A first response to reports that California taxpayers have paid roughly $25 million in the last three years to settle sexual harassment-related cases is outrage. A closer look reveals a more complex picture. LAPD paid, on average, $30 million annually from 2012-2014 to resolve legal claims involving officers’ conduct. Since 2006, CHP has paid over $25 million in similar claims. Undoubtedly, California taxpayers pay far more than these amounts to resolve claims of negligence and misconduct by state employees. Taxpayer funded sexual harassment settlements aren’t anomalies; they’re part of a broader structure where the state, as employer, pays for injuries caused by employee actions.

Why does the law make employers pay for bad acts by their employees? One reason is that employers direct and control their employees’ actions, making them partially responsible for employee actions within their job’s scope. When employers have to pay out money for employees’ bad behavior they should be motivated to make the appropriate changes.

Another reason is that the purpose of civil damages judgments is to compensate victims – not punish perpetrators. Employers are in a better position to buy insurance or accumulate enough funds to pay for injuries.

What about employees who’ve engaged in egregious behavior? Shouldn’t they be punished by paying? In civil suits, juries may award punitive damages to punish an employee who’s found to have acted in a way that’s more blameworthy than workplace negligence or misconduct (acting with oppression, fraud, or malice); generally the employee, rather than the employer, pays. If the employee’s conduct is criminal, then they may be charged and, if convicted, punished with fines or imprisonment.

Back to sexual harassment…isn’t that bad enough that the perpetrator, rather than taxpayers, should pay? Again, a closer look reveals that it’s more complicated than it seems. For one, sexual harassment settlements are just that – settlements. They’re not adjudicated liability.  Even if we’re talking about sexual harassment judgments, the reasons mentioned above still apply.

Additionally, and importantly, another consideration is the impact that an “employee pays” rule would have on state employees doing their jobs, interacting with other employees and members of the public every day.  We want to deter bad behavior but we don’t want to “over-deter” it with a rule that makes employees frightened to act because if they – maybe – cross a line, or someone claims they did, they’ll be paying for a lawyer and a judgment, if it comes in. UCLA Law School Professor Johanna C. Schwartz, who conducted the aforementioned study of police department payouts, concludes that in most instances the departments, rather than the officers, should pay for misconduct claims because requiring officers to pay would result in this type of over-deterrence. She recommends transparency of payouts, and making the departments pay from their budgets rather than charging the taxpayers from the general fund..

Another note on “over-deterrence” comes from the Constitution. The Constitution provides the President absolute immunity from lawsuits for damages arising from his actions as President.  These lawsuits include claims by an employee of sexual harassment. The Supreme Court has also interpreted the Constitution to give different levels of immunity to different types of government officials. In doing so, the Court explains the Constitution creates “breathing room” around the actions of government officials, shielding them from paying damages even when conduct violates the law:

Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.”

Most state employees are not government officials entitled to constitutional immunity. Even state government officials entitled to immunity may lose it if their actions violate clearly established law. Nevertheless, the over-deterrence concern runs through legal and policy judgments about who should pay for employee misconduct and explains why often, when the employer is the state, the taxpayers pay.

Why it’s difficult to raise $900 million to fight obesity and diabetes

Full disclosure: I recorded this interview with Erinn Ryberg – Leg. Director to Assembly Member Cristina Garcia and McGeorge Class of ’13 – in late December 2017. So, we refer frequently to “this year” and “next year” with this year meaning 2017 and next year meaning 2018. It dates the conversation a little bit, but not enough to make anything either of us said incorrect.

Erinn and I talked about a pair of bills that came from her office and went nowhere fast in 2017. One is a constitutional amendment, and the other is a redefining of what counts as food in California’s tax code. Neither of the bills are dead – even though there’s been no motion on them and the deadline for two-year bills is tomorrow – because the rules in the California Legislature exempt constitutional amendments and tax levy bills from the normal two-year bill deadlines.

The new tax of seven cents on the dollar that Asm. Garcia is proposing would raise roughly $900 million, which would go into the General Fund and potentially a few Special Funds and provide extra revenue to address the obesity epidemic, the diabetes epidemic, return nutritional counseling to schools where it had been cut from, and, hopefully – from the point of view of Asm. Garcia’s team – back fill enough programs to free up $20 million to pay for exempting tampons from the sales tax.

