling us they need more.

No budget fight in the California Legislature is easy. The level of difficulty is only exacerbated when an organization is fighting for General Fund dollars – of which a minimum of 40% are already constitutionally earmarked for K-12 education. We said in the podcast that the funds The Partnership is going for comes out of one pot. It’s more like the funds are coming from half a pot, and there are numerous other groups angling for those same dollars. While Erin noted that “it’s never the perfect time for this kind of request,” I see a couple trends that point towards this being a good year to make the ask to double the funding for domestic violence work.

The first of those is the windfall – or surplus as some others are calling it – in this year’s state budget. It’s easier to ask for more funding in a year when there is more money available to the state to spend. The other trend that could help The Partnership is the #WeSaidEnough movement that has taken the California legislature by storm. While the issues of domestic violence and sexual harassment and assault in the workplace are most certainly not the same, my feeling is that the return to focusing on victims, and victims’ rights, and getting those victims the help that they need puts the political winds in a more favorable position for The Partnership in their effort to get the funding that agencies across California to start being more proactive, start addressing the long term root causes of domestic violence, and, hopefully, start reducing domestic violence in California.

By: Chris Micheli

When Can You Participate in California’s Rulemaking Process

Today’s podcast is a continuation of my series about how to be a more effective regulatory agency advocate. This podcast, specifically, will discuss when you can participate in California’s rulemaking process.

By virtue of California’s Administrative Procedure Act – APA for short – interested parties have a number of opportunities to participate in the rulemaking activities of state agencies. California’s APA is modeled off of the federal APA, and the two share two key tenets – public notice and public participation.

There are two ways that interested parties can track what rulemaking bodies are doing. Those parties can either look at the body’s Rulemaking Calendar – which describes the actions that an agency anticipates it will take during the upcoming calendar year – and by signing up for the agency’s interested parties mailing list. Once you know the calendar, the next thing you need to know is: what is a regulation?

Essentially, a regulation is a form of legislation and it carries the force and effect of law – provided that it’s adopted in accordance with the required procedures pursuant to California’s APA and that it’s within the scope of the agency’s authority. It’s important to understand what a regulation is because if the proposed rule is not a regulation, then it does not have to comply with the APA, meaning that there aren’t the same requirements for public notice and public comment.

There are two ways members of the public can comment on formal rulemaking – in writing or at an oral hearing. California’s APA requires a minimum 45-day period for public comment in writing. Some agencies post a public hearing at the end of the 45-day period, some don’t – either because they think it’s not necessary or that the regulation is non-controversial. However, if a state agency receives a request in writing from any person, the agency is required by law to hold a public hearing. If there is a public hearing, I recommend that you submit written comment as well as participate in the public hearing.

Why should you participate? When an agency receives public comment – either in written form or orally – they must respond with an explanation of how the proposed action has been changed to accommodate that comment, or explain their reasons for rejecting the comment.

The rulemaking process concludes once the regulation has been adopted. Per the APA, agencies have one year to complete this process. Otherwise they have to start the process over again.

 

By: Chris Micheli

Misconception Monday – State Budget

Hello. This is Episode 8 of my Misconception Monday series. If this is your first time tuning in to these, you can listen to the previous episodes here.

Today’s podcast, just in time for the announcement of the Governor’s January budget proposal on Wednesday morning, will cover misconceptions about the State Budget. Some of the misconceptions that we will talk about in this podcast relate to the Governor’s May Revise, the federal and state fiscal years, trailer bills, and Budget Subcommittees.

By: Chris Micheli

California Gas Tax

As you’ve probably already noticed at the pump, California’s gas taxes are on their way up. But, before you (potentially) see ads bombard the airwaves later this year for and against a referenda on the gas tax, let’s break down what taxes and fees are increasing, and where those funds are going.

Pursuant to SB 1, the bill that enacted the new increases, there was an increase of 12 cents per gallon in the gas tax which includes an inflation adjustment on November 1, 2017. That increased the base excise tax to 30 cents a gallon. Also on November 1, 2017, there was a 20-cent per gallon increase to the diesel excise tax, increasing it to 36 cents per gallon. That increase also includes an inflation adjustment factor.

