California legislature

 

 

 

 

 

 

 

After the introduction of a new bill in the California Legislature, or upon a bill passing one house and moving over to the second house for further consideration, that measure must be referred to a committee for a hearing.

The referral or assignment of a bill is governed by the Joint Rules of the Legislature as well as the respective rules of the Assembly and the Senate. In the California Legislature the referral of bills is done by the Rules Committee in each house. Though the rules of both houses provide that their committees must hold hearings and act upon bills referred to them as soon as practicable after they’ve been referred certain requirements must be met before that can occur. As a general rule, a bill is referred to the committee or committees that have jurisdiction over the provisions of the bill based upon the rules of the respective house and past referral decisions.

During a regular session of the Legislature committees must wait for a period of thirty days after a bill has been introduced and in print before they may take action on that bill. These prohibitions may be dispensed with by an extraordinary vote. This waiting period permits proponents and opponents to review the provisions of the bill and prepare testimony for presentation to the committee.

A schedule or calendar of bills set for hearing is proposed by each committee in the Legislature and publication of this hearing list is done in the Daily File of the Assembly and Senate and it must occur at least four days in advance of hearing by the first committee and at least two days in advance by subsequent committees of the same house. If a committee wishes to hold an informational hearing on a general topic, then a four day file notice is also required.

As one can imagine, which committee gets to hear a bill could impact the outcome of the bill depending on the subject matter and the receptivity of the committee to the bill. In most instances the bill referral is relatively straightforward. Sometimes, however, more than one committee might be appropriate to hear a bill. In most cases, only one policy committee will get to hear a bill. However there are occasions when it’s necessary for more than one committee to hear a bill. As a result, the referral of bills is an important part of the legislative process in California.

You can find a full transcript of today’s podcast here.

 

 

 

 

 

 

 

SB 820, from the 2018 legislative session, concerns a prohibition on confidential settlement agreements.

Governor Jerry Brown signed SB 820 by State Senator Connie Leyva on September 30th as Chapter 953. The bill prohibits a provision within a settlement agreement that prevents the disclosure of factual information related to specified claims or complaints in either a civil action or administrative action.

The bill went into effect January 1, 2019 and it specifically allows plaintiffs in these types of actions to retain the right to request provisions in settlement agreements that shield their identity. Note that the Assembly amendments expanded the claims that are covered by the bill, extended the scope to cover court orders, and also narrowed an exception that’s available at the request of the claimant.

SB 820 makes a provision in the settlement agreement that prevents the disclosure of factual information related to the claim for those agreements entered into on or after 1/1/19 to be void as a matter of law and against public policy. The new law provides that a court may consider the pleadings and other papers in the record or any other findings of the court in determining the factual foundation of the causes of action specified in these provisions.

This new law applies if the claim relates to an act of sexual assault, sexual harassment, workplace harassment, or discrimination based on sex, or retaliation for reporting harassment or discrimination based on sex. It does not prohibit the entry or enforcement of any agreement that includes the disclosure of the amount that was paid in settlement of the claim.

The bill also creates an exception where it is not applicable if a party is a government agency or public official. For a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity if that provision within the settlement agreement that is made at the request of the claimant.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

Governor Jerry Brown signed Assembly Bill 2770 by Assemblywoman Jacqui Irwin into law as Chapter 82 of the Statutes of 2018 on July 9, 2018. The bill’s provisions specifically amended Section 47 of California’s Civil Code and went in to effect on January 1st of this year.

AB 2770 created a limited privilege for employer communications of sexual harassment claims against former employees. AB 2770 amends Civil Code Section 47(c) in two explicit clauses. First it adds a sentence that the particular subdivision applies to and includes a complaint of sexual harassment by an employee without malice to an employer based upon credible evidence and communications between the employer and interested persons, also without malice, regarding a complaint of sexual harassment.

The second clause is that AB 2770 amends the existing law to state that this particular subdivision authorizes a current or former employer, or that employer’s agent, to answer without malice whether or not the employer would rehire a current or former employee and whether that decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

Now in explaining this bill to members of the Legislature the Senate Floor Analysis said, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employers cannot be made with malice.”

This bill was sponsored by the California Chamber of Commerce and in support, the Cal Chamber and some 35 supportive groups wrote that, “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and that California’s public policy protects employees from harassment and AB 2770 furthers this particular public interest.”

