Full text of "Hearing"
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HEARING
SENATE RULES COMMITTEE
STATE OF CALIFORNIA
STATE CAPITOL
ROOM 113
SACRAMENTO, CALIFORNIA
WEDNESDAY, JANUARY 7, 2009
1:32 P.M.
GOVERNMENT
DOCUMENTS DEPT
MAY 1 8 2009
SAN FRANC/SCO
PUBLIC LIBRARY
602-R
3 1223 08678 8990
SENATE RULES COMMITTEE
STATE OF CALIFORNIA
-0O0-
HEARING
STATE CAPITOL
ROOM 113
SACRAMENTO, CALIFORNIA
- -0O0- -
WEDNESDAY, JANUARY 7, 2 009
1:32 P.M.
- -oOo- -
Reported By: INA C. LeBLANC
Certified Shorthand Reporter
CSR No. 6713
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APPEARANCES
MEMBERS PRESENT
SENATOR DARRELL STEINBERG, Chair
SENATOR GIL CEDILLO
SENATOR SAMUEL AANESTAD
SENATOR ROBERT DUTTON
SENATOR JENNY OROPEZA
STAFF PRESENT
GREG SCHMIDT, Executive Officer
JANE LEONARD BROWN, Committee Assistant
NETTIE SABELHAUS, Appointments Consultant
DAN SAVAGE, Assistant to SENATOR CEDILLO
BILL BAILEY, Assistant to SENATOR AANESTAD
CHRIS BURNS, Assistant to SENATOR DUTTON
BRENDAN HUGHES, Assistant to SENATOR OROPEZA
ALSO PRESENT
JAMES D. ASCHWANDEN, Member, State Board of Education
YVONNE CHAN, Ed. D., Member, State Board of Education
KAREN L. DOUGLAS, Member, State Energy Resources
Conservation and Development Commission
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ALSO PRESENT (cont.)
CANDICE A. TRAEGER, Member, Occupational Safety
and
Health Appeals Board
INDEX
E
age
Proceedings
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Governor's Appointees:
KAREN L. DOUGLAS, Member, State Energy Resources
Conservation and Development Commission
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Questions by CHAIRMAN STEINBERG re:
Making State government ' s approach
to energy more coherent
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Energy Commission's role in education
and work-force training in the
alternative energy field
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Questions by SENATOR OROPEZA re:
Cap-and- trade programs
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C i- — 1
Air quality in District 28
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Retrofitting
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Questions by SENATOR DUTTON re:
Jobs in California
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Alternative fuels
III
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Questions by SENATOR AANESTAD re:
Prohibiting sale of flat-screen
TVs
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Cost of energy
Biomass plants
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Slots/positions determined by the
legislature
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Questions by SENATOR CEDILLO re:
Limitations /adverse consequences
of cap- and- trade program
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Witnesses in Support of Appointee:
VICTORIA ROME, Natural Resources Defense
Council and California League of Conservation
Voters
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MELVE BIGELOW, Nature Conservancy
RINA VENTURINI, Calpine Corporation
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Taken Together:
YVONNE CHAN, Ed . D . , Member, State Board of
Education
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JAMES D. ASCHWANDEN, Member, State Board of
Education
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Questions to Both by CHAIRMAN STEINBERG re:
View on State imposing unfunded
mandates
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IV
1 Voting for the measure 49
2 Voting against the measure 49
3 AB219 51
4 CAHSEE requirement for special ed.
5 students 54
6 Questions to Both by SENATOR OROPEZA re:
7 Achievement gap 58
8 Witnesses in Support of YVONNE CHAN, Ed . D . :
9 RAND MARTIN, California Charter Schools
10 Association 67
11 SHERRY GRIFFITH, Association of California
12 School Administrators 68
13 Witnesses in Support of JAMES D. ASCHWANDEN:
14 FRED JONES, California Business Education
15 Association 67
16 SHERRY GRIFFITH, Association of California
17 School Administrators 68
18 CHRIS WALKER, California Association of
19 Sheetmetal Air Conditioning Contractors,
20 California Automotive Business Coalition,
21 California Industrial and Technology
22 Education Association 68
23 GREG HINES, California Manufacturers and
24 Technology Association 69
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1 Witnesses in Support of JAMES D. ASCHWANDEN (cont.)
2 CESAR DIAZ, State Building and Construction
3 Trades Council 69
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5 CANDICE A. TRAEGER, Member, Occupational Safety
6 and Health Appeals Board 73
7 Questions by CHAIRMAN STEINBERG re:
8 Backlog and settlement rate 77
9 Fines 82
10 Heat cases 83
11 Questions by SENATOR CEDILLO re:
12 Five thousand dollar mandatory
13 penalty fee 85
14 Elimination of hearing sites 87
15 Fine reduction 89
16 Statement by SENATOR DUTTON 90
17 Question by SENATOR OROPEZA re:
18 Labor position on board 92
19 Witnesses in Support of CANDICE A. TRAEGER:
20 JUDGE MANUEL MELGOZA, Administrative Law Judge,
21 Cal OSHA Appeals Board 94
22 BRAD DIEDE, California Professional Association
23 of Specialty Contractors 96
24 MARY CHRISTIAN, Employee 97
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VI
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Neutral Witness for CANDICE A. TRAEGER :
JEREMY SMITH, California Labor Federation ... 97
Witnesses in Opposition to CANDICE A. TRAEGER:
SUZANNE MURPHY, Worksafe 101
MARTHA GUZMAN, California Real Legal Assistance
Foundation Ill
RESPONSE BY CANDICE A. TRAEGER 115
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Vote-Only Item re Confirmation of
PAMELA A. GIACOMINI, Member, State Board
of Forestry and Fire Protection 122
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Proceedings Adjourned 123
Certificate of Reporter 124
APPENDIX 125
VII
i PROCEEDINGS
CHAIRMAN STEINBERG: Members of the public, we
3 do have a quorum, but we are going to wait a few minutes
4 because our Republican colleagues are just leaving
5 caucus, and we want to, of course, extend to them the
6 courtesy to get here before we start .
7 (Pause . )
8 CHAIRMAN STEINBERG: Committee on Rules will
9 come to order.
10 Clerk, please call the roll. Secretary, please
11 call the roll. Excuse me.
12 MS. BROWN: Senator Cedillo.
13 SENATOR CEDILLO: Here
14 MS. BROWN: Cedillo here.
15 Dutton.
16 SENATOR DUTTON: Here.
17 MS. BROWN: Dutton here.
18 Oropeza.
19 SENATOR OROPEZA: Here.
20 MS. BROWN: Oropeza here.
21 Aanestad.
22 SENATOR AANESTAD:
23 MS. BROWN: Aanestad here.
24 Steinberg.
25 CHAIRMAN STEINBERG: Here.
MS. BROWN: Steinberg here.
CHAIRMAN STEINBERG: A quorum is present, and
committee membership is present.
I'd like to welcome the members and staff, and
members of the public, to the first Rules Committee
hearing of the 2009-2010 session. And thank you to the
staff for excellent materials in preparation, as always.
We want to begin today a little out of order
without objection by any of the members and begin here
with Karen Douglas up for confirmation for the
California Energy Commission. This is one scene.
Ms. Douglas, welcome to you.
MS. DOUGLAS: Thank you very much.
Is this on?
SERGEANT-AT-ARMS BARNETT : Yes, it is.
MS. DOUGLAS: Thank you.
CHAIRMAN STEINBERG: I will waive my lengthy
opening statement here.
Why don't you begin with an opening statement,
if you would like.
MS. DOUGLAS: Absolutely. Thank you very much
Senator, and good afternoon.
I had the opportunity to meet most of the
senators on the committee prior to coming in here, and I
was really pleased to have that opportunity.
1 My opening statement will be very brief. I --
2 It's a tremendous -- It's been a tremendous honor and
3 privilege and pleasure to serve on the California Energy
4 Commission at this very important time in state energy
5 policy.
6 As you may know, I come to the position with a
7 strong background and interest in both energy and
8 climate issues, and strongly believe that the California
9 Energy Commission is going to be a very important
10 organization in helping the state meet its climate goals
11 in a way that preserves and maintains the level of
12 service and reliability for all Calif ornians .
13 We face both tremendous challenges right now
14 and tremendous opportunities. We need to make strong
15 and sustained progress towards reducing our greenhouse
16 gas impacts and other pollution from the electricity and
17 transportation sectors, and there are tremendous
18 opportunities to do that in terms of improving
19 efficiency standards, achieving zero-emission homes,
20 overcoming barriers to meeting our renewable -- our RPS
21 goals, both the current statutory goal of 20 percent and
22 the 33 percent goal that the governor announced and that
23 Senator Steinberg and others were present at and
24 supported for 33 percent by 2020.
25 The CEC is going to be a very important player
in helping that to happen. We can look at developing
the next generation of energy-efficiency programs,
retrofitting existing buildings that somewhere we
haven't had much progress so far, and looking at load
management and so on.
In order to sustain this effort over the long
term, which is really what's needed to meet our climate
goals, we also have to make sure we deliver real
benefits to Calif ornians , including both economic and
environmental benefits, and I think we're in a position
to do that. If we succeed with our policies, we'll both
improve environmental performance and also help bring
jobs to California and help bring real economic benefits
to California, so we're looking hard at how to do all of
that. .
In my first year, I was very involved in
Executive Order S 1408, which looked at -- not only
declared a 33 percent RPS goal, but also pushed Energy
Commission and DFG to look at everything we could do in
the siting arena to make sure we would remove at least
one section of work barriers to getting to that goal.
I've been very involved in the implementation
of AB 118, which is helping the State -- or hopefully
will, as we get it off the ground, help the State
achieve much more in terms of clean alternative - fuel
4
1 vehicles. And this is another area we're looking at
2 work force and the economy as part of our statutory
3 mandate, and then looking at how we review environmental
4 impacts, particularly greenhouse -gas impacts and
5 power-plant siting. Those are three important areas
6 that I've been very active in.
7 I welcome the opportunity to be here today and
8 welcome any questions you have. Thank you.
9 CHAIRMAN STEINBERG: Thank you very much,
10 Ms. Douglas, for your service and for your willingness
11 to continue .
12 I just have a couple areas that I would like to
13 explore with you, and, of course, I'll open it up to the
14 members .
15 What is your recommendation, having been
16 involved in this area for quite some time, about how we
17 deal with the alphabet soup of energy policy? You've
18 got the California Energy Commission, you have ALRB, you
19 have Cal EPA, you have US EPA, all responsible for
20 various parts of fuel policy, energy policy. So how do
21 we make the state government's approach to energy more
22 coherent? What do we need to do legislatively and/or
23 administratively to either better coordinate the work of
24 these agencies or, frankly, reorganize some of these
25 agencies to achieve that coherence? That's one area.
I'll just lay out the other, and you can answer both.
The other area may seem a little bit unorthodox
for confirmation hearing for an energy commissioner, but
I really want to know your views on California's
high-school dropout problem. And I'm not kidding,
actually. I want to know what your thoughts are around
how we think about the economy that is going to grow
around alternative energy and how we link education and
work-force training and career pathways for young people
to begin thinking about working in the alternative-
energy field and what role the Energy Commission could
play in elevating that issue. Those are my two small
questions. Go ahead.
MS. DOUGLAS: Absolutely. Thank you very much.
In terms of the alphabet soup and the number of
cooks in the kitchen sometimes on energy policy, I think
there's no question that on most of the important policy
areas in energy, more than one agency is involved in
making important policy decisions and rule making. And
I'll just give a few examples.
In -- The Energy Commission produces a
strategic transmission investment plan and is one of the
coordinators of RETI, which is a transmission
stakeholder process. The ISO did its own study last
summer to determine the number and location of needed
1 transmission lines to act as renewables. The PUC has
2 siting authority over transmission, and this is not
3 necessarily an impossible situation, but at the same
4 time the fact that there is significant overlap between
5 the ISO, the PUC, and the CEC on transmission planning
6 and siting makes it more difficult sometimes to achieve
7 a coherent planning policy direction.
8 Both the Energy Commission and the PUC are
9 going to be engaged in this coming year in an in-depth
10 look at renewable energy and how we achieve a 33 percent
11 RPS . We are coordinating. We are participating in
12 their process. They will send staff to our process,
13 but, again, it can make it difficult to come out with a
14 coherent and entirely consistent policy direction, even
15 though I think the Energy Commission, the PUC and the
16 ISO are working together quite well right now and are
17 doing everything we can to improve coordination.
18 As you no doubt know, the governor's office has
19 been looking at how to achieve more consolidation and
20 realignment among energy agencies in order to get more
21 efficiency, and also clear lines of accountability and
22 policy direction and the ability to have more assurance
23 that we're going to meet our goals. I don't really know
24 what the specifics of that are, but I think -- I'm
25 pleased to hear of your interest, and I think it will
certainly be a topic we will be looking at.
In terms of your second question, it actually
is, as you no doubt suspected, a very relevant and
important topic for the Energy Commission to be thinking
about. We want to create a domestic renewables
industry. We want to achieve goals that, you know, we
really need people working in California to help us
achieve. I'll give an example.
The Energy Commission is in the process of
creating a home energy rating system for evaluating the
energy efficiency and actually rating the energy
efficiency of existing homes. We are in a position,
once we have this in place, which should be in
midsummer, to really launch an effort to get people's
homes rated so that when you're a buyer, for example,
you know how your house you're considering stacks up
against other houses. If you're an owner, you have the
opportunity to understand better what you might do to
improve the energy performance of your house. It's got
great potential for changing the way we think about
retrofits in existing buildings. But to make it happen,
we need people to do the rating; we need people to do
retrofits; we need people to really go out and organize
these types of programs.
So we really do need to think about how we
8
create the right work force for the green economy.
We've been working on that probably more actively
3 through looking at the 118 program, which is fuels and
4 technology, although we also brought our renewables
5 staff to those meetings. And we've met recently with
6 the EDD, the Workforce Investment Board, and others to
7 talk about how we might coordinate more and think
8 together more about how to achieve a green energy
9 economy. They're working on it. We're thinking about
10 it. But each set of agencies has its own expertise, so
11 it's been very helpful to talk to them.
12 I think one conclusion we reached from some of
13 those conversations is that the State right now does not
14 have a plan or an analysis for what actually is needed
15 for the green energy economy, so we're talking to them
16 about how to do some of the underlying analytical work
17 in terms of what are the job opportunities, what are the
18 technical skills and fields of education that would be
19 most useful in order to train people for those
20 opportunities. In some fields we have a pretty good
21 idea, but overall we can benefit from learning more
22 about it.
23 So I think it's a really important area, and
24 it's something that we're beginning to pick up.
25 CHAIRMAN STEINBERG: All right. Thank you.
I'm going to have a specific ask of you at the end on
that subject, but in the meantime let's ask other
members to weigh in.
Senator Oropeza.
SENATOR OROPEZA: Thank you.
I enjoyed our conversation prior to the
hearing, and I'm going to elaborate on some of the
things we talked about and delve a little bit deeper.
Let me ask you about your view on something
that is controversial but has been adopted under AB 32
by the ARB , and that's cap-and- trade programs and how
they will ensure that they meet the conditions
specifically about not impacting poor communities as
they do this trading, that it doesn't end up all falling
on poor communities. So it's sort of an environmental -
justice, from my point of view, issue.
What is the Commission's view on that, and what
is your view, and how are you working to mitigate
against that happening?
MS. DOUGLAS: The Energy Commission and the
PUC actually did a joint proceeding on a climate plan or
climate efforts for the electricity sector, so that
included both looking at cap-and- trade design and also
calling for 33 percent of renewable portfolio standard
and all cost-effective energy efficiency.
10
1 I think that on cap-and- trade , it's very, very
2 important to know and understand well the details of the
3 policy that's being proposed. " Cap-and- trade " is an
4 umbrella phrase that captures blinding different,
5 sometimes, design criteria that can create very
6 different on- the- ground results.
7 Our focus in the Energy Commission proceeding,
8 which did suggest that if -- What we basically said is
9 if ARB is able to meet the standards in AB 32, which has
10 very strict requirements for not disproportionately
11 impacting people in EJ areas, then we thought that
12 cap- and- trade was an appropriate mechanism, but that it
13 has to be designed very carefully.
14 And there are a number of considerations. I
15 think the most interesting one and the most
16 controversial one from our proceeding was what you do
17 about the different starting points of different
18 California utilities. We've got a number of utilities,
19 particularly in Southern California, that have less or
20 no access to hydropower or are in areas with very severe
21 air-quality problems, and for those reasons and others
22 ended up with a portfolio where they import much more
23 coal power. And if you start a cap-and- trade system
24 right away where, let's say, you auction 100 percent of
25 allowances, everybody's got to buy allowances, what you
11
find is the distributional impact for the state are
probably not sustainable, probably not fair, and
prob
ably not
what you want to do.
On
the other hand, one of the great values of
the
cap-and-
trade system is that it does internalize
decision mak
ing and -- environmental values and decision
making, and
so it helps people, when they think about
the
bottom 1
ine, think about what they're doing for the
environment .
So there are advantages to it, but how you
do i
t really
matters .
And
we ended up recommending a system that ' s a
bit
complex .
I think the mechanism and the dates matter
less
than th
e big-picture description, which is to say
that
it started out biased, if anything, towards the
utilities that were more dependent upon coal, and partly
that
they needed to invest more and do more to reduce
their carbon
footprint than the others, but over time
move
to a sy
stem that increasingly awarded clean
generation .
And that time was, in a way, a transition
path
way. So
we made an effort to do that.
Now
, the level of detail is just not there to
say
whether
-- You know, right now what we're dealing
with
is a framework and possibilities of how things may
go-
SENATOR OROPEZA: I think it's really, really
12
1 important that somehow there's a grappling with some
2 accountability, you know, some way to create some
3 accountability around how this all sort of lays out and
4 who it falls upon. And so if there isn't that now, or
5 it's kind of gray, or it's fuzzy, I would just urge that
6 maybe you can light a fire under somebody about -- I
7 know it's very complex, but it's very critical to the
8 overall success, which is, you know, quality of life for
9 every Californian, right?
10 MS. DOUGLAS: Absolutely.
11 SENATOR OROPEZA: Clean air for every
12 Californian.
13 So my second issue also relates to -- well, it
14 relates to air quality in my own district. And there
15 are generation plants that are old, very old, like from
16 the '20s or something, old, in Manhattan Beach and
17 El Segundo in my district, and these, we are told, are
18 going to be needed for a long time, that they eventually
19 should be swapped out for cleaner, newer facilities,
20 and, hopefully, those are renewable approaches to energy
21 generation. But in the meantime, what is the
22 commission -- what kind of actions or measures is the
23 commission taking to assure that there's not -- there's
24 minimal impact, environmental impact and health impact,
25 on my constituents in those communities?
13
MS. DOUGLAS: This is another area where the
alphabet soup of energy agencies is not necessarily
helping us in achieving our goals. I think everybody,
Energy Commission, PUC, ISO, wants to see these old
facilities probably re-powered, if not retired.
Re-powering facilities means we get more electricity
from them, far less pollution. It's a real win-win.
There are issues in doing this. The Energy
Commission has been calling for this for years and years
and years, but we don't really have a legal mechanism to
make anybody do it, make anybody ret ire/re -power . We
don't have any way of doing that.
There are air permit requirements, but
sometimes the way that that is working is that because
these old facilities actually have their permits and are
operating under their permits, they continue to do so,
and it's hard for the new plants to get permits, and
it's hard to facilitate any kind of transfer permits
from the old plants to the new plants. So we sometimes
find ourselves in a place where there are barriers for
getting the re-powers, even though they would be better
for the environment .
There are reliability concerns with shutting
down these plants without anything to replace them.
Those reliability concerns are very important. So, you
14
1 know, there could be mechanisms to require the
2 retirement and re-power. For example --
3 SENATOR OROPEZA: What about retrofitting? I'm
4 not an engineer, but what about the notion of making
5 them cleaner, making them operate cleaner?
6 MS. DOUGLAS: I think making them cleaner would
7 be nice, but it would be a bigger win to retire/re -power
8 them.
9 SENATOR OROPEZA: I agree. I agree.
10 MS. DOUGLAS: It could be that there's an
11 option of just allowing them to continue to run and
12 making them cleaner. I don't think it's our
13 preferred --
14 SENATOR OROPEZA: It depends on the timeline.
15 Certainly, I prefer them to be shut down, but if they're
16 shut down in 20 years, I would rather have them clean
17 now, because the kids really can't -- their little lungs
18 can't wait 20 years. So it's sort of that kind of
19 question, and I don't know the answer as far as -- All I
20 know is what I've heard, which is that we're going to
21 need these plants for a long time to meet future
22 demands. Is that your understanding as well?
23 MS. DOUGLAS: It depends on where we are. If
24 we're talking about, for example, the South Coast Air
25 Basin, we actually find ourselves, because of the
15
lawsuit over the South Coast Priority Reserve Program
and its credits, the South Coast isn't currently able to
issue permits or issue credits right now to permit any
new -- any large, new source. So -- and currently, that
would affect even a re-power.
SENATOR OROPEZA: Really?
MS. DOUGLAS: So right now we're talking to ARB
and others about how we deal with their situation so
that we can achieve what I think is going to be part of
the solution, which is bringing new generation on line,
either through re-power or in different locations that
allow retirement of these old facilities in order to
maintain reliability and also clean up the air.
That's not the only solution. We can look at
more, say, small-scale renewable in the load center; we
can look at ultra clean cogen. There are a number of
options that could happen concurrently, but there are
obstacles, particularly in the South Coast Air Basin,
right now to getting these retirements or re-powered.
SENATOR OROPEZA: Doesn't sound very
optimistic, but thank you, Mr. Chair.
MS. DOUGLAS: We're trying --
CHAIRMAN STEINBERG: Ma'am, one of the things
we expect is once you are confirmed, that the
dialogue/discussion will continue with the members on
16
] these important issues.
MS. DOUGLAS: That dialogue will continue.
3 CHAIRMAN STEINBERG: Senator Dutton.
4 SENATOR DUTTON: Thank you. Just a little side
5 note. Coming from Southern California -- actually,
6 recent studies have indicated 30 percent of the air
7 quality problem is coming through the jet stream over
8 China, so the more we chase business to China, frankly,
9 it's --
10 CHAIRMAN STEINBERG: What about the other
11 70 percent?
12 SENATOR DUTTON: That's fine, but Calif ornians
13 shouldn't have to be continuing to clean up the air so
14 that China could continue to have worse air quality.
15 SENATOR CEDILLO: As soon as we get a budget,
16 we'll start building.
17 CHAIRMAN STEINBERG: We'll hold that debate for
18 another --
19 SENATOR DUTTON: I would love to start
20 building. So far, we've got a lot of roadblocks, which
21 leads me to my question about the direction that we're
22 heading with regards to energy, because, obviously, if
23 we don't have a reliable and sustainable supply of
24 energy, we're not going to be very competitive for good
25 paying jobs and things today. Forget about what jobs
17
may be there 20 years from now, but I'm concerned about
the jobs today.
Recently, you've been -- you actually were very
supportive of going to the 33 percent by 2020 when it
doesn't even look like we're going to be able to hit the
20 percent by 2010, so -- well, they won't be able to.
So you keep making these benchmarks, but I
don't see the road how you get there. I'm not a big fan
of command-and-regulate , because not everybody is on the
same page with us. What I'm seeing happen and what I
fear is going to happen is, once again, you're going to
see some of the jobs disappear from California, moving
to other states that don't have quite the same demands.
So I'm concerned about the common sense part about how
we're going to get there.
CHAIRMAN STEINBERG: Briefly. Brief response.
Thank you .
MS. DOUGLAS: I think it would not be a good
idea to just increase our target from 20 percent to
33 percent without looking really seriously at the
obstacles that have made it hard for us to achieve our
RPS goals so far and being fairly confident that we've
addressed them and are on a path to addressing them.
So I recognize we've had trouble meeting
targets, meeting the 2010 target, for example. Although
18
we're not terribly far away, we're not going to hit it.
Meeting a 33 percent by 2020 target will be challenging.
3 We really need to get our house in order at the State
4 and the level of energy in order to make it possible.
5 I think we can do it, but we need -- there are other
6 policy issues we need to address.
7 CHAIRMAN STEINBERG: Next question, Senator
8 Dutton.
9 SENATOR DUTTON: I don't have to ask any
10 questions . I did have a few more questions along this
11 line. I wanted to talk about alternative fuel, but you
12 don't want me to --
13 CHAIRMAN STEINBERG: No. I want you to ask any
14 and every question that you want. I also want to move
15 the hearing along.
16 SENATOR DUTTON: Okay. Where was I? You
17 already covered the alphabet soup of energy and so
18 forth.
19 Alternative fuels is another area that you're
20 involved in and so forth. I've always believed in all
21 policies that the state -- that government should lead
22 by example. And, of course, we've bought -- have spent
23 our money buying al ternat ive - f uel vehicles, and, yet,
24 based on the numbers, State transportation fuel
25 purchases during last year, the E85 ethanol made up less
19
than
1 percent of our total percentage of gas usage. So it
seems to me some of these rules and regs and things
we're going to be imposing on the private sector, we're
not even doing it ourselves.
Do you have any thoughts about what we need to
do -- what we're going to have to do in order to change
that?
MS. DOUGLAS: We're looking at that as part of
.the 118 program. It's a broader problem. Flexible- fuel
vehicles are capable of operating on 85, and that's a
great thing. Right now, the infrastructure for actually
providing E85 is pretty limited. So in the state
garage, for example, here in Sacramento, there is an
E85 pump, but if you're taking a trip somewhere else and
need to fill up the car, you probably won't find an E85
pump .
This issue -- it's described by some as the
chicken-and-egg problem. Do you build the fuel
infrastructure without having vehicles? Do you go ahead
and get the vehicles and then bit by bit build up the
fuel infrastructure, or do you throw your hands up in
the air?
I think in the case of the State buying
flex-fuel vehicles, it was done with the understanding
20
and planning for an expansion of the infrastructure,
which we're working on.
3 SENATOR DUTTON : Okay. So you might say we
4 kind of put the cart before the horse?
5 MS. DOUGLAS: Well, whether you get the horse
6 first or cart first, eventually it's the cart and horse.
7 SENATOR DUTTON: Okay. Thank you.
8 CHAIRMAN STEINBERG: Thank you, Senator Dutton.
9 I thought we were talking about fuel, and we're talking
10 about carts and horses.
11 Senators Aanestad or Cedillo, any questions?
12 SENATOR AANESTAD: Yes.
13 CHAIRMAN STEINBERG: Senator Aanestad.
14 SENATOR AANESTAD: Ms. Douglas, I appreciate
15 the previous conversation we had in my office, and I
16 wanted to follow up on part of our discussion regarding
17 the different slots that we have, but first I'm going to
18 warm you up a little bit with this question, and that
19 is: In the newspaper this week, we've read that the
20 Energy Commission is thinking about mandating the
21 removal of large flat-screen TVs because of their huge
22 power consumption. That's not something that has come
23 to your level yet; however, when I hear that the LAO
24 says that could cost us between 50 and 60 million
25 dollars a year in state revenue, when I hear from the
21
electronics associations that it can cost tens of
thousands of jobs, and it can cost in the hundreds of
millions of dollars in sales by limiting -- by-
prohibiting, not just modifying, but prohibiting the
sale of these flat-screens, I just want to know what
kind of position you would take when that question gets
to you.
