The OAL Petition Process

Today’s post is a continuation of my series on how to be a more effective regulatory agency advocate. Today’s podcast focuses on the OAL petition process. In other words, how lawmakers and the public can petition to repeal or change regulations.

Although the process is formal in nature, it is rather simple in its application. The petition process consists of a formal letter that requests an amendment to, or the repeal of, an existing regulation. The formal letter is directed towards the rulemaking entity that adopted and administers the particular regulation. The petition must identify the nature of the regulatory change or repeal that’s being requested, the reason or reasons that the petition is being requested, and the agency’s rulemaking power to either amend or repeal the particular regulation. The agency then has 30 days to respond to the petition.

Should the agency decide to consider amending or repealing the regulation, the agency will usually hold a public hearing where it will consider whether alternatives exist to address the identified situation via other means. In these hearings, the agency is interested in not only the petitioner’s comments, but also the comments of those who may be present and who are asked to provide verbal or written remarks.

Successful petitioners usually have written petitions that state clearly and concisely the substance or nature of the amendment or repeal being requested, and their reasons for their request. Supporting documentation, such as any technical or engineering studies – assuming the regulation is of a technical or scientific nature – is also helpful since the more thorough and persuasive the written petition, the more likely it is to be successful. Petitioners should also keep the OAL’s six standards of review – which we discussed last week – in mind when crafting their petition. Those standards are: necessity, authority, clarity, consistency, reference, and non-duplication.

Check back in next week when we’ll discuss APA exemptions.

Misconception Monday – Miscellaneous Items

Today’s post is the final one in my Misconception Monday series. In today’s podcast, we will be covering the grab bag of remaining misconceptions related to California government and the California Legislature. You can find all my Misconception Monday podcasts, including this one, here.

Today’s first misconception is that constitutional office appointments require confirmation only by the State Senate, which has the power of advice and consent on gubernatorial appointments. For nominees to any of the state constitutional offices, those individuals must be confirmed by both the Assembly and the Senate.

Another misconception is that committee jurisdictions are the same in both houses. As an example, if I had an insurance bill, the incorrect assumption would be that if my bill was referred to the Senate Insurance Committee it will then be referred to the Assembly Insurance Committee. There are 32 Assembly committees and 22 Senate committees. Not all Senate bills in the insurance area are in fact referred to the Assembly Insurance Committee, and vice versa. One example, say my insurance bill is a workers compensation insurance bill. In the Assembly, it would go to the Insurance Committee, but in the Senate, that bill would go to the Committee on Labor and Industrial Relations.

A third misconception, one that seems relevant in an election year, is that the California Legislature and the people, through the initiative process, can make the same sorts of statutory changes. While it is true that the people can make changes to statute or the California Constitution via the initiative process, the Legislature can only put forth constitutional amendments. That is because they already pass bills and those bills make statutes. The one exception is a bond measure.

A bond measure is placed on the ballot by a bill that’s been passed by the Legislature and signed by the Governor. The voters must then approve the bond measure.

There are many more misconceptions that I cover in today’s podcast. I hope you’ve enjoyed this podcast, and my Misconception Monday series.

One of the programs that falls under the umbrella of the Capital Center for Law and Policy at McGeorge School of Law is the Municipal Innovation Program. The Programs’ current project – the California Local Redistricting Project – which is done in partnership with California Common Cause, is excited to announce a new ordinance generator for local governments to fight redistricting abuse at the local level.

The new local ordinance generator, which can be found on the California Local Redistricting Project’s website, enables any user to easily draft a sample ordinance for establishing a local independent redistricting commission. With recent news of Congressional districts being thrown out in court, having a user-friendly tool available that allows local governments in California to create tailored ordinances creating independent redistricting commissions is an incredibly important step towards fighting redistricting abuse.

Below are some selected quotes from the California Local Redistricting Project’s press release announcing the new tool.

