The big news from late last week, and last weekend, was State Senator Tony Mendoza’s (D- Artesia) resignation from the California Legislature moments before the State Senate was going to vote on whether or not to expel him. His fiery resignation letter hinted that he was not ruling out running for re-election to the position he was resigning from. Over the weekend at the California Democratic Party’s convention, Mendoza made it clear that he is running for re-election.

There is nothing in the Joint Rules of the Senate and the Assembly, Senate Rules, or the California Constitution that prevents Mendoza from doing so after resigning. Actually, had Senator Mendoza been expelled, there is still nothing that prevents him from running for re-election. And should he win re-election, there is nothing in the California Constitution, Senate Rules, or Joint Rules that allows the California Senate to not seat him. Considering Mendoza’s current lawsuit against the Senate, it would not be surprising if he were to sue again should the Senate take actions to remove him from that body.

Something clearly needs to be done. As part of the California Legislature’s overall effort to clean house and make the building a safer work environment for staffers there should be something in place – rule, law, or otherwise – that prevents those who resign, or at the very least are expelled, due to sexual harassment from returning to the Legislature. This current gap in rules and law that allows lawmakers who have resigned or been expelled over sexual harassment to return to office is a glaring hole in the protections for staffers.

The bill introduction deadline for 2018 was 1½ weeks ago, but there are a few options legislative options the Legislature could pursue – gutting and amending a bill, or introducing a committee bill among –  for there to be a legislative fix this year. Even then, the new legislation would need to have an urgency clause added to it – making the bill effective immediately upon the Governor’s signature, but requiring a 2/3 vote in each house to pass – for it to prevent Mendoza from taking a seat in the State Senate. Without the urgency clause, the new law would go into effect in January of 2019; after Mendoza would have taken his seat in the Senate should he win re-election. But in the likely case that the sexual harassment allegations against Mendoza become a campaign issue, and he still gets re-elected, the law could be challenged in court on the basis that voters knew about the allegations and his resignation, and elected him anyways.

If the California Legislature truly wants to address this issue, it could put a constitutional amendment on the ballot and have the voters decide on whether or not a member of the Legislature who resigned or was expelled from their position can be allowed to be re-elected to a position in the Legislature. Constitutional amendments, unlike bills, are not beholden to legislative deadlines and can be introduced in the Legislature at any time. That constitutional amendment could be on the ballot come November. And a statewide vote on the amendment, were it to pass, would counter the voter argument Mendoza could use against a change in statute that I mentioned earlier.

However, as was shown recently with Prop 8, even constitutional amendments that are passed by California’s voters can be challenged and taken to the California Supreme Court. But for this to go that far, it will come down to appetite of Mendoza, and/or some other Senators to be named, to continue the fight to that point.

 

 

 

Underground Regulations and the Role of OAL

https://soundcloud.com/user-259535370/underground-regulations-and-role-of-oal

Today we’ll be exploring underground regulations and the role of the Office of Administrative Law, OAL.

OAL is charged with ensuring that agency and department regulations are “Clear, necessary, legally valid, and available to the public.” OAL as you’ll recall, is also responsible for reviewing proposed regulations by California’s more than 200 state agencies and departments that have rulemaking authority.

In addition to reviewing regular and emergency rulemaking projects, OAL reviews challenged underground regulations. What are underground regulations you ask? Let me provide you with an easily understood definition.

Regular and emergency rulemaking, which is found in the APA, could be considered above-ground or legitimate rulemaking. Underground regulations are those which did not undertake the APA process, but nonetheless qualify as a regulation.

The more technical definition, found in section 250, subdivision (a) of the California Code of Regulations, for underground regulations is “any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation…but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA, and is not subject to an express statutory exemption from adoption pursuant to the APA.”

According to the OAL, if a state agency issues, utilizes, enforces, or attempts to enforce a rule without following the APA, which it is otherwise required to do so, then the rule is called an underground regulation. Note that state agencies are prohibited by law from enforcing these underground regulations. If an individual or entity believes that a state agency or a department has issued an alleged underground regulation, then that issuance can be challenged by filing a written petition with the OAL.