MS. DOUGLAS: I have not seen the article that
you're referring to, but I know about the issue. The
plasma TVs that have become very popular are very
intensive energy-users compared to older model TVs, and
the Energy Commission does appliance standards. I know
that we are looking at flat-screen TVs.
I also understand that there are technologies
that enable these TVs to be built in more energy-
efficient ways. So it's not that all flat-screen TVs
are inevitably very high energy users . Some models are
significantly better than others.
So in situations like this, I think it's
actually helpful for the Energy Commission to step in
and consider standards. We have cost effectiveness and
other criteria that we have to meet in order to
promulgate standards, and we also have a history of
working very closely with manufacturers in trying to
understand the technical difficulties, barriers, and
22
costs and timelines.
SENATOR AANESTAD: So you're saying you see
that as a legitimate function of government. You don't
believe the cost of energy should be between the
consumer and the seller?
MS. DOUGLAS: I think in terms of appliances,
for example, if we are able to, as we have with
appliances -- with other types of appliances, if we are
9 able to raise the bar so that the average consumer can
10 walk in the store, pick an appliance up off the shelf
11 and it will at least be reasonably good in its energy
12 use, it won't be terrible --
13 SENATOR AANESTAD: You think government should
14 say what ' s reasonable and not the consumer?
15 MS. DOUGLAS: I think when government can step
16 in and help give consumers better products, that's
17 better. Obviously, you started out the question by
18 saying "mandate the removal of flat-screen TVs." I
19 don't think that's what our staff is considering, but I
20 haven't seen the article.
21 SENATOR AANESTAD: That is. That is, they will
22 mandate the removal of certain sizes of flat-screen TVs
23 if they cannot comply with the standards.
24 MS. DOUGLAS: I see.
25 SENATOR AANESTAD: Next question I have, and I
23
hear you talking about renewable energy and that the
Commission is committed to the concept of 33 percent,
et cetera. In my district, in rural California, biomass
is probably the cheapest and simplest form of renewable
energy that we can come up with today, and yet the sad
fact of the matter is in early December I heard from one
of our largest timber producers, lumber producers, that
they're shutting down a plywood plant in Weed,
California -- this is an Oregon-based company, one of
the largest in the nation -- simply because they're
facing lawsuits funded by, in part, the Environmental
Defense people through the Shasta organization and also
other environmental groups who have just routinely
filed lawsuits to stop the biomass generator from being
built .
Rather than fight this, they're going to close
the plant. The largest employer in that county is going
to move to Oregon. And yet, how do you square your
role -- your past role as a director and, actually, a
general counsel for the organizations that are now and
have been, even when you were there, stopping the
production of energy through biomass plants or
energy siting facilities.
MS. DOUGLAS: I don't think while I was at
Planning and Conservation League or Environmental
24
! Defense Fund that we -- certainly not to my knowledge --
had any involvement in trying to stop biomass facilities
3 from going forward.
4 I think biomass has pros and cons . Renewable
5 energy resource is base-load, and we really like that.
6 It's an opportunity to productively use wood waste and
7 other agricultural waste that might otherwise just be
8 burned, until we ban that. But for a while, it was just
9 being burned and creating a big air-quality problem.
10 And it was a really good thing to generate electricity
11 in circumstances where you control pollution from those
12 facilities, and it still has tremendous potential.
13 In the renewables committee, one of the first
14 actions that I helped the Commission take as presiding
15 member of the renewables committee was to actually
16 simplify the rules for our funding program for biomass
17 facilities. The Energy Commission administers a program
18 where we give biomass facilities some supplemental
19 funding because the costs, particularly the cost of
20 getting fuel, have been high and tend to be higher than
21 what they have been able to negotiate in their contracts
22 for electricity.
23 So we've been doing, at the Energy Commission,
24 what we can to support biomass, although -- and we see
25 some real benefits. We always reach an issue where you
25
have to look at the cost and look at the benefits of
fuel, but we've made a decision to simplify the rules
and to support these facilities so far.
SENATOR AANESTAD: And yet we're going to lose
them to Oregon, whose Energy Commission in Oregon is
actually offering a financial incentive for folks to
create biomass plants and have the timber industry do
their business there, which results in the loss of jobs
exactly the opposite of what I would think the Energy
Commission in California would want to happen.
MS. DOUGLAS: One of the issues that the
biomass industry has faced is the closure of mills and
the reduction of timber harvesting in California.
That's definitely a fact. If you look at the map of
where we had biomass facilities and where we have them
now, the facilities that have closed down, many of them
are in areas where we've stopped or cut back timber
production. So there's no doubt a draw for biomass
facilities to be in areas where there are mills.
SENATOR AANESTAD: Sure. It's not just where
there's mills, it's where there's forests. In my
district alone, over 150,000 acres last year burned all
at the same time with huge air-quality implications. In
Marysville, I couldn't even see the signal light across
the street. Had we been able to take some of that
26
1 biomass out previously, not necessarily for timber
2 production but just to thin and manage our forest, we
3 wouldn't have that kind of expense and public hazard.
4 And yet, what I see is the environmental organizations
5 that you have been professionally a part of over the
6 last decade doing anything you can to seemingly stop the
7 kind of energy production we're talking of here.
8 Last question. Just following up on our
9 conversation in my office regarding the different
10 slots, there's five different slots that the legislature
11 has determined. One of them is an attorney slot, which
12 is the one that you're going for today. The other is an
13 environmental slot which just recently, in fact,
14 yesterday, became open. At that time I suggested to
15 you, and I think you agreed, that you can fit into
16 either one of those slots. The fact of the matter is
17 that as an attorney, your entire professional career
18 really has been either general counsel or a director for
19 an environmental organization.
20 Don't you feel you would better serve the state
21 and that we would probably do more what the legislative
22 intent would be, is to put you in the environmental slot
23 and try to find somebody who is not biased either
24 towards the environmental or the -- let's say the
25 production part of the equation, but an attorney who can
27
just be there for legal questions that come up, which I
understand --
CHAIRMAN STEINBERG: If I may, Senator
Aanestad, the witness can answer the question. I think
one thing to point out is our jurisdiction is to review
and confer or not confer a governor's appointment. He
made the appointment to the attorney slot.
SENATOR AANESTAD: Yes, he did.
CHAIRMAN STEINBERG: So we don't have the
choice to tell Ms. Douglas we'll confirm you in a
different slot than where the governor appointed you.
Answer the question. He's asking for your
opinion as to whether or not you wish the governor had
appointed you to a different slot.
Is that the question?
MS. DOUGLAS: I think - - As I said in Senator
Aanestad' s office, I think there's no question in my
mind I'm qualified for the attorney's slot and I'm
qualified for the environmental slot.
It happened that when the governor appointed
me, they were looking for an attorney and they appointed
me. The attorney on the Commission works probably --
certainly more closely with the general -- chief
counsel's office and deals with legal issues when they
rise to the Commission level, but we also have a very
28
strong internal counsel's office. So I think I am
working well with the chief counsel and the attorneys
and fulfilling that role.
4 Certainly, if the slot that had been open when
5 I was appointed was the environmental slot, I would have
6 applied for it, and I think I would have been certainly
7 equally qualified for that.
8 SENATOR AANESTAD : And I probably would have
9 voted for you. Thank you.
10 MS. DOUGLAS: Thank you.
11 CHAIRMAN STEINBERG: All right. Senator
12 Cedillo, do you have any questions?
13 SENATOR CEDILLO: No, I think I'm fine.
14 I just have to say in Southern California,
15 there is a concern about the limitations of the
16 cap-and- trade program, adverse consequences for our
17 utilities down there. What can you say to us in
18 Southern California?
19 MS. DOUGLAS: I understand the concern very
20 well, Senator Cedillo. Early on in the process of doing
21 our joint procedure with the PUC, I went to L.A.
22 specifically in order to meet with David Hine and met
23 with the general managers of Burbank and Anaheim and
24 have made significant efforts to communicate and reach
25 out and understand the perspective of some of the
29
Southern California utilities that have the most
at stake. And I do understand the perspective. From
their point of view, SB 1368 has already required that
the long-term coal contract cannot be renewed. It's a
challenge to backfill from those contracts and find
cleaner -- whether it's renewable or natural gas or
other sources to replace those.
I think there is a strong commitment among --
certainly many of the municipal utilities to move
forward with renewables, so I think it's really a matter
of -- The fundamental question is: How far, how fast?
How quickly do they reduce their emissions? What's a
reasonable trajectory? What are the practical steps to
take in order to reduce emissions? And a cap-and- trade
system can be designed that accommodates that and that
gives them the time that they need to do that, but also
that holds them accountable for actually meeting those
goals. So I don't think -- I do think it's possible to
design a system that meets the legitimate needs of some
of the utilities that are more coal -dependent .
And the debate we're having on this or not
having on this in California is really a microcosm of
the things that can happen nationally if we start
talking about national cap-and- trade bill. The issues
are very similar.
30
1 So my perspective is it's not about one side
2 prevailing over the other. It's about how do you get a
3 reasonable accommodation of needs and interests that
4 achieves our environmental goals and does so in a way
5 that works for different resource mixes, because in the
6 country we have very different resource mixes.
7 CHAIRMAN STEINBERG: Very good. Thank you.
8 Let me -- I understand it's protocol on the
9 Committee that before we call the witnesses, or at least
10 before we're done, I want to offer you the opportunity
11 to introduce any special guests or members of your
12 family, or just anybody in the audience.
13 MS. DOUGLAS: My family attempted to get here,
14 but they were unable to do it, so they're going to be
15 watching a recording.
16 CHAIRMAN STEINBERG: Very good.
17 MS. DOUGLAS: But thank you for that
18 opportunity.
19 CHAIRMAN STEINBERG: Of course.
20 Can we please hear from the witnesses in
21 support of the nominee, please. I guess one at a time.
22 You can pull up a third chair.
23 MS. ROME: Good afternoon. I'm Victoria Rome
24 with the Natural Resources Defense Council, NRDC, and
25 also today on behalf of CLCV, the California League of
31
Conservation Voters, and we urge you to confirm Karen
Douglas for the Energy Commission. She has a record of
commitment to public service through her work at the CEC
so far, and she did a brief stint at NRDC and also, as
you know, at Planning and Conservation League and
Environmental Defense Fund.
She also has a good track record of building
effective partnerships with diverse stakeholders, and we
think that's an important role for the Energy Commission
at this crucial time, so we believe we need her
leadership there now more than ever. The world is
watching California to see what we do and has already
learned a lot from our strong efficiency policies and
global climate policy. Thank you.
CHAIRMAN STEINBERG: Thank you, Ms. Rome.
Next witness .
MS. BIGELOW: Good afternoon. I'm Melve
Bigelow here on behalf of the Nature Conservancy, and we
also strongly urge you to confirm Karen Douglas for the
CEC. Her integrity, her intelligence, her experience,
are what California needs in this role right now. Thank
you .
CHAIRMAN STEINBERG: Ms. Douglas would like you
to repeat those words. Never mind. Thank you.
Go ahead.
32
MS. VENTURINI: Rina Venturini on behalf of
2 Calpine Corporation, and we would also like to encourage
3 your support of Ms . Douglas .
4 Additionally, Calpine is also very interested
5 in the work- force - training issue and would like to work
6 with the CEC on that as well.
7 CHAIRMAN STEINBERG: Thank you very much.
8 Any other witnesses in support? Are there
9 witnesses in opposition to the nominee? If not, is
10 there a motion on the bill? Yes. Moved by
11 Senator Cedillo.
12 Let me make a couple of comments before we cast
13 a vote. I haven't commended the governor much in the
14 last 24 hours, so let me take the opportunity to commend
15 the governor for appointing you to this commission. You
16 are clearly qualified, you are clearly committed, and
17 you meet the statutory criteria for the attorney slot
18 for the commission.
19 One thing I want to ask of you, and then I'll
20 make a general comment, because this will be the first
21 of many Energy Commission appointees that we have before
22 the Rules Committee.
23 My personal request to you is that you go to
24 school, so to speak, on the dropout rate -- you'll hear
25 me say this often in this committee -- and not only on
33
the dropout rate, but on the multiple pathway approach
to high-school education and its relationship to
alternative energy. I mean to really go to school and
become an expert and become compassionate about the need
to make those connections as early as ages 14, 15 for
young people who otherwise might be a statistic. That's
my request .
In general, as it applies to future appointees,
this committee is going to look very carefully at, of
course, the relationship and mutual respect from the
executive branch and the legislative branch when it
comes to not usurping our statutory authority to make
law .
We had some controversy last year with the CPUC
that was pretty well documented, and we want to make
sure that you view us as your partner and not an entity
to try to one-up.
We also expect, and this is a frequent
complaint from the legislature, that when we ask for a
report, that we receive the report timely. We can only
make key decisions here if we have the information that
sometimes only you possess. Last year or so, we've been
frustrated by the lack of reporting, despite our
requests, on renewable-energy transmission, energy
de-reg., and the climate - change - training programs, and
34
we ■ d ask you ,
Ms. Douglas, to be not only cognizant but very proactive
3 about getting the information that we need.
4 MS. DOUGLAS: Thank you. I will certainly do
5 that .
6 CHAIRMAN STEINBERG: Thank you very, very much.
7 Is there a motion to approve the nominee? I'm
8 sorry, Senator Cedillo. I apologize.
9 Let's call the roll.
10 MS. BROWN: Senator Cedillo.
11 SENATOR CEDILLO: Aye.
12 MS. BROWN: Cedillo aye.
13 Dutton.
14 Oropeza.
15 SENATOR OROPEZA: Aye.
16 MS. BROWN: Oropeza aye.
17 Aanestad.
18 SENATOR AANESTAD: No.
19 MS. BROWN: Aanestad no.
20 Steinberg.
21 CHAIRMAN STEINBERG: Aye.
22 MS. BROWN: Steinberg aye.
23 CHAIRMAN STEINBERG: Congratulations. Your
24 nomination will now move to the floor of the California
25 State Senate. We appreciate all your time in preparing
35
for the hearing and wish you the very best.
MS. DOUGLAS: Thank you, and I appreciate all
of your time as well. Look forward to working with all
of you.
CHAIRMAN STEINBERG: You too. Thank you very
much .
All right. Next we are going to go to the
governor's appointees for the State Board of Education.
I think we're going to ask you to come up
together, if you would. James Aschwanden and
Yvonne Chan nominated to the State Board of Education.
MS. CHAN: Thank you.
CHAIRMAN STEINBERG: Welcome.
Let me -- On the last nominee, I did not make
sort of an opening statement, but I would like to when
it comes to these issues.
First of all, I want to welcome you and thank
you for your public service and your willingness to
consider -- your willingness to continue your public
service .
Sort of consistent with the last nominee and
some of the comments you just heard me say, I really
want in this hearing to learn more about what the board
is doing not only around the high rate of dropouts in
California, but your views on multiple pathways, career
36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
technical education, algebra and how we make sure that
developmentally disabled students succeed. That's the
focus here, at least my focus. Of
course, members ma
Y
have their own unique focus, and feel free to jump in
at
any time. Why don't we begin -- I'
m sorry.
SENATOR OROPEZA: You take
the lead on this
one .
CHAIRMAN STEINBERG: Yeah.
Well, I know
everybody's passionate about these
issues, so why don
' t
we begin with Ms. Chan.
MS. CHAN: Okay. First of
all, happy new year.
CHAIRMAN STEINBERG: Happy
new year to you.
MS. CHAN: And thank you f
or giving me this
opportunity .
Most importantly for me is
I'm bringing my
field experience into the issue of
dropout, into the
issue of raising high standard, int
o the issue of
instruction, including algebra, et
cetera, to the
student of California.
So I am a school principal
in Pacoima, Alex
Padilla's area, and have been there
many, many years,
so
I face this particular issue, Senat
or Steinberg.
So first and foremost, I want to thank the
legislature passing all the bills that gave us the tool.
219, very important. Although we h
ave a year to roll
it
37
out, but we must start today, and therefore being able
to bring on board strategies to -- not only accounting
to the eighth grader, the ninth grader, five years, six
years, that's an accounting thing. That's fine. But at
the field, I want to make sure there are tools to make
sure that this not even happen to be counted, okay?
So, therefore, step one, no question to look at
the score. I'm a principal of preschool through 14 at
four
campuses. I take
them
from three
year old at start
all
the way
to admission to
college .
So middle school,
I know by sixth grade,
seven
th grade,
I ' ve got to do
some
thing .
I already
know w
ho are the
ones . It's
desi
gnated .
And that
cannot
happen .
So,
therefore
, very
importantly that we build a
relationship
with the
parents and the
family, and make
sure
that th
e communit
y embrace this c
hild. And also,
intervention
and prevention
early on,
making sure that
the
curricul
urn, the instruct
ion, is very relevant,
assi
gn mentors, and ma
ke sure the kids
go into advisory
on a
daily b
asis . So
middle
school starts very
important .
Then as we move the
students
-- understand I
have
a high
school too
I k
now Johnie
since three years
old.
He just may not
be the
one that ■
s going to go to
U. C.
, okay?
So career
tech
and multip
le path, that is
38
1 very important. And we cannot wait until they fail in
2 tenth grade, especially children with disability and
3 English learners. So, again, map it back where career
4 tech. Sounds pretty much like kindergarten, okay?
5 So as they go through the grade, kind of take
6 the student's interests. Make sure the family support.
7 Make sure that the school embrace this child as a whole
8 child. Take them through the career tech.
9 In my area, we have construction. I know you
10 ask a question about green. Some of us, with the help
11 of joint ventures, are doing recyclable energy at the
12 tenth grade level. We support. And another class is --
13 oh, green build. Wonderful. I mean, all the
14 tradespeople. This Pacoima. My parents are day
15 laborers. They know this stuff. My kids know this
16 stuff. They help the parents stacking bricks since they
17 are six years old. So, really, having to rebuild course
18 for ninth grader, which is a math class. It's. a math
19 class. Make sure you have the standard. They can read
20 the manuals .
21 And for those that are interested in the arts,
22 then we create green media, theater arts and all the
23 media arts, to give the message in all kinds of
24 languages .
25 So these are the ways -- and I know the algebra
39
is going to come up, and let me answer that first,
unless, Jim, you want to do that, you want to answer
that . Okay .
I hold high standards . And I have to say
California has been very good to me, because I came to
this country age 17 the clothes on my back. Not much
English, but I learned to speak Spanish first, the
language in Fresno, so I got to make sure that the
students reach those standards and achieve wellness.
Having said that, my actions speaks more than
my words. At my school, Pacoima, 100 percent
free/reduced lunch, 78 percent English learner,
95 percent walk in kindergarten not a word of English,
okay. And all Hispanic/African- American kids.
What I've done in the three years is every
single eighth grader's in algebra. Oh my God! Now
every one of them in there . Took me three years . I
went from 8 percent proficient to 32 percent proficient
now. But it took a lot of time, a lot of effort, a lot
of coordination, a lot of resources to get there.
And I know also I keep telling my kids that,
you know, algebra is not in the DNA of Asians. I did
pretty well. Most people said the Asians did well in
math; but no, you know, my kids can learn it. My
students in Pacoima can learn it.
40
So now, as I'm looking at -- I hold high
2 standards, and I believe my kids can learn over time.
3 Three years is not going to do it. Six years, maybe ten
4 years. So what I need to do is looking at the time and
5 looking at, yeah, resources. We don't have no money
6 now, so it's hard to take about any green bags, okay?
7 But resources in terms of human capital.
8 Now I'm a charter school principal, and we have
9 learned very strategically how to deploy, and I'm so
10 glad we have flexibility, hopefully, from all of you,
11 wherever, if charter schools have some of it. Is human
12 capital -wise , what took me this last three years
13 invested, yes, with every kid in algebra, is that we map
14 back the standards back to third grade again, and making
15 sure the elementary teachers work with my middle school
16 teachers. They trade the job a day or two while manage
17 and hold the class down as the principal substitute for
18 the day, okay?
19 So these are the things that can be done
20 looking at assessment. Oh my God! My fourth grade
21 teachers. What do you mean? The kids don't have to
22 take -- attempt any of the items and still be
23 proficient. How could that be? We've got to shake that
24 up, straighten that out.
25 And then, of course, the professional
41
development, the other ideas that we can do in human
capital, recruiting the right people, placing the right
teachers, as well work with the families to kind of put
that standard up.
CHAIRMAN STEINBERG: Thank you very much,
Dr. Chan. I appreciate your passion. Love it. See why
you're an educator.
Okay. Mr. Aschwanden, welcome.
MR. ASCHWANDEN: Thank you.
Before I start, I have to give you some of
my background so that you'll understand the context of
my responses to these questions.
I'm a product of a high school -- a time when
college-prep kids could take career-tech education, and
I consider myself very fortunate for that experience.
I'm a product of career-tech education. I have been a
high-school-classroom teacher for 17 years. I've served
as executive director of California Ag . Teachers
Association for the past 16.
The dropout issue is particularly important to
me, because I think there's a lot of misunderstanding
and a lot of misassumptions about the dropout rate. We
know that looking at dropout rates doesn't tell the
whole story. Harvard and other UCLA studies have told
us the vast majority of dropouts are B-minus students.
42
J They're not failing. They're walking. They find no
relevance. They're not hooked. They're not engaged.
3 And so this idea that dropout means failure, these kids
4 aren't necessarily failing.
5 I think there's been some great steps. 219
6 actually kind of gets us into looking at how we track
7 dropouts .
8 CHAIRMAN STEINBERG: Can you explain 219. I
9 know it, because I authored it, but just --
10 MR. ASCHWANDEN: The bill -- SB 219 I think is
11 a huge step forward, because it really does a number of
12 things. First of all, it tracks student data, including
13 test scores and dropouts, wherever kids go once they're
14 put into alternative education. That kind of
15 accountability tracks back, which is really, really
16 good.
17 CHAIRMAN STEINBERG: To the school of origin.
18 The school of origin is responsible for the test score
19 of the kid that gets moved on to alternative education.
20 MR. ASCHWANDEN: It also, for the first time,
21 takes a look at students who drop out in eight and ninth
22 grade.
23 CHAIRMAN STEINBERG: In the API.
24 MR. ASCHWANDEN: In the API.
25 CHAIRMAN STEINBERG: I'm just helping you.
43
MS. CHAN: Thank you.
MR. ASCHWANDEN: That statistic is easier to
track than the kids that drop out in the eleventh and
twelfth, because as far as SB 219 goes, there's still
some uncharted territory, because a student who drops
out in the eighth or ninth grade is pretty easy to
identify .
If they move from a comprehensive high school
into most forms of alternative education, the data will
follow them, which is the design of 219. But there's
still limbo land, because if you drop out or if you move
from a comprehensive high school to adult education, you
step off the cliff and you become an unknown. And so we
still don't -- We have a dropout rate that very
interestingly went from 24 to 21-1/2 percent in a matter
of a month with the same population of kids, and we
still have a disappearance rate or a gap between those
who entered school and those who graduated of about
3 3 percent .
So as we move forward, as positive as SB 219
was, I think we still have some challenges to play it
straight on what is happening to our kids and what we
can do to reengage them if we know they're walking
because they're not engaged, because school is not
relevant. I think we have a duty to follow up on that
44
and to follow up on all the numbers, not just the ones
that are easiest to track.
3 In terms of career-tech education, I can tell
4 you I was a passionate supporter of career tech all my
5 life. It gets pretty easy to offer that up as a
6 panacea. It is not. The challenge is to engage
7 students in an education process that engages them and
8 hooks them.
9 I want to use the green energy example, because
10 I think it really more mirrors what my experience has
11 been in career tech.
12 In the ag industry -- In an ag education, we're
13 not trying to train the next generation of field hands
14 or production workers. The ag industry and ag education
15 for the past 30 years has recognized that we need to
16 attract every kind of student to meet different
17 employment opportunities across the band. And as we
18 start talking about the green-energy industry, we ought
19 not to be talking about the potential dropouts. We
20 ought to also be talking about the kid who is brilliant
21 and bright, and who is a 4.0 superachiever who is hooked
22 at an early age and has access to those programs like
23 construction technology, that he may not have the same
24 interests, employment goals, down the line. But we
25 don't have a way anymore, I believe, of offering
45
adequate access to all kids who wish to engage in career
tech experiences like I did. In my generation, you
could do both. You could be that college-prep kid that
still had time in their curricular mode to access career
tech .
The challenge for all of us is: Let's look
beyond the student population going into career tech
that is just the technician- level kid. But these
industries, these jobs, and these careers are going to
need to engage every kind of student, and that's where I
think a career-tech discussion gets very interesting.
I'm just going to keep rolling on that
unless --
CHAIRMAN STEINBERG: No. That's good. Why
don't we -- you guys -- People who are passionate can
talk forever, but let's get to the questions here. I
want to begin -- I really want to cover three areas.
Colleagues, you can follow up or go into your
own areas .
I want to talk about algebra; I want to talk
about 219 and its implementation; and I want to talk
about special education in the developmentally disabled.
Okay .
I want to begin with algebra, where I know that
two respected board members came down differently on the
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controversial eighth-grade-algebra requirement that the
State Board of Education passed last year.
I suppose my question really is directed to
Dr. Chan, although, Mr. Aschwanden, you can weigh in if
you like as well.
I want to ask it this way: What is your view
on the State imposing unfunded mandates? Do you have a
general view of the State imposing unfunded mandates?
MS. CHAN: As a school person who has to do
these mandates, of course I scratch my head and say, How
am I going to ever do that? Meanwhile, on my human
side, when I see my kids who has the readiness to learn
algebra and I cannot put them in a class, then I say,
Well, I have to convince the teacher teach that kid, or
I will teach him myself.
So, therefore, when you're looking at all kinds
of mandate coming from the State, whether -- for me,
it's head lice. You know, exclude the kid with head
lice. I have plenty of those. I said, Oh my gosh! How
am I going to do that? But in my heart, I will go to
home and clean those head lice.
So that is my point of view, is -- Like I said,
I already said it. I believe in high standards, and I
believe eventually all kids will be able to learn the
algebra standard. So many of my kids, I promise, they
47
may not understand why they want to learn, and that's my
fault, because A plus Y and A plus C squared and all
that is, again, for us very early on to let the kids
know you deal with variables. Life is about dealing
with variables.
CHAIRMAN STEINBERG: I understand. Let me, if
I may, follow up, because I think what you really
just -- what you really expressed here again is your
passion as a school superintendent, as a principal, as
someone who has demonstrated that you can always
overcome the odds, and every kid can. And I get that.
But we're now talking about your policy making role as a
member of the State Board of Education.
Do you believe there ' s a relationship
between --
MS. CHAN: Resources.
CHAIRMAN STEINBERG: You're darn right.
-- between resources and the policy decisions
you make? Because the criticism, of course, of that
decision is that it may be fine to set that high
standard, but in this fiscal climate, and even outside
this fiscal climate, where is the willingness or push
from the State Board or anyone else to actually fund the
necessary teachers, to train the necessary teachers, to
ensure every child can actually take advantage of that.
48
That disconnect troubles me, I know, as one member of
the Rules Committee.
3 So I guess I'll ask it in a more pointed way.
4 MS. CHAN: Sure.
5 CHAIRMAN STEINBERG: How do you reconcile
6 voting for that measure, well intended as it may be,
7 when there's no money to implement it?