“California’s local governments are leading the way on redistricting reform. We view this tool as a big step forward towards providing local officials and advocates with the educational resources and tools they need to consider and implement reform in their communities.”- Nicolas Heidorn, Director of California Local Redistricting Project

“This is an exciting, game-changing model for promoting local reform. This is worlds away from the traditional, one-size-fits-all packaged approach to reform. The ordinance generator gives local advocates a smarter tool to craft a reform that is tailored to the needs of their communities. This is a pioneering approach to encouraging context-dependent model legislation that we hope gets imitated in other contexts.” – Professor Leslie Gielow Jacobs, Director of Capital Center for Law & Policy at McGeorge School of Law

“When incumbents, at any level of government, draw their own election districts, it is human nature to give themselves an electoral advantage. At the local level, we have seen redistricting used to expel political challengers and excise communities of color who, incumbents fear, may not vote for them. Independent, commission-based redistricting is vital to giving all Californians a voice in our democracy.” – Kathay Feng, Executive Director of California Common Cause

How to Find a Lobbying Job

Today’s podcast is about how to find a lobbying job. Generally, my advice to prospective lobbyists is usually similar to job seekers in many other professions, but I’ll try to give some specific advice on getting a lobbying job at the state level in California.

Before you start applying for lobbying jobs there are a few things you should first consider. First, understand the types of lobbying jobs that are out there. Second, understand what you want to do in the lobbying professions. Then, target potential lobbying jobs that suit your interests and your strengths.

Let’s start by discussing the types of lobbying jobs, of which there are essentially four: contract, in house or government relations, association, or government. A contract lobbyist is someone who is contracted by one or more lobbyist employers to work on their behalf. There are over 2,500 lobbyist employers at the state level in California.

An in house or government relations positions is one in which the lobbyist is a full-time employee of a business.  An association lobbyist, similar to an in house lobbyist, is a full time employee of a trade association or union. All of the aforementioned types of lobbyists must register with the Secretary of State.

A government lobbyist is someone who fills of working as the Governor’s lobbyists. They are a full-time employee of a particular state agency and are also similar to an in house lobbyist in the private sector. The key difference, though, is that since government lobbyists are employees of the state, they do not have to register as a lobbyist with the Secretary of State.

The next thing a prospective lobbyist should consider is what they want to do in the lobbying profession. Do you want to advocate on specific bills before the Legislature or regulations at state agencies? Do you like analyzing bills and regulations, or writing policy papers and advocacy documents? More importantly, which of these roles suit your strengths? These are useful questions to ask yourself to help narrow your lobbying job search.

Some other questions to consider are what subject matter or cause most interests you? Do you have a substantive background in a particular policy area? Your answers to those questions will also help you narrow down your job search.

Once you’ve considered these questions – and some other questions that I pose in the full podcast – you’ll want to know where to look for lobbying jobs. While word of mouth is one route, and a helpful asset, you can also find jobs posted on Capitol Morning Report, The Nooner, and Capitol Daybook.

 

 

 

Rules for Effective Lobbying – Never speak on behalf of another entity without expressed, specific, authorization

In today’s podcast we will be discussing another one of my rules for effective lobbying – never speak on behalf of another entity or purport to represent its position without specific, clear, definitive, precise authorization. I cannot stress enough how important this rule is. Violating this rule potentially can get you into more trouble than violating any other rule that I’ve discussed before. Obviously, intentionally misrepresenting someone else’s position is unspeakably bad, and in most instances it is likely to be a career ender.

 

Inadvertent misrepresentation is almost as bad, and its potential is what gives rise to this rule. Imagine that you are testifying at a committee hearing and are asked what position on the bill in question has been taken by hypothetical Entity X, which you do not represent and which is not present at the hearing. Suppose further that based on your good faith belief, you state that Entity X supports the bill and as a result, the bill passes the committee. In fact, Entity X opposed the bill. To put it another way, suppose you inaccurately state that Entity X opposes the bill which results in the committee defeating the bill when in fact, Entity X supported the legislation. I can’t help thinking of the Southwest Airlines ad tagline, “Wanna get away?”

 

Not convinced? Think about it this way. How would you react if you represented Entity X in the preceding hypothetical.

Criminal Justice Reform in 2018 – What to Look For

With the California Legislature’s February 16 bill introduction deadline rapidly approaching, now seems as good a time as any to dive in to a conversation I had with Liah Burnley, a Policy Advocate for Californians for Safety and Justice (CSJ), where we look at some of the upcoming criminal justice reform bills in 2018. We talked extensively about the bills that CSJ is taking the lead on, but it is worth noting that they will also be co-sponsoring more bills with other members of the criminal justice reform community. This is just a sample of what to expect this year.

