https://soundcloud.com/capimpactca/sb-1412

Senate Bill 1412 from the 2018 legislative session provides a new rule for employers in considering prior convictions. Governor Brown signed Senate Bill 1412 by State Senator Steve Bradford on September the 30th. It was Chapter 987.

Basically, the bill requires employers to only consider convictions that are relevant to the job which applicants are applying for when screening job applicants using a criminal background check. The bill amended several provisions of Labor Code Section 432.7. As a result of the amendments, SB 1412 now clarifies that employers include public agencies, private individuals, and corporations.

Also, the law states that employers will not be prohibited from conducting criminal background checks for employment purposes, restricting employment based on criminal history, or seeking or receiving an applicant’s criminal history report that has been obtained pursuant to procedures that are provided under federal, state, or local laws.

Note that existing state law basically prohibits an employer, whether the employer is a public agency, a private individual, or a corporation, from generally asking an applicant for employment to disclose, for determining a condition of employment, any information concerning participating in a pretrial or post-trial diversion program, or that concerns a conviction that has been judicially dismissed or ordered sealed.

Now this bill, Senate Bill 1412, defines particular conviction under Labor Code Section 432.7(m) and it specifies that the provisions do not prohibit an employer as I indicated before about utilizing certain information. Now again in subdivision (m) employer was added to include public agency, private individual, or corporation. They struck the term “criminal conviction” and substituted instead the term “particular conviction” and subdivision (m) (1) of Labor Code Section 432.7 modifies three of those exceptions.

Now, in subdivision (m) (2) the definition of particular conviction was added, and the legislature defined it to mean, “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions or both expressly based on that specific criminal conduct or category of criminal offenses.”

Then finally, SB 1412 adds a new subdivision (n) to provide clarifications so that nothing in this section shall prohibit an employer required by federal, state or local laws to conduct criminal background checks for employment purposes to utilize anything that was provided under federal, state or local laws.

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

You can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and everywhere podcasts are listened to. You can also help more people hear about Professor Van Nostrand’s work, and the work of the Center for Energy and Sustainable Development by subscribing to The CAP⋅impact Podcast and leaving a 5-star review.

On this week’s episode of The CAP⋅impact Podcast I talk with West Virginia University School of Law Professor James Van Nostrand. He is also Director of the school’s Center for Energy and Sustainable Development. West Virginia is being impacted by climate change in multiple ways. The state is one of the most flash flood prone states in the U.S. An uptick in extreme weather events has not helped that situation. The state’s coal industry – although indirectly – is also being affected by climate change.

We talked about the declining coal industry, and how market factors like inexpensive natural gas and increasingly competitive renewable energy sources, are really driving the decline of coal. The third factor Prof. Van Nostrand notes is declining coal exports due to the international community’s acceptance of climate change and a resulting desire to use less coal for energy production. To Prof. Van Nostrand’s chagrin, “People aren’t all that enthusiastic about accepting the notion of climate change in West Virginia.”

He testified in support of two bills in the West Virginia legislature that would have helped position the state better for the new energy economy. Both of those bills – one allowing utilities to build solar plants on abandoned coal mines and ship that energy across the state and another to allow consumers to enter into solar power purchase agreements – died in committee. A recent bill to lower the severance tax on coal from five percent to three percent, however, did pass.

Another regulation that Professor Van Nostrand has been outspoken about was the Obama administration’s Clean Power Plan. His concern was that it was the wrong tool for the job, regularly telling Congress that what is actually needed is comprehensive legislation to address climate change. That specific concern about the Clean Power Plan is moot now that the Trump administration has eliminated the Clean Power Plan. But the need for comprehensive legislation remains, so naturally, I had to ask him about the most comprehensive piece of climate change legislation on the board, the Green New Deal.

You can learn more about Professor Van Nostrand’s work by visiting his faculty page on West Virginia University’s website or his SSRN page. You can also follow him on Twitter @jamievanWVU. You can learn more about the Center for Energy and Sustainable Development here.

https://soundcloud.com/capimpactca/episode-43-climate-change-utilities-the-green-new-deal-w-prof-james-van-nostrand

https://soundcloud.com/capimpactca/state-budget-advocacy

In one way budget advocacy is no different than legislative or regulatory advocacy. The concept is essentially the same – to educate, and ultimately influence, lawmakers or administrative officials and staff concerning specific budget appropriations in the main budget bill or provisions of budget trailer bills.