Additionally, there is a new transportation improvement fee added to the vehicle license that varies from $25 to $175 each year based on the value of the vehicle. That took effect on January 1, 2018. And starting July 1, 2020, there will be a new $100 annual vehicle registration fee that applies to zero emission vehicles with a model year of 2020 or later.

So where is all that money going? $1.8 billion annually goes maintenance and rehabilitation of the state’s system of highways. Another $1.7 billion goes to the rehabilitation and maintenance of local streets and roads annually. This is a very brief summary of where the revenues go. For the full analysis, you can refer to the LAO’s Overview of the 2017 Transportation Funding Package.

As you can imagine, this was controversial when it was passed, and remains controversial. Only one Republican legislator in both houses voted for the gas tax. Further two Democrats, one in the State Senate and one in the Assembly, voted no on the increases.

 

By: Chris Micheli

Types of State Agencies

Today I will be continuing my series of podcasts on how to be a more effective state regulatory agency advocate. In my first post, I gave a brief overview of Regulatory Advocacy. Today, I’ll look at the types of rule-making bodies in California state government.

You might remember from my last podcast that there are over 200 rule-making bodies in California at the state government level. Those 200 bodies all fall under one of three types of state agency: plural executive, independent agencies, and line authority agencies.

Plural executive agencies have separate constitutional authority executive powers and are overseen by officials or boards that are elected statewide. The Governor is the most widely known of these officials, of which there are nine total. Also in this group are a pair of officials who are appointed by the Governor in most other states, but are elected statewide in California: the Insurance Commissioner, and the Superintendent of Public Instruction. The powers of these officials are enumerated in the Constitution and in state statute.

The next type of agency is independent agencies. They have separate statutory or constitutional powers and they are independent of the line authority of the Governor. One example of this is the University of California Board of Regents. Regents are appointed by the Governor and confirmed by the State Senate, but their term of office is 12 years. The Governor can serve, at most, two four year terms for eight years total. You can see that the 12-year term Regents serve clearly establishes some independence from the Governor.

The third type of agency is line authority agencies. They’re called “line agencies” because if you look at a state organization chart, they fall on a line that comes directly from the Governor, which means that these agencies are directly under the control of the Governor. There are 11 agencies like this in California – ranging from the Transportation Agency to the Natural Resources Agency. These agencies form the Governor’s cabinet, and their secretaries – all appointed by the Governor – are the members of the Governor’s cabinet.

Next week, we’ll take a look at how the public participates in rule-making activities.

 

Stealthing

For today’s podcast, I sat down with Erinn Ryberg (McGeorge Class of ’13), Leg Director for Asm. Cristina Garcia, to discuss one of the bills her office worked on last year, AB 1033, which addressed the issue of stealthing. As Erinn describes it, “It’s a new name for something that’s been going on for decades.” The bill did not make it out of the Senate last year, but will very likely be coming back in 2018.

Stealthing is when, during sex, one partner – without the consent of the other partner – lies about using a condom or birth control, tampers with a condom, or removes a condom. It’s an issue that affects heterosexual and same-sex relationships, and again, it’s not a new issue. It’s only just being addressed now due to a combination of the practice having a name and continued rise in STD rates. AB 1033, initially, made stealthing an act of rape. That was later dropped down to sexual battery. You’ll need to listen to the podcast to learn why.

That said, AB 1033 was, at first, not about stealthing. It did not have anything to do with sexual battery or rape. It was an Indian gaming bill. This makes it a clear cut example of a gut-and-amend bill. It also raises the issue of germaneness, which is a rule that states amendments to a bill have to address the same issues as – or be germane to – the original bill. It was an issue that was flagged on AB 1033, but didn’t stop it from moving forward. It would not have necessarily stopped the bill dead in its tracks either in terms of its ability to get passed – from a rules perspective. However, the germaneness issue would come up were the bill to be challenged in court. Erinn and I talked for a while about the numerous issues that opponents had with the bill, and given our conversation, I think it would be safe to assume that germaneness might just be the beginning of the legal challenges AB 1033 would’ve faced.

