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!

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.

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.”

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.

 

 

 

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.