As other capital observers have noted, the California budget is a bill that the state must pass every single year. But it still is a bill. However, what we find is that many advocates do not have budget issues. There are a smaller number of advocates who find the budget to be intimidating with large numbers and tremendous implications. The state budget process on paper is similar to the legislative process, however, in practical terms, it can be quite different.

The full budget committees of the Senate and the Assembly act mostly as the final arbiter of their respective houses’ views when it comes to finalizing the actions of the Subcommittees of the two full budget committees. As you can imagine, legislative leaders can and do impact final budget decisions as well, but the budget bill is rarely modified on either floor of the Legislature. Instead, the five Senate Budget Subcommittees and the six Assembly Budget Subcommittees act as both the policy and the fiscal committees in determining budget actions and trailer bill actions.

Most of the work on the California state budget occurs at the sub-committee level. Prior to the sub-committee hearings, the full budget committee staff usually examine the major budget proposals and they prepare agendas that include an explanation of the governor’s budget proposals as well as the staff’s recommendation whether to accept the governor’s budget, reject the governor’s budget proposal, modify it in some way or hold it open – meaning take further consideration down the road perhaps after the governor’s May budget revision has been submitted. In instances where the governor’s budget proposals are “Held open,” this is to allow for further discussion. It should be noted that the minority party staff also prepare similar information for their members for consideration.

It’s important that any communications be done early in the budget process, particularly at the subcommittee level. Any differences between the actions of the Assembly and the Senate are usually handled by a two house conference committee. The Assembly and the Senate rotate the chairpersonship of the conference committee each year. This process is supposed to address the differences between the Assembly’s and Senate’s versions of the budget.

Although the public aspect of budget process is usually just about five months in length, please note that the development of the state budget actually begins shortly after the prior year’s budget takes effect. California’s fiscal year begins on July 1 of each year, which means, of course, that the state’s fiscal year ends the following June 30th. By way of comparison, the Federal Government’s fiscal year runs October 1 through September the 30th.

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

https://soundcloud.com/capimpactca/ab-2782

Then Governor Jerry Brown signed Assembly Bill 2782 by Assembly Member Laura Friedman (D-Glendale) on August 24, 2018 as Chapter 193 of the Statutes of 2018. Assembly Bill 2782 authorizes lead agencies to consider the specific benefits and negative impacts of a project during the EIR process.

The CEQA guidelines contain language that is similar to language in Assembly Bill 2782. The bill was actively supported by the California Chamber of Commerce, California Business Properties Association, and California Building Industry Association. Assembly Bill 2782 added Section 21082.4 to the California Public Resources Code and its provisions went into effect on January 1, 2019.

The author’s explanation for the legislation stated, “The current EIR process does not include considering the negative consequences within an area of a project not being approved. For example, a project that increases density within the area could lead to overall GHG reduction. Without considering all potential negative and positive impacts of a project, the value within a community is diminished or a careless project can be avoided. It is beneficial to a region for every aspect of a project and its impact to be considered as part of the final approval or denial of a project under environmental review.”

That’s the stated purposed of the Legislature’s adoption of AB 2782.

I recorded today’s episode on efforts to reduce and prevent youth suicide with University of Kansas School of Law Professor Jennifer Schmidt last Wednesday, 3/20. Just days later we learned that one survivor of the Parkland school shooting took committed suicide. Then another Parkland survivor took their life. And then news broke that a parent of a victim of the Sandy Hook Elementary shooting committed suicide as well. Three suicides in one week. If you think you need help, you can call the National Suicide Prevention Lifeline at 1-800-273-TALK (1-800-273-8255). It’s free to call, and your conversation is confidential.

It is generally nice when the conversations that I’m fortunate enough to have are timely and relevant to current events. But not like this. What has happened over the past week is nothing short of an absolute tragedy. There is a much broader conversation to be had about mental health issues and the mental health services and supports – or lack thereof – that exists for survivors of mass shootings and other traumatic events that are a part of modern society, but that is both another episode and a much longer conversation than the 40-minute talk I had with Professor Schmidt.

All that said, there really isn’t a much better time to highlight the work Professor Schmidt has done and is doing to prevent youth suicide in Kansas. She recently led a statewide task force to examine the causes of the suicide epidemic in Kansas and is currently advocating for new tools and services to be implemented to help address the crisis.

To see the task force’s recommendations, you can read the Kansas Youth Suicide Prevention Task Force State Report from December 2018. You can also keep up with Professor Schmidt’s work more generally by visiting her University of Kansas School of Law Faculty page.

