Today’s post is on securing gubernatorial appointments.

The Governor has the authority to appoint several thousand individuals to serve in his or her administration during his or her four-year term of office. Some of these positions require the advice and consent of the Senate. There are two aspects to these types of gubernatorial appointments. First, securing the appointment from the Governor and then secondly, getting the appointee confirmed by the Senate.

The likely more difficult aspect of gubernatorial appointments is not confirmation but actually securing the appointment in the first place. While there are many appointed positions across California state government, the Governor usually makes only a handful of appointments that are either controversial or are such an important post that they generate interest. A lobbyist usually comes into play more during the Senate confirmation process.

The first step in securing a gubernatorial appointment is applying for a position. There are documents that can be found on the Governor’s website including the statutory index on all available appointments. Then, there’s information on the boards and commissions including descriptions, salaries, stipends, how often they meet, etc., which is under a separate tab. And then there’s the actual appointment application, which involves an online application that allows an individual to apply for up to ten positions for consideration by the Governor and his staff.

All of these are found on the Governor’s official website.

After an individual has been notified of receiving an appointment, it must be determined whether he or she needs to be confirmed by the California State Senate. If there is no confirmation, then the individual assumes the position once he or she has been officially appointed by the Governor.

For those that require confirmation, there will be Senate Rules Committee review of that gubernatorial appointee. Now, there are two types of individuals that receive Senate Rules Committee review. There are those that are required to appear before the committee in an open hearing and then there are others who are quote: “subject to confirmation but not required to appear before the Senate Rules Committee.” These individuals submit written responses to Committee Members’ questions, but they don’t have to testify or appear in an open hearing. And of course, interest groups can submit written comments to the Rules Committee members if so desired.




Bills, Amendments, & Resolutions – Part 2 (transcript)

Today is part two of looking at bills, constitutional amendments, and resolutions. You can find last week’s post here. Today we’re going to talk about constitutional amendments and resolutions.

Constitutional amendments can be proposed by initiative ‑ that is, by the people ‑ as one of the forms of direct democracy that we have here in the state of California. In this context, we’re talking about constitutional amendments being placed on the statewide ballot by the Legislature.

Of course, in order to adopt those amendments to our state constitution, it requires a vote of the people, a simple majority. That’s 50 percent plus one.

The Legislature, just like the people, has the power to place measures on the ballot to amend California’s state constitution. These constitutional amendments are ACAs, Assembly Constitutional Amendments, or SCAs, Senate Constitutional Amendments.

Constitutional amendments proposed by the Legislature require a two‑thirds vote of each house of the Legislature for passage, rather than a simple majority vote. However, constitutional amendments are not sent to the Governor, so the Governor cannot sign or veto a constitutional amendment.

In other words, if an ACA or an SCA passes both houses of the California Legislature with a minimum two‑thirds vote in favor, that constitutional amendment is automatically placed on the next statewide ballot, with or without the consent of the Governor.

Let’s switch gears now to resolutions. Keep in mind that resolutions are formal expressions of the views of the California Legislature. Resolutions do not carry the force and effect of law.

Bills, from our prior podcast, create statutes or amend statutes. Those are the laws. Resolutions are not laws. They’re expressions of support or opposition.

Interestingly, in the California Legislature, there are three different types of resolutions. These three different types of resolutions can be considered individually by either house, or the other two have to be considered and approved by both houses.

One type of resolution is used by either house individually, meaning it only passes that single house in order to take effect. Those we call house resolutions.

The other two types of resolutions, which we call a concurrent resolution or a joint resolution, require adoption of both houses of the California Legislature before they are given a chapter number by the Secretary of State.




Bills, Amendments, & Resolutions – Part 1 (transcript)

Today, and next Monday, we’re taking a look at bills, amendments to bills, constitutional amendments, and resolutions.

In the California State Capitol, there are three types of measures that can be considered by lawmakers ‑‑ bills, constitutional amendments, and resolutions. All of them are printed by the Office of State Publishing, and they’re all made available, usually that night online, and the next day in the Bill Room, found in the basement of the California State Capitol.