Despite not having to worry about the Legislature’s deadlines, getting snack and/or candy taxes re-instituted in California is a series of uphill battles. For background, California did briefly have a snack tax in the 1990’s. It was put in place by the Legislature to fill a budget deficit. The tax was opposed by candy companies who ran (and won) a ballot initiative campaign to change the California Constitution to classify snack foods and candy as food. Food is classified as essential and therefore is not taxed. In doing so, any attempts thereafter to tax candy and snack foods require going back to the voters and getting another constitutional amendment.

The process of getting a constitutional amendment passed is uphill battle number one. For a legislator to get a constitutional amendment on the ballot, it has to pass both houses of the California Legislature, and both houses need to pass it by a two-thirds vote. If they are successful in that endeavor, it then goes to the statewide ballot where a campaign to pass the new snack tax would require millions of dollars to have a chance at winning. It would also likely face extremely well funded opposition. The process, in a vacuum, is difficult.

Factoring in the fact that last year legislators passed a major increase to the gas tax and an extension of California’s Cap and Trade program, it makes getting the constitutional amendment through the Legislature that much more difficult. On the ballot initiative side – should this amendment make it to the ballot – voters would be looking at creating this new tax in the same year in which they may be voting on not only repealing the aforementioned gas tax, but enshrining in the California Constitution that all new gas taxes must be sent to the voters for approval. Taking that into account, this is about as steep of an uphill battle as one can have. We’ll have to wait and see on how this shakes out.

Misconception Monday – Committee Hearings

Today’s Misconception Monday podcast concerns committee hearings. Before we dive in, remember that you can find all my Misconception Monday podcasts here.

Today’s first misconception has to do with the legislative calendar, which states, “No committees may meet during the last two weeks of session,” but that isn’t always the case.

With a rule waiver, policy committees can meet during this time period. Further, under Senate Rule 29.10 and Assembly Rule 77.2, when dealing with bills that have been substantially amended in the other house that are referred back to a policy committee hearing, those committees are not subject to the prohibition.

Another misconception is that supermajority vote bills must pass out of committee by a supermajority vote. This is not the case. The supermajority vote specification by Legislative Counsel only applies to floor votes in the California Legislature. All bills require only a majority vote to pass out of committee.

Another important misconception is that a committee can pass a bill based on the majority of the committee members present and voting. The majority vote requirement applies to the full membership of the committee, not just the members present. So, if a standing committee has nine members, five votes are required to pass a bill from that committee, even if only seven members are present to vote on it due to abstentions or absences.

There is also the misconception that both the Assembly and the Senate fill vacancies on committees for hearings. While the Speaker of the Assembly may appoint replacements for a committee hearing when a member is absent for the day that is only a custom and practice of the Assembly. The Senate Rules Committee does not fill absent slots for committee hearings.

The last misconception that I will cover here – you’ll have to listen to the podcast to hear the rest – is that a Committee Chair cannot preside at a committee hearing on a bill for which he or she is the author. This is the general rule, with one key exception. That exception is when the Budget Committee is hearing the budget bill, of which the Budget Committee Chair is the author.

 

 

 

The Partnership, the brain trust, and the activists working to end domestic violence

This week, I’m posting another conversation I had with Erin Scott – Board Chair of the California Partnership to End Domestic Violence. As we allude to in our conversation, she is also the Executive Director of the Family Violence Law Center, which is based in Oakland, CA.

Today’s conversation is related to last week’s chat that I had with Erin about The Partnership’s effort to double funding for domestic violence, which would allow for more prevention efforts in California. It’s also a follow up to the conversation we had a while back with Beth Hassett, the CEO and Executive Director of WEAVE, and the work that they do with coalitions, including The Partnership. We talked, in a broad sense, about the work The Partnership does to achieve its vision of “a California free of domestic violence.”

