By: Dylan de Wit

California currently faces a major public education crisis. Similar to the housing crisis, California’s teacher supply has failed to meet demand, resulting in severe teacher shortages throughout the state. Seventy-five percent of school districts are understaffed, particularly with regard to fully-credentialed teachers. Compounding this problem is California’s affordable housing crisis. Housing supply has stagnated, rental prices have skyrocketed, and many Californians have been priced out of their homes and cities. These two crises seemed to intersect in late 2016, when the San Francisco Chronicle reported Etoria Cheeks, a local math teacher, fell into homelessness after being priced out of affordable housing in the city. Many viewed Ms. Cheeks’ story as a part of a larger problem, and began calling for action to better secure affordable housing for the state’s teachers.

Accordingly, Assembly Member Tony Thurmond (D-Richmond) authored AB 45, which sought to create a development grant program for school districts to offer district-owned affordable rental housing to teachers. The program was framed not as an affordable housing project, however, but a recruitment and retention tool for school districts struggling to staff highly-qualified teachers. Under the program, school districts partnering with developers could secure pre-development funding and development loans to build on-site housing. The goal was to establish affordable rental options, incentivizing new highly-qualified teachers to work in districts they would otherwise avoid due to high rental costs.

AB 45 laid out specific criteria for school districts vying for development funding. Namely, prospective districts had to be in high-rent, hard-to-staff regions. Further, districts needed to have high rates of teachers employed under “emergency credentials,” teachers instructing courses outside their competency, and students on free and reduced lunch program. The bill also sets out development criteria for developers partnering with school districts. For instance, projects must be near public transportation, and must be subject to a project labor agreement (PLA).

Although AB 45 represented a creative approach by the state to staff school districts with high-quality teachers, several provisions suggest its effect may have been minimal. First, the program would have started at $25 million, which was likely enough for only a few projects. Further, AB 45’s PLA provision seemed misplaced given their tendency of PLA’s raise costs on development. Additionally, the program’s criteria suggested it would predominantly benefit urban areas over rural, even though California’s teacher shortage affects both urban and rural school districts equally.

AB 45 passed in September. Governor Brown vetoed the bill, however, citing existing legislation that served a similar purpose.  It should also be noted that because AB 45 did not make building housing easier for California developers, Governor Brown was  not likely to support the bill from the start.

Nonetheless, similar developments and programs showed significant success in attracting teachers, with most developments being either completely full or waitlisted. This suggests that AB 45 may have been effective for at least a few districts that met the restrictive criteria, and could afford the projects given the program’s limited funds. With some adjustment and perhaps additional funding, a program similar to AB 45 may eventually prove a valuable tool for school districts looking to recruit and retain highly-qualified teachers.

To learn more about AB 45, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

AB 1217 In Depth with Tristan Brown – Part 2

Today’s In Depth conversation picks up where we left off last week with Tristan Brown. As a refresher, you can refer back to Part 1 of our interview where we discussed the lay of the land for public education in California and about some of the details in AB 1217. This week’s conversation dives in to how Tristan, and CFT, went about killing AB 1217. Enjoy!

By: Chris Micheli

Misconceptions – Bill Deadlines

Welcome to another edition of Misconception Monday where I dispel common misconceptions about the California lawmaking process. In this week’s episode I will go over misconceptions concerning bill deadlines. To learn more, you can also listen to my first Misconception Monday podcast from last week on bills.

By: Megan McCauley

SB 54, which has been referred to as the “highest-profile act of defiance to Trump’s nascent presidency,” is indicative of the many ways in which opposition parties have declared war against President Trump’s immigration policies. It is a targeted response to the overlap between federal immigration enforcement and state and local law enforcement. SB 54, also known as the California Values Act, was introduced by Senate President Pro Tem Kevin De León in an attempt to build a “wall of justice” that would “protect the safety, well-being, and constitutional rights of the people of California, and … direct the state’s limited resources to matters of greatest concern to state and local governments.”