We also talked at length about the procedural hurdles that the bill faced, the most notable of which was a committee amendment that bordered on being a poison pill.

Undoubtedly, this will be an issue to keep an eye on in 2018.

By: Chris Micheli

The 2017 Legislative Session By The Numbers

With 2017 drawing to a close, it seems fitting to do a recap of the 2017 Legislative Session by the numbers. Specifically, I’ll be looking at the numbers in terms of bill introductions, end of session statistics, and the Governor’s actions.

On the topic of bill introductions, we saw 2,495 bills introduced before the February 17th bill introduction deadline. That is up from previous years, even taking into account that there are more bills introduced in the first year of the Legislature’s two-year session.  The Legislature introduced about 200 more bills in the 2017 session than they did in 2015 or 2013 – 2,297 bills and 2,256 bills, respectively. It’s worth noting that the Assembly did increase its cap on bill introductions from 40 bills in the two-year session to 50 bills.

Let’s now turn to the end of session statistics, which I’m breaking out into the two houses of the Legislature. 817 bills were introduced in the Senate. Of those, 514 were passed by the Senate. Only three of those bills were refused passage on the Senate floor. That leaves about 300 Senate bills as two-year measures, which can be considered again in January of 2018, but must be passed out of the Senate – their house of origin – by January 31, 2018. That same deadline applies to Assembly bills from 2017 that became two-year measures.

1,733 bills were introduced in the Assembly, 970 of which passed out of the Assembly. Only 9 were refused passage on the floor, leaving 763 as two-year measures that may be considered by January 31st, 2018. That comes out to 56% of the Assembly bills introduced being passed out of the Assembly, with only 0.5% failing passage. That compares to 63% of Senate bills passing out of their house of origin, and only 0.4% failing to do so. You can listen to my podcast to learn about the most, and least, prolific bill authors in each house as well as which standing committees had the largest and smallest number of bills that were originally referred to them.

That leaves us with the Governor’s actions on bills. 37.5% of the bills introduced in the Assembly reached the Governor’s desk, and 32.7% of the total Assembly bills were signed into law. Only 4.8% of Assembly bills were vetoed. On the Senate side, 39.9% of bills reached the Governor’s desk, 35.7% were signed, and 4.2% were vetoed. So, based on the numbers, you had better odds of having a Senate bill passed in 2017 than an Assembly bill.

 

 

 

 

Recent action at the state, federal, and private corporate levels provides a window into the many ways to attack the problem of nondisclosure agreements in sexual harassment settlements.

Bar Nondisclosure Agreements in Settlements

A decade ago, the California Legislature changed the law to bar nondisclosure agreements in settlements of certain serious sexual abuse claims. The Legislature expanded it in 2016 to cover other types of claims with the passage of AB 1682. Now, Senator Connie M. Leyva (D-Chino) has announced her plan to introduce a bill to ban nondisclosure provisions in settlements of a broader list of sexual assault and harassment claims when the Legislature reconvenes in January. A similar bill is pending in the New York Legislature.

Remove Tax Deductibility of Payments if the Settlement Includes an NDA

In Congress’s new tax plan, there is a provision that takes away the business tax deduction for sexual harassment settlements that contain nondisclosure agreements. In the New York Times, University of Chicago Law School Professor Daniel Hemel called it “a nudge, not a hammer,” because most businesses will likely forego the deduction when forced to a choice.  It is also important to note that while the new provision impacts businesses, it does not affect government entities, such as the California Legislature.

Bar Mandatory Arbitration of Sexual Harassment Claims

Employers’ use of mandatory arbitration provisions has mushroomed over the last decade.  Now, over half the non-union U.S. employees are subject to such clauses.  In a series of cases, the U.S. Supreme Court has upheld employers’ rights to impose arbitration requirements, finding that federal law forbids states to limit them.  Given these holdings, a change in the law at the federal level is required to restrict employers’ use of arbitration provisions to keep women claiming sexual harassment out of court.