If OAL accepts the petition for review, then the OAL may issue a determination. Should OAL review an alleged underground regulation, it is limited to a three-step analysis to determine if the alleged regulation must be adopted as a regulation pursuant to the state’s APA, but you’ll have to listen to the podcast to hear what that three-step analysis entails.

 

 

 

Agencies Supporting the California Legislature

Today’s podcast looks at legislative branch support agencies. While there are quite a number of important entities, the first and foremost of the entities supporting the California Legislature is the Office of Legislative Counsel.

Legislative Counsel, or Leg Counsel for short, is a nonpartisan entity that drafts legislative proposals, prepares verbal and written opinions, and provides other confidential legal services to members of the Legislature and the Governor. Every piece of legislation and every amendment must be accompanied by a Legislative Counsel Digest, which summarizes existing law and describes how the measure changes existing law.

The next entity is the Legislative Analyst Office – LAO. The LAO has provided fiscal and policy advice to the California Legislature for over 75 years. It is well known for its fiscal and programmatic expertise and its nonpartisan analyses of the California State Budget.

The LAO’s work helps set the agenda for the work of the Legislature’s fiscal committees, particularly the two budget committees, in developing the Legislature’s version of a state budget. Staff of the LAO’s office work with the legislative committees throughout the budget process, particularly the budget subcommittees, and they provide public testimony on their recommendations.

LAO used to analyze pending legislation. However, due to significant budget cuts from Prop 140 in 1990, the LAO now only analyzes the state budget. However, the LAO does have the role of preparing the ballot analyses for each measure that is submitted to the electorate on the statewide ballot.

There are two other entities that I go into greater detail in the full podcast. Those entities are the California State Auditor, which is formally known as the Bureau of State Audits, or BSA, and the California Research Bureau, which is an arm of the California State Library.

I hope you find this brief overview of legislative branch support agencies helpful.

 

 

 

Comparing Congress and the California Legislature

Today’s podcast will explore some of the differences between Congress and the California Legislature.

Obviously, the California Legislature is based upon the United State Congress, and certainly, both are prominently featured in the state and federal constitutions. We’ll start with some similarities that I highlight in the audio before moving on to discussing a few of the differences.

Both the US Congress and the California Legislature make laws. They both have investigatory powers. They adopt state budgets. Their Senates confirm executive branch appointments. In both Congress and the California Legislature, the political parties and the party leaders dictate most of what happens in the legislative process, as well as the ultimate outcome of legislation.

Let’s move on to some differences. The most obvious is size. The US Congress has 100 Senators and 435 Representatives; the California Legislature has 40 State Senators, and 80 Assembly Members – the equivalent of a Member of the House of Representatives.

Another difference is term limits. In the California Legislature, legislators are restricted to serving only 12 years, either all in one house or split between the two. There are no term limits in Congress.

A procedural difference between the two bodies is the filibuster. In the US Senate, a minority of senators can forestall legislation by use of the filibuster – an unending debate, which can bring the entire operation of the US Senate to a standstill unless there is a cloture motion. For a cloture motion to succeed, there needs to 60 votes in favor. In the California Legislature, there is no filibuster.

I go into greater detail with other differences between these two legislative bodies in the full podcast. I hope you’ll give that a listen and enjoy.

Common Mistakes Lobbyists Make

Today’s podcast is a slightly different take on our In Practice series. It’s actually part In Practice as well as part addendum to Ray LeBov’s Rules for Effective Lobbying series.

The podcast today is from a fly on the wall regular perspective of a conversation between contributors – and veteran lobbyists – Ray LeBov and Chris Micheli talking about common mistakes that colleagues in their industry make.

These mistakes can range from seemingly obvious oversights – such as not reading the text of a bill or always being honest- to more nuanced mistakes – such as not fully recognizing the importance of rulemaking bodies and how they can really dictate a win or a loss on lobbying public policy despite the outcome in the California Legislature or knowing to tailor your message for the staffer or legislator that you are talking to.

I hope you enjoy today’s episode. It’s a fun and insightful conversation between two seasoned and respected lobbyists. There are a number of golden nuggets of knowledge and wisdom in here that we can’t fully get into detail with here. You’ll have to listen to the podcast to glean the rest of Ray and Chris’s insights into avoiding common lobbying mistakes and how you can be a more effective legislative – and regulatory – advocate.

