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With a declaration that “public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people’s business,” lawmakers passed the California Whistleblower Protection Act in 1999.

The idea was to protect workers who report misconduct, so that they can blow the whistle on bad actors without losing their jobs. The bill at that time covered workers at state agencies and California’s two public university systems. Lawmakers expanded it in 2010 to cover employees of the state’s courts.

But one group of California government workers has never had whistleblower protection under the law: those who work for the lawmakers themselves. It’s an example of how the Legislature sometimes imposes laws on other people that it doesn’t adhere to itself.

“Lawmakers make laws that affect all of us, including them, and they are softening the blow of regulations for themselves,” said Jessica Levinson, a professor at Loyola Law School who chairs the Los Angeles Ethics Commission.

“It feels like double talk.”

The Legislature’s exemption from the Whistleblower Protection Act has garnered attention in recent weeks, as a groundswell of women complaining of pervasive sexual harassment in the state Capitol have publicly called for such protections for legislative employees.

But the whistleblower act isn’t the only area of the law in which the Legislature has demonstrated a “do as I say, not as I do” mentality:

Public records: Want to know whom government officials are meeting with, talking to or emailing? Or how officials were disciplined after an investigation found them culpable of wrongdoing?

State agencies and local governments must release such information—calendars, emails and disciplinary records—under the California Public Records Act, which the Legislature created in 1968. But the same information is nearly impossible to get from state lawmakers, because the Public Records Act does not apply to the Legislature.

Instead, lawmakers are covered by the Legislative Open Records Act, which they passed in 1975 in the wake of the Watergate scandal. The act that applies to them is riddled with exceptions, effectively keeping secret many documents that other branches of government must disclose.

“The Legislature has created in many areas a black box where the public can’t see records it would be entitled to see if the public officials at issue weren’t in the Legislature,” said David Snyder, executive director of the First Amendment Coalition, a nonprofit organization advocating government transparency.

The Legislature’s open-records law allows it to withhold investigations of wrongdoing, even when they led to disciplinary action. It also keeps secret correspondence by lawmakers and their staff, as well as officials’ calendars. The Legislature even refused to give reporters the calendars of two senators undergoing federal prosecution on corruption charges—until media companies sued and won a court order compelling their release.

Another difference: As more government agencies began storing information electronically, the Legislature updated the Public Records Act in 2000 to compel disclosure of digital records. Now state agencies and local governments must provide public records in any format in which they exist. That gives the public access to electronic records, such as databases, in their original digital format.

But the Legislature has never made the same update to its own open-records act. "It was a non-starter," former Assemblyman Kevin Shelley told The Sacramento Bee in 2015.

Open meetings: The idea that government meetings should be open to the public, and designed to welcome public input, has been enshrined in California law for more than 60 years. In 1953, the Legislature passed the open-meeting law that applies to local governments, and in 1967, it passed a similar one for state agencies.

Yet the 1973 law it passed requiring open meetings of the Legislature does not follow the same rules. One major difference: It allows legislators to gather secretly in partisan caucuses.

When contentious issues hit the floor of the Assembly or the Senate, it’s common for one political party or the other to pause proceedings and call for a caucus. Legislators file out of the chamber and into two private meeting rooms where Democrats and Republicans separately gather for conversations that exclude the public and the press. They can hash out disagreements or craft strategy behind closed doors, then return to the chamber to publicly cast their votes.

Local governments, such as city councils, cannot do this. With a few limited exceptions, state law forbids a majority of a local board from gathering privately—precisely because it shuts the public out of the decision-making process.  

“I always remember county supervisors being rankled,” said Peter Detwiler, a retired long-time staffer to the state Senate’s local government committee. “‘You guys put these rules on us and you don’t ever put rules like that on yourself.’”

The same laws also slow down decision-making by local governments and state agencies so that the public can weigh in. Local governments must give at least three days of notice before taking action, while state agencies have to post agendas 10 days in advance.

Legislators, until this year, did not have the same constraints. Though most bills go through a months-long process of public deliberations, a handful of bills each session were written just hours before lawmakers cast votes on them, leaving the public no time to offer their input. Democrats who control the Legislature said the last-minute lawmaking allowed them to put together sensitive compromises that could have blown up with more public scrutiny.

But voters grew frustrated with the secrecy. A Republican donor worked with nonpartisan good-government groups to put Proposition 54 on last year’s ballot, requiring that bills be written and posted online for at least three days before lawmakers can vote on them. The result: Voters put a rule on legislators that the politicians wouldn’t put on themselves.

