Practical Tips for Working with Office of Legislative Counsel

Practical Tips for Working with Office of Legislative Counsel By Chris Micheli

            In talking with former staff of the Office of Legislative Counsel (OLC) over the years, there are some practical tips that were shared with me for those working with the attorneys at the OLC. While some of these recommendations may seem obvious, many of them bear repeating.

            First, a little background: OLC consists of three branches. The largest branch is the Drafting branch, which is the primary work product of the office. There is also an Opinions branch that produces confidential opinions for the office’s clients. These opinions, which may be written or oral, resemble the format of the Attorney General’s opinions. Opinions are distinguished from consultations, which are the informal conclusions of a single deputy rather than the formal position of the office. The third branch is the Legislative Services branch, which provides general counsel services to the two houses of the Legislature.

Most Capitol observers know that the Legislative Counsel and her deputies serve as the attorneys for the California Legislature. But their role is much broader than that. Under Section 10207(a) of the Government Code, the Legislative Counsel maintains the attorney-client relationship with each Member of the Legislature with respect to communications between the member and the Legislative Counsel, except as otherwise provided by the rules of the Legislature.

As a result, all materials arising out of this relationship including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by the Legislative Counsel, are not public records, except as otherwise provided by the rules of the Legislature or when released by the Member for whom the material was prepared.

In addition, pursuant to Section 10207(b)(1) of the Government Code, the Legislative Counsel maintains the attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel.

Section 10233 of the Government Code provides that, upon request, the Legislative Counsel shall aid and assist any member of the Legislature as to bills, resolutions and measures, drafting them into proper form, and furnishing to the Member the fullest information upon all matters in the scope of the OLC.

Second, the following are some of the suggestions shared with me over the years:

·         You cannot talk with a Deputy Legislative Counsel on another office’s request unless you are authorized to do so by a legislator’s office or by the Governor's staff.

·         Submit any bill draft and amendment requests to OLC as soon as possible, and well before the deadline so that there is ample opportunity to review background materials and to draft your bill or amendments.

·         Keep in mind that a Deputy Legislative Counsel regularly drafts a dozen or more measures at any one time, and that number could easily reach over 100 measures in the weeks leading up to the bill introduction deadline each February.

·         In the consultative process with a Deputy, you should discuss with the attorney any legal obstacles (e.g., whether the proposal would violate the state or federal constitution), and procedural obstacles (e.g., the measure would require a super-majority vote in order to be passed by the legislature).

·         Share any research you have done that would assist in the drafting of the measure, such as other states’ statutes and other background materials that explain your policy proposal.

·         Provide any materials that a third party (e.g., a lobbyist) has provided to the legislator’s office.

·         If a Deputy contacts you, respond quickly as answering their question(s) assists in expediting the drafting process.

·         Help the bill drafter understand the purpose and objective of your legislative proposal. If they understand the objective, they can make sure the language adequately achieves that objective.

·         For legislative staffers, it is important that they not turn the work over to the lobbyist who might be working the bill for a client because the lobbyist represents a client, not the legislator who is the author of the bill.

·         Remember that the legislative lawyer is impartial in their legal analysis and bill drafting. In addition, everything that you tell OLC is confidential and protected by the attorney-client privilege. So, the more information and background you provide to the Deputy, the better job they will be able to do in helping capture the legislative intent of your bill.

·         Also, keep in mind that the attorneys at OLC make the determination regarding the Digest Keys, including whether a bill is keyed “fiscal” or the bill contains a state-mandated local program. These determinations are based on the Joint Rules, case law, and practices of the OLC.

·         Deputies are required to review every draft as though the proposed language will become law. This is somewhat at odds with the legislative process where it is often understood that a bill is a work in progress and that ambiguities will be worked out as it moves through the process. They understand this, but they are still required to undergo a thorough analysis to get the draft approved.

·         Try to be deferential to the deputy’s suggested edits, as they are responsible for maintaining consistency of style in the codes, trained in rules of statutory construction, and their draft is reviewed by at least one manager as well as a proof-reader. Many deputies have drafted every meaningful change to their specific areas of the code for years. If, however, the language must be drafted as is, please indicate that it is “negotiated language.”

·         Treat the Legislative Counsel Deputy’s time as valuable.  Thoroughly read and understand your drafting request so you can quickly and efficiently answer any questions, or identify where you need to consult with the author, other staff, or bill sponsors about a bill’s provision(s).

·         Be accessible to the Deputy. Counsel will do their best to complete your request by your deadline, but being able to respond promptly to their inquiries when they are making them will make for a better product that is returned faster.

·         Legislative Counsel Deputies are your legal advisers, not policy ones. Counsel can be very effective at presenting different ways of drafting a proposal, but do not rely on them to solve a policy problem.  Others involved in the legislative process, including committee consultants, are more equipped to discuss the benefits and drawbacks of different policy options.

·         Most things are not new in the Legislature. When drafting a request, try to rely on other models in statute, and let Legislative Counsel know if your request is based on a current statute or previous bill.

·         They may not always tell you what you want to hear, but that is not their job. Their job is to provide you with sound legal advice and they always attempt to help.

·         It can sometimes be a thankless job, so gratitude goes a long way.

·         Treat everyone in the legislative process with respect.

·         Above all else, be honest.