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Sun02182018

Last updateWed, 27 Sep 2017 1pm

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

California’s Democratic legislators want to extend health benefits to undocumented young adults, the continuation of an effort that ushered children without legal status into the state’s publicly funded health care system last year.

It is unclear when the program would start or how much the state would spend if the proposal, which could cost up to $85 million a year, is approved by Gov. Jerry Brown. Lawmakers are working out details ahead of their June 15 deadline for passing a new budget.

The plan would provide full-scope coverage for 19-to-26-year-olds who qualify for Medi-Cal, the state’s name for Medicaid. Currently, the federally funded program covers only emergency visits and prenatal care for undocumented residents. Under the proposal, revenue from taxes on tobacco products would absorb expenses for all other coverage.

Democratic Sen. Ricardo Lara of Bell Gardens has been one of the strongest voices for expanded care. In 2015, he pushed for coverage for all adults. That proposal was changed to admit only undocumented children; it took effect last year. This year, he said in a recent video message to supporters, “We are going to make the final push to ensure we capture our young adults.”

Supporters’ ultimate goal is to include all undocumented adults, said Anthony Wright, executive director of Health Access California, a health care consumer group backing the proposal.

“We believe without coverage, people are sicker, die younger and are one emergency away from financial ruin. It has consequences for their families and their communities—both health and financial consequences,” he said.

The plan would mean that undocumented children currently in the program would not age out at 19, putting low-income undocumented immigrants on par with those allowed to stay on their parents’ insurance under the Affordable Care Act (often called Obamacare) until they are 26.

Republican Sen. John Moorlach of Costa Mesa opposes an extension of benefits. One reason is financial: California doesn’t have “a balance sheet we can brag about,” he said, citing the state’s debt load, among other reasons.

Secondly, he disapproves of illegal immigration. Moorlach migrated to the U.S. legally as a child with his family from the Netherlands.

“I’m kind of offended that we feel an obligation to pay for expenses for those who did not come through the front door,” he said. “I certainly have compassion and want to help people in need, but I’m having difficulty, as a legal immigrant, because we are already in such bad fiscal shape.”

Advocates argue that undocumented immigrants help propel California’s economy with their labor and the taxes they pay, and that they cost the state money when they don’t work because of illness or when they end up in the emergency room.

“Health care is a right,” said Ronald Coleman, director of government affairs for the California Immigrant Policy Center, an advocacy organization and supporter of the proposal. “These are folks we are investing in through the California Dream Act and through other programs our state offers, and it makes sense to invest in our future, which our young adults will be.”

Estimates vary for how many people this expansion of Medi-Cal would serve and what the costs would be. Each house of the Legislature has passed its own version of the proposal, with differing figures attached.

The Assembly allocated $54 million a year to cover an unspecified number of additional enrollees, with a July 2017 start date. The Senate proposed $63.1 million in the first year, beginning in 2018, and $85 million annually thereafter, also without specific population numbers.

Coleman’s center, which is working closely with lawmakers on the issue, estimates about 80,000 new people would be eligible, and the cost would be around $54 million a year. That assumes the federal Deferred Action for Childhood Arrivals program continues, because it provides access to Medi-Cal. If DACA were eliminated, the figures would increase to about 100,000 eligible people and about $84 million in annual costs, Coleman said.

The governor’s proposed budget does not include the proposed expansion or any money for it.

Kevin, a 19-year-old Angeleno who asked that only his first name be used, because he lives in California illegally, wants the proposal to succeed. He has been working for more than a year to distribute information about Medi-Cal children’s coverage to immigrant families.

He meets all but one of the requirements for DACA: He was not in the country before June 15, 2007. He arrived in the U.S. in 2011 at age 14 from Guatemala, on a visa that later expired. He graduated high school, has no criminal record and is now majoring in business administration at California State University, Los Angeles.

“There’s this misunderstanding that young people are healthy,” said Kevin, who suffers from eczema. He worries about the chronic condition flaring up. “When it gets worse, it doesn’t let me do anything with my hands.”

He is enrolled in a county health insurance program for low-income residents, but he can’t afford a dermatologist. He can barely pay for the prescription lotion he uses for the eczema, and sometimes goes without it.

“We are trying to have a better economic standard, and we are like the building blocks of this society,” he said. “Having health insurance will allow us to focus more on school and do our regular day-to-day activities. A healthier society works better for everyone.”

If lawmakers can now agree on details, a consensus proposal will go to the full Legislature for approval. The deadline for that is June 12.

CALmatters.org is a nonprofit journalism venture dedicated to exploring state policies and politics.

Published in Local Issues