Let’s look first at bills. Bills make statutes, and statutes are law. Generally, no bill, except the state budget bill, may be heard by any committee or acted upon by either house until it’s been in print for a minimum of 30 days. This rule, like many legislative rules, can be waived with a three‑fourths vote of the house of origin.

Only legislators of the Assembly or the Senate can author bills. We have a bicameral legislature, so bills must be passed by both houses of the legislature, and then acted upon by the Governor. Our Governor can sign bills, he or she can veto bills, or they have a pocket signature that can allow bills to become law without his or her signature.

Remember statutes, or laws, can only be enacted through bills. I go through the many types of bills in the podcast. There are quite a few.

What are the actual provisions of a bill? At the top of the bill, you’ll find the introduction date and the amendment, or amendment dates where there are multiple amendments. Each date is listed at the top, so you know, easily, what version of the bill you’re dealing with.

Then, of course, comes the bill number. The bill number itself is on the right‑hand side of the bill. Whether it’s an Assembly Bill or a Senate Bill is on the left‑hand side. Then, the principal author of the bill is listed. Of course, if there are any co‑authors, their names are listed under the bill’s author, and that’s done in alphabetical order.

Next comes the date. After the date, comes the title. The title identifies the code section or code sections of the bill that are being affected. It contains what they call a relating clause. “This is a bill relating to transportation,” for example.

After the title and the relating clause comes the Legislative Counsel’s Digest. The Legislative Counsel are the Legislature’s lawyers, and they must draft every bill and every amendment. In the Legislative Counsel’s Digest, they succinctly set forth a brief summary of existing law, and it says, “Existing law provides…”

At the end of the Legislative Counsel Digest are what is called the vote keys. These identify the vote required to pass the bill, whether the bill makes an appropriation or not, whether the bill is fiscal, and therefore will be heard in a fiscal committee, and the fourth key is whether the bill contains a state‑mandated local program.

Then by law, by the Constitution, every bill must have an enacting clause. Therefore, at the start of every bill, it says, “The people of the State of California do enact, as follows…,” and then the bill itself is set forth.

Finally, comes that actual bill language. The bill language is easy to follow, because language that is being repealed is in strike‑out text showing the words to be deleted or repealed, and italicized words are new provisions to the law, so it’s relatively easy to track.

This is to be continued. Next week we’ll talk about constitutional amendments and resolutions.





The Legislative Calendar (transcript)

Today’s podcast is on the legislative calendar. The legislative calendar establishes a schedule for the two‑year legislative session and provides numerous deadlines throughout the legislative process.

The calendar for the California legislative session is certainly important for those who work in and around the state capitol. California’s constitution provides the date for convening and adjourning the legislative session. Other than that, the Legislature has the freedom to set its own calendar for meetings and recesses.

Article IV of the state constitution establishes when the Legislature is to be in session. Section Three of Article IV provides that the Legislature is to convene the regular session on the first Monday of December in each even‑numbered year in order to convene its organizing session. Thereafter, the Legislature must adjourn by November 30th of the following even‑numbered year.

Now in general, the Legislature begins meeting the first week in January of each year and concludes work for the year either in mid‑September in the odd‑numbered years or by August 31st in the even‑numbered years.

During the calendar year, the Legislature traditionally schedules two recesses ‑ a one‑week spring recess which is generally the week before Easter, and a summer recess that typically lasts four weeks – either the entire month of July or roughly mid‑July through mid‑August in the odd‑numbered years.

In addition, several one‑day holidays are recognized by the Legislature. While the Legislature eliminated the Columbus Day holiday and one of the President’s Day holidays in February a number of years ago, legislators are still permitted to provide one floating holiday for their personal staff.

In addition to the regular session, the Governor may, by proclamation, require the Legislature to meet in special session. Now, a special session may run concurrently with the Legislature’s normally scheduled meeting times and/or during its recesses. During these special sessions, the legislature may act only on subjects specified in those proclamations.