8 MS. CHAN: Okay. As I reflect on the
9 reality -- but I wanted to keep pushing the young fellow
10 over time. I am puzzled with a three-year or four-year
11 timeline. However, I personally feel six, ten years
12 rolled out, starting back in third grade right now --
13 hopefully third grade doesn't cost me anything right
14 now -- and move and hope the economy gets better.
15 Right now, basically I can just say sitting on
16 my hands -- I started that three-year goal with my own
17 kids. So to back map it is to say, Look, I need the
18 time. So my policy is still say, Look, time and human
19 resources, and then fiscal resources.
20 CHAIRMAN STEINBERG: Mr. Aschwanden, why did
21 you vote against it?
22 MR. ASCHWANDEN: I voted against it because I
23 didn't believe it was the best interest of students in
24 California to redefine failure and welcome more students
25 to experience it.
49
I want kids to be successful when they take
algebra, whenever that is. If they take it in seventh
grade, eighth grade, ninth grade, tenth grade, doesn't
matter much to me. What does matter a lot is that
they're successful at it when they take it, because
algebra really is that gateway math course that sets the
tone for what follows. And you get back to the dropout
rate . The number one indicator for dropping out of high
school is failing Algebra 1.
This discussion shouldn't be about algebra in
eighth grade. It ought to be about what they're doing
in fourth, fifth, and sixth. If the end goal is to
really get kids ready for algebra at an earlier age in
California, then that's what the discussion should have
been .
This kind of strategy for putting an atomic
bomb in place and daring you to run through the building
before it goes off has got to stop in education. I
think we need to quit beating up on kids and find ways
to move them along earlier and better if we can.
I have a niece who took algebra in seventh
grade, geometry, and she's going to take a placement
exam at CSU and get tested on principles that she had in
eighth grade. I don't know if that's any better than
the tenth grade algebra class that my brother took,
50
because that's when he was ready for it, who is now a
very successful businessman and has a master's in ag
3 economics from Fresno State University.
4 There isn't one universal path to enlightenment
5 that every kid steps on at the same time, and that's why
6 I voted "No," Senator.
7 CHAIRMAN STEINBERG: I'm going to allow my
8 colleagues to pick up on this. You'll get a chance.
9 Let me move to the other two areas, and then we'll take
10 it around the circle and members can pick up on any of
11 these topics.
12 Back to 219. The law says now that the State
13 Board of Education is empowered with the authority to
14 determine what percentage of the API, beginning in 2011,
15 should a four -year- graduation rate constitute as part of
16 the API, and for eighth and ninth graders, what
17 percentage of the API should be the eighth- and ninth-
18 grade dropout rates .
19 It would be easy, and, frankly, it is my fear
20 that the board will take the position that testing is so
21 important that therefore this issue of who is staying in
22 school and actually moving forward will be a 1 percenter
23 or a 2 percenter as opposed to a more significant
24 percentage .
25 Can you give me some assurances here that this
51
isn't going to be treated in sort of a diminimus way so
that the law, once it's actually implemented in 2011,
won't mean anything.
MS. CHAN: The law stated that 60 percent
will be in test scores, and I have taken quite a bit of
initiative to bring to the board and discuss with my
fellow board member, who are all here, who are all
here -- please stand. They're there. They're all
here so -- about the API issue. So putting currently
100 percent in test score is almost, hate to say, like
the old Roman empire, "Do or die, " you know, "Up or
down, " on a one-time test score.
CHAIRMAN STEINBERG: Where does graduation
rank, in your view?
MS. CHAN: In my view, at least at 5 percent or
more, because 40 percent you have attendance in there,
which you're still working on. There's a very important
issue from the Committee of English Learners about the
test scores, because right now they get no credit on
moving the kids into, you know, English proficiency.
Definitely, the whole notion in special
education -- I believe that is going to be a big
conversation -- it should not take years, within this
short window, on exactly the 40 percent -- what I'm
saying is we have 40 percent to play with.
52
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CHAIRMAN STEINBERG: I'm not sure 5 percent is
enough, but I appreciate your --
MS. CHAN:
What would you like?
CHAIRMAN
STEINBERG: I don't know exactly. I
j ust
want to make
sure that what counts matters, and I
want
to make sure
it counts .
MS. CHAN:
I think we want to make sure the
valid
ity and relia
bility is there. You can try for
more .
And who sai
d you cannot increase that?
CHAIRMAN
STEINBERG: Mr. Aschwanden, same
question .
MR. ASCHWANDEN: Senator, we actually had a
prett
y robust discussion this morning and an overview of
this
whole evolution of what the API has been in the
past ,
what it is now, and what it's going to be in the
future . And I fee
1 a lot better after hearing the
discussion today,
because I think there ' s a genuine
interest among the
vast majority of the board to really
desig
n something that's better than what we've had,
inclu
ding --
We have a
lot of really good questions about
access issues, and
measuring what kind of programs
schoo
Is offer, and
looking at that. And so I think
there
's genuine interest among the board in terms of --
You k
now, what a p
ercentage might look like, I can't
53
answer that right now; but I can tell you that there is
legitimate interest.
CHAIRMAN STEINBERG: Okay. Last area. The
special ed. area, and this one bothers me, and I'm sure
it bothers others as well, because right now we go
through this annual dance here in the legislature where
there are bills that try to waive the CAHSEE requirement
for special ed. students. There's a local waiver
process that's a hassle for parents and kids, and it's
real undefined. And I know in my district, I go to
McClatchy High School, and I meet with the students and
teachers. You know, people are trying so darned hard to
succeed, and there's dedicated teachers, and, you know,
there's a lot of frustration.
At the same time, the law allows the State
Board of Education to develop alternative assessments,
and alternative to the CAHSEE for students who may not
be able to take a written test but would still
demonstrate proficiency in the subjects, and nobody, it
seems to me, either has the will or whatever to actually
put such an assessment into place so we don't have to go
through this every year.
So you're now on the hot seat here. Why isn't
that happening, and what are you going to do to make it
happen?
54
L MR. ASCHWANDEN: I'll respond first. I share
your frustration, because I've always thought it was
3 important to know what kids can do is what they know,
4 and that when you deal with authentic assessment and
5 having a real glimpse of what students can do and what
6 they know, it's a challenge when you have an instrument
7 like the high-school exit exam standing in the middle of
8 all that.
9 On one hand, I understand the frustration. I
10 think it's shared by members of the board. There is a
11 process that's evolving for special ed. students who can
12 take the test with modifications, and we have supported
13 that. And there's also a process now in place, probably
14 not happening fast enough, but there is a panel that
15 will come to us this year to identify a process by which
16 special ed. students who have met every other
17 requirement, but they can't -- In other words, they've
18 taken all their course work, they've gotten all their
19 credits, they still can't pass CAHSEE, even using the
20 combinations that have been in their educational plan.
21 There is going to be an alternative assessment process.
22 I don't know what that looks like yet, Senator.
23 CHAIRMAN STEINBERG: When?
24 MR. ASCHWANDEN: The panel is supposed to make
25 recommendations to us in October '09.
55
CHAIRMAN STEINBERG: Another year, another
graduating class, another hassle here in the legislature
around what we do for and with these kids.
MR. ASCHWANDEN: I understand the frustration.
My only response is -- I'll share the response that has
been given to us. The testing gurus that will respond
to that will say it's very important to ensure that
these alternative assessments are designed in a way that
create the same validity across the measures and that
that takes time and it takes money, and the time element
is frustrating to all of us . I don't know how else to
respond to that, Senator.
CHAIRMAN STEINBERG: Fair enough.
MS. CHAN: Being a teacher of special education
for many, many years myself, I certainly understand --
you know, I certainly -- actually know a number of ways
to provide this alternative and find out if the kids are
doing well or not.
Though the law right now -- The Fabian bill
gives a year and a half, but right now, they already
contracted to identify these kids.
My understanding is about 5 percent of the
special ed. kids are on track. The only thing standing
in their way is CAHSEE. They have all the other
classes. The other one, they don't have the credits.
56
! They're not at that stage.
2 So when we focus on this 5 percent, the panel
3 is rolling out and I recommended to CE just today before
4 we walk over here, Let's not rehash. We had a committee
5 a year and a half ago, and we already came in with
6 special ed. commission with nine different ways beyond
7 the accommodation and modification.
8 Example, this child failed language arts but
9 make math. Can you do a composite score? Can they take
10 portion of it and then make it cumulative instead of
11 going through the whole seating? There are nine
12 different ways right there. Let's don't rehash
13 everything, because many of these are already
14 research-based.
15 Meanwhile, a glimpse now, Senator, is it took
16 us two years . Right now we do have a California
17 modified assessment of children with disabilities, okay?
18 So we rolled it out last year in third grade, third
19 grade through fifth grade. This coming year will be all
20 middle school, including eighth grade and tenth -- not
21 tenth grade. And then we roll out to the high school.
22 Now this modified assessment that's already in
23 place, valid, piloted, already in API this year, already
24 in API this year, can very well -- portion of it can
25 very well be that alternative in the future, but my
57
worry is we say, "Let's create a new one." New one
sometimes takes so long, because the feds said that
whatever alternative you have, the students still held
to the standard. It's the same standard. It's a
different way of showing it.
CHAIRMAN STEINBERG: Okay. Thank you very
much .
Before we take questions, Ina, are you doing
okay? Do you need a break?
THE REPORTER: (Nods head.)
CHAIRMAN STEINBERG: It's been an hour and a
half. Let's take a break. Let's take ten minutes --
and we'll take questions from the members -- and we'll
come right back, okay? Thank you.
(Recess taken . )
CHAIRMAN STEINBERG: Why don't we begin with -
good. We're back. Rules Committee is back in session.
Why don't we begin with Senator Aanestad. Do
you have any questions?
SENATOR AANESTAD: (Shakes head.)
CHAIRMAN STEINBERG: No questions.
Senator Oropeza.
SENATOR OROPEZA: Yes. I'd just like to ask a
little bit about what is my passion and deep concern in
education, and that is the achievement gap, the gap
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between people who have the same brain, have the same
brain matter. One of them is African-American, one of
them
is Hispanic, one of them is Asian, one of them is
Angl
o, and somehow they are, according to our
assessments, not achieving at the same level. There are
gaps
in that achievement .
I'd like to ask you, each of you, what you
thin
k are the elements or the contributing factors to
that
achievement gap.
MS. CHAN: I start?
MR. ASCHWANDEN: Sorry.
MS. CHAN: (To the reporter) : Slow it down. I
will
Okay.
So spanning of 40 years as teacher and
administrator, and also I'm in Pacoima, okay, so I am
look
ing at -- definitely lot of my kids, either they
lack
the preschool education or they just do not have
the
readiness to accelerate like everybody else. I'm
talk
ing about a population from Pacoima. For example,
I ■ m
100 percent free and reduced lunch; I'm 99 percent
Engl
ish learner --
SENATOR OROPEZA: Of those factors, which are
the
ones that you think contribute to the gap?
MS. CHAN: Lack of preschool and school
read
iness. That's one.
59
SENATOR OROPEZA: Okay.
MS. CHAN: Second is lack of the full range of
support services for these students. And I know people
say, "Well, let's focus on something." There's
healthcare, dental care, and for me there's a head lice
problem, so all of the other human services that must
link to support the whole child. So that's second.
Third, the third reason is the quality of
instruction in some of the schools. And I'm very
honest, you know, because I'm always in that kind of
area where I have a difficult time in delivering quality
instruction, because I may not have a quality staff,
including quality administration.
SENATOR OROPEZA: So that's what you mean by
lack of quality instruction?
MS. CHAN: Um-hmm.
SENATOR OROPEZA: It's not the people power to
do it. Yes?
MS. CHAN: Correct. It's not a credential
thing. It's just that I don't have the culture or the
mission, the urgency, and we happen to be the same
school that's serving the once most disenfranchised.
SENATOR OROPEZA: Okay.
MS. CHAN: The last thing is definitely lack of
articulation from preschool to 16. That is why the
60
! pre-16 commission has seen -- some of the statistics are
2 in, that is crucial, because we keep on dropping the
3 ball.
4 SENATOR OROPEZA: Could you elaborate a little
5 bit on that last point, the lack of articulation between
6 K-5 and then middle school and high school?
7 MS. CHAN: Let's start with preschool. You
8 have State preschool money, Head Start, great preschool
9 programs. When they get into kindergarten, scratch
10 their head. There was no communication. Bam. Okay.
11 So especially come from preschool that articulate or
12 even house in elementary. That is a given. Especially
13 student with disability or student who are English
14 learner. They're the crying kindergartners . Let's move
15 them into kindergarten on the same site. Instead we
16 start all over all the time.
17 SENATOR OROPEZA: I'd rather talk about the
18 regular kid --
19 MS. CHAN: I'm getting to next.
20 SENATOR OROPEZA: -- regular Hispanic kid and
21 the regular Asian kid, not somebody with a developmental
22 disability.
23 MS. CHAN: When they finish elementary, fourth,
24 fifth, at that time some of them are already not meeting
25 grade-level standards. That become a double whammy .
61
Class size go up. Teachers teach in strict -- more
lecture style .
SENATOR OROPEZA: And we're doing social
promotion, or what category --
MS. CHAN: Yes, social promotion. Not that I
believe in retention, Senator. I believe in the
intervention and the prevention early on.
So now when you get into the middle school, all
heck breaks loose. That's where dropout starts, and
it's impossible to go back and mend all those years.
Therefore, really, a K-12 or P-16 -- For me, I
solved them. I'm the principal of all ages. I taught
the kids from three -year-old all the way up to community
college, and I have the relationship with the parents.
I think that's the design. Los Angeles Unified is doing
one. The Ambassador Hotel site, they're going to do
K-12 .
SENATOR OROPEZA: I was going to say, do you
think that's what we should do is K-12, and there's not
an articulation issue because you've got the same people
dealing with the kids all along?
MS. CHAN: That's right. I move my
kindergarten teacher to first grade and move the sixth
grade to ninth grade .
SENATOR OROPEZA: Okay. Thank you.
62
1 MR. ASCHWANDEN: Yes, Senator. I've always
2 tried to approach this and tried to explain to people
3 what - -
4 The achievement gap is reflective, in my mind,
5 of a very clear opportunity gap that exists for students
6 to have the same resources, the same support, and access
7 to high-quality educational experiences. In too many
8 cases the achievement gap is almost related to a zip
9 code, and it's easy to fall into the trap that it's just
10 a matter of where the school is --
11 SENATOR OROPEZA: If you can be as specific as
12 you can. When you say "resources, " what does that mean?
13 MR. ASCHWANDEN: In the case of students who
14 are experiencing this opportunity gap -- I was at a
15 hearing in Richmond, and all the board spoke for a
16 couple hours, and as they all left to take early flights
17 home, the kids started talking about why they were
18 disengaged in school, and student after student came up
19 and said, "We have no electives here. There's no school
20 newspaper that is supported on a reasonable basis." And
21 kid after kid talked about the lack of experiences that
22 many California students take for granted. The ability
23 to come to school and have teachers that have a lot of
24 years of experience. When you find an achievement gap,
25 you will invariably find teachers who tend to have not
63
as much experience, who tend to want to leave those
schools as quickly as possible.
We know some of the symptoms of the problem.
What we're struggling with, quite frankly, Senator, is
how to effectively address it. I think as a school
board, we've done some things that are very positive.
We have an English language advisory committee in place
now. This morning we approved an African- American
advisory committee specifically to come back to us. And
we didn't create a subcommittee of the board to listen
to them. They are charged to come back to the full
State board with ideas and goals and methods for us to
really get to this issue of what is it going to take to
close this achievement gap. And we know on a big scale,
it's the -- it's what we need to do to listen to the
people in the trenches and to listen to the success
stories, the best practices.
There are some schools and educators succeeding
in closing the achievement gap. We have a lot of work
to do to find out what it is they're doing and how to do
it across the board a lot more effectively. And we're
there. I applaud the superintendent for really being a
champion of this issue. It is not going to die.
CHAIRMAN STEINBERG: It's everything --
SENATOR OROPEZA: It is the core. It is the
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essence. I get troubled when I hear that the reason for
the achievement gap are at a macro level of a whole
school. I want to know why is there
in a given school
an achievement gap between brown and
white kids? Why is
that? That can't have to do with the
school that you're
going to if it's the same school. It
can ' t have to do
with the community that you're from,
because you're from
the same community.
So what is it that we -- you
know, I have a
theory. I have part of a theory. My
part of the theory
is that we're not taking education to
where the kids
are. We are -- Teachers, principals,
administrators ,
are taking the education where they think it ought to
be, or where they think the kids shou
Id come in prepared
for instead of taking the education w
here the kids are
culturally, not just linguistically,
although that ' s
important, but culturally, and in all
kinds of ways .
You know, look. There are not nuclear
families, so to fight against it -- There is no parental
involvement when there aren't parents
, is begging the
question .
So I guess what I'm asking y<
du to ponder and
reflect on -- and do something; let's
come up with some
statewide solutions -- is look at the
schools that are
doing well, that have the kids that are all different
65
colors, shapes, and sizes", and are all achieving at
basically the same level. And I don't believe that I
I don ■
t believe it .
MR. ASCHWANDEN: Senator, I will leave
you
with
this thought .
SENATOR OROPEZA: I don't believe it.
MR. ASCHWANDEN: On a positive note, I
think
there
is general recognition from all of us on the
State
Board
that the key to success is not doing more
of
what
we ' ve
been doing and doing it louder. We need to d
o it
better
SENATOR OROPEZA: Yes.
CHAIRMAN STEINBERG: Very good. Thank
you
very
much .
SENATOR OROPEZA: I'd love to keep the
dia
logue
on that one .
CHAIRMAN STEINBERG: Let's ask for -- I
know
Senator Dutton, you're okay, and Senator Cedillo
is
out
of the
room at the moment .
Let's bring up the witnesses in support
, and ,
again,
if you want to introduce any members of y
our
family
Anybody else? Okay.
MS. CHAN: All the board members were h
ere
, but
they h
ad to go back because there was no quorum.
66
1 CHAIRMAN STEINBERG: I should have welcomed
2 them publicly. Let me welcome them in absentia.
3 Okay. Witnesses in support.
4 MR. JONES: Senators, Fred Jones on behalf of
5 the California Business Education Association. I'm here
6 to speak in support of Jim Aschwanden. I worked with
7 Jim for a number of years. You'll never find someone
8 with more integrity, and, truly, he has the interest of
9 students at heart. Thank you.
10 CHAIRMAN STEINBERG: Very good. Thank you very
11 much.
12 MR. MARTIN: Mr. Chair and Members, Rand Martin
13 on behalf of California Charter Schools Association in
14 support of Dr. Chan's confirmation back to the State
15 Board of Education.
16 Clearly what you've heard is that she has vast
17 experience. She has told us 1968 is when she started as
18 a teacher. She is clearly an innovator, a superb
19 innovator. All you have to do is look at the
20 programming in Los Angeles to know that. And she brings
21 a passion that she demonstrates so well in this room,
22 not only for all kids but especially for kids who are
23 economically disadvantaged. We urge her confirmation.
24 Thank you.
25 CHAIRMAN STEINBERG: Thank you.
67
MS. GRIFFITH: Sherry Griffith with the
Association of California School Administrators. We're
in support of both candidates today. We've had the
privilege of working with them for the last two years
on
the board, and I can say about Ms. Chan with 40 years
of
experience and on- the-ground administrative
understanding, our members really, really appreciate
her
openness and her ability to be very informed as a board
member. She's probably one of the most informed memb
ers
that they have. And we appreciate her passion. And
we
are hoping that she may close the achievement gap in
particular .
Mr. Aschwanden is passionate, he's independent,
he's committed to career-tech education, and he keeps
in
front of all the members the importance of diversity
and
support for students wherever they are. And the need
for readiness. So we support both.
• CHAIRMAN STEINBERG: Thank you very much.
MR. WALKER: Mr. Chair and members of the
committee, Chris Walker on behalf of three clients
today, the California Association of Sheetmetal Air
Conditioning Contractors, the California Automotive
Business Coalition, and the California Industrial and
Technology Education Association, all proud and pleased
to lend their support for the confirmation of Jim
68
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Aschwanden .
You've heard today his commitment to all kids
It is a surprise to some that the career- technical
educ
ation, student access to these programs, despite a
11
the
attention by the legislature and this governor, in
the
last eight years has actually gone down. There's
less
student access today than there was eight years
ago,
due to a variety of complex reasons. And we are
pleased to have Mr. Aschwanden on the State board and
to
help
navigate through the complexity of the reasons an
d
extended problems that we're facing in our system toda
y-
Than
k you .
CHAIRMAN STEINBERG: Thank you, Mr. Walker.
MR. HINES : Good afternoon. Greg Hines,
Cali
fornia Manufacturers and Technology Association.
I
don '
t think that I can say it much better, but echo th
e
appreciation and the urge to confirm Mr. Aschwanden.
His
leadership and experience on the front line of
education, in particular his passion for career-
tech
nical education, is something near and dear to our
heart, and we urge the confirmation. Thank you.
CHAIRMAN STEINBERG: Thank you.
MR. DIAZ: Mr. Chair and Members, Cesar Diaz
on
beha
If of the State Building and Construction Trades
Council also echoing my colleagues in support of
69
Jim Aschwanden's reappointment and confirmation to the
State Board of Education.
We have long had a partnership with high
schools and community colleges, and our industry ability
to have access to a highly skilled workforce depends on
a well-rounded education, which includes careers in
technical ed., and we strongly support him and
respectfully urge his confirmation.
CHAIRMAN STEINBERG: Any other witnesses? Any
witnesses in opposition to these nominees?
SENATOR DUTTON : Move approval.
CHAIRMAN STEINBERG: Moved by Senator Dutton.
Let me make a comment, if I might.
We ask hard questions, I hope, difficult
questions .
SENATOR OROPEZA: Well intended, not mean,
right? Well intended?
CHAIRMAN STEINBERG: They were all excellent
questions .
SENATOR OROPEZA: Nobody got upset by me.
CHAIRMAN STEINBERG: You know, it would be easy
for me to spend my time or make my decision or
conclusion on these nominees by reiterating my
frustrations over some specific actions, that the
algebra issue I think was a mistake, my view, not that
70
1 the intent wasn't the right intent; but as
2 Mr. Aschwanden said, you don't throw a bomb in the room
3 and hope it all works out. It has to be coupled with a
4 plan to actually achieve the goal.
5 I could base my vote on the fact that I'm
6 frustrated that thousands of special ed. kids really are
7 not being accounted for. I think you're doing fine on
8 219 and implementation. I know you set out a timeline
9 today a year ahead of time, and I appreciate that, and I
10 want to make sure that works aggressively. But the
11 bottom line for me, these are two outstanding people.
12 These are two outstanding professionals who have devoted
13 their lives to kids.
14 And, you know, you used the term "want" before,
15 Mr. Aschwanden. I know you weren't referring to us.
16 It's our right and our role and our
17 responsibility to second-guess, just as the public has
18 every right to second-guess decisions that we make, and
19 it's certainly our right to reject nominees if we feel
20 that they're out of the mainstream or if they've made
21 decisions that lack integrity or are otherwise not
22 performing their duties. That can't be said in any way
23 for either of the two of you.
24 So we urge you, as we move forward these
25 nominations, as I'm confident that we will, to see us
71
again as partners, to have an open mind and open door
not only to us but to members of the public . And I
think that was one of the criticisms of the algebra
decision. It just kind of happened without much public
dialogue, and that shouldn't happen again.
But you're outstanding people, and you
deserve -- you deserve confirmation and to continue in
your roles as public servants.
So do we have a motion?
SENATOR OROPEZA: Move appointment.
CHAIRMAN STEINBERG: Moved by Senator Dutton
already .
SENATOR OROPEZA: Of both.
CHAIRMAN STEINBERG: Of both nominees, correct.
Do we need to take them one at a time or can we
take them together? I'm just asking.
MS. SABELHAUS : Together.
CHAIRMAN STEINBERG: Together is fine. I'm new
to this job. Protocol.
All right. Please call the roll.
MS. BROWN: Senator Cedillo.
SENATOR CEDILLO: Aye.
MS. BROWN: Cedillo aye.
Dutton .
SENATOR DUTTON: Aye.
72
MS. BROWN: Dutton aye.
2 Oropeza.
3 SENATOR OROPEZA: Aye.
4 MS. BROWN: Oropeza aye.
5 Aanestad.
6 SENATOR AANESTAD: Aye.
7 MS. BROWN: Aanestad aye.
8 Steinberg.
9 CHAIRMAN STEINBERG: Aye.
10 MS. BROWN: Steinberg aye.
11 CHAIRMAN STEINBERG: Congratulations. Your
12 nomination will go to the Senate. It takes 27 votes, so
13 work the members, as they say.
14 Okay. Thank you very much.
15 MS. CHAN: Thank you.
16 MR. ASCHWANDEN: Thank you.
17 CHAIRMAN STEINBERG: All right. We have one
18 more item here before we go to the -- We have other
19 items of business, but one more nominee is appearing
20 before us today, and that is Candice Traeger, who is
21 seeking reappointment as a member of the Occupational
22 Safety and Health Appeals Board.
23 Ms. Traeger, welcome to you.
24 MS. TRAEGER: Thank you.
25 CHAIRMAN STEINBERG: Thank you for your public
73
service, and if you would like to make a brief opening
comment, I'd appreciate it.
MS. TRAEGER: Certainly. Senator Pro Tern and
Members of the Senate Rules Committee, it really is an
honor to be before you today and testifying and to get
the opportunity to represent myself.
I come before you today to ask for your vote
for confirmation on my appointment as a member of the
Occupational Safety and Health Appeals Board.
I've served as a member and a chairperson for
the board since November of 2004. The board serves a
vital mission of promoting and encouraging workplace
safety through a consistent application of statutes and
regulations while resolving appeals from the Division of
Occupational Safety and Health citations.
Prior to my state service, I think it's
important to know a little bit that I had a career of
25 years where I worked my way through law school as a
part-time employee at UPS and a full-time Teamster. For
the nine years I was a Teamster, I had an opportunity to
serve as a union steward, and I represented my brethren
in all respects, including health and safety issues.
I was a UPS loader, a UPS driver, a UPS center
manager, and went on as an industrial engineer. I had
an opportunity to supervise the drivers and had several
74
1 other assignments in New York and Washington, D . C . ; but
2 my background was really put to the test as chairperson
3 of the appeals board when I came, because we had a
4 backlog of about 4,000 appeals. We also had a federal
5 complaint against the state action plan, which is often
6 called a CASPA, and that threatens, of course, our
7 ability to continue on as a state plan.
8 The CASPA alleged that we were not resolving
9 appeals on a timely manner, and we were resolving in
10 about 24 months, about two years, on average. However,
11 the CASPA noted several cases that hadn't been resolved
12 for three to six years .
13 Through working with our people and
14 implementing many of their ideas, we are now in the
15 national average for our resolution rate, which the
16 national average is eight to ten, and we're resolving
17 appeals in nine months.
18 The good thing about that is that people are
19 still working at the same place. The DOSH inspector,
20 the people that gave the citations, are usually still
21 there, construction industries that are transient are
22 still in place, and we're actually able to get to the
23 citations and the appeals at such a time when people
24 actually get an opportunity to take the case to hearing/
25 should they desire to do so.
75
We have eliminated the backlog. We're down to
87 cases, which translates into about 197 appeals, and,
like I said, the wonderful thing about eliminating the
backlog has been the opportunity to really not only
maintain the quality and find that sweet spot between
quality and production, but we've had incredible
teamwork and professionalism at the same time.