SB 54 prohibits California law enforcement agencies (LEAs) from using agency resources, including money and personnel, to “investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes.” State and local LEAs may not, for example, inquire into a person’s immigration status, detain an individual based on an ICE hold request, arrest individuals based on civil immigration warrants, or perform the functions of an immigration officer. Furthermore, SB 54 creates “safe zones” by requiring all public schools, public libraries, state-operated health facilities, courthouses, and shelters to adopt policies that limit collaboration with immigration enforcement “to the fullest extent possible.” By creating these “safe zones,” SB 54 guarantees immigrants the ability to access these vital services without having to fear deportation.

Several important considerations surround the adoption of SB 54, including: whether the bill will be enough to strengthen the relationship between immigrant communities and local law enforcement, and how it will shift local and state resources away from immigration enforcement and towards protecting communities. SB 54 also invites preemption issues along with state sovereignty and Tenth Amendment concerns. Finally, SB 54 may have a significant fiscal impact in light of federal threats to withhold funding from sanctuary jurisdictions because California expects to receive $105 billion from the federal government next year.

Proponents of SB 54 emphasize that the new law will help protect the safety of all Californians by building trust in the community. They emphasize that sanctuary cities usually correlate with lower crime rates. In support of that position, the Center for American Progress reported that there are 33.5 fewer crimes committed per 10,000 people in sanctuary counties compared to non-sanctuary counties. In response to concerns over preemption, supporters emphasize that SB 54 is merely an exercise of state sovereignty and falls squarely within the state’s police power.

On the other hand, opponents argue that the law might actually make the situation more dangerous because it will force ICE onto the streets. While the likelihood of this consequence was mitigated by last-minute amendments that eliminated serious restrictions on ICE’s ability to access prisons and jails, SB 54 will likely result in an uptick of ICE raids because of the new hurdles to collaborating with state and local law enforcement.

SB 54 was signed into law by the Governor on October 5, 2017.

To learn more about SB 54, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

By: Chris Micheli

Is it deal making, or vote trading?

In this podcast, I explore a question that is often discussed by Capitol observers: Are legislative negotiations considered deal making – and lawful – or vote trading – which would be improper at best, or illegal at worst? We’ll take a look at the relevant constitutional provisions, federal and state statutes, and court decisions that are in play in answering this question in today’s podcast.

For more on this topic, you can read an article I recently wrote for Cal News.

AB 1217 In Depth with Tristan Brown Part 1

In today’s In Depth conversation, I talked with Tristan Brown – Legislative Advocate for the California Federation of Teachers – about AB 1217. Our conversation ran long, so today’s podcast is just the first part of our conversation. In this portion, we talked about the change AB 1217 underwent, what the new AB 1217 would do, and how a little bit lay of the land as far public education in California is concerned.

We’ll post the rest of the conversation next week. Stay tuned for that. For now, enjoy the first part of our conversation with Tristan.

By: Chris Micheli

Misconceptions – Bills

Welcome to Misconception Monday. This is the first in a series of podcasts that will go up on Mondays about common misconceptions about the California lawmaking process.

Each week, I will dispel misconceptions around one aspect of that process. Today, in my first podcast in the series, I will go over misconceptions related to bills.

By: Kim Barnes

After managing to keep its scam under wraps for at least a decade, it came to light that Wells Fargo was ripping off its customers by opening fake accounts in their name and charging them for the fees associated with those accounts. It was all part of a culture of overworking bank employees and pressuring them to meet unrealistic sales goals in an effort to increase Wells Fargo’s stock value. Making matters worse, when defrauded customers tried suing the bank, Wells Fargo would block their access to the courts by enforcing the arbitration clause that many of the customers had agreed to when first opening a bank account. By enforcing these clauses, Wells Fargo could funnel all complaints regarding its deceptive practices into private arbitration, where it would never have to answer to either a judge or a jury.