On today’s episode of The CAP·impact Podcast we talk with McGeorge School of Law Capital Lawyering professor Chris Micheli about some of the institutional challenges to lawmaking in California. We then have a deep dive conversation with Assembly Member Chad Mayes about how our current state of hyper-partisan politics is affecting governing and lawmaking in California.

To learn more about Asm. Mayes’ new organization, New Way California, you can check out their website here.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes or Apple Podcasts and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter. Or you hit me up directly on Twitter @jon_wainwright.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Thanks for listening to today’s show.




Legislative Lingo (transcript)

Today’s topic is one of my favorites, legislative lingo.

It probably doesn’t come as much of a surprise that my colleagues and I, those who work in and around California’s state capital, use a number of different terms or lingo to describe different aspects of the California legislative process. I’ve tried to compile a short list of some of the more common terms used in the California legislative process.

I’ll cover a few of the terms here, and the rest are covered in the podcast. The first one is “41st senator.” There are 40 members of the California State Senate who are duly elected to represent the 40 Senate districts across the state of California, about 950,000 constituents each.

Due to the power of some of the staff in the upper house of the Legislature, there are a few staffers, particularly with committees or leadership offices, who are often viewed as being almost as powerful, if not as powerful, as some of those elected members of the State Senate. That’s why we use the term, 41st Senator.

Blue pencil. The term blue pencil is used to refer to the Governor in the State of California has an ability to line‑item veto, specific items of appropriations, either in the budget bill itself, which has numerous thousands of appropriations or individual appropriation bills.

The President of the United States does not have line‑item veto authority, but California’s Governor is one of those states that provides it. The line‑item veto authority can only reduce or eliminate items of appropriation. The Governor does not have authority to increase items of appropriation.

Gut and amend. It sounds rather ominous, doesn’t it? This is when amendments to a bill remove the current contents of the bill in their entirety. It’s gutted ‑‑ the bill is gutted ‑‑ and it’s amended, that is the language is replaced with entirely different provisions that are unrelated to the original contents of the bill. That’s a gut and amend.

Again, I cover many more terms in today’s podcast. Thanks for listening.




California’s Open Meeting Laws (transcript)

Today’s podcast is an overview of local and state open meeting laws here California. California has three types of open meeting laws that apply to local and state governmental entities.

These laws have been adopted over a number of years, and they equally apply to state agencies and departments, the Legislature, and local entities.

The open meeting acts are generally referred to Bagley‑Keene, LOMA, and Brown Act. What do all those mean, and to whom do they apply?

The Bagley‑Keene Act applies to state entities, the LOMA applies to the Legislature, and the Brown Act applies to local entities. You need to be aware of all three laws so that you can properly participate and be aware of what is happening at local and state governments and the meetings of relevant legislative and executive branch entities.

The Bagley‑Keene Open Meeting Law, generally referred to as “Bagley‑Keene,” was adopted by the State Legislature in 1967, and essentially implements relevant provisions of the California Constitution which requires meeting of public bodies and the writings of public officials and agencies to be open to public scrutiny.

What’s the practical impact of Bagley‑Keene? The Bagley‑Keene Open Meetings Act is applicable to state agencies and departments. The act requires that members of the public be able to address agenda items in public meetings of different state agencies and departments.

Of course, before one has the ability to comment on such agenda items, the public has to be made aware of meetings of these state agencies.

As a result, the notice of state agencies or department meetings must be provided to any person who makes such a request ‑‑ an interested party ‑‑ in writing, at least, 10 days in advance of the meetings of those state entities.

As you would imagine, those notices must include a specific agenda, the items of business to be transacted or discussed by the state entity, and no item can be added to the agenda after the notice has been issued.

Now, there are some instances where state entities can take action on items of business that were not on the agenda, but that’s in certain limited circumstances. Basically, it’s limited to the instances where a majority voted that state entity has deemed an emergency situation to exist.