Another thing that I'm really excited about,
should I be confirmed today, is that we've turned the
corner, and 2009 where we're not looking at a backlog,
we're actually able to embark on customer service. And
it's a goal of mine, having come from a business where
customer service is really important to us, to turn that
corner and look at our internal and our external
customers, which would be our people, through doing
surveys on their satisfaction, and also our external
people, which, you know, at first we may not hear what
we want to hear, but the nice thing about that is you
hear what you don't want to hear. And so you're able to
not only set a benchmark, but you're also able to move
forward in a positive direction. There's no place to go
but up .
We are holding our first ever advisory
committee in about three weeks, and we're excited about
that. The board has never done an advisory committee
76
1 before, and we'll take recommendations to refine the
2 pilot project, and we'll expedite abatement appeals.
3 And we're pretty excited about that notion, because it
4 obviously -- it may be a small percent, but you know
5 what? It's a very important percent of appeals that are
6 staid and abatement does not occur, and I know that and
7 know that well.
8 It is true to credit some people at the board,
9 that they believe so strongly in our mission of
10 promoting and encouraging workplace safety that they're
11 willing to work harder, more efficiently, but, most
12 important, more effectively than we have. The people
13 have achieved an amazing result and will continue to do
14 so, because we share a vision of a safer and a healthier
15 workplace for everybody in California.
16 It really is my sincere desire to lead the
17 appeals board into a new era where there is no backlog,
18 and we provide an increasing level of customer service
19 and satisfaction.
20 So I again ask for your vote for my
21 confirmation, and I really thank you for the opportunity
22 to testify before you today. And should you have any
23 questions?
24 CHAIRMAN STEINBERG: Thank you, Ms. Traeger.
25 Thank you very much. We've known each other for years,
77
and I know you to be a person -- a hard-working person
of integrity, and I appreciate your public service.
There are a few issues of concern that I want
to get ri
ght into, if we mi
ght
, and then the members
can, again, take it from th
ere
They're in the
following
categories . One
is
the way hearings are
conducted
before the board.
There have been some
concerns .
Secondly, there
is
the issue of the amount of
penalties
for non- farm-work
er
cases. And then there is
the concern which was written
about in the Sacramento
Bee less
than a month ago a
bout the fines relating to
the heat-
stroke cases . So
let
's go one by one here.
Apparently, one of
th
e things you have done,
which is
actually laudable,
is
that you have attempted
to reduce
the backlog, righ
t?
And that's a good thing,
right, because you don't want
litigants to have to wait
for a Ion
g time or forever
to
be able to have their
cases heard. But there is
some concern that maybe the
pendulum
has swung a little
too far in that multiple
cases are
set on the same d
ay,
continuances are not
necessari
ly adjudicated, or
you don't say whether- the
party can
have a continuance until the night before a
hearing ,
and that everythin
g is being -- and that the
purpose actually behind consol
idating all these hearings
at once,
leaving less time
for
hearings, is that you're
78
trying to settle as many cases as you can to reduce the
backlog.
3 One, is that the motive? And, two, how do you
4 respond to some critics who would say that folks are
5 being encouraged too strongly to not have their cases
6 heard and instead to settle?
7 MS. TRAEGER: Okay. I guess what I would first
8 point out is one of the things I did in the past was
9 industrial engineer, and industrial engineers are crazy
10 about numbers .
11 And so one of the things I did is I looked back
12 to the inception of the board and tracked numbers about
13 settlement rates . And party agreement or party
14 settlement I think is probably part of any adjudicatory
15 process, the decision whether to move forward or not,
16 whether there's adequate evidence, whether your
17 witnesses are present, and so on, when they can make
18 your case .
19 But we benchmarked -- The very first thing we
20 did is we wanted to see what other people were doing
21 relative to their hearings, and so we looked at other
22 agencies, other court processes and such, and we found
23 out that our holding of one hearing a day for the four
24 years previous to when I came produced -- with a
25 settlement rate of around 80 percent was producing, for
79
instance, ten judges with eight of them having nothing
to do because there were no hearings, and then two of
them being able to hold hearings.
So the number of the settlement rate at the
board prior to any hearing has always been anywhere from
about 73 percent to 85, and one year 90.
CHAIRMAN STEINBERG: The settlement rate has
not varied after you adopted the multiple hearings in
one day - -
MS. TRAEGER: We actually picked up about 4
percent. So the average prior was about -- all over the
years was 80 percent, and it's now 84.
CHAIRMAN STEINBERG: Have you heard the
complaint from advocates or representatives or litigants
themselves that they're feeling pressured into settle
because they have less time to be able to prepare and/or
to actually have their case heard?
MS. TRAEGER: I think the nature of moving --
keeping up with an ever increasing appeal rate and
addressing backlog certainly is that setting a hearing
for a case puts a certain kind of impetus on parties,
and one of those things is to review the file to prepare
for a prehearing. And, remember, they're preparing now
much sooner than they used to. It used to be two years.
They can wait one year or --
80
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SENATOR OROPEZA: They who? They who?
CHAIRMAN STEINBERG: The party.
MS. TRAEGER : I mean anybody.
It could be
OSHA or
SENATOR OROPEZA: That's what
I ' m wondering .
When you say "they," I'm just not sure
who - -
CHAIRMAN STEINBERG: You're sa
ying it's a
You ' re
saying it's a one-year wait now
to have your case
heard,
and it used to be a two-year wai
t . Is that what
you ' re
saying?
MS. TRAEGER: It's nine months
now for the
entire
case resolution. It used to be,
on average, two
years f
or that case resolution, and it
was one year
before
the prehearing came. So what would happen --
What we
believe happened is that people
tended -- those
cases g
ot a little bit stale, witnesses
disappeared,
people
were no longer with the same com
panies, and so. . .
CHAIRMAN STEINBERG: Okay. Yo
u know, because I
was an
administrative law judge for years and doing
personnel cases, I used to pride myself
on settling
cases at about the same kind of percentage rate; but
once in
a while I would have to catch m
yself and say,
You know what? I'm trying too hard to
settle this case.
I ■ m try
ing too hard, you know, because
this one, the
parties
actually ought to have the case
heard. It needs
81
to be heard. And my desire to sort of get the case off
the docket isn't as important as having their case
heard .
So I want to ask you to be sensitive to that.
Okay?
MS. TRAEGER: Absolutely.
CHAIRMAN STEINBERG: Second, fines. Concern --
I'll get my notes here just for a moment.
There's some concern expressed by advocates
that the board is actually, in some instances, issuing
penalties less than $1,000 for an employer's failure to
report workplace accidents to OSHA. The Labor Code
section states that the minimum mandatory penalty for
such violations is $5,000. What's the story?
MS. TRAEGER: The story is the board laid out a
precedential decision in 2006 on a case called Bill
Calloway , and that case -- our legislative -- our legal
staff, we don't have legislators, but our legal staff
looked into the various code sections that were specific
to the board, that were specific to the division, or,
you know, anyone else for that matter.
At any rate, we received recommendations from
our legal department. We followed those
recommendations. And part of the concern of the legal
department was that if you were to treat people that
82
1 didn't report at all the same as people that reported an
2 injury late, we believed there would be no motivation to
3 report once that time period, the eight hours, had
4 passed.
5 We did not want to drive people underground to
6 not reporting because they couldn't make it eight hours.
7 Rather, we wanted to create a system where people
8 believed that reporting was the thing to do, even if
9 they were late; and they were going to take their
10 punishment, but the punishment fit what they did.
11 CHAIRMAN STEINBERG: Okay. Trying to encourage
12 people to come forth voluntarily.
13 What about the heat cases which have gotten so
14 much publicity and, you know, tragic, tragic
15 circumstances. You've issued original penalties of
16 about a million dollars, or more than a million dollars,
17 and you end up settling the cases, according to the
18 Sacramento Bee, by two-thirds so that the fines ended up
19 being paid are $336,000.
20 How does that send a message to agricultural
21 employers or farm labor contractors that they need to
22 absolutely provide adequate shade and water for people
23 working in the fields?
24 MS. TRAEGER: We're very concerned about this
25 very serious problem. We went back and tracked how many
83
of these heat-illness cases had been appealed, and we
found that since 2006, 303 cases had been appealed.
During that -- Of those cases, the appeals
board held hearings on six cases. Those are six cases
where we looked at, you know, the decision and decided
whether to affirm, modify, or rescind. The rest were
all settled by party agreement.
CHAIRMAN STEINBERG: And the six, what did you
do with the proposed settlement?
MS. TRAEGER : I knew you were going to ask
that .
CHAIRMAN STEINBERG: Yes.
MS. TRAEGER: I don't have the exact numbers on
that. It kind of came up -- One of my last-minute
requests was: What did we do on those six?
I can tell you that the board -- between what
the parties usually agree on, which is about a
64 percent reduction over what the initial citation
says, the appeals board, through our hearing system,
reduces an average of 6 percent .
So oftentimes, because we look at an ALJ
decision does not mean that we are going to reduce a
fine. What we're going to do is see if the parties can
prove their case --
CHAIRMAN STEINBERG: But did you reduce a fine
84
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
in those six instances?
MS. TRAEGER : Oh, well, certainly where there
was
evidence presented that carried the b
urden of proof,
you
know, and - -
CHAIRMAN STEINBERG: But in all
six cases, was
the
fine reduced?
MS. TRAEGER: I'm
certain that i
t wasn ' t , just
because we don't do that in that kind of
manner. But I
can
certainly get you that
information on
those six
cases .
CHAIRMAN STEINBERG: Okay. Let'
s open it up to
the
members. Start on the
lef t . Senator
Cedillo .
SENATOR CEDILLO:
Yes. With all
due respect,
let
me suggest to you that
the directive
or counsel from
your staff or from your staff counsel sai
d that you did
not
impose the mandatory fee penalty of $5,000, which
is wholly inappropriate. It seems to me
that that
discretion is not afforded
you .
If you're looking
for discretion
, you may want
to 1
ook to notice. If you
want to distin
guish motive
for
those who make all good faith efforts
to comply, who
demonstrate reasonableness
and who constructively
comp
lied, you can do that within the framework of what
the
baseline is that the le
gislature set .
In other
word
is, we said the minimum
that you can -
- or the
85
minimum you must penalize somebody is $5,000. So it
appears the intent is to penalize others who are more
egregious and less responsible, less reasonable, you can
penalize them more. But it doesn't appear, at least
from the surface reading, that you have that discretion.
Now I know it puts you in a dilemma, but there
was a purpose for us passing that legislation, and it
was to motivate people to speak timely so that the union
could investigate timely. I mean, there's a whole
scheme of intent there. I don't mean to argue that. I
think what's important is to point out that, at least
for your counsel, that that's not discretion that you
have. If there's a minimum, there's a minimum, and it's
only a question of whether or not you make a decision
whether or not to conform. But once you determine they
haven't conformed or complied, it seems that you're
pretty limited by it.
So I just -- We don't need to argue or
disagree, but I think it says the mandatory minimum is
5,000. It doesn't seem to provide you with that type of
discretion .
Now if you think and say to us, "Look, we
cleared a backlog. We find it ineffective, and it
frustrates us, and it undermines it, it pushes it
underground, we need discretion," that's fair. That's
86
reasonable. We're happy to address that, and any one of
us on this dais might be willing to go forward and say,
"Yes, let's do that," given that we do have, today, a
functioning, effective code, and it was designed around
trying to deal with backlog.
But, clearly, I would suggest that it's not
something you independently have the right to do.
MS. TRAEGER : I appreciate the perspective.
We -- the board --
The Labor Code section that the attorney
believed that applied to the board was Labor Code
Section 3602 which says that "The board shall, " and then
"modify, affirm, rescind an ALJ decision." So that was
the one, I think, that they believed. And the other one
I believe was 6409.1 that said that "The division may
issue in every case not less than 5,000," our staff
believed to be somewhat ambiguous and definitely to
apply to the division, because it said by its own terms
a "division." And so maybe it is the kind of thing like
you suggested that should have --
SENATOR CEDILLO: Been revisited?
MS. TRAEGER: Yes. That was the thinking.
SENATOR CEDILLO: That's one. The second --
Let me just again suggest to you that -- and we hear
this from the courts. This is something that's very
87
important .
The hearings are, in a sense, the court for
workmen who are injured. To limit -- The notes tell me
there's intent to or there is an effort to limit the
hearing area to three areas versus 21 sites, and I would
encourage you not to do that. I think it undermines --
Just simply eliminating the venues undermines access
both for employers and employees, and to the extent
there's greater access means greater opportunity for
resolution .
So I know for everything there's cost
considerations, but clearly these are the forums for the
employers to seek resolution of this, and clearly we
must work to broaden access rather than restrict it,
within all the other considerations.
MS. TRAEGER: If I might mention, the board has
never held -- I think there's 21 locations in the state.
I think the most ALJs we've ever had is nine. We have
seven locations where we have hearings in the state now
and no intent of doing anything differently. We heard a
recommendation that was bandied about, and perhaps we
should do that .
The board actually has some experience, believe
it or not. They did that about ten years ago, and I
think there was quite a maelstrom then at that time, so
88
we have no intention. And I think sometimes when you
have an information void, people fill it with -- I don't
know what they fill it with -- information, maybe
speculation .
But I just would assure everyone we have no
intention of reducing our hearing sites. In fact, in
the year of customer service, I may -- and without a
backlog, we'll be able to do a lot more things than
we've ever been able to do, and part of that is we'll
get the input through the advisory committee that's
going to tell us what it is that people want and what
would work best, and we can make a decision.
CHAIRMAN STEINBERG: Senator Cedillo?
SENATOR CEDILLO: It was a point that you
raised with respect to fines and the reduction of fines,
and what signal that sends. I understand the agency --
and none of us on this dais are anti -business . We all
want to figure out how to stimulate our economy.
Clearly, this agency has to be seen first and
foremost as an agency for working men and women in the
state, and I would urge you to rethink both the message
sent to the workers, working men and women in the state,
and specifically as it relates to the farm workers who
do the most difficult work, the composition --
demographic composition of farm workers and the message
89
it sends to them as workers and then to dealers in this
state when we have conditions that result in people
dying on the job, and the reduction of penalties.
To say -- I would not want to get behind
somebody's findings on a case that's not before me to
evaluate at all, but patently it appears it's just
egregious that someone would suggest somehow $250 is
sufficient to penalize someone as a result of when
someone dies at the workplace. It's patently, on its
face, abhorrent, and in this context it sends a bad
message with respect to California and race relations
and human relations in California.
MS. TRAEGER: I certainly agree with that.
CHAIRMAN STEINBERG: Thank you.
Senator Aanestad.
SENATOR AANESTAD: Nothing.
CHAIRMAN STEINBERG: Nothing.
Senator Dutton.
SENATOR DUTTON: Just real quick. I appreciate
the council. My colleagues and I would agree,
obviously, we want to make sure it's a fair and
above-board process. However, I do want to compliment
you, because you're one of the very few state agencies
and boards that have actually figured out a way to
become more efficient and eliminate backlog, because I
90
1 think one of the bigger problems is having backlog is
2 actually more costly. So you figured out a way to do
3 it. It sounds like you have the support of the people
4 within your department and all the employees, so I want
5 to compliment you on that kind of leadership and thank
6 you for your service.
7 MS. TRAEGER: Thank you, Senator. It's not
8 without pain, and I do understand that.
9 CHAIRMAN STEINBERG: For your workers, for your
10 employees .
11 MS. TRAEGER: Correct. Backlog in and of
12 itself is pain, but getting rid of it is probably worse
13 pain.
14 CHAIRMAN STEINBERG: I think it is impressive,
15 and I believe you that you've gone from two years -- I'm
16 sorry. Did I --
17 MS. TRAEGER: Four. It took us four years. I
18 thought it would take two. I --
19 CHAIRMAN STEINBERG: No, no, no, no. The
20 amount of time to have a case heard from --
21 MS. TRAEGER: Oh, yeah. Twenty-four months to
22 nine .
23 CHAIRMAN STEINBERG: Twenty-four months to nine
24 months. That's impressive.
25 Okay. Senator Oropeza.
91
SENATOR OROPEZA: My concerns have been -- all
but one have been raised by Senators Cedillo and
Steinberg .
I
would like
to note that the labor
position on
this board
has not been filled for sometime,
so I ' d like
you to share what you
have done to communicate with and
to seek the
viewpoints
of organized labor, or
the
workers , as
you do your job as a board member
MS
. TRAEGER:
Absolutely. I persona
lly like
that question, because
clearly the labor pers
pective is
a very valu
able perspective, and everybody is
served
well by discussion.
We
do the best with what we have. At this
point, what
we have done -- and if I could mention a
case, the k
ind of thin
g we would do. There was a Kinder
Morgan case
It was a
large case with quite
a bit of
money, where there was
a stipulation proposed
before the
board that
that stipulation would create a U,
an
unclassif ie
d violation
, rather than a willful
or a P ,
which even
though the
full amount of the fine
would be
paid, the U
would not
go against their record
as would a
willful or
a P. That
was a stipulation that
rfas
proposed to
us and adv
ocated by both DOSH and
an
employer .
It is done
at a federal level.
So
we did two
things when we were trying to
92
decide what we were going to do with that. First, we
reached out to the Labor Federation, and then we reached
out to the laborers themselves. We wrote letters and
asked them what they thought and engaged them, because
we didn't know where -- what they would like us to do.
Unfortunately, our lawyers said they had reached out to
them a few times, and they declined to give us their
thoughts on that.
However, what we had our attorneys do is
research it at a federal level, and what we found there
through our research was that labor was not real happy
with it at the federal level. Although it did occur
there, the board ultimately rejected the stipulation and
felt that the -- if there was a desire to have a
U classification in California, that they should
probably make a regulation that said U.
So -- We haven't seen that back yet. I don't
know what's going to happen. But certainly in
cases where -- I mean, you could say every case, but
there's certainly some cases that just call out for
reaching out to people and saying "Help."
SENATOR OROPEZA: Sure, sure, and hopefully
you'll have company from the labor community on the
board sometime soon. I think that would be the best
solution .
93
CHAIRMAN STEINBERG: Thank you very much.
Let's hear from witnesses in support of the nominee.
JUDGE MELGOZA: Good afternoon. My name is
Manuel Melgoza, M-e- 1-g-o- z -a . I'm the presiding
administrative law judge for the Cal OSHA Appeals Board.
CHAIRMAN STEINBERG: Welcome, Judge.
JUDGE MELGOZA: And I'd just like to tell you a
little bit about my background.
I grew up as -- in Southern California -- in
San Joaquin County as a farm laborer, a son of farm
laborers, and I went to law school, came back. I worked
for CRLA for a time. I worked for the Agricultural
Labor Relations Board, the Public Employee Relations
Board, and here at the Cal OSHA Appeals Board since
1990. So I've seen a lot of boards, and I've worked as
an attorney for different boards.
One of the frustrating things for me working as
an attorney for the Agricultural Labor Relations Board
was winning a case for farm workers where you had a lot
of money to get picked up, getting the money to
distribute to the workers and not finding them. They're
gone because of lapse of time. Couldn't find workers to
give them their back pay or their makeup pay. And even
though we collected and we won, it was an empty victory,
because by the time we got a resolution, it was
94
irrelevant to them.
Well, that was -- That situation was
3 threatening to become a reality at the appeals board,
4 and it frustrated me, working at the -- not this appeals
5 board -- but once Candice Traeger became the board
6 chair, that was one of our first items to tackle, which
7 is "Justice delayed is justice denied," which I agreed
8 with.
9 So we started to tackle this issue. Why is it
10 that we have this huge backlog, yet we have an ALJ
11 sitting there with no work to do? I happened to mentor
12 a new ALJ at one point about four years ago, and every
13 time I tried to mentor the ALJ, the hearing would come
14 off calendar. Why? Because it was set for three days,
15 four days, and then it would come off calendar at the
16 last minute. So we had a huge backlog, and we had ALJs
17 doing nothing. That was unacceptable. When you have a
18 backlog and you have no work to do, that's just wrong,
19 So we looked for other different ways to try to
20 deal with it. We started calendaring all our hearings
21 to see what number would be reasonable. We're down to
22 three hearings a day on average. Two short ones, one
23 long one, and we feel that so far has worked for us and
24 has helped us to come to the point where we are.
25 We looked at other agencies to see what they
95
were doing, and they had multiple hearings as well.
Given our settlement rate, that seems reasonable.
However, now that we're done with the backlog almost, we
can do these other things. We can give the parties
extra settlement conferences or -- We've been able to
now tackle the cases. It's because of the clearing of
the backlog that's allowed us to take cases that are now
relevant and adjudicate those.
CHAIRMAN STEINBERG: Thank you very much. I
went into the hearing -- Well, we'll hear from the other
witnesses too about their view of the backlog.
You know, having done this sort of work before,
it is important, sort of efficiency- wise , that we sort
of stack the cases during the course of the day, because
I remember being an ALJ too and having the same
experience, no cases sometimes. It's frustrating,
because they weren't stacked densely enough.
Okay. Let's -- Thank you, sir. Thank you,
Judge. Appreciate it.
Next .
MR. DIEDE: Mr. Chairman, members of the
committee, I'm Brad Diede with Cal PASC, California
Professional Association of Specialty Contractors. We
represent nearly 500 member companies across the
state of California, and we just want to briefly express
96
1 our support for Candice Traeger.
2 We believe that it's important that Cal OSHA
3 operate the appeals board efficiently, timely, and
4 fairly, and we think that she's been doing that, and we
5 appreciate her continued position.
6 CHAIRMAN STEINBERG: Thank you very much, sir.
7 Other witnesses? Go ahead.
8 MS. CHRISTIAN: Hi, my name is Mary Christian.
9 Thank you for the honor to speak to you members . I have
10 been working -- I'm a working partner at the board.
11 We're team members with Candice. Candice is a working
12 member. She is a great leader. Positive. And she also
13 works with other department heads in the collection area
14 that I believe you need to know.
15 Collection is one of the more difficult things
16 that the department has to do once the board
17 adjudicates, so I just want you to know and to be in
18 support of Candice.
19 CHAIRMAN STEINBERG: Thank you.
20 Are there any witnesses in opposition or with
21 concerns? We'll take those categories together, and you
22 can identify which one.
23 MR. SMITH: Thank you, Mr. Chair, members of
24 the committee. I'm Jeremy Smith here on behalf of
25 California Labor Federation.
97
We are officially neutral. I want to come up
first and now at this point so I can get a couple things
on the record.
First of all, I'd like to publicly thank
Candice for spending two hours with us on Monday,
myself, Angie, that's our DS from the State Building and
Construction Trades Council, and Lee Sandol from the
Longshore Warehouse Workers Union. She was very
attentive. We had a very good meeting. She was
checking her Blackberry quite a bit because Nettie was
supposed to be calling her, which we understand. That's
fine. We had a good discussion. It got heated a couple
times, but generally good. So thank you for that time,
two hours of her time, which we thought was well spent.
We have, though, some concerns, and I will be
very brief, I promise, because many of them have been
covered already.
Senator Cedillo raised the $5,000 fine issue,
and he is completely correct. And we wholly agree that
if there is an issue with a $5,000 fine, the remedy for
that is not to create a legal opinion, but to come back
to the legislature and figure out a way to make it work
better .
It is important to remember from our standpoint
that there are -- First of all, there are many, many
98
good employers in this state, but there are many bad
employers who don't treat their workers very well. And
we must have penalties that are more than slaps on the
wrists for those employers who find themselves in
trouble for keeping an unsafe workplace.
We believe when employers know that they're
going to get penalized for something but that it will
get whittled down to pennies on the dollar, they are
less inclined to be fearful of Cal OSHA or the appeals
board process, and it's that fear that keeps workplaces,
we believe, safe.
Again, not all employers are bad. We
understand that, and we believe that.
Secondly --
CHAIRMAN STEINBERG: All those in favor of that
propos it ion?
MR. SMITH: Secondly, the scheduling of several
cases in one day. Now, we understand there was a
backlog, and we're glad the backlog is taken care of,
because obviously that's not good for workers either.
The docket needs to be clear. But we are concerned that
scheduling several cases in one day leads the DOSH --
the Cal OSHA attorney's prosecutors to settle, right,
to get to the point. That's what you want me to do,
Senator, get to the point.
99
CHAIRMAN STEINBERG: Exactly.
MR. SMITH: They want to get to the end of the
case. Again, settling cases is a slap on the wrist --
for pennies on the dollar is a slap on the wrist for
employers. They need to be held accountable by
penalties for what they have done.
Senator Steinberg, you passed AB 1127 to raise
penalties. You understand that. You did this.
The continuances. It's important to know that
this is something that employers and DOSH staff, Cal
OSHA staff -- Sometimes there are legitimate reasons for
continuances. I'm sorry. I know of one in particular
where a legal counsel for an employer needed to sit for
the bar, and the continuance was not given to the
employer's legal counsel. Now I'm here for the
employees. This is an employer problem, and I've heard
from employer -- employment -- employer representatives
that this is a concern.
CHAIRMAN STEINBERG: The bar is given every six
months . What ' s the problem?
MR. SMITH: That's true.
I will make a couple more quick points. When
you have this culture of settlement, it's going to lower
the average of case time. You mentioned you were
impressed with two years to nine months . When cases get
100
settled in a month or two months, it's going to lower
the average pretty fast.
And I want to let Ms. Oropeza know that in the
Kinder Morgan situation that was discussed before I came
up here, we did reach out to the appeals board. It was
a laborers' worker who was involved, and we decided to
let the laborers handle this on their own. They got the
letter, we got the letter. We spoke to Jose Me j ia from
the laborers. He said, "We will take care of it on our
end." So we did reach out to the board on that.
I will just end with this. Now that the
backlog is complete, almost complete, we hope that the
way of doing business at the appeals board will get
better, in our opinion, in terms of scheduling more and
more hearings, in terms of urging settlements.
We understand the need to get through a
backlog, but moving forward, there is no backlog. We
feel justice is better served when cases are allowed to
be heard in a manner that is good for all members who
have business before the appeals board. So with that,
I'll finish.
CHAIRMAN STEINBERG: Great. Very good
testimony. Thank you.
Next. Come on up, please.
MS. MURPHY: Good afternoon, committee members
101
and Senator Pro Tern.
CHAIRMAN STEINBERG: Speak into the mic .
MS. MURPHY: My name is Suzanne Murphy. I'm
the executive director and attorney for Worksafe, which
is a nonprofit organization based in Oakland. I know
you're familiar, maybe some of the other members are
not .
We -- One of our largest projects is to support
a coalition of activists from labor and environmental,
legal services programs, OSHA and health professionals,
workers, vendors, and other groups that provide services
to and advocate for strong and effective OSH laws and
effective remedies for workers who are injured on the
job. We have a special focus on workers, the most
vulnerable, low-wage immigrant workers, many of whom are
not represented by unions.
I'm here today to speak in opposition to the
appointment of Ms. Traeger to a second four-year term as
chair of the OSHA Appeals Board. Worksafe believes the
committee should send the nomination back, because under
Ms. Traeger 's leadership, the appeals board has adopted
policies and has issued substantive rulings that have
significantly undermined worker health and safety.