In addition to the coalition work that The Partnership does with its members all across California, they lean on and assist other ally organizations that don’t necessarily work on domestic violence issues but do work on issues that overlap with domestic violence like sexual assault, immigration, employment law, economic security, and many other issues. When thinking about useful tools to change public policy with, a brain trust of other experts that know the issues that overlap with yours inside and out is a very good tool to have.

The other thing that stands out to me about how The Partnership works is that their approach to public policy is designed to minimize unintended negative consequences of policies aimed at eradicating domestic violence. The process by which The Partnership does this is by pulling in input from their members all over California, which helps ensure that its policy decisions don’t inadvertently hurt some of its members. Erin said it better than I did,

One of the great things about that amount of input is … my agency is in Oakland, and something that might be very beneficial to my agency in Oakland might have a negative impact in a rural area that I might not think of if it was just me on the phone giving that input to The Partnership.”

It’s this balancing act that The Partnership pulls off – balancing the need and conditions of its member agencies and the domestic violence survivors that they serve – between the urban and rural parts of the state that I find special.

To learn more about CPEDV, please visit their website and specifically, their page on their policy priorities.

To keep up to date with the work The Partnership is doing, you can check out their page on Facebook and you can follow them on Twitter, @cpedvcoalition.

You can also follow Erin’s organization on Facebook and Twitter, @FamilyVLC.

Making Effective Regulatory Agency Presentations

Today we are continuing my series on how to be a more effective regulatory advocate. Today’s podcast is about making effective regulatory agency presentations and other avenues an advocate can utilize to influence rulemaking bodies.

There are a few basics to making effective regulatory agency presentations. Those are: being honest, staying on point within any specified time limits, and ensuring that your presentation engages the rulemaking audience. But keep in mind that these presentations are just one component of successful regulatory agency advocacy.

It is also important to be aware of the different avenues that an advocate can take to influence rulemaking. The Governor can influence state agencies. So too can the other two branches of government – California Legislature and the courts. Additionally the private sector can influence rulemaking bodies.

The Governor can exert considerable influence over state agencies through the state budget. Another pressure point, in the case of line authority agencies, is that the Governor appoints the agency secretary, undersecretary, department directors, and the deputy directors. The Governor, and his or her staff, can also use personal persuasion, and utilize positive or negative publicity.

How can the California Legislature influence rulemaking bodies? When conferring the power or authority to regulate through statute, that statute can grant a very broad scope of authority or a very narrow scope of authority to the rulemaking body. The California Legislature can also use the budget process to influence state agencies. It can do so through supplementing, diminishing, or eliminating funding for a particular department or agency. The Legislature can also adopt budget control language – BCL for short – that specifically directs state agency activities.

Members of the private sector can utilize either of these avenues – the Governor and the California legislature – to influence rulemaking, as well as engaging in the opportunities to submit public comment afforded to them by California’s APA. If an interested party is unhappy with a given regulatory action, then they can initiate litigation and utilize the courts to challenge an agency’s rulemaking action, and they might even resort to media or grassroots activity as well.

Comparing the President and the Governor

Today’s post features another podcast that leads up to Governor Brown’s final State of the State Address tomorrow. In today’s podcast we’ll be comparing the US President and California’s Governor, and their respective roles in the legislative process.

We already touched on some of the similarities and differences in my post on Monday, which covered the Governor’s line-item veto authority, a power that the President does not have. Another point of comparison was on the pocket veto and the pocket signature.

Let’s touch on some similarities. In relatively broad terms, both the Governor and the President are extensively involved in the legislative process because they can propose – as well as sign and veto – legislation, they can propose and sign budgets, and they make appointments to executive branch agencies and departments.

They also both make major policy addresses to their respective legislative bodies. As I mentioned earlier, Governor Brown will be delivering his final State of the State address to the California legislature tomorrow morning. The President will be giving his State of the Union address to Congress next week.

Another difference between the President and the Governor is the California Governor’s ability to call the Legislature into extraordinary session. This power allows the Governor to call the California legislature into a session to address specific issues, such as a natural disaster, a budget crisis, or some other high profile policy issue. The US President does not have this power.