The last time we talked with Liah, we discussed how CSJ’s policy priorities are influenced by survivors of crime and the formerly incarcerated. That is absolutely evident in the priorities we talk about, which are: occupational licensing standards and the background check process – informed by CSJ’s Second Chances program which works to assist the formerly incarcerated – providing trauma informed services in K-12 schools – influenced by their Crime Survivors Network – and CSJ is also wading into sentencing reform, with a specific look at reforming enhancements and how they’re used.

The issues of professional licensing and background checks go hand in hand. As Liah points out the process is “very messy” and that background check reports that go to licensing boards “are often incomplete, inaccurate” which makes it easier for a licensing board to deny someone a professional license. One of the issues that Liah notes is that these boards have broad authority to deny someone a license, even someone without a record, and in doing so it makes it more difficult for the formerly incarcerated to take a skill that they have a turn it into a career where they can earn money for themselves and their family.

The other issue that we spent a large chunk of time on was sentencing reform, which is important given that California’s prison system is still over 130% capacity. Specifically, CSJ is looking at reforming gang enhancements and the way enhancements are used. Currently, someone with a prior conviction, can get an enhancement tacked on just for having the prior. If that prior is also a strike under California’s Three Strikes law, it’s another enhancement in addition to the first enhancement. So for someone who has already served their time for one previous mistake, they can be looking at seeing the time they serve for a new misstep increase dramatically. As Liah points out:

“You’re looking at five more years, plus your time doubled, plus your base sentence, plus any other enhancements that may be added to your sentence. You’re going from what could’ve been a three year sentence to a twenty year sentence.”

The OAL’s Six Standards of Review

In today’s podcast on how to be a more effective regulatory agency advocate we will be looking at the Office of Administrative Law’s six standards of review for proposed regulations.

California’s Office of Administrative Law, also known by its acronym OAL, plays several roles concerning the rulemaking process in California. In addition to regular rulemaking, there is also emergency rulemaking and a review of underground rulemaking. That’s another podcast.

When OAL reviews regulations, its review is dictated by California’s Administrative Procedure Act, the APA, which sets forth six standards by which OAL determines whether a regulation was properly adopted in compliance with the state APA. The six standards are: authority, reference, consistency, clarity, non-duplication, necessity.

Authority means that the regulation must cite the specific statutory authority allowing it to be enacted. Reference means that there must be a citation to the specific statute or other provision of law that the regulation is implementing, interpreting, or making specific.

Consistency is a little easier to understand. Basically, is the proposed regulation in harmony, and not in conflict, with other laws?

The next standard, clarity, gets at whether the proposed regulation is clear to those who are being affected by the regulation. That’s an important distinction to keep in mind with this standard. The regulation does not have to be clear to everyone, just those who would be impacted by it. Even when the technical nature of various subject matters is taken into account, OAL has found that regulations are frequently unclear and unnecessarily complex.

Non-duplication is another standard that is more easily understood. Basically, does the regulation serve the same purpose as any other state law or regulation?

The last standard is necessity. The standard essentially reviews whether the need for the proposed regulation has been demonstrated by substantial evidence.

All of this review goes into the official rulemaking file, along with public comments, that is sent to OAL by the rulemaking entity for review.

In next week’s podcast, we will explore the OAL’s petition process.

Misconception Monday – Floor Actions

In today’s penultimate episode of Misconception Monday, we will be exploring common misconceptions about the California legislative process related to floor actions. As always, you can find my other Misconception Monday podcasts here.

The first misconception is that legislators in either house of the California Legislature can change their vote on bills that have already been considered. The Assembly allows its members to add or change their votes after the final vote has been announced, so long as that final outcome in the Assembly is not impacted. Pursuant to Senate Rule 44, the State Senate has a slimmed down version of this. Only the President Pro Tem of the State Senate and the Republican leader are allowed to change their votes, but again, only so long as the final outcome of the bill is not affected.