They've ignored court rulings. They've unilaterally
revised laws passed by the legislature, and in our
102
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experience have nearly decimated the morale of the many-
dedicated employees in the Division of Occupational
Safety
and Health, or DOSH, whose efforts to vigorously
afford
to California health and safety laws which are,
we believe, quite rightly among the strongest in the
nation,
have been thwarted on numerous occasions .
Many of the concerns I had planned to raise
today h
ave already been raised by the members of the
committee and other witnesses, so I won't dwell on any
of them
I will try to move through them as quickly as
possibl
e .
We definitely at Worksafe share the concerns of
the oth
er witnesses and committee members about the
imbalance on the OSHA Appeals Board over the last
two-plus years with only a management representative and
a public representative, but with no voice for the
17 mill
ion workers in California that the OSHA laws are
intende
d to protect. We are really gratified to hear
the committee is predicting that the seat will be filled
soon .
SENATOR OROPEZA: Hoping, anyway.
THE WITNESS: We're hopeful as well.
We are also very deeply troubled by some of
what we
see as the docket clearing practices and tactics
that have been adopted by Ms . Traeger during her tenure
103
on the first term to clean up the large backlog of
appeals that have accumulated following enactment of
AB 112 7.
That bill was passed and -- by the legislature
and signed by the governor specifically to raise
penalties and to implement a number of other measures
that were designed to improve and strengthen worker
health and safety protections. What we see, however,
and we believe Ms. Traeger's policies have done this, is
that the hearing policies that have already been
discussed pretty thoroughly have effectively forced the
DOSH inspectors, attorneys, district managers, and the
rest of the DOSH staff, to abandon numerous meritorious
cases, or settle employers' cases at a deep discount in
order to conserve their limited resources to go to
hearing only on the most pressing cases.
CHAIRMAN STEINBERG: Is that their fault? The
resource question.
MS. MURPHY: Well, that's -- We would certainly
love to see you all give Cal OSHA a lot more resources
to have more inspectors. They have one inspector for
every 93,000 employees in California at this point in
time, and their workload is crushing.
I don't hear any of them actually complaining
about workload. What they complain about is their
104
] ability to do a competent job and to be effective in
their mission of protecting worker health and safety.
3 So, yes, I understand the resource limitations,
4 but it is their experience that the policies that have
5 been implemented to overbook hearings, to deny
6 continuances, to eliminate local hearing sites, have
7 just basically put them in an untenable position of not
8 being able to do their job and to act in a professional
9 manner.
10 I would also add that from what we have heard
11 and understand, even though the backlog is now
12 ostensibly fixed and cleared, the policy of overbooking
13 hearings and granting -- denying continuances are still
14 continuing as recently as this week.
15 CHAIRMAN STEINBERG: In her closing, I'm going
16 to ask Ms. Traeger to respond to that, because it's come
17 up now a couple times.
18 If the backlog is now cleared, what is the
19 policy going forward in terms of the consolidation of
20 cases and the requests for continuances? That's a very
21 fair question.
22 Let's move to the next witness.
23 Thank you. Were you done?
24 MS. MURPHY: I have a couple more things.
25 THE REPORTER: Please slow down.
105
MS. MURPHY: Worksafe is also deeply concerned
.about a number of key substantive positions that have
been issued by the board during Ms. Traeger's first
term .
SENATOR OROPEZA: You're talking faster.
CHAIRMAN STEINBERG: It's really a fine
balance. We want to make sure we don't talk too fast.
On the other hand, we need to move these hearings along
here too. Just like the backlog. Go ahead.
MS. MURPHY: In several key cases, there's a
list of substantive decisions from the board. We
believe that the board, under Ms. Traeger, has
significantly undermined the important health and safety
protections embodied in the statutes, regulations, and
prior decisions.
In many of these cases, the board actually
reached out proactively to take up cases from the
ALJ decisions, not at the urging of a site of an
employer or DOSH, but only, it appears, to affect
changes in what was previously settled law and more
protected law. One example is the case -- the Calloway
case, which has already been discussed about the $5,000
fine for failure to report serious injury.
But Worksafe has had very difficult and
firsthand experience with another case in which the
106
I Traeger board set out on its own motion to weaken health
and safety protections. In that instance, these
3 protections were required by federal law for workers
4 employed on multi-employer work sites, generally in the
5 construction industry.
6 In early 2007, Ms. Traeger issued a decision
7 after reconsideration in the Harris construction case
8 that constitutes a dramatic about-face from the board's
9 prior liberal interpretation of the controlling employer
10 liability provisions. There were individually adopted
11 mult i - employer regulations and then later codified in AB
12 1127 by the legislature.
13 What we believe is the board's efforts to
14 narrow these important health and safety laws not only
15 flies in the face of a 1975 California Supreme Court
16 decision that directs the board to interpret health and
17 safety laws liberally and give them broad application,
18 but it also, that DAR in the Harris construction case,
19 specifically defied the ruling of the Court of Appeal
20 in the 3rd District here in Sacramento, who had rejected
21 effectively the same rule just months earlier. So
22 that's a real serious concern.
23 CHAIRMAN STEINBERG: If you could sum up, I
24 would appreciate it.
25 MS. MURPHY: Okay.
107
CHAIRMAN STEINBERG: We get the import that you
believe that the board is not following the spirit, if
not the letter, of 1127 and some other Court of Appeal
precedents that are more protective of working people.
MS. MURPHY: I can move, then, to my last
point, which is to comment on Ms. Traeger's
pronouncement that this is going to be the year of
customer service in the OSHA Appeals Board.
While I greatly appreciate the stakeholder
process that has been instituted, not yet activated, but
announced for the coming months, I just have to note
ironically that -- The first federal OSHA director
appointed by George Bush, John Hinshaw, had startled
career officials in the federal OSHA agency by telling
them the need for -- that the employers are the real
customers of OSHA, not the nation's workers. And one
career staffer was quoted as saying --
CHAIRMAN STEINBERG: What does that have to do
with Ms . Traeger?
MS. MURPHY: It has to do with the year of
customer service.
CHAIRMAN STEINBERG: That --
MS. MURPHY: Let me try to get to the point on
that .
CHAIRMAN STEINBERG: Please.
108
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MS. MURPHY: What this career staffer said was
everybody was pretty amazed, because they believed their
purpose was
to ensure worker health and safety, not to
preserve the
interest of employers.
We
respectfully submit that this federal
Cal
OSHA staffer had it exactly right, and that some of
the
policies
and practices and decisions of the board in
recent years
suggest strongly to us that Ms. Traeger and
the
current
board have it backwards, like Mr. Hinshaw
did,
that in
our view the committee should reject
Ms .
Traeger '
s nomination to another four-year term; or,
at a
minimum
, we want to impress upon Ms. Traeger that
we fc
elieve the most important customers are the 17
mill
ion work
ers employed in California who have clearly
the
right to
a safe and healthy workplace --
CHAIRMAN STEINBERG: That's it. Thank you.
MS .
MURPHY: -- and the right to effective
enforcement
of health and safety laws.
CHAIRMAN STEINBERG: Thank you. I believe we
have
a quest
ion from Senator Aanestad.
SENATOR AANESTAD: I'm a little surprised here.
I ■ m
looking
at today's dated memo 7, Rules Committee
staff, which
says we received no oppositions to this
appointment .
Yet I have just heard 15 minutes of
alle
gations
of Cal OSHA employee dissatisfaction and
109
worker health and safety violations or endangerment by
this nomination.
I guess my question is: Being new to this
committee, this is pretty significant opposition. Why
was I not able to prepare? Maybe I would have liked to
have known -- If there was going to be opposition, I
would like to talk to some of the employees myself
regarding the alleged dissatisfaction, or workers, where
their health and safety has been of concern. But
instead, I came into this meeting saying or reading that
there was no opposition to this.
Why am I surprised? Why are you here at this
late notice without letting us know?
MS. MURPHY: Well, I was not contacted myself
by committee staff, but I understood that many of the
concerns I am raising today had already been transmitted
to the staff .
SENATOR AANESTAD: There was no letter of
opposition from you?
MS. MURPHY: No.
SENATOR AANESTAD: Thank you.
CHAIRMAN STEINBERG: Thank you very much,
Ms . Murphy .
You know, as the author of 1127, your points
are very well taken. I don't know that I agree or
110
1 disagree, because there's, obviously, a difference in
2 terms of what various experiences have been before the
3 Traeger board. But, you know, your testimony was, I
4 think, very, very important in terms of --
5 I know Worksafe and I know Fran Schrieber. I
6 know the work you do, and we take your testimony very
7 seriously.
8 THE WITNESS: And I apologize for not having
9 submitted a letter in advance. I didn't understand that
10 was a prerequisite. It's my first hearing.
11 CHAIRMAN STEINBERG: Now you do. You did a
12 good job. Thank you.
13 MS. GUZMAN: Good afternoon. I'm
14 Martha Guzman. I'm with California Real Legal
15 Assistance Foundation, and, you know, one of the
16 approaches, really, that can be taken now and in the
17 future that we wished would have been taken in the past
18 is, actually, the appeals board act as an enforcer with
19 restricted amount of use in terms of upholding the
20 penalties .
21 When you have employers viewing the appeals
22 board as a body to go to to eliminate fines, guess what?
23 You're going to get a lot of employers appealing the
24 decisions from DOSH . It's that simple. So if you want
25 to actually do something about backlog, you actually
111
have to uphold the penalties. And, in fact, if you want
to use your discretion, like other agencies do, you can
actually increase those penalties.
I paid more last week for a speeding ticket
going 45 miles in a 35-mile zone than an employer did in
a fatality case. How is that acceptable?
CHAIRMAN STEINBERG: Which case is that?
THE WITNESS: This is the 2007 death down in
Kern County.
CHAIRMAN STEINBERG: Ms. Traeger, can you
respond to that in closing.
MS. GUZMAN: Let me say in anticipating some of
the response, because she was concentrating on the six
decisions that came to the actual board and not all of
the decisions that ALJs have settled and all of the
other decisions that have actually been, in this
culture -- I'm not going to say forced, because they're
not really forcing the settlements, but encouraged in
the culture, not in writing or anything else, but this
is what we're seeing, is that the ALJs are dealing with
more of these settlements. Clearly, it's not going to
go all to the board.
These cases -- I think Senator Cedillo was
bringing this up with the mandatory minimum penalty
thing. As a board you really do have influence over the
112
1 ALJs . You can tell them how to, in fact, interpret the
2 law and how you want the law interpreted. And if you're
3 condoning the ALJs to dismiss, practically, these
4 penalties which DOSH -- I mean, in that case it wasn't
5 even that harsh of a penalty. It was like $13,000 or
6 something .
7 So we ' re not even talking about reducing
8 penalties that are, perhaps, in one of the other, what
9 DOSH says frequently in looking at the economic hardship
10 to, quote, unquote, small employers, and they already
11 slashed the fines significantly. We're talking about a
12 second process here.
13 And I do want to back up a little bit saying
14 the nomenclature of this client is, in fact, talking
15 about the employer. This is a nomenclature that is
16 referring to the employer. If we're talking about DOSH
17 and those cases, the employer is going from the level of
18 DOSH's penalties, and they are viewing the appeals board
19 as their board to get them their penalties reduced. And
20 right now, through this chairmanship, that is, in fact,
21 how the chairmanship is doing it.
22 CHAIRMAN STEINBERG: What is your position?
23 MS. GUZMAN: I recognize this committee is
24 under a tight time constraint, and I recognize that the
25 chairwoman is actually filling her slot very well in
113
representing the management position, but we have no
balance on that board.
CHAIRMAN STEINBERG:
Might I interrupt you,
j ust
because i
t might be the
appropriate time for me to
make
an announcement, which
is that in anticipation of
this
hearing ,
the Pro Tern ' s
Office has been pressing the
governor very
hard to actual
ly fill that slot. Senator
Orop
=za raised
the issue in
her questioning.
And I
now have the
commitment that the governor
will
, in fact,
fill the labor slot, quote, "very soon."
So I
1 m trying
to get some de
finition as to what "very
soon
' is. So
I expect very
soon .
So on
the part of y
our advocacy and the
advocacy of th
e other witnesses here who have expressed
concerns, not
so much about
Ms. Traeger personally, but
about the operation of the b
oard and the glaring
omission, the
fact that for
such a long time the labor
slot
has not b
een filled, because of your advocacy we
have
been able
to receive a
commitment that that slot
will
be filled
expeditiously
So good work .
MS. GUZMAN: Mr. President, with all due
respect to the
governor, and
I'm sure you trust his word
better than I
do, but I would request, perhaps, you not
confirm her on
the Senate fl
oor until you have that
confirmation in place. That
's just a humble request.
114
CHAIRMAN STEINBERG: Thank you for your
suggestion. Anything else?
3 MS. GUZMAN: No. Thank you very much.
4 CHAIRMAN STEINBERG: All right. Appreciate it.
5 Is there a motion on the nomination?
6 SENATOR DUTTON : Moved.
7 CHAIRMAN STEINBERG: Moved by Senator Dutton.
8 Let me make a couple comments here.
9 Well, I want Ms. Traeger to have an opportunity
10 to respond to a couple things .
11 Go ahead.
12 MS. TRAEGER: I'm kind of excited by the
13 opportunity to respond. I'm going to ask -- If you
14 don't mind, I did bring one chart. It's on penalty
15 reduction. And because this has been, I think, such a
16 misunderstanding, that people believe that the appeals
17 board drastically reduces fines, I think it's time that
18 we show people.
19 And what I did was we actually have to hand-
20 collect material. Our system doesn't do it very well.
21 So what I did was -- although I think this says 2002,
22 2007, and 2007, it's actually 2007 and 2008.
23 What it shows you -- I went back to 2002,
24 because, of course, I wanted to see what was happening
25 then versus what's happening now, and the blue on this
115
chart -- the dark blue on the chart shows the original
citation amount. If you look at 2002 first, you see
it's a little bit over six. It's 6.4 million, it looks
like. That was the original citation amount.
The next number is what DOSH proposed that that
amount be reduced to. When I say that, I'm talking
about stipulations, which is obviously where the parties
write up their agreement themselves. The other one is a
party agreement via an order. They talked to a judge,
usually at a prehearing, but they asked the judge to
then embody their agreement via an order, which the
board does take the party agreement to be an order.
It's often easier for the parties than writing a
stipulation for the board to issue an order, and it has
the additional scrutiny of an AL J .
So the party agreement is the majority of the
way, and in this case you see where that penalty has
been reduced. DOSH ' s average reduction is about
64 percent, and that's what I'm talking about, the
stipulation and the orders. A lot of people mistake
that for the appeals board and think that the appeals
board has reduced where the parties have actually
agreed, and the parties again being DOSH and the
employers .
So if you look over these years, the next year
116
was 2006. I got my numbers all messed up there, but
2006 you see about 14 million that was in the original
citation amount, and then you see what DOSH proposed was
about 4.2 million, and then what the board assessed,
which was about -- it looks like 4.1.
So the board, via a hearing where we actually
issue a decision, does reduce it sometimes, and that
average is about 6 percent reduction off of what DOSH
suggested .
CHAIRMAN STEINBERG: That's a good argument,
but I think it misses the point by the advocates, which
is that the culture is such that -- the culture is such
that from the beginning of the citation period to the
time the case is settled, that there is sort of a
red light there that -- you know, "Settle the case,
settle the case, " and therefore you're seeing a more .
precipitous drop from the original citation amount, even
what DOSH does. So it's not just DOSH and the appeals
board. It's from the beginning where an investigator
says, "This is serious. There ought to be a citation
this large." The allegation is that because there's
sort of a warning, this fine is going to get damped
down. One way or another, eventually you're saying that
they drop. That's the way I'm taking it.
Go ahead.
117
MS. TRAEGER: You know, I can't really speak to
the parties and why they make that agreement. I think
board efficacy is probably one of those reasons, but I
think there are many other reasons in terms of proving a
case and so on.
At any rate, I am concerned about it. But I
did mention the settlement rate has always been high at
the board. When I say "the board, " historically with
DOSH, its settlement is about 75 to 80 percent before I
came, and now it's averaging around 84. So, yes, we
have increased by 4 percent the number of settlements,
but I think a lot of that has to do with moving cases
forward more quickly, looking at the cases, assessing
and evaluating the cases for both DOSH and the employer,
and deciding if they want to proceed to court.
At any rate, the board usually resolves about
5 percent of all cases via hearing, so there's not that
many that go to hearing, although we are having more
hearings than we ever had. That number has increased
from 49 in 2004, the first year I was here, to about
160 now. So we do more hearings. We like hearings, we
embrace hearings, but yet we lose judges when we don't
have hearings. We like hearings.
CHAIRMAN STEINBERG: Who is your customer?
MS. TRAEGER: Everybody.
118
When I talk to customers, I mentioned internal,
which is the people at the board, but the external
customer is DOSH, the employer that's before us, the
employee, in the event that they decide to either
file -- somebody files on their behalf an amicus brief,
or it becomes involved as a third party.
So I think the customer world externally is
anybody that is before the appeals board. And they're
all included, by the way, in our advisory committee.
CHAIRMAN STEINBERG: Okay. Thank you very
much, Ms. Traeger. Thank you to the witnesses for a
very thorough discussion.
I'm going to support the nomination, as a hard-
working public servant who is doing a good job. I do
hope that you take into account a lot of what you heard
today and some of the concerns, if not complaints.
Again, I reflect on my own experience here as
an ALJ who worked for an administrative agency
comparable to yours, that there sometimes can be a
little bit of a competition between efficiency and
justice. Not always, and not always even by intent.
And there ' s a concern raised here today that the
pendulum may have swung too far in your zeal,
appropriate zeal, to be efficient and reduce the
backlog .
119
So as you're moving forward, especially if the
backlog is reduced, if you can please consider the
impact of what seem like small policy decisions, like
the policy on continuances, the policy on scheduling,
the amount of -- the way even ALJs approach settlement
discussions at times, because that often can influence.
And I do want our labor committee here in the
Senate to do some oversight around this issue of fines.
I think -- And specifically to look at the precedential
decision where you interpret the $5,000 limit to allow
you to go to 1,000, because that may be appropriate for
legislation .
And, again, I want to announce that as a result
of the advocacy we heard today, the governor has made
the commitment to make sure that the labor slot is
filled as well .
Ms. Traeger, you're an excellent public
servant, and you obviously work very, very hard, and I'm
going to support the nomination.
Is there a motion? It looks like Senator
Dutton. Please call the roll.
MS. BROWN: Senator Cedillo.
SENATOR CEDILLO: Aye.
MS. BROWN: Cedillo aye.
Dutton .
120
SENATOR DUTTON: Aye.
MS. BROWN: Dutton aye.
Oropeza .
SENATOR OROPEZA: Aye.
MS. BROWN: Oropeza aye.
Aanestad .
SENATOR AANESTAD: Aye.
MS. BROWN: Aanestad aye.
Steinberg .
CHAIRMAN STEINBERG: Aye.
MS. BROWN: Steinberg aye.
CHAIRMAN STEINBERG: Thank you very much.
MS. TRAEGER: Can you indulge me one second?
CHAIRMAN STEINBERG: The family. I apologize.
MS. TRAEGER: It's okay. My family on the
natural, which is -- My father is sick and wasn't able
to attend anyway, but I have a family -- many families.
The family of friends that are here, I would like if you
could stand up for a second.
Sandy Garth, very good friend of mine.
Donna Ponicker, also a very good friend of mine.
And then my work family, who many of them came
here today, and some I didn't know were coming. The
executive officer of the board, Michael Wibberly.
CHAIRMAN STEINBERG: Welcome. Thank you.
121
MS. TRAEGER: Our presiding judge who
testified, Manuel Melgoza.
CHAIRMAN STEINBERG: Thank you very much,
Judge .
MS. TRAEGER: Teresa " McKeever , one of our
supervisors. Phyllis Eldridge, who is new to the board,
been here going on three weeks .
CHAIRMAN STEINBERG: Welcome.
MS. TRAEGER: She's our executive sec. And
then Mary Christian, who also testified.
And it's -- you know, we all know the family is
what makes us thrive and able to do our job.
CHAIRMAN STEINBERG: We appreciate you all
coming today and your public service as well.
Thank you very much, Ms. Traeger . Appreciate
it .
All right. We have one other confirmation, a
governor's appointee subject to confirmation but not
required to appear. That's Pamela Giacomini, a member
of the State Board of Forestry and Fire Protection.
Is there a motion to move by Senator Oropeza?
SENATOR OROPEZA: Motion to move.
CHAIRMAN STEINBERG: Please call the roll.
MS. BROWN: Senator Cedillo.
SENATOR CEDILLO: Aye.
122
MS. BROWN: Cedillo aye.
Dutton .
SENATOR DUTTON: Aye.
MS. BROWN: Dutton aye.
Oropeza .
SENATOR OROPEZA: Aye.
MS. BROWN: Oropeza aye.
Aanestad .
SENATOR AANESTAD: Aye.
MS. BROWN: Aanestad aye.
Steinberg .
CHAIRMAN STEINBERG: Aye.
MS. BROWN: Aye. Steinberg aye.
CHAIRMAN STEINBERG: The measure passes.
Thank you very much.
(Thereupon, the Senate Rules Committee hearing
adjourned at 4:31 p.m.)
- -0O0- -
123
- -oOo- -
I, INA C. LeBLANC, a Certified Shorthand
Reporter of the State of California, do hereby certify
that I am a disinterested person herein; that the
foregoing transcript of the Senate Rules Committee
hearing was reported verbatim in shorthand by me,
INA C. LeBLANC, a Certified Shorthand Reporter of the
State of California, and thereafter transcribed into
typewriting .
I further certify that I am not of counsel or
attorney for any of the parties to said hearing, nor in
any way interested in the outcome of said hearing.
IN WITNESS WHEREOF, I have hereunto set my hand
this (_Zjjj^_ day of jJ_&4M*&^L_ _, 2 009.
-M
INA C. LeBLANC
CSR No. 6713
oOo
124
APPENDIX
125
E OF CALIFORNIA - THE RESOURCES AGENCY
ARNOLD SCHWARZENEGGER, Governor
JFORNIA ENERGY COMMISSION
ICE OF THE COMMISSIONERS
NINTH STREET
5AMENTO. CA 95814-5512
December 18, 2008
The Honorable Darrell Steinberg
Chairman, Senate Rules Committee
State Capitol, Room 420
Sacramento, CA 95814
SUBJECT: Responses to Senate Rules Committee Questions
Dear Senator Steinberg:
I look forward to appearing before the Senate Rules Committee for my confirmation
hearing on January 7, 2009. Enclosed are my written responses to questions posed to
me by the Senate Rules Committee. I am available to meet with you or other members
of the Rules Committee to discuss these questions or to address other issues before
the hearing. I have also enclosed the latest version of my Statement of Economic
Interests (Form 700), as you requested, and I am providing additional information on my
professional experience and background.
During my first year of my term on the Energy Commission, I have had the honor of
being able to take a leadership role on alternative transportation technology, climate
change, renewable energy, power plant siting and other issues. I am currently
overseeing the Energy Commission's renewable energy efforts as the presiding
member of the Renewable Energy Policy Committee. I am also the associate member
of the Transportation and Siting Policy Committees.
Prior to my appointment to the Energy Commission, I served as director of the California
Climate Initiative at Environmental Defense. Prior to going to Environmental Defense, I
spent four years at the Planning and Conservation League as the Natural Resources
Director, General Counsel, and most recently, acting Executive Director. I have worked
on a wide range of California natural resource and environmental protection issues,
including the Imperial Irrigation District / San Diego water transfer, forest policy, and the
California Environmental Quality Act.
Senate Rules Committee
DEC 1 9 2008
Appointments
126
Senator Steinberg
December 18, 2008
Page 2
Thank you for the opportunity to respond to your questions. If you have further
questions or require additional information, please do not hesitate to contact me at
(916) 654-4001 , or via e-mail at kldougla@energy.state.ca.us
Sincerely,
Karen Douglas
Commissioner
Enclosures
cc: Nettie Sabelhaus
Appointments Director
127
Responses to Questions from the Senate Rules Committee
Energy Commissioner Karen Douglas
Statement of Goals
1 . What are your goals as a member of the Energy Commission? What do you hope
to accomplish during your term? How will you measure your success?
My overarching goal as a member of the Energy Commission is to facilitate California's
transition to a low carbon energy sector and economy while ensuring that Califomians
continue to enjoy the benefits of reliable and affordable electricity, natural gas and
transportation fuel.
Because of my interest and background in climate policy, I followed the joint PUC/CEC
AB 32 proceedings with great interest. While I was not a member of the Energy
Commission's AB 32 Committee, I was able to provide significant input into the joint
recommendations that the Energy Commission and the CPUC provided to the Air
Resources Board this fall. Both the joint decision and the scoping plan subsequently
adopted by the Air Resources Board underscore the importance of the core focus of the
Energy Commission on energy efficiency and renewable energy. In order to contribute
to statewide greenhouse gas reductions at the level contemplated in the scoping plan,
we will have to increase the climate benefits of these existing programs while finding
innovative new ways to achieve further energy efficiency savings and renewable energy
development.
I am a strong supporter of a 33 percent RPS requirement, and in fact I see the 33
percent target as a milestone on the way to even greater reliance on renewable energy
beyond 2020. While I recognize that achieving the 33 percent target by 2020 will not be
easy, I think it is still possible provided that we act now to overcome barriers to
renewable energy development and deployment that have become painfully evident in
recent years. Thus far in my term I have focused on finding ways to reduce siting
conflicts for large-scale renewable energy projects, particularly utility-scale solar
projects, improving planning for the transmission that will be needed to support needed
renewable energy development, and the evaluation of mechanisms such as feed-in-
tariffs to accelerate development and deployment of renewable energy technologies
utilizing California's existing transmission and distribution system.
A related priority of mine has been to push for the Energy Commission to more directly
analyze the linkages between our environmental goals, including our State climate,
renewable, and energy efficiency policy, our interest in retiring or repowering old,
inefficient natural gas plants, particularly those that use once-through cooling, our
efforts to reduce our reliance on imports of electricity from coal plants, with the very
important work that the Commission does to forecast energy needs, assess and plan for
needed infrastructure investments, site power plants, and ensure the reliability of
California's electricity supply.
Senate Rules Committee
DEC 1 9 2008
128
I believe that new energy infrastructure is needed in California, and that it can be not
only consistent with our long term environmental goals but actually integral to achieving
those goals. By better assimilating these multiple and highly interrelated policy goals
into our long-term planning, we will improve our ability to achieve these goals over time.
One concrete step that the Energy Commission has taken to initiate this work was
opening up an informational proceeding on how the Commission can better analyze the
greenhouse gas implications of the siting of individual power plants. This issue raises
larger questions about the current functioning and future development of the electricity
system as a whole. I expect these issues to be addressed in the 2009 Integrated
Energy policy Report (IEPR) as well as within the CEQA context.
Finally, as the associate member of the Transportation Committee, I am very involved in
the implementation of AB 1 1 8. I have been very closely involved in the implementation
of this program to date, and believe that it has the potential to provide significant
environmental and economic benefits to California. The successful implementation of
this program is one of my top priorities at the Commission.
With regard to all of these priorities, I hope to measure my success in terms of concrete,
specific achievements such as the accomplishments listed in answer to the next
question. Of course, in the longer term, I will measure my success not only in terms of
my ability to compile a list of specific achievements, but more broadly in terms of
whether I believe that my work on the Commission has helped California transition to a
low carbon energy sector in an environmentally and economically sustainable way.