When a bill in the California Legislature fails passage, either in a policy or fiscal committee or on the floor of the Assembly or Senate, it can be granted what’s called reconsideration. According to the Legislative Counsel, reconsideration is a motion that gives the opportunity to take another vote on the matter previously decided either in a committee hearing or a floor session. This is an important rule because it provides the legislator another opportunity to return to his or her colleagues and seek a second bite at the apple.

After a committee has voted on a bill, reconsideration may be granted only one time. Pursuant to Joint Rule 62(a), reconsideration may be granted within 15 legislative days or prior to the interim study joint recess, whichever occurs first.

Let’s explore the differences and similarities between the Assembly’s and Senate’s reconsideration processes.

 

The Assembly Process

In the State Assembly a motion to reconsider on the next legislative date must be made on the same day that the vote to be reconsidered was taken. On the Assembly floor, no motion to reconsider can be adopted unless it receives an affirmative vote of 41 Assembly Members. Upon making a motion for reconsideration, the question or measure to be reconsidered is placed upon the unfinished business file in the Assembly Daily File and no further action can be taken prior to the next legislative day.

A motion to reconsider, which is neither taken up nor continued on file, lapses after a specified time. Once a reconsideration motion has elapsed then the question or measure returns to the same position it held prior to the motion being made. When reconsideration is granted, the matter is to be reconsidered, resumes its exact position before the Assembly voted on that question and then the author may take it up immediately after reconsideration is granted.

 

The Senate Process

A motion to reconsider a question may be made by any Senator on the day on which the vote was taken. The motion may be considered on the day it is made or on the succeeding legislative day, but it may not be further postponed without the concurrence of 30 Senators. In the Senate, bills may be reconsidered by a majority vote, even though the bill required a 2/3 majority vote for ultimate passage. Note that Constitutional Amendments that are adopted can be reconsidered by only 14 votes while Constitutional Amendments that have been defeated require a 2/3 vote for reconsideration.

According to the Senate Standing Rules on the day on which a vote has been taken on any question, a motion to reconsider the vote may be made by any Senator. Reconsideration may be granted only once and the motion may be considered on the day it was made or on the succeeding legislative day, but it may not be further postponed without the concurrence of 30 Senators on the Senate Floor.

Reconsideration can serve as a valuable tool to legislators and interest groups in order to allow modifications to a measure to address why a measure initially failed passage. For those opposed to the measure, however, it means remaining vigilant to ensure that the bill does not get revived in a matter that results in continued opposition.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

SB 1001, from the 2018 legislative session, made California the first state to enact a bot bill.

Governor Jerry Brown signed Senate Bill 1001 by State Senator Robert Hertzberg (D – SD 18) on September 28th as Chapter 892. The bill is effective on July 1, 2019 and it prohibits a person from using a bot to communicate or interact with another person in California online with the intent to mislead the other person about the bot’s artificial identity for the purpose of knowingly deceiving that person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction, or to influence a vote in an election.

The California Legislature made a number of changes to SB 1001 before it arrived on the Governor’s desk. Those include updating definitions and removing requirements for online platforms to take actions such as: enabling users to report bots violating the provisions of law, investigating and determining within 72 hours whether to act upon reports received by users, and – three – providing details of user reports and internal investigations to the Attorney General upon request.

SB 1001 adds an entire new chapter to California’s Business and Professions Code. It defines the terms “bot,” “online,” “online platform,” and “person.” Bot is defined as an automated online account where all, or substantially all, of the actions or posts of that account are not the result of a person. New B&P Code Section 17941 makes it unlawful for any person to use a bot. However, a person using a bot is not liable under this code section if the person discloses that it is in fact a bot. That disclosure must be clear, conspicuous, and reasonably designed to inform persons with whom the bot communicates or interacts that it is a bot.

Also, new Section 17942 provides that this law does not impose a duty on service providers of online platforms including but not limited to web hosting and internet service providers.

Again, the new provisions in SB 1001 go into effect on July 1, 2019.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

Most Capitol observers know that the Legislative Counsel, and her deputies, serve as the attorneys for the California Legislature, but that role is actually much broader. In today’s podcast we’ll look at the numerous activities that are undertaken by California’s Legislative Counsel.

Under Government Code Section 10207(a) the Legislative Counsel maintains an attorney-client relationship with each member of the Legislature with respect to communications between the legislator, the member, and the Legislative Counsel, unless provided otherwise by the Rules of the Legislature. As a result, all the materials arising out their relationship – such as proposed bills and amendments, analyses, opinions, and other memorandum – are actually not public records unless provided otherwise in the legislative rules.