Another misconception is that all bills without opposition are placed on the Consent Calendar. The two houses of the California Legislature have different rules handling bills on the Consent Calendar. Under Senate Rule 28.3(a), if a Senate bill or Assembly bill is amended in the Senate to either create a new bill or to rewrite the bill, then a standing committee may not place the bill on its Consent Calendar.

A third misconception, and the last one that I will cover here – you’ll need to listen to the brief podcast for the rest of the misconceptions – is that parliamentary inquiries and points of personal privilege are the same. This is not the case. A parliamentary inquiry is a procedural question posed by a legislator during a committee hearing or a floor session. On the other hand, a point of personal privilege is an assertion by a member of the California Legislature that his or her rights, reputation, or conduct has been impugned, thereby entitling the member to repudiate these claims.

 

SB 320: Expanding Abortion Access for College Students

A quick note, this interview was recorded on 1/26. In the intervening week between the recording of this podcast and this post going live, the California State Senate voted on and passed SB 320 by a vote of 25-13, with two Senators not voting.

Professor Co and Jon Wainwright discussing SB 320 at McGeorge

One reason why I jumped at the opportunity to talk with Professor Co about this bill is because it fits perfectly with the idea of California Exceptionalism that we track. By California Exceptionalism, we mean policies that California is pursuing or has passed that go further than anywhere else in the nation. As Professor Co mentions in our conversation, while some public universities offer medication abortion services, no state in the country has a law requiring public universities to provide this service. Should SB 320 pass, California would be exceptional in that it would be the only state to do so.

SB 320 is the evolution of a student-led initiative that started at the University of California, Berkeley. Students asked the health administration at the University to provide medication abortion services, but the request was denied. From that, SB 320 was created. The bill has been pared back a little bit since it’s original introduction in February of last year.

The original bill put this new requirement on all UC’s, CSU’s, and California community colleges that had health centers. Further, the original bill required those on campus health centers to provide scientifically accurate information on abortion and medication abortion services. As the bill progressed, it was amended to cut out the provision about providing scientifically accurate information. Additionally, community colleges are no longer required to be a part of the program, only schools in the UC or CSU systems.

The other interesting aspect of this bill is that it is completely privately funded. The State of California cannot use General Fund dollars to fund the program and the university campuses are not allowed to use student fees to fund this new program. More interestingly, the bill further says that schools will not be required to provide these services should the private funds dry up.

Lastly, a quick thank you to Professor Daniel Grossman at UCSF in helping us out by sharing the studies mentioned in the podcast with Professor Co.

Legislative Oversight of Rulemaking Bodies

In today’s post, we’ll continue our look into how to be a more effective regulatory agency advocate. Today’s podcast concerns the unique role of the California Legislature in the rulemaking process.

There is a number of ways that the Legislature influences the rulemaking activities of state agencies. One way that the Legislature can do this is by adopting statutory changes to expand or limit a specific state agency’s authority to adopt regulations. This is an important power because it is the underlying statute that confers either broad or limited quasi-legislative powers to a state agency. The Legislature can also utilize the power of the purse strings through the annual budget process to influence an agency’s rulemaking activities.

There is also a legislative review of regulations under the joint rules of the California Legislature. The California Joint Legislative Rules Committee, as well as the respective rules committees of the Assembly and State Senate, can approve any request from a legislator to give priority review of a regulation. Under the same rule, any State Senator may request the Senate Committee on Rules – and any Assembly Member may request the Speaker – direct any standing committee in their respective houses, or the Assembly Office of Research or the Senate Office of Research to study any proposed regulation.

When reviewing the request, the Senate Rules Committee or the Speaker must determine, first, the cost of making the study; second, the potential public benefits derived from the study; and third, the scope of the study. Per the joint rules, the study may consider, among other things, seven different items:

  • Do the proposed or existing regulations exceed their agency’s statutory authority?
  • Does it fail to conform to the legislative intent of the enabling statute?
  • Does it contradict or duplicate other regulations adopted by federal, state, or local agencies?
  • Does it involve an excessive delegation of regulatory authority to a particular state agency?
  • Does it unfairly burden particular elements of the public?
  • Does it impose social or economic costs that outweigh its intended benefits to the public?
  • Does it impose unreasonable penalties for violation?

These items of consideration differ from the Office of Administrative Law’s six standards of review, which we will cover in my next post on regulatory agency lobbying.