2. What have been your most significant accomplishments as a member of the
commission?
I served as the lead Energy Commissioner in working with the Resources Agency and
the Governor's office to develop EO S_14-08, which establishes a 33 percent RPS by
2020 goal for the State and calls on the Energy Commission and the Department of
Fish and Game to expedite the siting of renewable energy projects in an
environmentally responsible way. Among other things, the EO requires the Energy
Commission and DFG to identify preferred areas for renewable energy development,
create a Desert Renewable Energy Conservation Plan to guide development in the
Mojave and Colorado Desert regions and provide additional Guidance to the RETI.
While completing the work called for in the EO will require a significant commitment of
resources, this is exactly the kind of advance planning that is needed to lay the
groundwork for a dramatic acceleration of renewable energy siting on time to meet a 33
percent RPS requirement. This approach also has great potential to reduce costs to
developers and ratepayers by improving both infrastructure and conservation planning.
Soon after I arrived at the Energy Commission I began to work with our staff and my
fellow Commissioner, Jeff Byron, to address the issue of GHG emissions in our power
plant siting process. The Energy Commission is the Lead Agency for the CEQA review
of thermal power plants that are of a 50 MW or larger capacity. Since 2003 the Energy
129
Commission has required applicants to project GHG emissions that will result from
proposed plants and then to report on actual emissions, but to date we did not have any
threshold of significance to determine if some level of emissions was harmful to the
environment nor did we require any kind of mitigation for any perceived impact. Since
we have begun work we have held two public workshops and plan on developing
guidance on how to address this issue in our siting cases by the end of the first quarter
of next year.
As I discuss in my answer to the next question I feel that one of the greatest
opportunities for advancing renewable energy in the State would be to provide greater
certainty to developers through the adopting of feed-in tariffs (FiTs) similar to what has
been adopted in much of Europe. This year as Chair of the Renewables Committee I
presided over a series of workshops exploring the history and use of FiTs and then
recommendations on how California could integrate a FiT into our existing procurement
and RPS programs. These workshops and the proceeding have produced two nearly
complete reports on FiTs that represent the most complete analysis of this policy
direction that the State has ever engaged in.
Finally, I am quite pleased with the public process we have set up for the
implementation of AB 1 18 as mentioned above. The implementation of the legislation
represents an excellent opportunity to meet multiple goals that the State shares:
transitioning towards energy independence by reducing use of imported fuels, improving
air quality and fighting climate change through the research and development of
alternative fuels and vehicle technology and spurring job growth and economic
development in the emerging occupations of the "green economy". We have put
together an excellent Advisory Committee to help develop the Investment Plan for AB
1 18 funds. The twenty-five Advisory Committee members represent environmental,
public health, and labor organizations, fuel and technology consortia, academic
institutions, consumer advocates, venture capitalists, and other state agencies. This
group has been invaluable in assisting us in developing our plan and I believe will
continue to provide us with excellent advice as we implement this program.
Renewable Energy
In its Integrated Energy Policy Report, the commission is required to conduct
assessments and forecasts of all aspects of energy industry supply, production,
transportation, delivery and distribution, demand, and prices. The commission adopts
an Integrated Energy Policy Report every two years and an update every other year.
In 2006 California's Renewable Portfolio Standard set the goal of increasing the portion
of electricity derived from renewable resources and sold to retail customers to
20 percent by 2010. In its 2008 Integrated Energy Policy Report Update, the
commission states that it believes the state can achieve the 33 percent renewables
target by 2020. It also states that the five major barriers in reaching the 33 percent
renewables target are: transmission, integration, contract delays/cancellations, cost/rate
impacts, and environmental permitting.
130
3. Many of these barriers are partly or wholly within the jurisdiction of the commission
to address, or at least bring to the attention of other energy agencies within the
executive branch. What actions has the commission taken to begin to identify and
implement ways to remove these barriers?
The Energy Commission has a varied and diverse collection of authorities, interests and
leverage points in the implementation of successful renewable energy programs in
California. Unfortunately, due to the fragmentation of roles and responsibilities in the
State's regulatory and planning statutes the Energy Commission has limited ability to
enact needed reforms. However, the Energy Commission has implemented program
and process improvements in those areas that we do have authority over, and has used
forums such as the Integrated Energy Policy Report (IEPR) to highlight the need for
program, regulatory and legislative changes to improve renewable energy development
in the State. The following is a compilation of the changes we have made, or plan to
make, to our own programs and our efforts to recommend changes to areas outside of
our direct authority.
Transmission:
The permitting of transmission lines in California currently suffers from: (1) jurisdictional
responsibilities that are fragmented and overlapping; (2) environmental analyses that
are inconsistent; (3) inadequate consideration of regional and statewide benefits
identified during the transmission planning process; and (4) long delays in the permitting
process. In addition, merchant transmission projects in California are not subject to
state permitting and instead would be subject to local agency permitting, which could
require multiple local agency reviews because of the linear nature of transmission
facilities.
As a result, existing permitting processes can create duplication between local, state,
and federal agencies, are usually very lengthy, and frequently result in the rejection of
needed projects that are identified in the transmission planning process. Because of
the jurisdictional overlaps, it may be difficult for a lead agency to conduct an
environmental review of the entire project under the California Environmental Quality
Act (CEQA).
Complicating this situation, the federal government, based on provisions in the 2005
federal Energy Policy Act has recently established a National Interest Electric
Transmission Corridor (NIETC) covering most of Southern California within which they
would be able to preempt state permitting authority, if State permitting of transmission
projects is not carried out expeditiously or projects are not subject to State permitting.
Thus, a federal preemption could significantly erode California's authority to make land
use and public health decisions. California could ultimately lose its ability to determine
how, where and when to expand its bulk transmission grid, thereby undermining the
state's energy, environmental, and economic policy goals.
The Energy Commission has the following transmission permitting, planning and
designation responsibilities:
131
• Permit transmission lines, associated with thermal power plants greater than 50
MW to the first point of interconnection to the existing grid and permit
transmission lines that connect to a jurisdictional power plant.
• As part of the biennial IEPR proceeding, prepare a strategic transmission
investment plan that recommends strategic transmission projects needed to
ensure reliability, relieve congestion, and meet future growth in electricity
generation, including renewable resources.
• Designate transmission corridors on non-federal lands for future use, consistent
with the strategic transmission investment plan.
Because the Energy Commission does not have direct approval or oversight authority
for bulk transmission infrastructure, we have focused our efforts on highlighting
opportunities for improved transmission planning and permitting through forums like the
IEPR and the implementation of our corridor designation program.
Since 2003, the Energy Commission has identified the state's fragmented approach to
planning and permitting transmission projects as a significant barrier to project approval
and construction. To that end, the Energy Commission has recommended better
aligning the state's transmission and generation permitting processes with improved
planning efforts to ensure that investments in the state's transmission system occur.
The Energy Commission has also identified the need to expand the state's transmission
system and improve access renewable resources in every IEPR since 2004
In 2004, noting both the lack of an official state role in transmission planning and the
failure of the existing process to consider broader state interests, the Legislature
directed the Energy Commission in Senate Bill 1 565 (2004) to develop a Strategic
Transmission Investment Plan (STIP) as part of the IEPR.
In its 2004 IEPR Update and 2005 IEPR, the Energy Commission recommended
changes to the California ISO tariff that would facilitate the financing and development
of renewable transmission lines. The California ISO petitioned the Federal Energy
Regulatory Commission (FERC) for approval of this category of transmission, in early
2007 and it became effective on January 1 , 2008. The policy promotes the
development of renewable resources by allowing smaller projects to interconnect with
the transmission system by paying a pro rata share of new transmission costs as
projects come on line rather than the first generator on line paying for the entire cost of
the upgrade.
In the 2005 IEPR, the Energy Commission recommended the establishment of a
statewide corridor planning and designation process to plan needed corridors and
designate them for future use. Designating corridors allows for earlier environmental
review. Senate Bill 1059 (2006) recognized the importance of longer-term transmission
planning, coordinated with local land use permitting activities, and authorized the
132
Energy Commission to designate transmission corridors on non-federal land to
streamline future permitting of transmission projects.
In late 2005, Energy Commission staff also worked with the CPUC and the California
ISO to better integrate electricity transmission planning processes, including improving
the coordination between transmission and generation planning and procurement.
Beginning in 2006, the Energy Commission and California ISO staffs collaboratively
developed a single transmission planning process to coordinate the Energy
Commission's IEPR and STIP proceedings with the California ISO's new grid planning
process. For example, the Energy Commission provides the lEPR's electricity load
forecast and other planning assumptions to the California ISO for their analyses of
transmission path upgrades and specific projects. The California ISO also relies upon
the IEPR process for load-serving entity (LSE) information not typically available to
them, supply and demand assumptions, and the identification of broad statewide policy
preferences.
In early 2007, the Energy Commission initiated a rulemaking to establish regulations for
the implementation of Senate Bill 1059 to further define the designation process and the
informational requirements for future corridor designation applications. The Energy
Commission adopted the final regulations in 2008.
Concurrent with the rulemaking, the 2007 STIP encourages corridor applications
requesting designations on non-federal lands to accommodate future transmission
projects that would achieve one or more of the following objectives:
• provide access to renewable resource areas;
• interconnect with existing federal corridors or with proposed federal corridors
identified under Energy Policy Act of 2005 section 368;
• preserve existing corridors that may be required for future facility upgrades
The state has undertaken the RETI is a statewide collaborative planning process
intended to help facilitate and coordinate the planning and permitting of renewable
energy-related transmission and generation projects needed to accommodate the
state's renewable policy goals, support future energy policy, facilitate transmission
corridor designation, and minimize the duplication of efforts. Energy Commission staff
is actively participating in the RETI process to ensure that environmental issues and
land use constraints are considered during the development of conceptual transmission
plans to reach high priority CREZs. Commission staff is providing input to help ensure
that any short-term, high priority transmission plans developed in RETI consider these
issues prior to the development of project-specific CPCN applications, so that projects
submitted to the CPUC have a greater likelihood of permitting success. In addition, the
Energy Commission expects that longer-term conceptual transmission plans needed in
the future will benefit from a pro-active analysis of routing options and potential
133
designation of one or more transmission corridors that will facilitate the eventual
permitting of needed transmission projects.
The results of RETI will be considered in the Energy Commission's 2009 IEPR and
STIP as part of a comprehensive evaluation of transmission investments needed to
ensure reliability, relieve congestion, and meet future load growth and generation,
including, but not limited to renewable resources, energy efficiency, and other demand
reduction measures. This will include an evaluation of potential transmission corridors
that may be needed to help achieve state policy objectives.
As the Associate Member of the Energy Commission's Siting Committee, I oversee the
Energy Commission's transmission-related activities, which include participation in
RETI, implementation of the transmission corridor designation process, and
development of the Strategic Transmission Investment Plan.
Integration:
A major barrier to increasing the amount of renewables in California is how to integrate
large amounts of variable resources, like wind and solar, into the system while
maintaining grid stability, operation, and reliability. Although the governor has set a goal
of meeting 20 percent of the RPS with biomass and increases in geothermal energy are
expected, especially in the Imperial Valley, signed RPS contracts suggest that much of
the RPS is expected to be met with wind and solar energy. Adding large amounts of
wind and solar renewable energy to the electricity system can be problematic because
the rest of the system needs to be able to adjust to larger amounts of unexpected drops
and unexpected increases in energy production. Also, California's local reliability
requirements call for load to be met primarily with local resources, and many renewable
resources are located outside the state's 10 load centers.
In 2007, the Energy Commission released the I ntermittency Analysis Project Final
Report, which evaluated what is needed for the transmission system to accommodate
generation from 33 percent renewables by 2020, assuming high levels of intermittent
resources like wind. The study found that with significant expansion of transmission by
2020, it is feasible to operate the electricity system with 33 percent renewables. The
Energy Commission's Public Interest Energy Research Program also funded a 2008
study that identified major issues associated with integrating large amounts of
renewables into the system and made recommendations on how to facilitate that
integration.
The Energy Commission is continuing its research and development efforts on
emerging technologies that can help integrate renewables into the system and offset the
impacts of intermittent renewables, such as energy storage to provide grid support,
development of a "smart grid" to provide energy management options, technologies that
provide real-time information to grid operators to allow them to adjust the system as
needed quickly and effectively, and better resource forecasting techniques to allow grid
operators to anticipate and respond to generation fluctuations that can affect grid
stability. The Energy Commission's research and development is focused on identifying
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emerging technologies with the greatest potential to support intermittent renewables,
reducing the costs of those technologies, and accelerating their commercialization.
In addition, the Energy Commission is examining alternatives to utility-scale renewable
generation, such as distributed renewables and renewable heating and cooling
technologies. While these alternatives are not counted toward California's Renewable
Portfolio Standard (RPS) goals, they do reduce overall electric demand which will
reduce the amount of large-scale renewable generation needed to meet those goals.
The Energy Commission has recommended focusing research and development efforts
toward developing a targeted program to address barriers to the commercial success of
emerging renewable heating and cooling technologies. The Energy Commission offers
incentives for distributed generation wind turbines and fuel cells through the Emerging
Renewables Program and distributed generation photovoltaics on new residential
construction through the New Solar Homes Partnership.
The California ISO has initiated its Integration of Renewable Resources Program with
the goal of supporting the integration of renewable resources into the California power
grid to fulfill state policy objectives. The Energy Commission has committed to working
with the California Independent System Operator on its Integration of Renewable
Resources Program to ensure that grid impacts of increasing renewables penetration
are appropriately identified and addressed.
Contract delays/cancellations:
The Energy Commission first identified the risk of under-procurement of renewable
energy in the 2005 IEPR, noting that state experience with contracts for qualifying small
power production facilities indicate that as many as one third of projects did not result in
actual procurement. A 2006 Energy Commission study found that a minimum overall
contract failure rate of 20-30 percent should generally be expected, and that much
higher failure rates are supported by historical experience. The 2005 IEPR and 2006
IEPR update recommended that the CPUC should require investor-owned utilities to
procure a prudent contract-risk margin of at least 30 percent above their annual
Renewables Portfolio Standard targets.
The 2006 IEPR Update also recommended that FiTs- fixed, long-term, technology-
specific prices for renewable - be further explored as a strategy to reduce the risk of
contract delays or failure. The 2007 IEPR further recommended that the CPUC should
immediately implement a feed-in tariff for all RPS-eligible renewable up to 20
megawatts in size, and that the Energy Commission and CPUC should collaborate to
develop FiTs for larger projects incorporating features from the most successful
European feed-in tariffs. Allowing developers to anticipate what price they will receive
for their energy would provide the financial certainty needed to help ensure that
renewable contracts result in actual deliveries of energy in a timely way.
As the presiding member of the Renewables Committee, I participated in a number of
Energy Commission workshops in 2008 to discuss challenges, opportunities, and
potential structures for FiTs in California. Based on information presented at the
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workshops, the 2008 IEPR Update reiterated the recommendations in the 2007 IEPR
that the CPUC should immediately implement a feed-in tariff program for all RPS-
eligible facilities up to 20 megawatts in size, including a guaranteed purchase of energy
by utilities, technology-specific prices based on generating costs, and a decline in those
prices over time. The Energy Commission has offered to collaborate with the CPUC in
developing such a program.
Cost/rate impacts:
There are concerns that an increasing penetration of renewables will be accompanied
by increasing electricity costs and rates in California. The impact of renewables on
costs and rates is extremely uncertain, and must be weighed against the costs of the
state continuing its dependence on natural gas as a fuel for electricity generation, as
well as the potential costs of catastrophic climate change. The continuing volatility of
natural gas prices puts ratepayers are at risk since utilities pass their fuel costs directly
onto their customers. In addition, the future costs for fossil-fired generators to comply
with greenhouse gas reduction goals and subsequent regulations are also uncertain.
The Energy Commission intends to examine the link between increased renewable
energy generation and natural gas prices and demand, and will also work closely with
the CPUC in their analysis of the cost impacts of a 33 percent renewable electricity
target that is currently underway. The Energy Commission will also update its analysis
of the generation costs of various renewable and non-renewable electricity sources to
ensure that cost analyses are based on the most accurate information available.
Environmental permitting:
The Energy Commission is the Lead Agency under CEQA for thermal power plants over
50MW in size. This includes solar thermal power plants and geo-thermal power plants.
This does not include solar photovoltaic, nor wind facilities. If the proposed power plant
is on Federal land, such as Bureau of Land Management (BLM) or U.S.Forest Service,
the Energy Commission remains the Lead Agency for CEQA but the federal agency is
concurrently the Lead Agency under the National Environmental Policy Act (NEPA).
The coordination between agencies and the sheer number of applications the BLM has
received over the last few years has created a backlog of projects facing extensive
processing times at BLM field offices.
The number and size of proposed large-scale renewable power plants in CA is causing
an increasing concern among citizens and agencies about the lack of coordinated
planning and siting of the facilities and their potential direct and cumulative
environmental impact. Many of these new facilities are proposed in ecologically
sensitive areas that could require significant habitat mitigation and restoration, which
must be factored into the costs and development schedules of the projects.
The Energy Commission has entered into a Memorandum of Understanding with the
BLM to provide joint NEPA and CEQA review and to streamline the environmental
permitting process for large-scale solar plants in the California desert. In addition, the
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Energy Commission is working closely with the BLM and the Department of Energy on a
Solar Programmatic Environmental Impact Statement (PEIS). The Solar PEIS will help
to identify broad environmental issues associated with developing large solar projects to
help streamline the permitting process for individual projects. The BLM will apply the
policies and strategies resulting from the Solar PEIS when deciding to issue rights-of-
way for solar projects on BLM-managed land.
Governor Schwarzenegger's recent Executive Order (EO) S-14-08 establishes the
Renewable Energy Action Team comprised of the Energy Commission and the
Department of Fish and Game (DFG) to create a "one-stop" process for permitting
renewable energy facilities, with the goal of cutting the application time for certain
projects in half. This will be achieved through the creation of a special joint streamlining
unit that will concurrently review permit applications filed at the state level and the
designation of renewable energy development areas. The Executive Order also
underscores California's commitment to conserving natural communities at the
ecosystem scale through the use of the state's unique Natural Community Conservation
Planning (NCCP) tool, coordinated by DFG and the Energy Commission, which will
identify and provide for region-wide protection of plants, animals, and their habitats
while allowing for compatible economic activities such as renewable energy generation.
This will help reduce the time and uncertainty associated with building new renewable
projects.
In addition to the Executive Order, the Energy Commission, DFG, U.S. Fish and Wildlife
Service, and the BLM have signed a Memorandum of Understanding to establish a
coordinated approach with our federal partners in the expedited permitting process. This
coordinated approach will significantly reduce the time and expense for developing
renewable energy on federally-owned California land, including the priority Mojave and
Colorado Desert regions.
4. The commission has stated at recent Energy Policy Report Update workshops that
one of its major roles is to spearhead the transmission readiness process. Please
explain the commission's role in the siting of transmission lines for renewable
energy. What steps have you taken as the presiding member of the commission's
Renewables Committee to expedite or facilitate siting of electricity transmission
lines for renewable energy?
As mentioned in the transmission section of my answer to the previous question, the
State is facing some very daunting and complex challenges in our efforts to build an
electricity grid for a low-carbon economy. Yet we must find solutions to these challenges
because it is clear that transmission is our greatest barrier to significant expansion of
renewable energy generation development in our state. Since joining the Energy
Commission I have taken a very active role in a number of initiatives that I hope will
serve to expedite the permitting and construction of well-planned, cost-effective
transmission infrastructure in an environmentally-sensitive manner.
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I have been very active in working with the rest of the administration and the Legislature
in identifying options that the State may consider pursuing to overcome our
transmission challenges through legislation to improve and advance our RPS program.
The bifurcation of the planning and permitting of new transmission infrastructure, the
multiple jurisdictional roles of the entities involved and the lack of ability to consider the
regional and State-wide benefits of proposed projects represent significant barriers that
I hope can be addressed in 2009.
As mentioned above Governor Schwarznegger's EO S-14-08 has provided clear
direction as to the importance of renewables to the achievement of the State's
environmental and economic goals. I have enjoyed working with the rest of the
administration to define the Energy Commission's role in the implementation of the EO
and our role in improving planning for the expansion of our State's renewable energy
infrastructure. In particular, I am looking forward to the opportunity to work with our
staff, other State and federal agencies and stakeholders to identify Renewable Energy
Development Areas and develop the Desert Renewable Energy Conservation Plan. As
mentioned above in my answer to question #2 these two new initiatives should allow the
State to identify those areas where renewable energy development can be located so
that it has the least amount of environmental impact while producing the greatest
energy production benefit to the State. The developer and environmental protection
certainty that should be gained from these processes have the potential to significantly
improve the development timeline in California.
Climate Change
The commission is involved with implementation of at least two major GHG laws: the
Global Warming Solutions Act of 2006— AB 32 (Nunez), Chapter 488, Statutes of
2006 — directs the California Air Resources Board (ARB) to adopt a greenhouse gas
(GHG) cap on all major sources to reduce statewide emissions to 1990 levels by 2020.
The ARB has proposed a "scoping plan" that outlines strategies such as energy
efficiency and renewable energy as essential actions to meet the AB 32 goals; SB 1368
(Perata) Chapter 599 statutes of 2006 establishes a GHG emissions performance
standard and requires the CEC to monitor and enforce the standard for municipal
utilities.
The Energy Commission and the Public Utilities Commission (PUC) have undertaken a
collaborative proceeding to develop and provide recommendations to ARB on measures
and strategies for reducing GHG emissions in the electricity and natural gas sectors. In
the commission's October 2008 draft of its final recommendations on GHG regulatory
strategies, the commission states that it is "already aggressively pursuing the
mandatory emission reduction measures."
5. Please describe measures the commission is already taking to address GHG
reduction. Has the CEC taken any specific enforceable steps to expand and
increase energy efficiency and renewable energy beyond what it otherwise would
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have done in the absence ofAB 32's enactment? Has it made improvements to
the Title 24 building standards and appliance efficiency standards since enactment
ofAB 32 in 2006?
Since the creation of the Energy Commission efficiency standards and the promotion of
efficiency and renewable energy generation has been the cornerstone of our mission.
Over the last thirty-plus years, many of our core programs have had the effect of
reducing state greenhouse gas emissions through the updates to our efficiency
standards for buildings and appliances, our financial assistance and research programs
and our new authorities, such as those created under AB 1 18 (2007). In particular, the
Energy Commission's active pursuit of energy efficiency through building standards and
appliance standards and statewide incentives for photovoltaics and other renewable
generation prior to AB 32 created a strong policy foundation upon which a climate
change program could be built in the electricity sector.
The passage of AB 32 and the subsequent adoption of the ARB Scoping Plan has only
underscored the importance of efficiency and renewables to the future of the State's
energy and climate solutions. Two of the leading measures that the Scoping Plan
describes as critical components of our strategy to reduce greenhouse gas emissions
levels back to 1990 levels by 2020 is the integration of all cost effective energy
efficiency and achieving a 33% RPS goal by 2020. The Energy Commission clearly
recognizes that we will play an ever increasing role in helping the ARB and the rest of
the State in achieving these targets. But we also recognize that while we have made
significant progress over the years in these areas we need to push even further and into
new areas if we are to achieve our climate goals.
As a member of California's Climate Action Team, the Energy Commission has actively
worked to develop aggressive climate change mitigation measures.
The Energy Commission has been actively engaged in climate change initiatives for
energy efficiency, renewables, and transportation.
Continued development work on the building and appliance standards and on the
Energy Commission's New Solar Homes Partnership photovoltaics incentives program
were "early actions" that were reported to the Legislature as directed by AB 32. The
Energy Commission adopted new building energy efficiency standards in April 2008 for
residential and nonresidential buildings; these standards, which will go into effect in
August 2009, address not only newly constructed buildings but additions and specific
alterations to existing buildings. On average, the new standards are expected to save
15% of the heating, cooling, water heating and lighting energy for residential buildings
and about 7% for nonresidential buildings when compared to the 2005 version of the
standards.
The Energy Commission adopted new appliance standards in December 2008. These
new standards are the first step in response to direction from Assembly Member
Huffman's AB 1 109 (2007) that the Energy Commission adopt standards for general
purpose lighting by December 31 , 2008 and initiate a long-term program of standards
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and other initiatives to reduce general purpose lighting energy usage by 50% for indoor
residential lighting, 25% for indoor commercial lighting and 25% for outdoor lighting.
The new standards took advantage of authority that was granted uniquely to California
by federal law to adopt early two tiers of federal standards that phase out incandescent
bulbs over the next 10 years. This adoption also established and upgraded standards
for other lighting fixtures and residential swimming pools and spas, and established test
procedures that are a necessary precursor to setting standards for battery chargers.
The other early action was the adoption of the New Solar Homes Partnership in
December 2006. The New Solar Homes Partnership launched a major new effort by
the Energy Commission to integrate energy efficiency and high-performance
photovoltaic systems in a combined strategy for the first time. To qualify for incentives,
participating builders must incorporate energy efficiency measures substantially better
than required by the building energy efficiency standards. In addition, eligible
photovoltaic systems must meet international component testing standards and be
designed and installed to achieve high performance levels.
In December 2007 the Energy Commission responded to its mandate under SB 1
(2006) to establish eligibility criteria and conditions for incentives for all photovoltaic
incentives programs conducted either by the Energy Commission, CPUC or POUs by
establishing similar expectations for energy efficiency and high-performing photovoltaic
systems in all programs carried out pursuant to SB 1 . These actions are a precursor to
a future where buildings with dramatically reduced carbon footprints are common due to
attention to energy efficiency integrated with onsite photovoltaics and perhaps other
renewable energy technologies.
The Energy Commission is also undertaking greenhouse gas reduction measures in the
transportation sector, through programs and initiatives such as the fuel-efficient tire
program. Vehicle fuel efficiency can vary up to about 10% as a result of tire rolling
resistance, but currently there is no information available for consumers to assess the
fuel efficiency of tires. Pursuant to AB 844 (Nation, 2003), the Energy Commission is
developing a consumer information program for tire fuel efficiency , and will begin
developing minimum tire efficiency standards later this year. Finally, the Alternative and
Renewable Fuel and Vehicle Technology Program (AB 118), discussed further below, is
a funding program with the express intent of transforming California's fuel and vehicle
types to help attain the state's climate change policies.
But as mentioned above these programs will not be enough to allow us to reach our
goals. The State will need a suite of new efficiency and renewables programs and
policies if we are to reach our energy and climate goals.
In terms of efficiency we have highlighted through the IEPR, workshops and policy
reports that as successful as our building and appliance standards have been the
problem is less about new buildings now as about buildings that have already been
built, many of them before the State had an energy efficiency code. Of the State's
building stock, 70-percent of the residential buildings and over 5-billion square feet of
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commercial space were built prior to the Energy Commission's first building efficiency
standards. It is these buildings that represent the greatest opportunity for efficiency
savings and GHG emissions reductions from the building sector. The State must
develop new financing, promotional and regulatory programs to holistically address this
challenging problem.
On December 17 the Energy Commission adopted the final regulations for the Home
Energy Rating System (HERS). This rating system will be a uniform measurement
protocol and decision support tool for home owners and contractors that are attempting
to test the performance of homes and identify the most cost-effective and energy
efficient retrofit options. This alone will offer a very powerful tool for homeowners and
the retrofit industry. We must now use this tool most effectively by developing financing
mechanisms and regulatory schemes that tier off of it so that we may be able to gamer
the stranded savings that reside in our building stock.