Out of state travel: With culture wars raging nationally over transgender rights, California’s liberal Legislature last year passed a law banning state-funded travel to states with laws that discriminate against gay or transgender people. Eight states are now on California’s no-go list. Some have laws that could forbid LGBT people from adopting children, or exclude gay students from some school clubs; others have banned anti-discrimination policies that would allow transgender people to use the bathroom that matches their identity.

Yet while legislators have banned state-sponsored travel to Alabama, Kansas, Kentucky, Mississippi, North Carolina, South Dakota, Tennessee and Texas, they haven’t stopped traveling to those places themselves. In June, Democratic Sen. Ricardo Lara traveled to Texas for a conference of Latino government officials. Soon after, Democratic Sen. Bob Hertzberg went to Kentucky to study the state’s bail system.

Hertzberg was working on legislation to overhaul bail in California, and “felt it critical to observe first-hand the impact of bail reform in (Kentucky), which has a very well-established system of pretrial release,” his then-chief of staff, Diane Griffiths, wrote in an email.

The travel-ban bill does not exempt lawmakers—a late amendment actually specifies that it also applies to the Legislature—so how are these trips taking place? Lawmakers are getting around the law by using campaign funds, not tax dollars, to pay for them.

The Legislature’s leaders declined to defend the exemptions, but in the past, lawmakers have contended that they are justified because of the unique role of a law-making body and the need to protect legislators’ security. As far as critics are concerned, legislators get away with making exceptions for themselves because they know their hypocrisy won’t attract enough notice to generate mass outrage.

Right now, there’s plenty of attention on the Legislature over its policies for dealing with sexual harassment—and some debate about whether extending the whistleblower act would help remedy the problem.

As is, the Legislature has internal personnel policies that forbid retaliation, and legislative employees are also covered by a different state law that prohibits retaliation for complaining about discrimination or harassment. But the whistleblower act goes even further, laying out a process for workers to confidentially file complaints to the independent state auditor.

Lawmakers will yet again consider a bill giving whistleblower protection to legislative staff when they return to Sacramento next year. GOP Assemblywoman Melissa Melendez of Lake Elsinore plans to re-introduce a measure that has stalled in the past. And—in a nod to some who say her bill wouldn’t apply to employees reporting sexual harassment—she said she’ll add language explicitly stating that it does.

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

Inside the California Assembly chamber on the night of June 1, the presiding officer urged lawmakers to recognize former members in their midst, “the honorable Henry Perea and Felipe Fuentes.”

In a familiar Capitol ritual, the former assemblymen waved from the balcony as applause rang out from their one-time colleagues.

But the two weren’t just retired lawmakers—they were now lobbyists being paid by oil companies to kill a bill that would soon meet its fate on the Assembly floor below.

That bill, by Democratic Assemblywoman Cristina Garcia, would have forced industry to reduce air pollution that comes from their plants. Garcia knew the lobbyists in the balcony were pals of many of her Assembly colleagues. She knew oil and other industries were working hard to defeat her. And she knew her bill was in danger.

A million people in her industrial Los Angeles neighborhood “have been treated like a wasteland,” Garcia said in frustration, wiping tears from her eyes. Then she cast a glance toward the balcony. “Clean air is a big deal for a lot of Californians. You have a choice: Do we all matter?”

Her bill fell six votes short, as moderate Democrats joined Republicans to quash it. The moment marked a win for oil—and revolving-door politics.

Today, Garcia cites the lobbyists’ special relationships with current legislators as among the factors to blame for her bill’s demise.

“When you have a former member on the floor at the same time they are working for or against the bill,” she said, “you open the opportunity to have access in a way lobbyists normally would not have.”

Sacramento is full of termed-out or retired lawmakers who make second careers as lobbyists, strolling through a “revolving door” between government and the private sector. Current law prohibits ex-legislators from directly lobbying their former colleagues for one year after they leave the Legislature, and a measure on Gov. Jerry Brown’s desk would slightly strengthen that by barring legislators who quit mid-term from lobbying during the remainder of that two-year-session, plus another year.

Still, the oil industry’s strategy this year was striking. After failing last year to prevent a new law requiring massive cuts to greenhouse gas emissions, oil came back this year lobbying hard. Democrats held a supermajority in the Legislature, but were divided over how to redesign the state’s landmark cap-and-trade program, which forces businesses to reduce emissions or pay for permits to pollute.

The oil industry’s goal: to shape the next phase of cap and trade through 2030. And it had hired four former lawmakers—all Democrats—to advocate on its behalf.

