Chris Micheli

Frequently Asked Question about What Is Subject to Referendum  By Chris Micheli What is the referendum? It is “ the power of the electors to approve or reject statutes or parts of statutes.” What types of statutes are not subject to a referendum? They are urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State. As such, all statutes are subject to a referendum, except those four types of statutes. Where is the referendum found in law? In the California Constitution, in Article II, Section 9. Why types of measures are subject to a referendum? Any legislative decision made by a representative body is subject to referendum. As a result, a referendum may review only legislative decisions, but not matters that are strictly executive or administrative. Empire Waste Management v. Town of Windsor (1998) 67 Cal.App.4 th 714

Frequently Asked Questions about Voting on a Recall Petition  By Chris Micheli What is the recall? It is defined as the “the power of the electors to remove an elective officer.” Where is the authority for a recall? It is found in the California Constitution in Article II, Section 13. How is a recall started? The process is initiated by filing of the petition alleging a reason for the recall. Can the reason for the recall be reviewed? No, the “sufficiency of reason is not reviewable,” pursuant to Section 14 of Article II. As such, neither a court nor a government official can “second-guess” the reason stated for the elected officer’s recall.             When is a possible successor chosen in a recall? At the same election to determine whether to recall the elective officer, there is also an election to determine a successor for the office. How is a successor chosen? Pursuant to Section 15 of Article II, “if the majority vote on the question is to recall, the officer i

Should Interpretive Guidance Be Included in California Legislation?  By Chris Micheli General statements of legislative intent may or may not be helpful. Why? First, they are of limited value to the courts. For example, a recent California appellate court decision stated: “Legislative findings and statements of purpose in a statute's preamble can be illuminating if a statute is ambiguous. But a preamble is not binding in the interpretation of the statute. Moreover, the preamble may not overturn the statute's language.” In other words, there first must be ambiguity in the statutory language in order for a court to refer to intent statements. Assuming there is, the second problem is that these intent statements rarely shed light on how to properly interpret the ambiguous language. If these legislative statements are going to be utilized by the courts as “an aid in construing a statute,” then these statements should be directed at the actual statutory language. This leads me

Legislative Intent Does Not Equate to a Mandate  By Chris Micheli I am not sure if it is because of the budget situation and a desire to reduce costs for a bill, or a misunderstanding about intent versus statutory language, but those involved in the California Legislature and its legislative process should be aware of the difference.             In the 2024 Legislative Session, there are a growing number of instances in California bills (and statutes) where we can find statements of intent by the Legislature. While there is nothing inherently problematic about intent statements (in fact, they can be quite helpful in cases of statutory construction when a statute is ambiguous), they do not equate to a statutory requirement or mandate. In other words, intent statements do not equate to mandatory (or binding) language. As intent statements, they cannot be a substitute for requiring an act by statute. While broad statements of intent are most appropriate in my opinion for giving inte

Frequently Asked Questions about State Agency Ethics Training  By Chris Micheli             Do state agency personnel have to take ethics training? Yes, this required ethics training applies to each member, officer , or designated employee of a state agency who is required to file a statement of economic interests because of the position he or she holds with the agency.             When must the ethics training be provided? Government Code Section 11146.1 requires each state agency to offer at least semiannually to each of its filers an orientation course on the relevant ethics statutes and regulations that govern the official conduct of state officials. Must records of ethics training be required? Gov’t Code Section 11146.2 requires each state agency to maintain records indicating the specific attendees, each attendee’s job title, and dates of their attendance for each orientation course offered. Are these records accessible? Yes, each state agency must hold these records

Frequently Asked Questions about When Elected Officials Take Office  By Chris Micheli             When do statewide constitutional officials take office? Pursuant to Article V, Section 2 of the state Constitution, “the Governor shall … hold office from the Monday after January 1 following the election until a successor qualifies.” The eight other constitutional officers take office on the same day.             When do state senators and state assembly members take office? Pursuant to Article IV, Section 2(a)(3) of the state Constitution, “t he terms of a Senator or a Member of the Assembly shall commence on the first Monday in December next following her or his election.”             When do local elected officials take office? Pursuant to Government Code Section 24200, “except as otherwise provided [of which there are several exceptions], all elective county officers … take office at 12 o'clock noon on the first Monday after the January1st succeeding their election.”