As you can also imagine, the Bagley‑Keene Open Meeting Act requires all state agencies to conduct any meetings or functions in any of their facilities. It cannot occur where there’s any prohibition on admittance of people for protected classifications.

By the way, if Bagley‑Keene is violated, the decision of a body could be overturned so long as it’s challenged within 90 days. Of course, violations can be stopped or prevented by court action.

Next up is LOMA, the Legislative Open Meetings Act. That’s also in the Government Code like Bagley‑Keene, and it binds the California Legislature.

Now, be aware of a couple of things when it comes to LOMA. Caucuses of the Legislature ‑‑ party caucuses, Democrat and Republican in both houses ‑‑ have full authority to meet in closed session. Remember, state agencies have very limited authority to meet in closed sessions unless it’s for a specified exception, like litigation or personnel actions. That’s not applicable to legislative caucuses.

Legislators can meet informally, outside of committee hearings and floor sessions, to discuss policies so long as no formal actions are taken, and so long as less than a majority of the body is involved.

Last is the Ralph M. Brown Act which was adopted in 1953. The Brown Act applies to open meetings of counties and cities. It’s found also in the Government Code, around Section 54950.

Now, the purpose of the Brown Act is to guarantee the public’s right to attend and participate in the meetings of local elected bodies. It applies to city councils, the board of supervisors, and local government bodies so that they can’t hold secret workshops or study sessions.

Keep in mind that the Brown Act applies solely to city and county governments, as well as their agencies, boards, councils, etc.

What are some of the major provisions? The majorities of decision‑making bodies may not decide amongst themselves on issues within their own jurisdiction, except when they’re done so in open and publicly held meetings.

As a result of the Brown Act, local agencies have to publicize where and when their meetings will occur, as well as what will be discussed on the agenda. Of course, then the public can observe those meetings.

Now, at the local level, the Brown Act requires 72 hours or 3 days’ notice. Remember, that’s different than the Bagley‑Keene Act which requires 10 days’ notice. No action can be taken by those local bodies unless an item’s been placed on the agenda for consideration.




The Single-Subject Rule (transcript)

Today’s podcast is on California legislation and the single‑subject rule.

Many state capitol observers are aware of the single‑subject rule, because many are familiar with California Constitution Article II, Section 8(d), which provides that an initiative measure embracing more than one subject may not be submitted to the electors or have any effect. But does a similar rule exist for bills considered by the California Legislature?

Here’s a little background on the subject. The single‑subject rule is found in several state constitutions in the US that provide some or all legislation may only deal with one main issue. Basically, the general idea is to ensure that legislation is not overly complex or that bills may not possibly confuse or hide provisions in a multi‑faceted measure. Some have argued that the single‑subject rule in legislation precludes combining popular and unpopular unrelated provisions in one large measure.

In California, there is a single‑subject rule for legislation. Found in the state constitution, Article IV, Section 9, it provides, “A statute shall embrace but one subject which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re‑enacted as amended.”

It was in 1948 that the California Constitution was amended to add the single‑subject rule for initiatives. The following year, the California Supreme Court ruled that the single subject rule applicable to initiatives was to be construed in the same manner as that contained in Article IV, Section 9 and applicable to legislation.

That’s because this provision applicable to legislation had long been in effect by that time. The single‑subject rule is generally to be construed liberally to uphold proper legislation and all of its parts, which are reasonably germane according to relevant court decisions.

There are a number of cases that have interpreted and applied the single‑subject rule as it applies to legislation. The main case in this area was from 1987, Harbor v. Deukmejian, which was decided by the California Supreme Court.

In that case, the Court explained that the single-subject clause has as its primary and universally recognized purpose, to be the prevention of log rolling by the Legislature.

Yesterday was the deadline for ballot initiatives that had qualified for the ballot – that is, they received the requisite number of signatures – to be pulled from November’s ballot. In fact, three initiatives were withdrawn from the ballot for this November.