You can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and everywhere podcasts are listened to. You can also help more people hear about Professor Schmidt’s work by subscribing to The CAP⋅impact Podcast and leaving a 5-star review.

https://soundcloud.com/capimpactca/episode-42-combating-youth-suicides-in-kansas-with-prof-jennifer-schmidt

 

 

 

 

 

 

 

https://soundcloud.com/capimpactca/types-of-bill-amendments

An amendment is defined by the Office of Legislative Counsel as an alteration to a bill, motion, resolution or clause by adding, changing, substituting or omitting language. Now, in order to adopt an amendment to any pending measure, that amendment must be submitted to Legislative Counsel for drafting. Essentially, there are three ways to make amendments to measures. They are: author’s amendments, committee amendments, and floor amendments.

Author’s Amendments

Upon request of the author of any measure, the Chairperson of the committee to which the measure – again, a bill, a resolution or a constitutional amendment – has been referred, may report to the full house, that is the Assembly or the Senate, with a recommendation that amendments that are submitted by the author should be adopted and the measure be reprinted as amended and then re-referred to that committee. There are several instances where an author may make author’s amendments before a committee hearing or at a committee hearing or on the floor.

Committee Amendments

The committee amendments are those proposed by the committee or a committee member at a committee hearing. These amendments are adopted by a roll call vote of the committee and they may or may not be hostile to the author, meaning whether or not the author agrees with those amendments. Now, committee amendments to bills are considered upon the second reading of the bill. The amendments are actually adopted by a majority vote of members present and voting. For example, to pass a bill out of a seven-member committee requires a majority, or four members of that seven-member committee, to vote in favor of the bill. On committee amendments, however, it’s a majority of those present and voting. Perhaps two of the seven members were absent that day or they were at another hearing, either hearing bills, or presenting bills in another committee, meaning that there were five of the seven members at the committee hearing. If the committee amendments are adopted, they may be done so by three votes, because three is a majority of those members present and voting, a total of five.

Floor Amendments

Amendments to a measure offered from the floor, except for committee amendments reported with them, those amendments are offered with a motion to amend. Those amendments can delete words, or they can add words, or they can substitute the content of the bills. However, note that amendments previously printed in the daily journal are not in order unless a copy of the proposed amendments have been placed upon the desk of the members on the floor.

Other Amendments

Hostile amendments can be made in either a committee hearing or on the floor. Amendments that are proposed by another member in committee or on the floor that are not supported by the bill’s author are considered to be hostile amendments. In addition, there are gut-and-amends. In this case amendments to a measure remove the current contents of the bill in its entirety and the bill’s contents are replaced with different provisions entirely. This type of amendment does raise germaneness questions, which refers to whether the proposed amendment is relevant to the subject matter that’s currently contained in the measure.

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

https://soundcloud.com/capimpactca/sb-766

2018’s Senate Bill 766 is intended to allow more attorneys to do international arbitrations in California. Back in July of 2018 Governor Brown signed Senate Bill 766 by State Senator Bill Monning. It is Chapter 134 of the Statutes of 2018 and the bill adds several sections to the Code of Civil Procedure to permit international commercial disputes and arbitration. The intent of this bill is to expand the use of legal services in international commercial arbitrations. It went into effect on January 1, 2019.

Senator Monning explained the purpose of his bill as being “SB 766 authorizes foreign and out-of-state attorneys to represent parties in international commercial arbitrations in California. Under this bill California will be able to compete with other venues in selecting where to engage in commercial arbitration and showcase that jurisdiction’s local economy including its hospitality, restaurant, and legal industries.”

The way the bill was explained to legislators can be found in the Senate floor analysis which wrote, “Allowing attorneys from foreign jurisdictions to provide legal services in connection with international commercial disputes brings California in line with a number of other states and countries. In fact, the International Bar Association publishes a country guide serving 55 different nations regarding arbitration. 53 of those surveyed countries authorize attorneys from foreign jurisdictions to represent clients in international arbitrations in their particular jurisdictions. Major countries including England, France, Germany, Italy, Mexico, India as well as 19 US states permit lawyers from foreign jurisdictions to provide legal services to parties in international arbitrations that are in their jurisdiction.”

Basically, what it provides is that an attorney must first apply for and receive permission to appear as counsel pursuant to the California rules of court. The new provision of law does not apply to any dispute that concerns any of the following: an individual’s acquisition or lease of goods or services for personal or household use, an individual’s coverage under a health insurance plan or an application for California employment. As you can imagine, the new law requires an attorney, under this section of law, is subject to the courts and any disciplinary authority of California regarding the rules of professional conduct, just as they have that sort of disciplinary authority over California, admitted attorneys.