Frequently Asked Questions about Ethics Training for Local Agencies  By Chris Micheli             Are local agency officers and employees required to have ethics training? Yes, California Government Code Section 53235 requires all local agency officials to receive training in ethics if that local agency provides any type of compensation or reimburses expenses for members of a legislative body. How long is the ethics training required? Each local agency official is required to receive at least two hours of training in general ethics principles and ethics laws relevant to his or her public service every two years.             Do state agencies play a role this ethics training? Yes, the Fair Political Practices Commission and the Attorney General must be consulted regarding the sufficiency and accuracy of any proposed course content. What are the details about the required ethics training? A local agency, or group of agencies, may offer training courses, including self-study m

Frequently Asked Questions about Privileges of Voters in California  By Chris Micheli             Do voters have privileges in California? Yes, the Elections Code contains “privileges of voters” in Chapter 1 of Division 14 What happens if a voter does not have sufficient time outside of working hours to vote at a statewide election? The voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. How much time can be taken off for voting? State law specifies that no more than two hours of the time taken off for voting is to be without loss of pay to the voter. When can time off for voting take place? The time off for voting can only be at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed between the voter and employer. Must an employee g

Does a Bill Need Statutory Construction Guidance?  By Chris Micheli Have you seen the following sentence in a California bill or in a statute: “This act shall be liberally construed to effectuate its purposes.” Why is this phrase needed? Shouldn’t that be obvious guidance to a court when interpreting a statute? In brief research, I found at least 225 code sections that contain this phrase, out of about 156,000 statutes in California’s 29 Codes. So, although it is not commonly used in California law, is it actually needed? According to state courts, “The fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4 th 1294, 1303. “We must construe the statute with a view to promoting rather than defeating its general purpose and the policy behind it. We are mindful that statutes must be interpreted ’so as to give a reasonabl

Frequently Asked Questions about Lobbying Support Services  By Chris Micheli What are some lobbying support services? Work to support lobbying efforts can include managing coalitions, directing grassroots campaigns, conducting public outreach, or other indirect efforts to enhance or promote the direct lobbying efforts. What kind of services do either in-house staff provide or come from a public affairs firm? This could include helping to organize lobby days, gathering research and data, educational efforts, planning receptions, and creating materials to help the lobbying team, such as background papers or letter-writing campaigns. What services do public relations firms provide? Some firms specialize in “social media” lobbying (including website and social media efforts that support the lobbying of decision-makers), as well as strategic communications and public relations. These communications efforts could include letters-to-the-editor and opinion-editorial pieces. What are

Statutes Deferring to Executive Branch  By Chris Micheli There are times in statutes when the legislative branch of state government grants authority to the executive branch and, at other times, the Legislature restricts the authority of the executive branch. And, on occasion, the Legislature defers to the executive branch. What does deferral mean in the context of legislation? It means that sometimes in statute the Legislature gives deference to the executive branch’s authority. In other words, the executive branch is free to exercise its discretion under existing statutory authority. For example, in two recent bills this Session, I came across the following language:   (4) This subdivision does not supersede the department’s authority pursuant to this section.                                 (j) This section does not diminish or alter the authority of the board to administer or enforce water rights. It both of these bills, the authority of an executive branch department o

Frequently Asked Questions about Legislative History and Intent  By Chris Micheli What is legislative history? Legislative history relates to how a bill becomes law, and includes the documents and steps involved in passage of the successful legislation. What is statutory history? Statutory history is usually defined as changes to the language of the bill through the legislative process. What is legislative intent? Legislative intent relates to why a bill became law, and who proposed it. The primary documents of legislative history can often illustrate legislative intent. What is the purpose of determining legislative intent? Seeking legislative intent is what judges and others do in order to determine what the goal or purpose of the legislature was when the legislation was passed. This requires, in the first place, a review and understanding of the plain language of the statute. What can be legislative history documents? Examples of legislative history include the followi