In addition, in Government Code Section 10207(b) 1, the Legislative Counsel maintains an attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel. In subdivision 10207(b) 2, whenever the Legislative Counsel issues an opinion to the Governor analyzing the constitutionality, operation, or effect of a bill or legislative measure that’s pending the Legislative Counsel delivers two copies of the opinion. First to the named author of the bill, and then a copy to any other author of the bill who requests a copy.

Government Code Section 10232 requires the Legislative Counsel to advise any state agency as to the preparation of measures to be submitted to the Legislature. And in Section 10232.5, the Legislative Counsel may provide legal services to our State Auditor.

In Section 10233, upon request, the Legislative Counsel must aid and assist any member of the Legislature regarding bills, resolutions, and measures – drafting them in proper form and furnishing to the legislator all the information that is appropriate. Note that in addition to serving as legal counsel to the Legislature, state law also requires services to be provided to the Governor regarding legislation.

The Legislative Counsel also prepares legislative measures, at the written suggestion of a judge or the Supreme Court or the Courts of Appeal or the Superior Courts. Also note that under Government Code Section 10242, the Legislative Counsel must advise the Legislature from time to time as to any legislation that’s necessary to maintain the codes, or codify such statutes that are enacted from time to time, subsequent to the enactment of codes. The Legislative Counsel cannot appear in any action or court proceeding without the prior approval of the Joint Rules Committee.

So there are quite a few statutorily required activities for the current Legislative Counsel, who is Diane Boyer-Vine. She oversees about 85 attorneys who are employed in the Office of the Legislative Counsel, as well as staff of the Legislative Data Center, who is also overseen by the Legislative Counsel. And note that the Legislative Counsel serves at the pleasure of the Legislature and is effectively elected, or appointed to their position, by the adoption of a resolution by both the Assembly and the State Senate.

AB 2664 sets in place new rules for court reporters pro tempore.

Governor Jerry Brown signed Assembly Bill 2664 by Assembly Member Chris Holden on September 18th as Chapter 497. The bill amends two Government Code sections. For example, it authorizes a pro tempore official reporter who is present in the courtroom providing that service to be appointed by the presiding judge of the court or the judge presiding in the department where the reporter will serve.

The bill also requires the Judicial Council to adopt rules to ensure that at the arranging party’s request, the court is required to appoint the certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tem, unless there’s a good cause shown for the court to refuse that appointment. It also requires that the fees and charges of the certified shorthand reporter be recoverable as taxable costs by the prevailing party.

The purpose of new Assembly Bill 2664 is to end the requirement that all parties involved in litigation must agree and stipulate to the use of a specific court reporter pro tempore before the reporter can be appointed by the court. The bill also clarifies that an arranging party’s shorthand reporter may be appointed the official pro tem reporter so long as that reporter is present in the courtroom and there’s no good cause to reject the appointment.

You can find a full transcript of today’s podcast here.

 

 

 

 

 

 

 

Today’s post is on AB 2334 from the 2018 legislative session that concerns new employer reporting requirements for injuries and illness. Governor Jerry Brown signed Assembly Bill 2334 by State Assemblymember Tony Thurmond on September the 19th as Chapter 538. This new law went into effect on January 1, 2019.

The new law clarifies that the occurrence of a violation of an occupational safety and health order continues until that violation is corrected, that the Division of Occupational Safety and Health, DOSH, discovers the violation or the duty to comply with the requirement is no longer applicable. The bill AB 2334 amends several provisions of the Labor Code and adds two new provisions to the Labor Code.

Among other provisions, it requires DOSH to monitor rule‑making and implementation of the US Department of Labor’s Occupational Safety and Health Administration’s improved tracking of workplace injuries and illnesses rule regarding electronic submission of workplace injury and illness data.

It also requires DOSH, if it determines that the federal OSHA has eliminated or substantially diminished any federal submission requirements, to convene an advisory committee to evaluate how to implement changes necessary to protect the goals of that federal rule.

It, again, amends several Labor Code provisions to add new requirements, including a requirement that a citation or notice shall not be issued by the division more than six months after the occurrence of a violation.

Also, the new law added a statement of intent in 6410.1 of the Labor Code that DOSH should maintain a strong workplace injury and illness‑reporting standard and also the requirement that DOSH monitor rule‑making and implementation of the US Department of Labor with respect to the electronic submission of workplace injury and illness data.