Each hailed from predominantly working-class, Latino districts and joined an influential “mod squad” of moderates during their legislative tenures, which covered various periods between 2002 and 2015. Two are from Kern County, the biggest oil producer in California. And three quit their elective office mid-term to work for industry.

All four declined interviews for this article, as did their employers. Three were registered lobbyists during the peak of cap and trade negotiations this year:

Henry Perea, the son of a Fresno City Council member and grandson of Mexican immigrants, made his mark in the Assembly as the former leader of its mod caucus before quitting mid-term, initially to work for a pharmaceutical trade association. Now he lobbies for the Western States Petroleum Association.

Felipe Fuentes, raised in the San Fernando Valley, worked as a legislator to secure tax credits to keep filmmakers in the state, then was named to the Los Angeles Times 2016 “naughty” list for bailing on his Los Angeles City Council seat to become a lobbyist. His firm’s clients include an oil production company.

Michael Rubio, who worked his way up in Kern County politics, abruptly quit the state Senate in 2013 to work for Chevron, saying he wanted to spend more time with his family.

• A fourth is not a registered lobbyist, but manages government affairs for a refinery company: Nicole Parra, whose father was a Kern County supervisor, won election to the Assembly at age 32 and also became a mod caucus leader, known for sometimes endorsing Republicans.

“The industry showed incredible smarts by going out and hiring these people. Nationally, the oil industry is very Republican,” said David Townsend, a Democratic political consultant who knows all four through his work running a fundraising committee that helps elect business-friendly Democrats.

“Their knowledge base is enormous. Their relationships are broad-based and deep. If I were in trouble, they are some of the ones I’d hire,” Townsend said.

Oil companies have a long history of fighting against the aggressive climate policies backed by many California Democrats. This year, though, instead of fighting against cap and trade, oil teamed with other business interests to lobby to make cap and trade more industry-friendly. In the final deal that lawmakers approved on a bipartisan vote in July, oil won a new law forbidding local air-quality districts from enacting emissions restrictions tighter than the state’s—as well as a potential perk worth hundreds of millions of dollars. Leading environmental groups supported the bill to extend cap and trade for another decade, but other environmentalists wound up opposing it for being too easy on polluters.

“This easy crossing from legislator to advocate for the industry has happened before, but it seems to have been happening recently in greater bulk. So that, to me, is kind of distressing,” said Kathryn Phillips, a lobbyist for the Sierra Club, which opposed the cap-and-trade plan. “These are people who have been friends with the people they are going to lobby.”

Many aspects of those relationships play out in ways the public never sees—through text messages and phone calls, or at private get-togethers. Weeks before lawmakers voted on the final cap-and-trade bills, Senate leader Kevin de León dined with Perea and Rubio at an intimate Sacramento restaurant known for $44 steaks.

De León, a Los Angeles Democrat who has carried many clean-energy bills, said former lawmakers didn’t get any special treatment from him.

“I sit down with everybody across the spectrum. That’s my job as the leader of the Senate,” he said. “I have to sit down with all perspectives, whether it’s oil, whether it’s clean energy, whether it is labor unions, whether it’s businesses.”

After Perea became a lobbyist, he met with Assembly Speaker Anthony Rendon to talk about cap and trade, and held additional meetings with the speaker’s staff, Rendon acknowledged. But the speaker rejected the idea that former lawmakers were especially influential in negotiating the next phase of California’s landmark climate policy.

“On an issue like cap and trade, where members arrive with a certain set of values and with information already, I am inclined to think that this is less impactful,” Rendon said.

On the other hand, former lawmakers—especially those who served most recently—can bring unique insider know-how to any lobbying effort. They understand caucus dynamics, know how to tailor persuasive messages to particular legislators, and enjoy unusual access to public officials.

Signs of that were on display throughout the year in the bustling Capitol. In April, Parra participated in a lunchtime discussion with legislative staffers about professional advancement for women of color, joined by a legislator, a lawmaker’s chief of staff and an aide to the governor who works on environmental issues. And in September, as lawmakers began a long night voting on dozens of bills, Perea strolled down a Capitol hallway packed with lobbyists and slipped into the back door of the Assembly chamber—right past a sign labeling the room restricted to “members and staff only.”

Well-connected environmental advocates also roam the halls. Last year, for example, the Assembly honored former legislator Christine Kehoe, a San Diego Democrat who now runs a group that works to expand use of electric vehicles.