Arbitration clauses are increasingly universal—nestled in every kind of consumer contract you could imagine—ranging from nursing home contracts to student loan agreements. These clauses, which don’t need to say too much more than “I agree to arbitrate any dispute that arises between me and the corporation,” have quickly become ubiquitous as the corporate “get out of jail free card.”

This is not because arbitration is a slam dunk, per se, for a company like Wells Fargo when up against an individual customer. Arguably, however, the disparity in bargaining power between parties to a dispute has a more material effect on the outcome in arbitration than in traditional litigation. This is understandable. Traditional litigation can be far lengthier and costlier than arbitrating the same dispute; corporations that settle their claims in arbitration likely benefit from a repeat player advantage—that is, the benefit of being familiar with not only the process of arbitrating disputes, but also with individual arbitrators themselves. Statistically, this has made the arbitration process highly pro-corporate and has deterred many customers with small claims from bringing them in the first place.

Unfortunately, even when the dispute involves a corporation defrauding customers and stealing their identity, judges are almost always left with little choice but to enforce an arbitration clause if there is one. This is because over the past three decades, the federal law on arbitration—the Federal Arbitration Act (FAA)—has been interpreted so broadly by the Supreme Court that not only does the FAA now have broad preemptive authority over conflicting state laws, but judges are now instructed to “rigorously” enforce arbitration clauses, even if the underlying contract itself is potentially void. This interpretation allowed Wells Fargo to easily circumvent public courtroom scrutiny and opt for a more favorable, private arbitration tribunal.

SB 33 added one exception to the court’s general obligation to compel arbitration where there is one that covers the dispute. With the passage of the bill, a court can refuse to compel arbitration where the petitioner is a financial institution and the claim being brought involves fraud and identity theft by that financial institution.

This extremely narrow law was unsurprisingly attacked by the usual barrage of banks and chambers of commerce, which, to be fair, raised a valid criticism. SB 33, when viewed in light of the broad and highly criticized jurisprudence pertaining to arbitration, is susceptible to a preemption challenge. Indeed, the Supreme Court has found that the FAA preempts practically any state law that goes against the goals of arbitration, limits the validity of arbitration clauses, or treats arbitration clauses differently than any other provision in a contract. This is precisely what SB 33 does.

However, what is clear is that it will be difficult to argue that preventing defrauded Americans from going to court is good public policy. Whether the banks and public interest groups seek to challenge this law to the furthest extent is unclear; but if they do, with any hope the outcome will be a shift towards narrowing the FAA back to the law Congress intended almost 100 years ago. Of course, I wouldn’t recommend anyone hold their breath on that.

To learn more about SB 33, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

 

 

 

In the last few weeks, the skeletons began coming out of the Legislature’s closet – haunting stories of harassment of women working in and around California’s Capitol and scarier claims that the Legislature swept those reports under the rug. The claims are still allegations – not reported or investigated because the women feared retaliation.

The Sacramento Bee reported a spooky aspect of the story today: Assemblywoman Melissa Melendez has introduced a bill in each of the past four years, creating whistleblower protections for employees of the Legislature “similar to those afforded to other state employees, including civil and criminal liability for retaliation. … every year, the bill has received unanimous support in the Assembly and then died in the Senate Appropriations Committee.” Melendez’s bill, like many others, never emerged, in any of the four years, from the Committee’s “suspense file.”

For more on the stream of sexual assault and harassment stories coming out of the Capitol community: Hit by sexual harassment and assault reports, will Capitol make changes?

By: Chris Micheli

Is the Legislature complying with Prop 25 when they pass budget trailer bills after the fact?

In this podcast, I take an in depth look at an interesting situation that played itself out this past legislative session. In September of this past session, legislators passed two “junior” budget bills and a few dozen accompanying trailer bills. But was doing so proper, or even legal? We’ll explore that, and the Constitutional issues at play in that question, in my podcast.

For more on this subject, you can read an article I’ve previously written in Capitol Weekly.

CORRECTION: An earlier version of the podcast and transcript, in one section, implied that appropriations in the budget bill were not subject to a 2/3 vote requirement prior to the passage of Prop. 25.