When We Have to Wait on IT for New Statutes to Take Effect  By Chris Micheli             We know that sometimes a statute will not take effect unless some other statute or action occurs first. This type of statute contains a “contingent enactment” clause, meaning that its enactment is contingent on that other action. In other instances, a statute has a delayed operative date. That could be a specified operative date, or an operative date that is contingent on something happening.             For those involved in Political Reform Act of 1974 bills, you are probably familiar with the issue of Cal-Access, which is the online filing and disclosure system run by the California Secretary of State, which is undergoing a revamp. This IT project has been many years in development, but it is not the only instance where a statute cannot become operative unless a specified IT project has been developed.             For example, a Labor Code statute contains the following language:   (b) T

Frequently Asked Questions on California Legislature Conducting Its Work  By Chris Micheli             Why does the Legislature convene a new session in early December, but designate the new Session as the following two years (e.g., the Session convened on December 5, 2022 and is designated as the 2023-24 Legislative Session)? California’s Constitution, in Article IV, Section 3(a), provides, in part, the following: “ The Legislature shall convene in regular session at noon on the first Monday in December of each even-numbered year and each house shall immediately organize.” Therefore, the Legislature is required to convene on a particular day in early December, even though the Session begins in earnest in early January.             Why does the Legislature choose officers, including unelected persons such as the Assembly and Senate Chaplains? Article IV, Section 7(a) provides, in part, the following: “Each house shall choose its officers and adopt rule for its proceedings.” There

Senate Proposes Equity Impact Analysis of Legislation  By Chris Micheli             Similar to the Assembly three years ago, Senator Maria Elena Durazo introduced SCR 136, which would require the Senate to direct its policy committees to incorporate more effective equity considerations in their analyses of future energy and climate legislation. In addition, SCR 136 would resolve the Senate to explore methods to integrate equity more formally into its daily activities.             The Assembly adopted HR 39 (Assembly Member Mike Gipson) in 2021 that directed the Assembly to consider the potential adoption of equity impact analysis into the existing committee and floor bill analysis process.             SCR 136 contains a dozen “whereas” clauses, followed by two “resolved” clauses, including that the Senate direct its policy committees to incorporate more effective equity considerations, including how policy proposals may impact lower income and disadvantaged communities, in their

Interesting Provision in Social Media Bill  By Chris Micheli             I always appreciate interesting provisions in California legislation. Whether clients support or oppose a particular measure, I spend time reviewing language of bills to understand what is written, particularly when there are intriguing bill sections. In that vein, the following provision caught my eye recently:   The provisions of this act are intended to complement and augment, not replace or diminish, federal protections in the field of social media safety.             This section appears in a recent social media bill, obviously, and I have not seen such a provision in legislation. I did find that the term “complement and augment” appears in two Codes – Education Code, and Health and Safety Code. However, I could not find instances where the phrase “replace or diminish” is used in California Codes.             This new provision of law, assuming enactment of this bill, expresses the intent that federal

Legislative Records Are Not Proprietary to the State  By Chris Micheli             On the California Legislative Information website (most commonly referred to as the “LegInfo” website), there are numerous documents and other information related to the California Legislature and its legislative process. Some have inquired whether this information can be copied and pasted and otherwise used by the public. Have you read the following notice on the LegInfo website?   Pursuant to Section 10248.5 of the Government Code, the information described in subdivision (a) of Section 10248 of the Government Code and made available on this Web site is within the public domain and the State of California retains no copyright or other proprietary interest in the information.             Government Code Title 2, Division 2, Part 2, Chapter 1, Article 2, which was added in 1945 by Chapter 111, contains Section 10248.5, which provides:   Notwithstanding subdivision (g) of Section 10248, the in

What Information Has to Be on the LegInfo Website?  By Chris Micheli             California Government Code Title 2, Division 2, Part 2, Chapter 1, Article 2 imposes specified duties on the Legislative Counsel. Article 2 was added in 1945 by Chapter 111 and contains Section 10248, whose heading is “ Public computer network; required legislative information.”             Section 10248 requires the Legislative Counsel to make certain information available to the public in electronic form, which it does on the “California Legislative Information” website, which is commonly known as the “LegInfo website.” It is found at: https://leginfo.legislature.ca.gov/ .             There are twelve specified items that Legislative Counsel must post on the LegInfo website:   ·          The legislative calendar, the schedule of legislative committee hearings, a list of matters pending on the floors of both houses of the Legislature, and a list of the committees of the Legislature and their membe