Another great area of opportunity in efficiency that we have not begun to tap is that of
water efficiency. Building and retrofitting facilities and homes that will conserve water
help us meet dual goals of conserving energy as well as preserving the increasingly
scarce California water supply. As with energy we need a building rating system and the
financing and regulatory programs to achieve the savings.
With renewables, we must find new ways to overcome the barriers to large-scale
deployment of all forms of this clean, safe and cost-reliable generation. I have
discussed many of the problems preventing us from reaching our RPS goals and
solutions to those problems in my answers to questions above. But I would like to
highlight one of the measures in particular, the adoption of a new contracting process to
speed renewable energy development, the feed-in tariff. FiTs would allow developers to
anticipate what price they will receive for their energy before they begin to put their
business plan together. This would provide the financial certainty needed to help ensure
that renewable contracts result in actual deliveries of energy in a timely way. This policy
tool could be an incredibly valuable addition to the State's energy strategies and as
highlighted above in question #3 should be adopted and implemented in California in
the near term.
6. Has the commission collaborated with PUC and ARB on any of the activities it has
already taken to ensure that these measures fit into AB 32's scoping plan?
The Energy Commission has worked closely with both ARB and the CPUC to develop
joint-agency supported and sponsored strategies. Many of those strategies are
described in the Energy Commission/CPUC Final Opinion and Recommendations on
Greenhouse Gas Regulatory Strategies, and some of them are mentioned in my
response to Question 5 above. Here I will elaborate on a few of the measures that have
required extensive interagency collaboration: the zero net energy building standards,
more stringent appliance standards, and transportation sector strategies.
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The 2007 Integrated Energy Policy Report recommended improvements in building
standards to combine high levels of energy efficiency with onsite renewable generation
so that all newly constructed buildings are "zero net energy" by 2020 (residential) and
2030 (commercial). The Energy Commission envisions a tiered approach to achieve
zero net energy (ZNE) building standards. The base tier will be the traditional
mandatory standards that increase in stringency with every 3-year code cycle.
Additional tiers will be voluntary and represent a "reach" or "stretch" target for advanced
levels of energy efficiency and onsite generation. We expect that many technologies in
the reach tiers will become part of the baseline standards in succeeding cycles of the
standards.
This vision has been accepted and supported by both the CPUC and ARB. The CPUC
captures this vision as two of their four "Big Bold Strategies" in their "Long Term Energy
Efficiency Strategic Plan." They commit to collaborating with the Energy Commission
over the coming decade and beyond and direct the lOUs to focus on program initiatives
to facilitate the accomplishment of the zero net energy building standards vision.
Likewise, ARB endorses the Energy Commission's ZNE vision and strategy in the
Scoping Plan. The Scoping Plan recognizes that getting to the ZNE vision requires the
integration of high energy efficiency levels and onsite solar technologies, and points out
that the Energy Commission's New Solar Homes Partnership and SB 1 eligibility criteria
establish precedent and a baseline for further efforts to achieve the ZNE vision.
ARB and the Energy Commission also have collaborated on Scoping Plan endorsement
of increasingly stringent appliance standards as a major climate change mitigation
strategy. The Scoping Plan recognizes the Energy Commission's ongoing efforts to
expand the state's appliance standards to cover all devices using significant amounts of
energy. New standards will cover consumer electronics, such as televisions, computer
monitors, and plug-in, portable devices. These appliances represent an ever-increasing
portion of the overall energy use in homes and commercial buildings. The Scoping Plan
also recognizes and encourages the Energy Commission's efforts to establish water
efficiency standards for appliances as directed by recent legislation (AB 662, AB 1881
andAB 1560(2007)).
As a final example, the Energy Commission is working closely with ARB to ensure that
the Alternative and Renewable Fuel and Vehicle Technology Program (AB 1 18)
complements the state's mandatory climate change measures for the transportation
sector, in particular the Low Carbon Fuel Standard and Pavley vehicle efficiency
standards. For example, AB 1 18 funding evaluation criteria will use the same full fuel-
cycle greenhouse gas emissions data that ARB will use to assess compliance with the
Low Carbon Fuel Standard.
7. Please describe the status of implementation of SB 1368 as it applies to municipal
utilities. Have any utilities submitted their procurement plans to the commission for
review? Are any municipal utilities violating the GHG emissions performance
standard established under SB 1368?
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The Energy Commission's regulations pursuant to SB 1368 were approved by the
Office of Administrative Law on October 16, 2007. These established an emissions
performance standard of 1 ,100 lbs C02 per MWh, effective July 1 , 2007, for long-term
investments by municipal utilities in baseload generation. Investments subject to the
standard include the construction or purchase of a power plant designed or intended for
baseload use, five-year or longer contracts with such power plants, and capital
investments in existing utility-owned plants that are intended to extend the life of the
plant by five years or more, increase the rated capacity of the plant, or convert a non-
baseload plant to baseload operation. Utilities may request exemptions from the
standard based on reliability needs, the threat of significant financial harm, or because
an investment is required as part of a contract or ownership agreement.
The regulations promulgated pursuant to SB 1368 do not require that utilities submit a
procurement plan to the Energy Commission. Instead, the utilities submit compliance
filings within ten days of making an investment subject to the performance standard.
They also have the option of requesting an Energy Commission review of a prospective
investment prior to committing to it. The Energy Commission may, on its own motion or
at the request of a third party, conduct a complaint or investigation proceeding in the
event that a utility undertakes a covered investment but fails to submit a compliance
filing.
Since July 1 , 2007, three compliance filings have been submitted to the Energy
Commission, each for contracts with new renewable facilities; a fourth is anticipated
within the next month. Several municipal utilities have contracted with renewable
facilities of less than 10 MW in size; these investments do not require compliance
filings. In addition, one utility-owned project has been held to comply with the standard
in the course of the Energy Commission's facility siting process (a hybrid gas-solar
facility owned by the City of Victorville); six other projects are currently in review. The
five cases in which the standard applies are anticipated to be compliant (one project is a
peaking unit). No utility has requested an exemption from the standard for an
investment, nor requested a review of a prospective investment. Moreover, no utility
has entered into a long-term contract for baseload energy during the past year, as most
of them own sufficient resources to meet their baseload needs.
The Energy Commission also receives information from municipal utilities regarding
procurement and resource planning pursuant to SB 1389 (2002; Bowen, Sher), the
enabling legislation for the Integrated Energy Policy Report, and AB 380 (2005, Nunez),
which requires the Energy Commission to report upon the resource adequacy of public
utilities to the Legislature on a biennial basis. Reviews of the utility resource plans
submitted to the Energy Commission pursuant to SB 1389 and AB 380 did not indicate
violation of the emissions performance standard by any utility.
Powerplant Siting
Under the Warren-Alquist Act, the CEC oversees the siting of major new thermal
powerplants. With enactment of AB 32 and SB 1368 (Perata— Chapter 598/Statutes of
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2006), the CEC has an increased role in reviewing the GHG pollution associated with
electricity generation from powerplants.
8. Please describe the regulations, or other actions the CEC has adopted, to ensure
GHG pollution is taken into account as part of its powerplant siting process. What
effect, if any, will those regulations have on energy costs and utility bills?
For the past several years, the Energy Commission has evaluated and accounted for
greenhouse gas emissions from power plants it reviews and certifies. In these analyses,
the Energy Commission assesses an individual power plant's greenhouse gas
emissions (both construction and operations) and has required, as a condition of
certification, best management practices for construction, and that the project owner
participate in a climate action registry or report on a annual basis the quantity of
greenhouse gases emitted as a direct result of facility electricity production.
Additionally, because most power plants are interconnected to a utility grid, and in turn
to the Western Electricity Coordinating Council, the Energy Commission more recently
has begun to assess proposed projects in the context of the overall system. Figure 1
shows the trends in GHG emission rates for each MWh consumed in California. From
1 990 to 2004, California electricity became almost 20 percent "cleaner" from a C02-eq
metric ton/MWh basis. This improvement was due in part to replacing dirtier, less
efficient plant generation, despite electricity demand growth of almost 20 percent from
1990 to 2004.
GHG Emissions per Megawatt-hour in California (Figurel)
0.600
0.500
£ 0.400
0.300
0.200
0.100
0.000
1990 1992 1994 1996 1998
Year
2000
2002
2004
Source: ARB and CEC.
The trend line, a linear regression of the annual GHG emission rates, is a better representation of the
statewide GHG emission rates than the actual number in any one year. GHG emissions and electricity
consumption can vary from year to year due to variations in the availability of hydroelectric power,
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economic activity, and anomalous events such as the energy crisis of 2000-2001 and unusually warm
weather conditions as occurred in 2004.
On October 8, 2008, the Energy Commission approved a Greenhouse Gas Order
Instituting Informational proceeding on the methods for satisfying California
Environmental Quality Act (CEQA) requirements relating to greenhouse gas emission
impacts of power plants. The Energy Commission directed the Siting Policy Committee
to oversee the proceedings, hold workshops, report back to the full Energy Commission
with a progress report on December 3, 2008, and develop a set of recommendations.
Commissioner Jeffrey Bryon and I are the two members of the Siting Policy Committee
responsibility for this proceeding. To date, we have held two publicly-noticed hearings to
receive input from power plant developers, electric utilities, environmental organizations,
environmental justice organizations, and the general public. The two workshops have
been well attended, and the verbal and written comments thoughtful.
We plan to complete the proceeding in early 2009. The Siting Committee will publish its
findings from the proceeding and suggest next steps to the Commission. I expect this
issue to be a central part of current and future power plant siting cases. In addition, as
discussed above, the work we are doing on this siting issue has broad policy
implications which will be reflected in future iterations of the IEPR.
9. A recent court decision invalidated the pollution credit rules used in the South
Coast air basin to govern permitting of new powerplants and other facilities. Air
quality officials and utilities state that this decision will impair siting of needed fossil
fuel generation. Environmental groups contend it will help replace fossil fuel
generation with new renewable energy. What are your views on the impacts of the
court decision on powerplant siting in the South Coast basin? Are new fossil-fuel
powerplants needed to supply the basin, or can needs be met through greater
efficiency, renewable energy and the like?
The court decision has brought the issuance of offsets to new power plants to a halt
pending resolution of a number of CEQA and Clean Air Act issues, While the Energy
Commission does not anticipate that the inability to construct planned new power
generation in the South Coast area will cause reliability problems in Southern California
in the next two summers, it does threaten to undermine our ability to meet certain
environmental policy goals, including retirement or repowering of inefficient, once-
through cooling facilities. Furthermore, reliability problems will surface in Southern
California if this issue is not resolved.
Southern California is the region most vulnerable to supply shortages. In addition to
long-term contract and utility-owned generation, Southern California utilities rely on
electricity purchased from aging power plants under short-term contracts to maintain
sufficient reserve margins and provide for local area reliability, specifically in the South
Coast Basin. Despite significant amounts of energy efficiency and rooftop solar
photovoltaic systems included in the Energy Commission's demand forecasts, some
level of new or repowered natural gas generation will be needed in Southern California
for four important reasons:
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• to meet load growth after demand-side measures have been installed;
• to replace aging plants to improve efficiency of the generating fleet;
• to 'firm up" the intermittency characteristics of renewable generation; and
• to replace power plants using ocean water in once-through cooling systems.
The development of new generating capacity to replace the aging power plants in the
South Coast basin is critical to achieving environmental improvements, including
reduced greenhouse gas (GHG) emissions from more efficient use of natural gas and
reduced impacts on coastal and marine environments by moving away from once-
through-cooling for power generation. The court rulings limiting the supply of air
emissions credits in this region present new challenges for California to achieve these
important environmental improvements while at the same time ensuring sufficient
generating supplies and local electricity area reliability.
I believe that renewable resources will supply an increasing percentage of of power
used in the South Coast basin immediately and over the long term. However, this goal
is not in direct conflict with the construction of a reasonable amount of new fossil
generation in the south Coast Basin. Distributed solar systems such as rooftop
photovoltaics can be placed directly in urban regions such as the greater Los Angeles
area, but particularly during the May-October hot weather period they are unlikely to be
the primary supply source for meeting electricity needs within the forseeable future.
Other renewable options are likely to be imported from outside of the South Coast
basin, but they will need some fossil generation to firm them up as well as to ensure
reliability, replace aging plants, and make up for reductions in imported coal power.
Further, Some of the most promising solar possibilities are located in remote desert
areas which could require a long transmission connection to the South Coast area, or
expensive upgrades to existing lines and substations. Depending on the route and
areas affected, long transmission lines can be extremely controversial and difficult to
permit. The desert areas also have numerous fragile and sensitive resources such as
threatened and endangered plants and animals, unique cultural sites warranting
permanent protection, and stunning panoramic views of the landscape and surrounding
mountains. As discussed in previous questions, I believe that development of large, new
solar facilities in the desert and associated transmission is possible and desirable, but it
will not happen overnight.
I believe that the future of the South Coast's, and California's, electricity supply needs to
come from a much larger and ever increasing amount of renewable sources while
simultaneously reducing the environmental impact from the fossil fueled generation that
we continue to operate. To achieve this transition, the State must take a measured
approach to our electricity system's development, and I believe that the work that the
Energy Commission is initiating to better describe this transition will help build public
understanding and consensus about what - and how much - new fossil fuel
infrastructure is needed. To further contribute to a shared understanding of this issue
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the Energy Commission also plans to conduct a detailed needs assessment for the
South Coast Basin in coordination with the California ISO.
Transportation Fuels and Technologies
AB 1 1 8 (Nunez), Chapter 751 , Statutes of 2007, authorizes the Energy Commission to
spend approximately $120 million per year over seven years to develop and deploy
innovative technologies that transform California's fuel and vehicle types to help attain
the state's climate change policies. The 2008 Integrated Energy Policy Report Update
states that this program will deploy alternative and renewable fuels in the marketplace
without adopting any preferred fuel or technology. The Energy Commission's
Transportation Committee, of which you are a member, provides oversight and policy
direction related to the planning, implementation, and evaluation of all transportation-
related and fuel-related functions administered by the Energy Commission, including
implementation of AB 118.
10. As the associate commissioner to the commission's Transportation Committee,
please describe some key steps the committee has taken to oversee the
implementation ofAB 118.
The passage and implementation of AB 118 represents a significant opportunity for the
State to begin the transformation of our transportation sector to a low-carbon future. The
Energy Commission takes it responsibility under this statute very seriously and has
dedicated significant resources to the development of the AB 1 18 Investment Plan and
the accompanying regulations. In addition, we have engaged in a significant outreach
effort to develop an idea of what the research, infrastructure, technology and workforce
needs of the alternative transportation technology industry are.
We began our efforts by convening an Advisory Committee, as directed by legislation,
to help develop the Investment Plan for AB 1 1 8 funds. The twenty-five Advisory
Committee members represent environmental, public health, and labor organizations,
fuel and technology consortia, academic institutions, consumer advocates, venture
capitalists, and other state agencies. As the presiding member of the Transportation
Committee, Commissioner Boyd presides over Advisory Committee meetings, and the
two of us have participated actively in the Advisory Committee meetings held to date.
The draft Investment Plan will be discussed with the Advisory Committee at a public
meeting in January.
Parallel to developing the Investment Plan, the Energy Commission has drafted
regulations to guide the implementation of AB 118, and Commissioner Boyd and I have
convened several workshops to solicit public input on the regulations. The draft
regulations, which were submitted to the Office of Administrative Law on December 2,
include sustainability goals for the program, an elaboration of the statutory requirement
that AB 1 18 funds not be used to support existing laws or regulations, details on the
organization and role of the Advisory Committee, and the process for developing and
updating the Investment Plan.
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Following completion of the regulations and Energy Commission adoption of the
Investment Plan, we plan on releasing solicitations for funding in the spring of 2009.
1 1 . Please provide some examples of policy direction you have provided to ensure
effective planning and evaluation of this program.
Given the many overlapping goals of AB 1 18, policy direction has been required to
prioritize program objectives in order to guide the planning of the program. As you
know, climate change is one of my highest priorities. The transportation sector
accounts for almost forty percent of greenhouse gas emissions in California, and
accelerating the transition to low-carbon alternative fuels and technologies is critical if
we are to achieve our AB 32 goals. AB 1 18 funds should be used to reduce California's
dependence on petroleum, reduce air and water pollution, and drive technological
progress. Additionally, in light of current economic conditions, I believe that AB 1 18
funds can and should play an important role to play in stimulating California's economy
and moving it in a cleaner direction. By supporting the construction of alternative-fuel
infrastructure and clean vehicles, and training workers for the new low-carbon economy,
AB 1 18 funds can provide both immediate and long-term economic benefits to the state.
I have therefore directed that the Investment Plan be designed around the dual
objectives of reducing greenhouse gas emissions and developing the state's economy,
and that future program evaluations assess our progress toward achieving these goals.
While focusing on greenhouse gases and economic development, however, we cannot
overlook the sustainability of the fuels and technologies that we support. In particular,
AB 1 1 8 gives us the opportunity to support the emergence of an in-state biofuels
industry, and it is critical that this industry develop in such a way as to protect
California's and the planet's environment. With this in mind, AB 1 18 calls for the Energy
Commission to develop sustainability goals to ensure that the funded projects do not
adversely impact natural resources. Commissioner Boyd and I directed staff to form a
Sustainability Working Group to participate in the development of the sustainability
goals, and to provide input on sustainability criteria that will guide funding decisions.
We will also propose devoting a portion of AB 1 18 funds to sustainability support
activities such as developing Best Management Practices for purpose-grown energy
crops and evaluating international sustainability certification programs.
12. Have you called for certain measures so that the committee can evaluate the cost-
effectiveness of this program? If so, please describe these measures.
AB 109 (2008) amended AB 118 to require the Energy Commission to include an
evaluation of the program in the IEPR. These biennial evaluations will include the
expected benefits of funded projects in terms of greenhouse gas emissions reductions,
air quality, reduction of petroleum use, and technology advancement. We plan to use
this framework to analyze the cost-effectiveness of the program in terms of dollars spent
per ton of CO2 avoided. The program can thus be compared to other greenhouse gas
reduction measures, both within the transportation sector and across the economy.
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To conduct this cost-effectiveness analysis, we will need adequate information to
estimate the greenhouse gas emission reductions achieved. Estimated greenhouse
gas emission reductions associated with individual projects will be requested in funding
solicitations, verified as appropriate, and used as criteria to evaluate applicants as well
as in subsequent cost-effectiveness analyses. In addition, as stated in the draft
regulations, the Energy Commission will develop reporting requirements and establish a
database to monitor the greenhouse gas emissions and other environmental impacts of
funded projects. The cost-effectiveness of the overall program will be assessed by
aggregating the costs and expected impacts of all funded projects.
Energy Efficiency
In its October 2008 draft of final recommendations on GHG regulatory strategies, the
Energy Commission reaffirms its commitment to an aggressive approach to realize
significant new reductions in energy consumption and GHG emissions, via energy
efficiency measures. Under the Warren-Alquist Act, the Energy Commission is
responsible for adoption and enforcement of state energy efficiency building standards
and appliance standards. The Energy Commission has stated that its standards-setting
authority and its development of new efficiency technologies are essential to attainment
of this goal.
13. Should additional actions be taken to strengthen the state's efficiency standards?
Absolutely. As a result of collaboration with our CPUC and ARB partners, there is wide
recognition that energy efficiency will be California's most effective tool for achieving
GHG emission reductions in the electricity and natural gas sectors, which are critical to
accomplishment of climate change mitigation in the state. Further, there is recognition
that aggressive advancement of the state's building and appliance standards are
fundamental to California's climate change success as these standards are by far the
most cost-effective means of accomplishing required energy efficiency improvements.
The standards are a vehicle to deliver many other benefits to Californians, including
lower energy bills, avoidance of the need to build power plants and the resulting
environmental and societal impacts, increased comfort in buildings, better indoor air
quality, lower water consumption and reduced construction defects.
We have ambitious goals for continued expansion of building standards: driving to zero
net energy in newly constructed buildings by 2020 for residential and 2030 for
commercial. We are also pursuing an aggressive updating of appliance standards over
the coming years focusing on lighting, consumer electronics, and water-using
appliances in particular. These activities are strongly supported in the CPUC's Long-
term Strategic Plan and ARB's AB 32 Scoping Plan. The Energy Commission has
actively pursued additional budgetary resources to expand the scope and pace at which
California's building and appliance standards are updated. We appreciate the support
from the Legislature thus far in this endeavor and would welcome further support.
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As noted above in my answer to question #5, two of the areas for most significant
improvement regarding efficiency standards are existing buildings and water efficiency,
would direct you to my statements about each of these in question #5 above.
14. Are there figures that show the actual energy savings being achieved by the
energy efficient building standards? Should steps be taken to get a better sense of
whether the standards are working fully and to ensure local governments enforce
those standards?
California's building and appliance efficiency standards have been a model for other
state standards. California as a state uses 60 percent less electricity per capita than the
nation as a whole. Much of our success is attributable to the energy efficiency work of
the Energy Commission over the past 30 years. The following graph shows the
cumulative energy savings that have been achieved since 1975 from the building
standards, the appliance standards, utility and other energy efficiency programs, and
price and market effects. The standards are a very cost-effective use of public funds to
save energy and reduce greenhouse gases. The building standards in combination with
the appliance standards are responsible for over half of the energy and peak savings
achieved in California since 1975. The utility program portion of the other half results
from the public goods charge funds (current annual budget of about $750 million) that
provide incentives to encourage energy efficiency improvements outside of the
standards.
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50,000
45,000
40,000
35,000
30,000
5 25,000
o
Residential and Commercial
Cumulative Conservation Savings 1980 - 2006
-19% of
Residential and
Commercial Electricity Use
in California in 2006
Program, Price, and Market Effects
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006
I am concerned that a standards program is incomplete without an active enforcement
element. Historically, the Energy Commission has been underfunded to maintain an
active presence in the field to ensure that standards are being complied with and
enforced by local building departments (there are 530 independent building
departments of the cities and counties around the state). In the FY 2007-08 budget
cycle, the Energy Commission was authorized 3 permanent and 2 limited term positions
to start up a dedicated compliance and enforcement unit. The enforcement staff has
been visiting and working with local building departments to increase compliance with
the standards. The Energy Commission also actively coordinates development of
training and education materials with the Investor Owned Utilities to reach out to
building departments and the many professionals and trades people who make up the
building industry. The Energy Commission recently was successful in competing for a
$500,000 grant from the US Department of Energy to develop an online Learning
Management System for building department personnel. The Energy Commission also
works with the Contractors State License Board (CSLB) to provide information about
standards compliance to licensed contractors and to obtain CSLB assistance in
following up complaints against contractors who fail to comply with the standards.
Legislation has been introduced in the past two sessions to provide direction to the
CSLB to place a priority on addressing, in collaboration with the Energy Commission,
the failure of contractors to pull building permits and comply with the energy standards,
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as a means to achieve greenhouse gas emission reductions from the standards.
Although Governor Schwarzenegger vetoed the multi-purpose AB 785 (2007)
legislation, he urged the Legislature to reconsider legislation to add penalties for failure
of licensed contractors to comply. Such legislation is sorely needed.
It is ironic that in an era when local governments are expected to play a role in reducing
greenhouse gas emissions and are actively pursuing local ordinances that exceed
mandatory energy efficiency and green building standards, many of the same local
governments devote inadequate resources to enforcing state standards. We need to
send a strong message to local governments that the state depends on their
enforcement efforts to deliver the critical energy and climate change benefits resulting
from building efficiency standards.
Public Interest Energy and Climate Research
California state agencies spend several hundred million dollars per year on air pollution,
energy, and climate related research. The University of California spends funds for
these purposes as well. The Federal Department of Energy also provides federal
funding for public interest energy-related research, development, and demonstration
(RD&D) in the state.
The Energy Commission itself oversees the Public Interest Energy Research Program
and the Natural Gas PIER Program. As noted above, it also oversees a portion of the
AB 1 18 program. Last year, the Legislature passed two measures to establish a more
coordinated and effective energy, clean air, and climate research program. The CEC
opposed these measures.
15. How do you evaluate whether California's various energy and climate research
programs are sufficiently well-coordinated to provide the greatest benefit to
taxpayers and the environment?
The Energy Commission has undertaken a number of activities to ensure that particular
RD&D projects help implement energy policy such as Senate Bill 1250 (2006), the multi-
agency Energy Action Plan, the Energy Commission's Integrated Energy Policy Report,
the "loading order" of new energy resources, and other policy sources. These activities
are described below. In addition, the Energy Commission participates in the R&D
subgroup of the Climate Action Team, which is designed to help streamline research
coordination, collaboration, and co-funding of climate change and energy-related GHG
reduction research and programs. In particular, Energy Commissioner Jim Boyd, former
Executive Director of the ARB, leads this effort for all state agencies. The R&D chapter
of the next climate Action Team Report is due to be released in January.
Because I am not a member of the Research and Development Committee, I do not
have personal involvement in these coordination efforts. However, I do believe that the
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Energy Commission should do more to improve transparency and coordination in the
PIER Program. Specifically, I would like to see the Energy Commission convene its
advisory committee in order to have a public dialogue about the effectiveness and future
direction of the program. In addition, I believe it is very important for the Commission to
develop and approve a strategic plan for the PIER Program in order to be better able to
communicate our strategic objectives and assess our effectiveness in meeting these
objectives. Publishing a strategic plan for PIER would also represent a significant step
forward in reducing the potential for duplication with other public or private research
spending.
Since its inception, the Energy Commission's PIER program has followed the loading
order -first energy efficiency, then renewables, then clean advanced generation, plus
transmission and distribution improvements - for directing its energy RD&D. Of the
$601 million in PIER R&D projects funded between 1999-2008, almost $500 million (83
percent) clearly has benefitted taxpayers in implementing the energy loading order
policy, as shown by the following principal categories of PIER research called for in SB
1250:
PIER Electric & NG Funds by SB1250 Code ($601.53 MM)
Program Title
Dollar Amount
Percentage
Transportation
$13.1 MM
2.2 %
Energy Efficiency and
Demand Response
$181.6 MM
30.2 %
Renewables
$148 MM
24.6 %
Advanced Electricity
Generation
$97.8 MM
16.3%
Transmission and
Distribution
$71 .9 MM
1 1 .9 %
Climate/ Environmental
$55.8 MM
9.3 %
Program Administration
$33.33 MM
5.5 %
To help the Energy Commission avoid redundant energy and climate change research,
the Energy Commission actively solicits and participates in committees, working groups,
collaborative partnerships, stakeholder organizations, and universities to discuss, obtain
suggestions, and in some cases, receive funding for our research programs. For
example, the Energy Commission uses research program advisory committees to
identify prospective new projects, to prevent wasteful duplication and to ensure
beneficial projects are considered. Advisory committees for transmission, distribution
and smart grid research are comprised of high-level representatives of the Department
of Energy, lOUs, renewable resource groups, CPUC, CA ISO, out of state power
producers such as Bonneville Power Authority and the University of California. These
processes help the Energy Commission ensure we select the best research
opportunities that also meet the loading order and other legislative goals.
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To ensure that state policy and goals are implemented through trailblazing energy
technology research, the Energy Commission's RD&D program reports to an RD&D
Committee, consisting of two of the five Energy Commissioners. They provide detailed
policy guidance for the program, and new, beneficial and non-duplicative projects are
approved by the full Energy Commission before implementation.