When politicians leave office, they frequently take a job developing a lobbying strategy—but not directly lobbying. Rubio did that when he quit the Legislature in 2013 to work for Chevron, as did Perea when he resigned in 2015 to work for a pharmaceutical trade association. But as the cap-and-trade negotiations heated up this year, both officially registered as lobbyists—a sign that they anticipated having a lot more direct contact with lawmakers. Perea left the pharmaceutical group to join the Western States Petroleum Association as a registered lobbyist in May. The next month, Rubio registered as a lobbyist for Chevron. In September, he filed paperwork with the Secretary of State ending his registration as a lobbyist. (Both men scored spots this year on a popular list of the 100 most influential players around the Capitol.)

Fuentes was elected to the Los Angeles City Council after he was termed out of the Assembly in 2012. He quit the City Council last year to become a lobbyist with a firm called the Apex Group, whose many clients include Aera Energy—a firm that drills for oil in the San Joaquin Valley.

Parra, after being out of elected office for eight years, was hired by Tesoro (now Andeavor) in November as a manager of state government affairs.

No one has complained to California’s political watchdog that the former lawmakers broke any ethics rules in their advocacy work this year. The assemblyman carrying the bill to lengthen the time lawmakers are banned from lobbying said it’s not inspired by any of the Legislature’s recent departures.

Still, even if legal, the idea that personal relationships may influence statewide policy can be disconcerting, said Jessica Levinson, a professor at Loyola Law School and president of the Los Angeles Ethics Commission.

“If we think about what we’re worried about when it comes to any lobbyist, it’s the idea that our lawmakers are making decisions based on what hired guns are asking them to do as opposed to what’s good public policy,” Levinson said. “Lobbyists have an outsized influence on lawmakers, and that is exponentially increased when that lobbyist is a former lawmaker.”

Even if former lawmakers held office at different times than today’s legislators, they may be connected through other political circles. That was the case for Assemblywoman Lorena Gonzalez Fletcher, whose time in the lower house coincided with Perea but not the other three. She knew them, though, through California’s larger network of Latino Democrats.

Gonzalez Fletcher said she never felt pressured by the former legislators as the cap-and-trade negotiations advanced—perhaps because she declared her support for the bill early. Still, she saw them around the Capitol or ran into them while out for after-work drinks.

“There was a lot of checking in: ‘Where are people? Where do you think things will land?’ It felt more like information-gathering in my brief discussions with former members,” Gonzalez Fletcher said. “I didn’t feel a lot of hard lobbying going on.”

At a time when many lawmakers worry that Sacramento’s lobbying corps isn’t as diverse as either the state or the Legislature (Latinos make up 39 percent of Californians and 23 percent of state legislators), the oil industry has been represented by black and Latino lobbyists in the Capitol for several years. Its move to bring on the four Latino former lawmakers reflects a larger economic shift in California.

“It’s not because they are Latino,” said Mike Madrid, a Republican political consultant with expertise in Latino politics. “It’s because they represented districts that are poor and working-class. There just happens to be a very strong relationship between race and class in California.”

Madrid said working-class communities respond to industry arguments about the cost of environmental regulation—either as consumers who will see the cost of gas increase, or as workers who want to keep blue collar jobs in their regions. With Republicans divided over cap and trade, and lacking much clout in the Capitol, it was logical for oil to bring on some prominent Democrats.

“You’re starting to see a transformation of what has traditionally been a right-left, red-blue, Republican-Democrat divide,” he said. “There is a realignment occurring.”

Another indication emerged five days before lawmakers voted on the cap-and-trade extension. The California Business Roundtable, a group of 30 companies including Chevron and Valero, enlisted a new lobbyist: Richie Ross, former bare-knuckles chief of staff to one of the most powerful Democratic Assembly speakers in state history, Willie Brown.

Today, Ross is unusual among Sacramento lobbyists because he is also a political consultant whose clients include 10 Democratic legislators—giving him financial connections both to the groups that pay him to lobby, and the politicians who pay him for campaign advice.

He said he provided advice to the Roundtable and did not lobby his political clients in the Legislature: “They had me register (as a lobbyist) because at that point, everyone was uncertain as to whether they would need me to lobby.”

The Roundtable’s president, Rob Lapsley, is a longtime Republican. But he said business groups knew that when it came to cap and trade, they needed Democrats involved to get the plan they wanted from a Democratic-controlled Legislature.

“Richie is a smart, strategic advisor with long-term relationships. We found that of great value,” Lapsley said. “He goes back a long way. And he was very helpful in getting additional insights.”

