McGeorge Capital Center for Law & Policy

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!

 

 

 

Regular vs. Emergency Rulemaking

In today’s post, we will examine the differences between regular and emergency rulemaking in California.

As a refresher, the formal rulemaking process is established by the California Administrative Procedure Act, the APA.

Unless a statute expressly exempts an entity from some or all of the APA’s requirements, every department, division, office, officer, bureau, board, or commission in the executive branch in California government must follow the rulemaking procedures set forth in the APA.

There are two types of rulemaking, according to the Office of Administrative Law (OAL), in California – regular and emergency. Regardless of whether an agency or department is engaged in regular or emergency rulemaking, it will be bound to follow the procedural requirements in the APA.

The vast majority of regulations that are adopted pursuant to the APA are submitted to the OAL under regular rulemaking procedures. The regular rulemaking process includes comprehensive public notice, a minimum 45-day comment period, among other provisions. It also requires the documents and information upon which the rulemaking agency’s action is based are made available for public review and inspection.

In terms of emergency rulemaking, the general rule is that a state agency may adopt emergency regulations in response to a situation that calls for immediate action in order to avoid serious harm to either the public, peace, health, safety, or general welfare, or if a statute deems a situation to be an emergency under the APA.

If an emergency rulemaking is undertaken, a form must be submitted that contains the proposed text and finding of emergency that is submitted by the rulemaking body. Unless the emergency situation clearly poses an immediate serious harm that delaying action to allow public comment would be inconsistent with the public’s interest, then the OAL must allow five calendar days for public comments after the posting of a notice and the filing of the proposed emergency regulation on its website.

 

 

 

How To Research California Legislative History and Legislative Intent

Today’s podcast is about getting a better understanding of California legislative history and intent research. Of course, many law review articles and books have been written on legislative history and intent. This podcast covers the subject in a summary fashion.

At a minimum, it is a good idea to cross reference one’s understanding of a proposed legislative solution with the statements of legislative intent that you can glean from the bill’s legislative history. My friend, Carolina Rose, identified a couple of reasons why:

  1. California codes’ statutes are rife with ambiguities that the courts will look to the legislative history in an attempt to clarify.
  2. The courts will overlook a statute’s plain meaning if it collides with evidence of the legislator’s actual intent, or it is an effort to avoid an absurd application.
  3. Courts will also look to legislative history to confirm their own plain reading of a statute.

Both attorneys and State Capitol watchers would do well to understand that evidence of California legislative history and intent serves as an important aid for interpreting statutes and understanding what was intended by the California Legislature in enacting a particular new law or amending an existing law.

In general, evidence of legislative intent can be derived from two primary sources, either an intrinsic analysis of the statute and its surrounding statutory context, according to traditional standards and principles of statutory construction; or by the use of extrinsic aids which are used to reconstruct the legislative history of a statute.

The wider historical circumstances that surround the adoption, or amendment, or repeal of a statute can also yield extrinsic evidence of legislative intent that’s found outside the statute itself. There are a few questions that interested persons should ask to help guide their efforts in properly researching legislative history. Again, these questions come from my friend Carolina Rose:

  • What is the plain meaning of the language in statute, and to what extent is that meaning self-evident?
  • Why was the statute adopted?
  • What need or needs prompted it?
  • What problem or problems was the Legislature trying to correct?
  • What happened in the Legislature during the process of adopting the bill? What’s the statutes legislative history?
  • What was the law prior to the adoption of the statute?
  • What has happened since the statute was adopted?

As for where you can find the resources to help answer those questions, you’ll have to listen to the podcast.

 

 

 

Life Lessons for Lobbyists

In today’s Rules for Effective Lobbying podcast we will be discussing some life rules as they apply to lobbying. Some of my previously mentioned rules have been specifically generated in the lobbying context. There are others that are really life rules of more general applicability.

 

There are three of these in particular:

1: Don’t take setbacks personally;

2: When you get frustrated, stop breathe, and think; and

3: RALF your mistakes.

 

Now RALF in this context is an acronym that stands for Recognize, Admit, Learn From, and Forget About.

 

Lobbying often produces stress stemming from the frustration of things not going how you have hoped or planned for. Sometimes the roadblocks can seem irrational and unfair. Whatever obstacle you may confront is almost certainly not driven by anyone’s personal animosity towards you. Beyond not serving any useful purpose, personalizing it is likely misplaced.

 

It’s important not to overreact in a way that leads to taking an action that not only doesn’t address the new circumstance in a useful way, but may actually make your situation worse. So each of these three rules provides important guidance of how to respond to unexpectedly difficult situations.

 

You always need to be solution oriented. Overreacting impairs your ability to focus on finding the right response to a problem. I’m reminded of an ancient Chinese proverb that provides wonderful guidance. “It’s better to light a single candle than to curse the darkness.”

 

We all know people whose response to mistakes is to self-flagellate. That serves no useful purpose. We all make mistakes. It’s part of the human condition. Instead of beating yourself up, use the occasion of a mistake as a positive by following our RALF rule. Again, RALF stands for Recognize, Admit, Learn From, and Forget About. Not only will this help prevent you from repeating it, but along with the other life rules we’ve cited, it will help keep you from unwisely misplacing your focus.

 

 

 

How to Start a Non-Profit

I sat down with McGeorge alum Aaron Brieno (’14) to talk about his new non-profit community based organization, Inspire California. Inspire California, to put it briefly, exists to help create and foster and college-ready and college going among high school aged students in the Central Valley, and in particular, the area of the Central Valley that Aaron is from, Hanford.

The quick background as to why Aaron decided to start this organization is that he read in his local newspaper one day in 2014, that the Central Valley had made a list of the top ten least educated regions in the country. Given all the different that California is a leader in, it was stunning to learn that any region in California would make that list.

So he decided to do something about it. At first, he thought it was a task he could tackle on his own. Aaron soon realized this would be an endeavor that would require more resources than he alone could muster.

You’ll need to listen to the podcast for most of the details on what resources you need and how to use them to get from idea to an established and operating organization. But the short answer for those looking for the short answer on resources, Aaron’s go to’s were: Nolo’s How to Start a Non-Profit in California, Google, the California Secretary of State’s website, and the California Association of Nonprofits’ website.

So, how does Inspire California achieve its mission? Thanks to a lot of legwork on Aaron’s part, Inspire California connects high school students in the Central Valley with college educated young professionals who are from the Central Valley. Those young professionals serve as mentors to these students, covering all the bases from taking phone calls to talk to proofreading college essays and personal statements.

There’s a lot more than Aaron and I cover in our conversation, and I hope you take the time to give it a listen and enjoy.

The OAL Petition Process

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

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

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

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

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

Misconception Monday – Miscellaneous Items

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

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

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

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

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

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

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

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

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

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

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

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

How to Find a Lobbying Job

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

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

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

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

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

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

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

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