Now, California Senator Kamala Harris is one of several sponsors of a bipartisan bill the federal level that aims to end sexual harassment secrecy another way – by forbidding terms of employment contracts that require confidential arbitration, rather than an open lawsuit, for sexual harassment claims. The bill is co-authored by Rep. Cheri Bustos (D – Ill.) and Sen. Kirsten Gillibrand (D – N.Y.). According to Marina Fang’s reporting, the “Senate bill is also backed by Sens. Lindsey Graham (R – S.C.), Lisa Murkowski (R – Alaska)” and the “House version has support from Reps. Walter Jones (R – N.C.), Elise Stefanik (R – N.Y.), and Pramila Jayapal (D Wash).”

Private Action Instead of Legal Change

And a change in the law is not always necessary to address a problem like secret settlements, if powerful corporations decide, or can be nudged, to change on their own.  Microsoft recently announced that it will no longer force women alleging sexual harassment into mandatory arbitration.

By: Chris Micheli

Overview of Regulatory Advocacy

In today’s post, I will begin a series of podcasts about how to be a more effective state regulatory agency advocate. Today’s podcast will be an overview of state regulatory agency advocacy efforts.

The first questions one might have about regulatory agency advocacy are: “What is it?” and “Is it different from legislative advocacy?” In my mind, there is not a difference between regulatory agency advocacy and legislative advocacy. On the legislative side, you are lobbying for or against legislation and dealing with the Legislature. On the regulatory side, you are lobbying for or against regulations and dealing with the executive branch of government.

The next question one might ask is, why is regulatory agency advocacy important? I like to remind people that just because a statute has been enacted doesn’t mean that the battle is over. Regulatory advocacy is another bite at the apple; it is another opportunity to limit or expand the scope of a statute.

This is no small task. Keep in mind is that there are over 200 agencies, departments, boards, and commissions that have rule-making authority in California state government and, according to California’s Office of Administrative Law (OAL), there are over 500 regulations adopted each year. These rule-making bodies engage in both quasi-judicial and quasi-legislative activities, which is how they enforce and create the rules to implement legislation.

I’ll focus on the quasi-legislative activity. California’s rule-making process is governed by the state APA – Administrative Procedure Act. The state’s APA is premised on the federal APA. What do I mean by quasi-legislative activity? I mean that the agency – or department, commission, board, etc. – engages in the rule-making process by adopting, amending, or repealing regulations.

My next podcast on the subject of regulatory agency advocacy will be released after the holidays and will be on the different types of rule-making bodies. Happy Holidays and as always, thanks for listening.

 

 

 

Negotiating Policy and Legislation

Since California’s legislative session is only getting closer and closer, I have another podcast for you today with Erinn Ryberg – Leg. Director for Assembly Member Cristina Garcia. Today, Erinn and I are discussing negotiating legislation and the policy changes within a given piece of legislation.

Similar to our conversation last week about staffing a committee, we’ll be talking about the dos and don’ts of this process.

As Erinn will tell you, one of the first things she learned when started working in the Building is that if you have a good bill, then that means it will have support and opposition because the bill will actually do something. Because of this, the bill will require some negotiating and compromise. This means that you should start with the biggest, broadest bill possible because as your bill moves through both houses of the Legislature, you will inevitably have to remove or change some parts of the bill. And of course, with all these changes, it is a tightrope walk between keeping your coalition of supporters happy while not ticking off the opposition too much.

In being able to negotiate these changes, there are some things to keep in mind. The most important thing is make sure that your stakeholders are people that you trust, that are good at their jobs, and have some influence with their bosses. When I asked Erinn how critical it is to have good stakeholders on your side, she replied, “It will make or break the bill.”

You can’t negotiate if you’re working with people that aren’t willing to budge or that don’t have the authority to give more than what is on the sheet of paper you walk into a meeting with.

You will have to listen to the rest of our conversation to glean more insights from Erinn.