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics

Days after Tim Grayson won election to the Assembly, a Sacramento lobbyist greeted him at a reception with sheepish congratulations. Her client had supported his opponent during the campaign, the lobbyist explained, but now that he’d won, she told him she wanted to move past the election and forge a good working relationship.

Oh and by the way, did he need any money to cover costs from the campaign?

“Make-up money” is what it’s called in Sacramento—the contributions that flow to newly elected officials from interest groups that backed a losing candidate during the campaign. It’s a completely legal way of saying, in political terms, “Let’s kiss and make up.”

Grayson has not taken advantage of the offer; campaign statements to date show no contributions to the Concord Democrat from clients of the lobbyist who introduced herself in November. But conversations like theirs often occur in the months after an election, as interest groups shift from betting on a winner during the campaign to lobbying those who won a seat in the Capitol.

“The best way to make amends, fortunately or unfortunately, is a contribution,” said GOP political consultant Mike Madrid. “It’s not uncommon to have a strategy where somebody spent six figures against (a candidate), with approval to write them a check to rebuild the relationship” if that candidate ends up the winner.

In other words: make-up money is built into the budget for interest groups that spend big on politics. Those groups had a lot at stake in the 2016 legislative races, because it marked the last time for the next eight years that a significant number of Assembly seats would be vacant. A review of campaign finance reports from last year’s most contentious races shows plenty of make-up money in the mix. It came from trade associations, corporate interests and labor unions.

Some examples:

• In the race for a Malibu-area state Senate seat, the dentists’ trade association spent nearly $50,000 opposing Democrat Henry Stern. After he won, the dentists gave him $4,200.

• In the race for a San Jose-based Assembly seat, the Realtors association spent more than $483,000 attacking Democrat Ash Kalra. After he won—and landed a spot on the Assembly’s Housing and Community Development Committee—the Realtors group gave Kalra $8,500.

• Realtors made another losing bet in the Democrat-on-Democrat race for a Glendale-area Assembly seat, spending nearly $253,000 to support Ardy Kassakhian. After his opponent, Laura Friedman, won, the Realtors’ group wrote her a check for $6,800.

Friedman said she met with the Realtors after the election—just as she met with many other interest groups—for a version of the “let’s move on and have a good relationship” conversation. The money, she said, doesn’t impact how she’ll vote on their issues.

“I don’t feel like I’m holding a grudge, but I’m certainly not going to not work with them, not take their meetings or not take in their perspectives,” Friedman said. “My goal is to represent my constituents and my conscience.”

The dentists and Realtors associations are among the biggest spenders in legislative races, pouring millions into recent election cycles. Both groups declined requests for interviews. The dental association provided a statement saying its political action committee “puts a great deal of consideration” into choosing which candidates it supports.

Interest groups that spend smaller sums of political money have done some flip-flops, too:

• In the race for a Palo Alto-area Assembly seat, two local labor unions—one for firefighters, another for school support staff—that gave to the losing candidate have since written $5,000 checks to the winner, Democrat Marc Berman.

• PG&E and the pharmaceutical industry association both donated to the campaigns of the losing candidate for a Salinas-area Assembly seat. Weeks after the election, the businesses wrote checks to the winner, Democrat Anna Caballero.

• In October, the prison guards’ union gave $4,200 to Grayson’s opponent in the race for his Assembly seat. Two months later, the union wrote a check for that amount to Grayson.

Grayson, who previously worked as the chaplain for the Concord Police Department, said his relationship with the prison guards’ union stems from his own career in law enforcement—not from the money they donated.

For interest groups he doesn’t really know, Grayson said he finds offers of “make-up money” awkward. He said he never followed up to seek a donation from the lobbyist who introduced herself at the post-election reception.

“My first desire is to meet and have a conversation in which they can get to know me, who I am, what I am and how I am,” he said. “What they choose to do after that, that’s their business.”

There is nothing illegal about giving “make-up money” to a politician, said Jessica Levinson, a law professor who is president of the Los Angeles Ethics Commission. Political contributions break the law only when they involve a direct exchange of money for governmental action.

But, she said, giving money to the winner of an election—after backing an opponent—shows that donors are looking to curry favor with whomever has the power to make decisions.

“It brings into stark relief what we all know, which is that people give money to get something,” Levinson said. “You’re not expressing support; you’re buying access and influence.”

Laurel Rosenhall is a contributor to CALmatters.org, a nonprofit, nonpartisan media venture explaining California policies and politics.

Published in Politics