The President and Governor are both actively engaged in proposing and reviewing the federal and state government budgets. The Governor largely participates in the California Legislature’s review and adoption of the budget through the Department of Finance (DOF). Similarly, the President engages in this process with Congress through the Office of Management and Budget (OMB). While the two agencies have similar duties, DOF doesn’t achieve the same level of power that is vested by federal law in the OMB.

Please listen to the rest of the podcast for more comparisons between the President and the Governor, and their respective roles in the legislative process.

 

 

 

As I’ve discussed before, the #MeToo and We Said Enough movements are starting to bring change to the California legislature’s persistent culture of sexual assault and harassment. That process of bringing change has been slow, perhaps too slow.

Furthering that concern are the reports about state Senator Tony Mendoza. He is under investigation for sexual harassment and misconduct and agreed earlier this month to take a paid leave of absence. However, after taking his leave, he has returned to the Capitol to work on legislation as well as attend and host events. He’s remained active in his district as well, posting pictures from a boat tour he hosted for high school seniors this past weekend. It needs to be noted that he has consistently denied the allegations against him. His actions – which fly in the face of the spirit of, if not the letter of, taking a leave of absence – are in line with these denials.

Mendoza’s actions led to current Senate President Pro Tem Kevin De León stating that Sen. Mendoza “does not have an understanding of the gravity of the situation with no decency and little respect for the institution.” My feeling is that statement driven as much by De León’s need to create space between the sexual harassment scandal that came to light while he was Pro Tem and the rest of his record in the California legislature if he wants to have any chance of being competitive in his campaign against incumbent U.S. Senator Dianne Feinstein as it is by outrage at Sen. Mendoza’s actions.

That leads me to an interesting report by Melanie Mason of the Los Angeles Times about local Democratic Party activists who are asking candidates “in explicit terms to divulge any history of sexual harassment.” This development could be a tipping point in changing the culture in the California Legislature and rooting out bad actors.

I’ve worked with candidates and shepherded them through the party endorsement process in the past. Questionnaires sent to candidates by local party clubs are the first, and sometimes the only, step in gaining that group’s endorsement. That endorsement means access to volunteers, it means potential campaign contributions, and it makes securing the party’s endorsement easier. When it comes to earning the party’s endorsement, these local club endorsements are beneficial because they send delegates to the party convention who are bound to vote for the candidate their club endorsed. By racking up club endorsements it becomes much easier to get the requisite number of votes at convention to receive the party endorsement. That’s the background to why these endorsements matter. The main reasons they matter are the access to volunteers that their endorsements bring, and more importantly, the potential access to money.

Campaigns run on volunteers. They are the foot soldiers who are out knocking on doors and calling voters. The more volunteers that a campaign has access to, the more voters it is able to directly contact. But these local clubs also collect membership dues and fundraise and can donate to candidates’ campaigns. Party endorsed candidates – and again, local endorsements help lead a state party endorsement – can receive contributions from the state party. More importantly, the state party can raise unlimited amounts of money, and through independent expenditure councils (I.E.’s), spend unlimited amounts of money. If sexual harassment becomes a line in the sand for local activists there is potential for incumbents who have sexual harassment in their history to lose support that they previously had. If that happens, volunteers go to other campaigns or stay home, money for direct mail or TV or radio ads dries up, and I.E.’s either disappear or fail to materialize.

All of that combines for a much harder reelection bid, and potentially, lead to a new wave of elected officials replacing an older crop of bad actors.

Misconception Monday – Governors Role in the Legislative Process

Welcome to another episode of Misconception Monday, where I dispel common misconceptions about various aspects of the California Legislature and the legislative process. On this week’s podcast, ahead of Governor Brown’s final State of the State address on Thursday, we will be covering common misconceptions about the Governor’s role in the legislative process.

The first misconception is that the Governor’s line-item veto authority only applies to budget bills. Actually, according to the California State Constitution, “The Governor may reduce or eliminate one or more items of appropriation while other portions of a bill.” So the Governor can reduce or eliminate any appropriation in any bill. When the Governor uses his or her line-item veto authority, he or she must send the bill back to its house of origin in the California legislature with a statement detailing the items that were reduced or eliminated, as well as reasons for those line-item vetoes. The legislature can override a line-item veto the same way that it can override a veto, that is with a two-thirds vote of both houses in the California legislature.