The three initiatives that Californians will not be voting on come November are an initiative pushed by paint companies like Sherwin-Williams and ConAgra that “would have blunted a state appeals court ruling that made the companies liable for the cleanup” of lead pain in homes according to Liam Dillon of the Los Angeles Times. The initiative would’ve blunted that appeals court ruling by shifting the financial burden to taxpayers.

An initiative pushed by Bay Area real estate developer Alastair Mactaggart that would have vastly expanded consumer protections related to their data online was pulled after a deal was worked out between Mactaggart and legislators. The compromise legislation, according the New York Times creates “one of the most significant regulations overseeing the data-collection practices of companies in the United States,” granting “consumers the right to know what information companies are collecting about them, why they are collecting that data, and with whom they are sharing it.” The new protections go into effect in January 2020.

The third initiative that was pulled was one that would have required local governments to specify how new revenues raised were going to be spent, and also increased the vote requirement for new revenue measures – read: new taxes – to be a two-thirds supermajority. That initiative, which was backed by the beverage industry, was pulled from the ballot “in exchange for a ban on new soda taxes until 2031.”

That leaves 12 measures on the ballot for voters to decide on. Ben Christopher at CALmatters pulled together an excellent summary of the initiatives, which you can find here. And as a quick overview, voters will be faced with two repeal measures – one to repeal the recently passed gas tax and another to repeal the Costa-Hawkins Act which has limited local governments’ ability to enact rent control measures. There will also be four bond measures – water, children’s hospitals, affordable housing, and supportive housing for those suffering from mental illnesses. The other seven initiatives include:

  • A change to Prop. 13 allowing “older or disabled homeowners to take their lowered property tax base with them when they move,”
  • An initiative to split California into three states, an expansion of 2008’s Proposition 2,
  • A carve-out allowing private ambulance services to require their EMTs to remain on call during meal and rest breaks
  • Ending daylight savings time in California, and
  • Requiring companies that run dialysis clinics “to pay back insurers profits over 15 percent of qualifying business costs.”

As I mentioned before in my post about the repeal of Costa-Hawkins, there is a lot of money to be spent this election cycle. That will be one of the big fights, along with the gas tax repeal and the dialysis clinics initiative. Governor Brown has already voiced his opposition to the gas tax repeal via Twitter. I would not be surprised if he spends a good portion of his nearly $15 million war chest on defeating the repeal. The dialysis initiative has well-heeled groups on both side of it as well, with the SEIU-UHW on the proponent side, and DaVita – a company that netted $1 billion last year – fighting the initiative off.




The Role of State Agencies in Policy Making (transcript)

Today’s podcast is about state agencies and their role in public policy development. California’s agencies – including departments, board, and commissions – engage in a fair amount of public policy making through both their rule making authority, as well as their interpretation and enforcement of existing statutes and regulations.

These state agencies are the ones who generally run the day-to-day operations of state government, and they’re charged with implementing the statutes adopted by the Legislature and signed into law by the Governor. With over 200 of these agencies in California state government, there are many state agencies that do policy development by adopting regulations and implementing statutes. They can also engage in policy making when issuing guidelines, legal opinions, management memos, and other sorts of written documents wherein they interpret and implement laws and regulations.

Generally speaking, the authority of state agencies to adopt policy through their rule making process is defined and often restricted by state statute. These statutes usually prescribe each agency’s authority to adopt policy. And of course, it’s an established principle of administrative law that an agency cannot go beyond its legally prescribed authority to regulate. On the other hand, many statutes confer broad powers to some state agencies regarding matters that directly affect the public generally. The regulations and administrative practices of these agencies often affect millions of Californians in their daily lives.

It’s important to understand the rule making process and the role of state agencies in conducting rule making. One interesting phenomenon is that businesses cannot rely in good faith upon the written determinations issued by state agencies. State agencies’ written interpretation is often not given significant legal weight by a reviewing court. In other words, despite being charged with interpreting, implementing, and enforcing California statutes and regulations, individuals and businesses that obtain written guidelines from state agencies have little to no protection from legal liability if they follow that written guidance.