It also says that individually identifying information may be used by the Office of Self‑Insurance Plans of the Department of Industrial Relations to carry out its duties.

The director may publish information regarding the cost of administration, workers’ compensation benefit, expenditures, solvency, and other information, as long as the information does not include any individually identifiable claim at information. All of this and more can be found in newly adopted AB 2334.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

In both the California State Assembly and the California State Senate, there are designated officers and elected leaders of these two bodies. We’ll take a quick look at some of those positions in the text and cover more of the positions in today’s podcast. We’ll start with the California State Assembly.

Speaker – he or she is the highest-ranking officer of the Assembly and is elected by the members at the beginning of the two-year session. He or she presides over floor sessions and has extensive powers and duties established by the Assembly Rules.

Majority and Minority Floor Leaders – The Majority Floor Leader is elected by the members of the majority party caucus, who represents the Speaker on the floor and oversees the floor proceedings through parliamentary procedures such as motions and points of order. The Minority Floor Leader is elected by the caucus having the second largest membership in the Assembly and is generally responsible for making motions and points of orders and representing the minority caucus on the Assembly Floor.

Majority and Minority Whips – The Whip is essentially the political leadership of each party in the Assembly. They are elected by their caucuses or appointed by the Speaker and there are usually Assistant Majority Whips and of course, on the other side of the aisle, there is the Minority Whip who is selected by the Republican leader and there are often multiple Assistant Minority Whips.

There are many positions in the California State Senate that are very similar to their counterparts in the Assembly so I’ll focus instead on President of the Senate and the President Pro Tem of the Senate.

President of the Senate – By law, this is the Lieutenant Governor. However, by custom the role is extremely limited. He or she may be invited periodically to preside over ceremonial occasions, such as the opening of the two-year legislative session. The only time the Lt. Governor is entitled to participate in the business of the Senate is in the case of a tie vote when he or she would cast the tie breaking vote.

Senate President Pro Tem – He or she is the leader of the Senate and serves as the chair of the Rules Committee. This individual is elected by the members, generally, at the start of the two-year session. The Pro Tem is the presiding officer who oversees the appointment of committee members, the assignment of bills, and the confirmation of Gubernatorial appointees, and of course, he or she is also the political leader of the majority party.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

Today’s podcast is on the new rules for licensed shorthand reporters put in place by Assembly Bill 2084.

Governor Jerry Brown signed AB 2084 by Assemblymember Ash Kalra on September 21st as Chapter 648. The bill went into effect on January 1, 2019 and it adds Section 8050 to the California Business and Professions Code to limit the business practices of licensed shorthand reporters in the state.

AB 2084 prohibits an individual or entity that engages in any act that constitutes shorthand reporting, or that employs or contracts with another party to perform shorthand reporting, from engaging in specified business practices.

The bill also authorizes the attorney general, district attorney, city attorney or the CRBC to bring a civil action for a violation of these provisions of law. The new law subjects an individual or entity that violates these provisions to a civil fine not exceeding $10,000 per violation.

The bill specifies that this new code section applies to an individual or entity that engages in any licensed shorthand reporting activities.

Note however, that AB 2084 does not apply to an individual, whether acting as an individual or as an officer, director or shareholder of a shorthand reporting corporation, who possesses a valid license that may be revoked or suspended, or to a shorthand reporting corporation that is in compliance with Section 8044.

The new section of law also does not apply to a court, a party to litigation, an attorney of a party, or a full‑time employee of the party or the attorney of the party who provides or contracts for certified shorthand reporting for purposes related to this litigation.

Specifically the new code section prohibits an individual or entity from doing any of the following four items:

  1. Seek compensation for a transcript that is in violation of the minimum transcript format standards set forth in applicable regulations.
  2. Seek compensation for a certified court transcript applying to these other than those set out in statute.
  3. Make a transcript available to one party in advance of other parties, or provide a service to only one party.
  4. Fail to promptly notify a party of a request for preparation of all or any part of a transcript, excerpts or expedite for one party without the other party’s knowledge.

AB 2084 does not, however, prohibit a licensed shorthand reporter, shorthand reporting corporation, an individual entity from offering or providing long‑term or multi‑case volume discounts or services that are ancillary to reporting and transcribing a deposition, arbitration or judicial proceeding in contracts that are subject to law related to shorthand reporting.

You can find a transcript of today’s podcast here.