Another misconception is that the Governor, like the President, can pocket veto a bill. Actually, in California, we have the exact opposite, a pocket signature rule. If the Governor fails to act on a bill, either intentionally or accidentally, then that bill becomes law without his or her signature.

Another misconception, and one that is important to those who are watching a particular piece of legislation that is sitting on the Governor’s desk, is that the Governor has 30 days to act on legislation sent to his or her desk. Actually, the general rule is that the Governor has 12 days to act on legislation once it reaches his or her desk. It is only at the end of the yearly legislative session that the deadline extends from 12 days to 30.

You’ll have to listen to the full podcast for the rest of the common misconceptions about the Governor’s Role in the legislative process. You can also find the rest of my Misconception Monday podcasts here.

 

 

Using Influence and Navigating the California Legislature

For today’s podcast, I sat down with Fredericka McGee (McGeorge Class of ’91). Fredericka spent an extensive part of her career working in the California Legislature as General Counsel and Deputy Chief of Staff for five Speakers of the Assembly. She is now the Vice President of California Government Affairs & Operations for the American Beverage Association.

In other podcasts, we’ve talked about the differences between the two houses in the California legislature. So we started our conversation on one of those key differences, and then went on to how to navigate the dynamics of the California legislature. The main difference Fredericka pointed out is the power dynamic in the two houses. In the Assembly, the current Speaker believes in disseminated power, whereas in the State Senate, the current Pro Tem uses the more traditional approach of concentrated power. That may change when the Senate transitions to new Pro Tem later this month.

When it comes to navigating the two houses of the California legislature, the key takeaway was that it matters less about the structure of the houses and more about the specific legislators or committees that will be helpful to you in your efforts to pass or kill a bill. That first means knowing if you are playing offense or defense – trying to pass or kill a bill – and then determining who is going to be your best advocate.

We also discussed some of the differences to approaching bills from the perspective of working in the Speaker’s office and working in the Third House. The most obvious difference is that as a part of the Speaker’s staff, people are coming to you to make the ask on a bill; whereas working in the third house, you are the one making the ask. That means that if you’re coming at legislation as someone from the third house, there is more proactive groundwork that you have to do with members of the California legislature and their staffs if you are going to be successful.

 

Providing Public Comment

Today’s podcast is a follow up on last week’s episode where I discussed when and how the public can participate in California’s rulemaking process. On today’s podcast I will be discussing one aspect of public participation, providing public comment.

As I’ve mentioned in earlier podcasts, there are over 200 state agencies in California that have quasi-legislative authority, that is, the authority to craft regulations. Those 200-plus agencies adopt more than 500 regulations each year, leaving ample opportunity for public comment on proposed regulations.

There are formal and informal opportunities to offer public comment on regulations, and different points in the rulemaking process where those comments can be offered. There are two things about this process to keep in mind. The first is that informal comments are not part of the official rulemaking file – more on why that is important later. The second is that the public comment process for regulations differs from that in the California legislature.

The first opportunity to provide public comment on a proposed regulation is during the interested parties process, but those comments are informal. The next opportunity in the regular rulemaking process comes once the regulation is published. By law, the agency proposing the regulation then must provide a minimum 45-day process to take public comment. This is the first opportunity to formally submit public comment which will go into the regulation’s file that will be reviewed by California’s Office of Administrative Law (OAL).

Not all agencies have public hearings for the regulations they publish; however, if a hearing is requested by a member of the public, then the agency is legally required to hold a public hearing. That’s another key difference between the rulemaking process and the lawmaking process in the California legislature.

Once the formal rulemaking process ends, the OAL reviews the rulemaking file to determine whether or not the state agency or department complied with all of the legal requirements in the APA. That’s a third difference between the lawmaking process in the California legislature and the rulemaking process. Public comment in the rulemaking process should focus on the following six standards that the OAL uses when reviewing regulations:

  • Necessity,
  • Authority,
  • Clarity,
  • Consistency,
  • Reference, and
  • Non-duplication

You’ll have to listen to the podcast for an explanation of what those standards mean. There is no set standard of review for public comment in the lawmaking process in the California legislature.