The Oroville Dam Crisis – The Impacts and the Ways Forward

I sat down recently with Assembly Member James Gallagher (R – Yuba City) to talk about a major issue that hit close to home for him, the Oroville Dam crisis in February 2017. We talked at length about the issues at the dam, and with the spillway and emergency spillway which culminated in last year’s crisis that forced more than 180,000 people to evacuate their homes.

The biggest problems, from Asm. Gallagher’s point of view, start with the Department of Water Resources (DWR), and specifically, issues within that department that led to Oroville Dam being under maintained. The word most frequently tossed around related to DWR was group think.

Naturally in a conversation about the issues that created the Oroville Dam crisis, we discussed potential solutions as well. Currently, Asm. Gallagher has a bill in that’s in the State Senate that would require DWR to adopt better risk management procedures. There are also talks of more robust infrastructure improvements to the dam.

There’s also a bill by Senator Jim Nielsen (R – Gerber) – Asm. Gallagher’s counterpart in the State Senate – that would create a local oversight board for the Oroville Dam. On a person note, that’s an idea that I’m particularly intrigued by. And I would’ve been remiss if I didn’t ask about CEQA and what kind of reforms could be made to it long-term that would allow for streamlining some its requirements for preventative maintenance projects.

The other part of our conversation focused in on the economic impacts of the Oroville Dam crisis. Obviously, it’s the negative impacts that made headlines – roads damaged by having tens of thousands of cars on them at a time, families put out of their homes, farmers having their land washed away. But we also got a chance to talk about the less covered impacts, the positive impacts of recovery workers who were in the area 24/7 repairing the spillways who were staying in local hotels and buying food and goods at local establishments. Those positive impacts that came into play later on got discussed in our conversation as well.

All in all, this was a really fun and enlightening conversation. Enjoy!

 

 

 

Regular vs. Emergency Rulemaking

In today’s post, we will examine the differences between regular and emergency rulemaking in California.

As a refresher, the formal rulemaking process is established by the California Administrative Procedure Act, the APA.

Unless a statute expressly exempts an entity from some or all of the APA’s requirements, every department, division, office, officer, bureau, board, or commission in the executive branch in California government must follow the rulemaking procedures set forth in the APA.

There are two types of rulemaking, according to the Office of Administrative Law (OAL), in California – regular and emergency. Regardless of whether an agency or department is engaged in regular or emergency rulemaking, it will be bound to follow the procedural requirements in the APA.

The vast majority of regulations that are adopted pursuant to the APA are submitted to the OAL under regular rulemaking procedures. The regular rulemaking process includes comprehensive public notice, a minimum 45-day comment period, among other provisions. It also requires the documents and information upon which the rulemaking agency’s action is based are made available for public review and inspection.

In terms of emergency rulemaking, the general rule is that a state agency may adopt emergency regulations in response to a situation that calls for immediate action in order to avoid serious harm to either the public, peace, health, safety, or general welfare, or if a statute deems a situation to be an emergency under the APA.

If an emergency rulemaking is undertaken, a form must be submitted that contains the proposed text and finding of emergency that is submitted by the rulemaking body. Unless the emergency situation clearly poses an immediate serious harm that delaying action to allow public comment would be inconsistent with the public’s interest, then the OAL must allow five calendar days for public comments after the posting of a notice and the filing of the proposed emergency regulation on its website.

 

 

 

How To Research California Legislative History and Legislative Intent

Today’s podcast is about getting a better understanding of California legislative history and intent research. Of course, many law review articles and books have been written on legislative history and intent. This podcast covers the subject in a summary fashion.

At a minimum, it is a good idea to cross reference one’s understanding of a proposed legislative solution with the statements of legislative intent that you can glean from the bill’s legislative history. My friend, Carolina Rose, identified a couple of reasons why:

  1. California codes’ statutes are rife with ambiguities that the courts will look to the legislative history in an attempt to clarify.
  2. The courts will overlook a statute’s plain meaning if it collides with evidence of the legislator’s actual intent, or it is an effort to avoid an absurd application.
  3. Courts will also look to legislative history to confirm their own plain reading of a statute.