For a transcript of today’s podcast, click here.

Mary Spector is a Professor of Law as well as Asociate Dean for Clinics and Director of the Civil/Consumer Clinic at Southern Methodist University Dedman School of Law in Dallas, Texas. She talks with Jon about the rapid growth of debt in the U.S., the work her clinic students are doing, consumer protection law, and more on this week’s episode of The CAP⋅impact Podcast.

You can listen to today’s conversation on Apple Podcasts, iTunes, Stitcher Radio, Spotify, and everywhere podcasts are listened to. If you enjoyed today’s conversation and want to help more people hear it, please subscribe to The CAP⋅impact Podcast on any of those services and leave a 5-star rating and a positive review on Apple Podcasts.

To learn more about the work that students in SMU’s Civil Consumer Clinic, click here. You can learn about more of Professor Mary Spector’s work on her SMU faculty page or by visiting her SSRN page.

https://soundcloud.com/capimpactca/episode-41-smu-law-prof-mary-spector-on-the-personal-debt-crisis

 

 

 

 

 

 

 

https://soundcloud.com/capimpactca/referral-of-bills

After the introduction of a new bill in the California Legislature, or upon a bill passing one house and moving over to the second house for further consideration, that measure must be referred to a committee for a hearing.

The referral or assignment of a bill is governed by the Joint Rules of the Legislature as well as the respective rules of the Assembly and the Senate. In the California Legislature the referral of bills is done by the Rules Committee in each house. Though the rules of both houses provide that their committees must hold hearings and act upon bills referred to them as soon as practicable after they’ve been referred certain requirements must be met before that can occur. As a general rule, a bill is referred to the committee or committees that have jurisdiction over the provisions of the bill based upon the rules of the respective house and past referral decisions.

During a regular session of the Legislature committees must wait for a period of thirty days after a bill has been introduced and in print before they may take action on that bill. These prohibitions may be dispensed with by an extraordinary vote. This waiting period permits proponents and opponents to review the provisions of the bill and prepare testimony for presentation to the committee.

A schedule or calendar of bills set for hearing is proposed by each committee in the Legislature and publication of this hearing list is done in the Daily File of the Assembly and Senate and it must occur at least four days in advance of hearing by the first committee and at least two days in advance by subsequent committees of the same house. If a committee wishes to hold an informational hearing on a general topic, then a four day file notice is also required.

As one can imagine, which committee gets to hear a bill could impact the outcome of the bill depending on the subject matter and the receptivity of the committee to the bill. In most instances the bill referral is relatively straightforward. Sometimes, however, more than one committee might be appropriate to hear a bill. In most cases, only one policy committee will get to hear a bill. However there are occasions when it’s necessary for more than one committee to hear a bill. As a result, the referral of bills is an important part of the legislative process in California.

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

 

 

 

 

 

 

 

https://soundcloud.com/capimpactca/sb-820

SB 820, from the 2018 legislative session, concerns a prohibition on confidential settlement agreements.

Governor Jerry Brown signed SB 820 by State Senator Connie Leyva on September 30th as Chapter 953. The bill prohibits a provision within a settlement agreement that prevents the disclosure of factual information related to specified claims or complaints in either a civil action or administrative action.

The bill went into effect January 1, 2019 and it specifically allows plaintiffs in these types of actions to retain the right to request provisions in settlement agreements that shield their identity. Note that the Assembly amendments expanded the claims that are covered by the bill, extended the scope to cover court orders, and also narrowed an exception that’s available at the request of the claimant.

SB 820 makes a provision in the settlement agreement that prevents the disclosure of factual information related to the claim for those agreements entered into on or after 1/1/19 to be void as a matter of law and against public policy. The new law provides that a court may consider the pleadings and other papers in the record or any other findings of the court in determining the factual foundation of the causes of action specified in these provisions.

This new law applies if the claim relates to an act of sexual assault, sexual harassment, workplace harassment, or discrimination based on sex, or retaliation for reporting harassment or discrimination based on sex. It does not prohibit the entry or enforcement of any agreement that includes the disclosure of the amount that was paid in settlement of the claim.

The bill also creates an exception where it is not applicable if a party is a government agency or public official. For a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity if that provision within the settlement agreement that is made at the request of the claimant.

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