Both attorneys and State Capitol watchers would do well to understand that evidence of California legislative history and intent serves as an important aid for interpreting statutes and understanding what was intended by the California Legislature in enacting a particular new law or amending an existing law.

In general, evidence of legislative intent can be derived from two primary sources, either an intrinsic analysis of the statute and its surrounding statutory context, according to traditional standards and principles of statutory construction; or by the use of extrinsic aids which are used to reconstruct the legislative history of a statute.

The wider historical circumstances that surround the adoption, or amendment, or repeal of a statute can also yield extrinsic evidence of legislative intent that’s found outside the statute itself. There are a few questions that interested persons should ask to help guide their efforts in properly researching legislative history. Again, these questions come from my friend Carolina Rose:

  • What is the plain meaning of the language in statute, and to what extent is that meaning self-evident?
  • Why was the statute adopted?
  • What need or needs prompted it?
  • What problem or problems was the Legislature trying to correct?
  • What happened in the Legislature during the process of adopting the bill? What’s the statutes legislative history?
  • What was the law prior to the adoption of the statute?
  • What has happened since the statute was adopted?

As for where you can find the resources to help answer those questions, you’ll have to listen to the podcast.

 

 

 

Life Lessons for Lobbyists

In today’s Rules for Effective Lobbying podcast we will be discussing some life rules as they apply to lobbying. Some of my previously mentioned rules have been specifically generated in the lobbying context. There are others that are really life rules of more general applicability.

 

There are three of these in particular:

1: Don’t take setbacks personally;

2: When you get frustrated, stop breathe, and think; and

3: RALF your mistakes.

 

Now RALF in this context is an acronym that stands for Recognize, Admit, Learn From, and Forget About.

 

Lobbying often produces stress stemming from the frustration of things not going how you have hoped or planned for. Sometimes the roadblocks can seem irrational and unfair. Whatever obstacle you may confront is almost certainly not driven by anyone’s personal animosity towards you. Beyond not serving any useful purpose, personalizing it is likely misplaced.

 

It’s important not to overreact in a way that leads to taking an action that not only doesn’t address the new circumstance in a useful way, but may actually make your situation worse. So each of these three rules provides important guidance of how to respond to unexpectedly difficult situations.

 

You always need to be solution oriented. Overreacting impairs your ability to focus on finding the right response to a problem. I’m reminded of an ancient Chinese proverb that provides wonderful guidance. “It’s better to light a single candle than to curse the darkness.”

 

We all know people whose response to mistakes is to self-flagellate. That serves no useful purpose. We all make mistakes. It’s part of the human condition. Instead of beating yourself up, use the occasion of a mistake as a positive by following our RALF rule. Again, RALF stands for Recognize, Admit, Learn From, and Forget About. Not only will this help prevent you from repeating it, but along with the other life rules we’ve cited, it will help keep you from unwisely misplacing your focus.

 

 

 

How to Start a Non-Profit

I sat down with McGeorge alum Aaron Brieno (’14) to talk about his new non-profit community based organization, Inspire California. Inspire California, to put it briefly, exists to help create and foster and college-ready and college going among high school aged students in the Central Valley, and in particular, the area of the Central Valley that Aaron is from, Hanford.

The quick background as to why Aaron decided to start this organization is that he read in his local newspaper one day in 2014, that the Central Valley had made a list of the top ten least educated regions in the country. Given all the different that California is a leader in, it was stunning to learn that any region in California would make that list.

So he decided to do something about it. At first, he thought it was a task he could tackle on his own. Aaron soon realized this would be an endeavor that would require more resources than he alone could muster.

You’ll need to listen to the podcast for most of the details on what resources you need and how to use them to get from idea to an established and operating organization. But the short answer for those looking for the short answer on resources, Aaron’s go to’s were: Nolo’s How to Start a Non-Profit in California, Google, the California Secretary of State’s website, and the California Association of Nonprofits’ website.

So, how does Inspire California achieve its mission? Thanks to a lot of legwork on Aaron’s part, Inspire California connects high school students in the Central Valley with college educated young professionals who are from the Central Valley. Those young professionals serve as mentors to these students, covering all the bases from taking phone calls to talk to proofreading college essays and personal statements.

There’s a lot more than Aaron and I cover in our conversation, and I hope you take the time to give it a listen and enjoy.