RD&D staff and management are also active in committees, working groups,
collaborative partnerships, stakeholder organizations, and university undertakings
involving RD&D either as participants or leaders. These forums enable them to discuss,
obtain suggestions, and in some cases, receive funding for our research programs.
Additionally, participation in these various working groups and collaboratives allow us
the opportunity to keep abreast of current activities that others are engaging in, and to
inform others our activities. Ongoing communication with entities involved in energy and
climate change programs allows us ample opportunity to evaluate how well we are
coordinating and leveraging our efforts and the ratepayers' money with the efforts of
others to ensure the greatest benefit. Some examples of this effort are:
• The Energy Commission created the California Climate Change Center, a
research institution based at several universities and research institutions in
California to provide additional assurance that duplicative climate change
research efforts does not occur.
• Through the University of California Office of the President's California Institute
for Energy and the Environment, UC-system research is sought, identified and
coordinated with related PIER energy and environmental research.
• Active membership in the Association of State Energy Research and Technology
Transfer Institute (ASERTTI).
• The Energy Commission, CPUC, and the lOUs participate in the Emerging
Technologies Coordinating Council (ETCC), a collaborative forum for the Energy
Commission and others to exchange information on RD&D opportunities and to
coordinate introduction to the marketplace new emerging technologies.
• Participating in industry technical memberships with organizations like the
Electric Power Research Institute (EPRI) and the Emerging Technology
Coordinating Council.
• Hosting multi-agency sponsored climate change conferences.
• Coordinating with the Department of Water Resources during the development of
the State Water Plan.
Participating on CARBs Climate Change Review Committee.
Developing an Energy Commission long-term climate change research plan.
Evaluating researchers and resources at the University of California (UC) for their
potential contribution to cutting edge research.
Working directly with individual companies to further develop promising new
technologies with patents, etc., and negotiate for the lowest cost for the state.
Sponsorship of many conferences and workshops on specific technology areas
to collaborate and coordinate research efforts.
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Through many such mechanisms we are able to accomplish and evaluate how well our
research efforts are coordinated with others, and leam about new research
opportunities to address the many energy and climate change challenges that the State
of California faces.
16. What, if any, improvements would you suggest to ensure that state research
programs are better coordinated among agencies, the University of California, and
the federal government to avoid duplication of effort?
As noted above, the state already provides, and the Energy Commission takes part in,
research coordination through:
1 . The Climate Action Team's Research Subgroup
2. Participation of state agencies on federal research committees
3. Participation of federal experts on state research committees
4. State funding and participation in university research centers
5. University researchers providing expertise to state research
6. Joint state agency and utility research committees
7. Interagency research agreements
The Energy Commission's RD&D program follows the research guidance of SB 1250
and other legislation, as well as the energy priorities established by the Energy
Commission's IEPR and the statewide interagency Energy Action Plan. The Energy
Commission also receives feedback and direction from the PIER Advisory Board,
comprised of California legislators, state and federal agencies, national laboratories,
universities, and experts in the energy research community. We are scheduling the next
meeting of the Board for the January-February 2009 timeframe. During the Board's last
meeting, Energy Commission staff reviewed the ongoing research efforts and discussed
research priorities. In the future, I believe active participation in the Board's activities
and guidance by all the members would help ensure that PIER research is coordinated
with other efforts in the state and the nation. I also believe the Energy Commission
should enable the Board to meet more frequently as research needs change, to gain
additional policy guidance and ensure coordination.
I believe the Energy Commission must rely more heavily on competitive solicitations to
identify and fund technology-advancing projects. As proposals for similar research are
put forward, the most promising applications can be selected and duplicative research
winnowed out. In addition, I believe that the Energy Commission should increase the
funding allotments for which competitors would bid. This should increase the number of
competitors and help eliminate duplicative research.
As noted in Question 15, the Energy Commission has supported energy research
centers at California's universities and Energy Commission staff sits on the Boards of
Directors of some of these centers. This not only gives us access to the types of
research the faculty is undertaking, but the faculty also provides us with information
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about work conducted by other universities and researchers. I believe that the Energy
Commission should increase its participation in these university research centers and
support the creation and operation of more.
Finally, I think each agency should prepare updated and multi-year strategic research
plans and the Climate Action team should endorse a statewide research plan that
ensures non-duplication and identifies complementary research areas for state
agencies, universities and federal government. I would not want to see unnecessary
layers of bureaucracy added in the name of coordination that would have the effect of
slowing down the process and removing the flexibility necessary to react to topical
issues and rapidly developing technologies.
PIER Program and the Use of Contracts
The Public Interest Energy Research (PIER) Program was created in 1996 when the
state Legislature enacted AB 1890 (Brulte), Chapter 854, Statutes of 1996, California's
electric utility restructuring legislation. This law requires that funds be collected annually
from the three investor-owned electric utilities and deposited in the Public Interest
Energy Research and Development Account, to be invested by the Energy Commission
in RD&D. Passage of this law shifted administration of public interest RD&D from
California's investor-owned utilities to state government — a major change intended to
ensure the continuation of public interest energy RD&D.
In February 2008 the Assembly Committee on Utilities and Commerce held a special
oversight hearing on the Energy Commission's use of outside contracts for various
Energy Commission services. A key focus of this hearing was the PIER program and
the contracts the Energy Commission uses for the administration of PIER. One of the
committee's chief concerns was that the Energy Commission was paying for high-priced
consultants for services that could be or are already performed by civil service
equivalents, who are more cost-effective to the state.
1 7. What steps has the commission taken since the oversight hearing to address the
potential redundancy of outside contracts for the administration of the PIER
program?
Since the oversight hearing, only 2 of the 1 7 consultants still have contracts with the
Energy Commission's R&D Division, a reduction of 89 percent. Two additional high
level staff are from the University of California system through an Inter-Jurisdictional
Exchange (IJE) and are thus considered to be Energy Commission staff; one of those
IJE arrangements will end within the next six months (Dr. Martha Krebs) whose role is
as the Chief Science Advisor, and the other in 2010, Dr. Larry Meyer, who is the lead
scientist in the West Carbon Sequestration project. Neither IJE will be renewed. The
remaining two consultants will continue to provide specific and specialized technical and
limited research activities for a period of no more than two years.
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18. What administrative protocols do you believe should be put in place to ensure the
long-term efficient use of state resources for the PIER program?
In April 2009 the Energy Commission contracted with the Department of Finance (DOF)
to audit the operation of the PIER program, provide recommendations for improvement,
issue a report on any deficiencies, and recommend administrative actions that would
help the program operate more efficiently and effectively. The Energy Commission
expects the draft of the DOF audit in late December, and the final audit will be
completed in late January. I expect this audit to identify administrative protocols that the
Energy Commission will implement to ensure the long-term efficient use of state
resources for the PIER program.
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Goals and Governance
1. What were your most significant accomplishments during your first term as a
member ofSBE? What do you hope to accomplish during your second term?
How will you measure your success?
I have served on the SBE since September of 2006, having been appointed to
complete the unexpired term of a former member. Coming onto the SBE, I set some
specific personal goals, which were to diligently and thoroughly review issues that
came before the Board, and to shape my input and base my decisions on policy and
regulation development in a manner that encompassed more broadly the interests of
all students. Further, I pledged to examine, in a truthful and honest manner, the real-
world outcomes and impacts that would result from those deliberations and decisions.
To that end, I feel that I have lived up to my personal commitments, and feel that I
have been an effective member of the SBE.
As I look forward to my second term, I hope to become a more effective voice for
discussing policy and regulatory issues in terms of their practical impact on schools,
teachers, and students. My goals include shaping the dialog and discussion in a
manner that leads to the development of curriculum and programs that are more
engaging and relevant to all students. My success will be measured by the degree to
which I can effectively and positively play a role in that regard.
2. The Governor 's Commission on Education Excellence released a report recently
which described education governance as a "crazy quilt. " How do you view your
role and responsibilities within this structure?
I regard my role and responsibilities on the Board quite simply - to do my best to
make the most informed, thoughtful decisions possible on matters that come before us
for our consideration. I am troubled at times by the lack of effective communication
between the Board and other policy stakeholders, and believe that we need to do more
to initiate those discussions. I hope that our upcoming Board retreat will give us an
opportunity to set some specific goals to create those liaisons.
3. As a board member, what training have you received regarding conflicts of
interest? From whom do you seek advice on potential conflicts? Specifically,
who has provided you with training on potential conflicts with respect to career
technical education issues?
Shortly after my initial appointment to the Board, I completed the ethics training
course offered through the Attorney General's Office. In addition, I consulted with
then-Board Counsel Paul Seave and explained the parameters of my employment
with the California Agricultural Teachers' Association, and sought his advice and
expertise relative to any potential issues. I have been very diligent in complying with
both the intent and letter of the law in this regard, and will continue to do so in the
future.
Senate Rules Committee
JUL 2 4 2008
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4. Given that you are the executive director of the California Agricultural Teachers '
Association and a recognized advocate for career and technical education, when,
if ever, do you believe it is appropriate to recuse yourself from voting on an item
pending before the board? Have you ever done so?
I believe it is proper to recuse myself from deliberating and voting on an item any
time there is a question of the personal or fiduciary impact of that decision on my
status as executive director of the CATA. Specifically, I would clearly recuse myself
if the Board considered agenda items that directly impacted the allocation of
resources for CTE or Agricultural Education in a manner that held any potential
benefit to my organization or to me personally. To date, that has not occurred. I
would most happily recuse myself if the California State Legislature, the Governor, or
any other entity granted the SBE such an opportunity in the future.
Accountability
5. Current K-12 education is criticized for putting too much pressure on schools to
"teach to the test ", referring to achievement tests. How do you, as a board
member, evaluate our testing policy and take steps to modify it, if necessary?
How do you balance the need to measure achievement against the danger of an
over-emphasis on test results crowding out other objectives? How do you
determine how much testing is too much?
In my tenure on the Board, I have approached this issue with my earlier-stated
goal of basing my decisions on the real-world impact on schools, teachers, and
students. It's not always an easy call, and occasionally my viewpoint has not been
shared by a majority of the Board. I clearly understand the need for assessing the
progress of our schools and students, but have been hesitant to enact policies that, in
my opinion, further isolate and frustrate the very populations that need the most
assistance in making meaningful gains. Too many of our students view school and
education as an endless stream of "memorize, test, and forget" activities that have no
relevant connection to their future. I think that's an unfortunate situation, and I
believe that we must continue to refine and modify our policies so that there is clear
understanding of the purpose and goals of our assessment program.
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6. How do respond to the criticism that current test scores are not a true reflection
of achievement in California because the Iom> est performing students have already
dropped out and are not being tested?
There is certainly some validity to that argument, but it's also important to note
that a significant number of dropouts are not "failing" in school, just bored with
curriculum that they view as irrelevant to their lives. It would be a mistake to think
that all dropouts are incapable of achieving satisfactory test scores. However, there is
a general recognition that there is a perverse "incentive" for districts to have the
lowest-achieving and most disinterested students not be included in the general
population of students taking part in statewide testing. There have been recent
statutory revisions enacted to address this issue, and they will hopefully create a more
accurate picture of true student achievement.
7. The board recently raised test score targets so that specific subgroups of students,
including those with the highest dropout rates, will be expected to improve their
performance even more than in the past. Given that the dropout rate in urban
districts is estimated between 50- 70 percent, how do you determine when or if the
targets you are raising are increasing or decreasing the number of dropouts?
The setting of consistent goals establishes the expectation that all students in this state
are valued, and that they all deserve access to the same high levels of inspired
instruction, educational leadership, vibrant curriculum, safe and modern facilities, and
other educational support resources necessary to succeed. In too many cases, students
feel disconnected from the educational programs, practices, and curricula offered on
their campuses, and simply walk away from what they view as an unresponsive
educational system. We certainly need to examine the impact that achieving these
higher goals has on students, but more importantly we need to work to ensure that
adequate and equitable resources are in place to help them achieve success.
8. The Legislative Analyst recently released a report suggesting that federal and
state accountability standards be consolidated so that districts understand more
clearly what is expected of them. Do you agree with this recommendation? If so,
what are you doing to implement it?
The Legislative Analysts' report contained many recommendations that deserve more
attention and discussion. It has been generally recognized that neither measurement,
federal or state, is perfect in design, and it may very well be possible to develop a
more clearly understandable process in the future. We should continue to evaluate
the LAO proposals and determine if there are ways that we can improve given the
limitations of the federal act.
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No Child Left Behind
9. Some districts have been sanctioned for their failure to reach specific "No Child
Left Behind" goals. In addition, the state board recently increased API growth
targets for underperforming subgroups. It is not likely that state budget funding
will increase for these districts given the budget situation. As you make decisions
that affect school districts, how do you factor in the problems that district face in
a difficult budget year?
The schools that were sanctioned for failing to reach their goals were
differentiated by the degree to which they had made substantial ongoing progress and
other mitigating factors, resulting in different intervention levels. The districts
needing the highest level of intervention and assistance were designated to receive
proportionately increased resources available from the federal government. These
resources had been previously allocated by the federal government for this purpose,
and are not affected by the ongoing state budget discussions. Hopefully these
resources will be made available to districts in the near future.
1 0. The Board has responsibility for standards and curriculum. It is estimated that
all districts will be in program improvement by 2013-14. What is the long-term
strategy for developing standards and curriculum for students that address
program improvement issues?
The circumstance cited above is a result of California establishing high goals for
all of its students. Other states chose to establish minimum standards, and are now in
full compliance with federal guidelines. Our goals are laudable, and as we move
forward, we need to balance our desire to maintain high standards with the need to
engage all students in rich, diverse curriculum that they see as relevant to their lives
and future. Our efforts to improve the academic performance of our students must
utilize more diverse strategies and practices if we hope to attain our lofty goals.
11. Do you believe that the board is doing everything within its power to assist
districts with meeting the requirement ofNCLB? If so, what specific steps has the
board taken?
The board has approved the expenditure of additional funds for districts
struggling to provide adequate facilities, materials, and experienced teachers to meet
the requirements ofNCLB. We have approved the delivery of targeted assistance to
districts identified in the lowest two deciles on the API. We continue to search for
ways to provide support and assistance to these districts. I believe the board clearly
recognizes the many challenges faced by these struggling districts and communities.
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California High School Exit Exam
12. There has been extensive discussion on options for students with disabilities who
are unable to pass the exit exam. Currently, there are legislative proposals
addressing the issue. However, in the meantime many students with disabilities in
the class of 2008 are left in limbo. What course of action would you recommend
for those students, and what course of action would you propose as a long-term
solution?
I would recommend that those students continue to work with their districts and
schools to obtain the support and assistance needed to pass the exam. The board has
allocated resources for this purpose as part of a settlement agreement negotiated with
advocates for these students. Over the long haul, we need to ensure that students with
disabilities have appropriate instruction, assistance, and resources identified in their
individual education plans at their disposal as they prepare for and take the exit exam.
13. Federal law requires an alternative assessment be provided for students with
disabilities but the Board has never authorized an alternative. The Board's response
has been to allow local districts to seek a waiver from the test for affected students.
How should the Board accommodate students who wish to take the test rather than
waive the testing requirement? Should an alternative assessment be developed for
them?
The idea of developing an alternative assessment is very appealing at first blush, but
given the resources needed to develop the type of assessment tools that are
educationally sound, while properly addressing the specific challenges of each
student, is an overwhelming task. We do need to continue to explore ways to
accommodate the students who desire to complete the exam, and provide them with
the assistance they need to succeed.
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English Learners
14. Concerns have been raised that the state 's Reading Language Arts and English
Language Development framework is not designed in a manner to ensure that a
student will achieve sufficient proficiency in English to meet academic standards
and pass CAHSEE. How do you respond to this criticism? What, if any, changes
would you recommend to ensure each student has the instructional materials
necessary to attain reading and English proficiency?
To the extent that the content standards are aligned to both the frameworks and
CAHSEE, the first point may not be as valid as the second. The bigger issue, beyond
framework design, is whether all of the instructional support, professional
development, and supplemental support programs are adequately provided in a
manner that's effective. This is one area of education that the Board needs to
continue to work on to ensure that the best available instructional materials, as well as
the most effective instructional practices, are used for English and reading
development.
15. Should the board take any actions specific to English learners in an effort to
narrow the achievement gap?
The board has responded to the need to provide additional resources, including
new intervention programs and supplemental materials, aimed at improving
vocabulary and writing instruction. Development of new criteria used to evaluate the
effectiveness of English learner support materials and struggling reader materials has
resulted in improved instruction, and is available for teachers and schools to use as
needed. Everyone involved in education, especially the board, must continue to
examine the factors that contribute to this achievement gap, and seek ways to provide
resources and educational opportunities that seek to fully engage all students.
16. SBE recently reestablished the English Learners Advisory Committee (ELAC).
What role will ELAC play in deciding board policy? What is the goal of the
committee? Will you be involved with ELAC? If so, how?
I strongly supported the reestablishment of the English Learners Advisory
Committee, and look forward to engaging in discussions and policy development
activities brought forth as recommendations by the committee. I view this as an
important step in providing all members of the board with the necessary information
and advice needed to make informed policy decisions. I am not currently designated
as a liaison of the board to the committee, but look forward to working with members
of the committee and with my peers on the board to address issues identified by the
committee.
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Goals and Governance
The State Board of Education (SBE) is responsible for setting policy and adopting rules and
regulations for governing standards, curriculum, instructional materials, assessment, and
accountability. The board is also responsible for approving waivers of certain provisions of the
Education Code, reviewing district reorganization plans, implementing federal programs, and
adopting regulations to implement legislation. Some of these duties overlap with those of the
Superintendent of Public Instruction.
1 . What were your most significant accomplishments during your first term as a member
of SBE? What do you hope to accomplish during your second term? How will you
measure your success?
As the principal of a large, urban, high-poverty school in Los Angeles that serves 2,200
PreK-H* grade students, I have been able to use my knowledge and skills to achieve
significant accomplishments during my first term as a member of the SBE. As the Board
liaison to the Special Education Commission, liaison to the Nutrition Advisory Council and
liaison to the Curriculum Commission on instructional materials related to English learners,
I'm proud to have accomplished the following:
• Approval of the California Modified Assessment (CMA) for students with
disabilities. The assessment was available in the elementary grades in spring, 2008
and will be available to secondary grades beginning spring 2009.
• Adoption of regulations applicable to special education teachers in secondary
schools so they can be deemed "highly qualified" under No Child Left Behind.
Teachers who possess a special education credential but not a single subject
credential will be provided with 32-hour training and/or coursework so they can
provide core subject instruction to students with disabilities.
Participation in the Special Education Commission to formalize a set of
recommendations to the SBE and the legislature related to CAHSEE.
Approval of four Special Education Planning Areas (SELPA) pilots that would
include state-authorized charter schools in the coordination of special education
services to assure accountability and effectiveness.
Adoption of the new health education standards after intensive participation in the
Nutrition Advisory Council.
Approval of regulations for SB 12/965 which delineate policies related to the sale of
food and beverages on campus to assure nutritious meals for all students.
Revision of Title 5 regulations related to instructional materials adoption to improve
transparency, public engagement, communication and availability of digital texts.
Monitoring the new adoption of English/Language Arts programs to assure the
integration of English Language Arts standards (ELA) and the English Language
Development standards (ELD) to meet the needs of all students including English
learners.
Participation in the revival of the English Learners Advisory Committee.
Adoption of professional training criteria (AB 472) to include strategies for English
learners.
Senate Roles Committee
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Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions)
• Participation in the Commission for Teacher Credentialing in the initial phase of SB
1209 implementation, specifically in the streamlining of BCLAD and foreign
language certification.
• Participation in the review of California's new Foreign/World language standards to
make sure that California remains globally competitive.
If confirmed for a second term, I hope to accomplish the following:
• Adopt quality ELA/ELD curricular materials with electronic resources at an
affordable price. (Evidence — material availability and costs.)
• Establish a process for review and update of the state academic content standards to
coincide with the existing process for the revision of curriculum frameworks and the
adoption of instructional materials. Consider the integration of global literacy
standards across core areas so California students will be college prepared and
globally competent. (Evidence - standards updates.)
• Assume a leadership role in the adoption of Foreign/World Language standards,
framework and instructional materials. (Evidence - availability of instructional
materials.)
• Explore ways of reducing the testing burden on students and make the assessment
more relevant to what they are actually doing in class especially in high schools.
(Evidence - assessment system and timeline.)
• Develop and adopt a methodology for generating a measurement of academic
performance using unique student identifiers (CALPADs) and develop a vertically
scaled assessment system in which annual academic growth can provide a more
accurate measure of both school's and student's academic achievement growth over
time.(Evidence - an improved data system.)
• Study needs of English learners and potential economic advantages that language
diversity brings to California and advocate for the study of world languages that
could be highly valued in the global economy. (Evidence - students with access to
world language instruction.)
• Examine new ways of accurately assessing students with disabilities including
STAR, CMA, and CAHSEE to ensure that the test instruments are universally
accessible. (Evidence - available modifications and other assessment tools.)
• Expand professional development for teachers of students with disabilities to
include intensive training on autism. (Evidence - teachers have access to training.)
• Change the perception that SBE favors charters over traditional public schools by
leading honest discussions on shared mission. Prop 39 struggles, enrollment and
funding issues.(Evidence - partnership between charter and non-charter schools.)
2. The Governor's Commission on Education Excellence released a report recently
which described education governance as a "crazy quilt " How do you view your role
and responsibilities within this structure?
I came to the United States of America because it values diversity of ideas. For democracy
to thrive there must be divergent voices, shared authority and accountability. Thus,
regardless of the governance structure, I'm responsible for helping all students succeed by
developing and adopting policies that will accomplish the mission. To close the
achievement gap, there is plenty of work to be done by all parties (the Governor, the
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Secretary of Education, the Legislature, the Superintendent of Public Instruction, the
professional organizations, the students and families, and the public, etc.) and my role is to
work with every entity.
3. As a board member, what training have you received regarding conflicts of interest?
From whom do you seek advice on potential conflicts? Specifically, who has provided
you with training on potential conflicts with respect to charter school issues?
As an appointed public official, I hold myself out to the highest ethical standards. To
become familiar with the laws related to ethical conduct, I completed the online interactive
ethics training developed jointly by the Attorney General and the Fair Political Practices
Commission (April 2007) (AG/FPPC). In addition, Mr. Paul Seave, the former chief
counsel for the state board, provided legal advice on conflicts issues whenever I requested
this advice. During the recent period when the state board did not have a chief counsel,
legal counsel for the California Department of Education (CDE) advised board members on
when to disclose a conflict of interest and when we needed to recuse ourselves from
participating in a decision with respect to charter school issues., I have always followed the
advice of counsel when advised to recuse myself due to a conflict of interest. As you know,
we now have a newly-appointed chief counsel, Donna Neville, and she is presently working
on specialized ethics training for state board members.
I also serve as a Commissioner on the Los Angeles City Commission for Children, Youth
and Families. The Los Angeles City Ethics Commission is highly-regarded for its proactive
approach to ethics training for public officials, and through that commission I received a
full-day of ethics training and a full-day of ethics training by the Los Angeles City
Attorney's Office. In addition, I have, in the past 4 years, completed the biennial AG/FPPC
course and received certification. I have also attended ethics workshops sponsored by the
National Association of Charter Authorizers and the National Alliance of Public Charter
Schools. I have also worked closely with legal counsel for the Los Angeles Unified School
District (LAUSD) to ensure that I do not have a conflict of interest when I vote on a waiver
request by LAUSD.
I believe that my considerable training in this area has given me a strong familiarity with
conflict of interest laws. As always, I will continue to seek the advice of board counsel when
there are matters pending before the board that might present a potential conflict for me.
4. Given that you are the principal of a charter school, when, if ever, do you believe it is
appropriate to recuse yourself from voting on a charter school item pending before
the board? Have you ever done so? Specifically, when the board approved
regulations on the use of district facilities for charter schools under Proposition 39,
how did you determine whether or not you had a conflict of interest?
It would be appropriate for me to recuse myself from participating in any way in a board
decision when state conflict of interest laws prohibit my participation in the decision. In
addition, there may also be situations where my participation in a state board decision would
not present a conflict of interest under the law, but where I might abstain from voting
because of the appearance of a conflict of interest. The responsibility to make board
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decisions that are in the public interest is one that I take very seriously, and whenever the
board is presented with a decision that presents a concern for me I seek the advice of legal
counsel. As examples, I have recused myself from voting on state board decisions regarding
the approval of Title 1, Title III, and other grants awarded to Vaughn Next Century
Learning Center.
With respect to the approval of the Proposition 39 regulations, I was recruited as the SBE
liaison to the Prop 39 Task Force that drafted the regulations for the purpose of clarifying
the rights and responsibilities of both charter schools and the districts whose students the
charter schools serve. The Task Force, which included Ed. Coalition members, charter
school representatives and CDE, understood that compromise must be reached to avoid
years of confusion, disputes and litigation. I brought my extensive experience as the leader
of a successful charter school to the table when I worked on these regulations, and neither
my personal financial interests nor the financial interest of the Vaughn Next Century
Learning Center (Vaughn ) were affected by these regulations. Thus, I did not believe it was
a conflict to work on these regulations or to approve them.
In fact, the Vaughn Next Century Learning Center (Vaughn) has not been impacted by these
regulations. Vaughn converted into a charter school in 1993, and has never submitted a Prop
39 application for facilities funding. Vaughn has succeeded in creating 1,000 student seats
using joint-use agreement, interest-free loan from Federal Qualified Zone Academy Bond,
public-private ventures, cash match from savings and donations, and most recently from
State Prop 55 and Prop ID resources e.g.
• 1996 - built 14 classrooms to eliminate multi-track schedule
• 2000 - built 20 classrooms to add middle school
• 2003 - built 35 classrooms to add a primary center
• 2008 - built 1 9 classrooms to add a high school
Accountability
The Legislature, the Superintendent of Public Instruction, and members of the public testifying at
board meetings have all expressed strong support for the view that the board's top priority should
be addressing the achievement gap in California.
5. Current K-12 education is criticized for putting too much pressure on schools to "teach
to the test, " referring to achievement tests. How do you, as a board member, evaluate our
testing policy and take steps to modify it, if necessary? How do you balance the need to
measure achievement against the danger of an over-emphasis on test results crowding
out other objectives? How do you determine how much testing is too much?
The SBE must evaluate its statewide assessment system and our testing policies to assure
that the system measures performance and provides information for instruction. To achieve
these goals, I will consider the following:
• Streamline federal and state required tests to avoid duplications.
• Shorten some tests while mamtaining validity.
• Establish an optimal pacing schedule to include all mandated tests; for high school
students. The schedule should take into account various college entrance exams.
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• Work with districts that also administer locally-devised tests to consider 10-hour
test time per student per year as the maximum testing load for students.
• Continue to strengthen standards-based instruction and the alignment of assessment
to learning standards making "teaching to the test" unnecessary.
• Implement CALPADs and assure that all test results (current and historical) are
captured to allow demonstration of individual student progress over time.
• Expand CALPADs to capture other accountability data including attendance, drop-
out, progress towards reclassification, suspension/expulsion, and IEP goal-
attainment.
6. How do you respond to the criticism that current test scores are not a true reflection of
achievement in California because the lowest performing students have already dropped
out and are not being tested?
California has a dropout crisis. This June, as high school students across California received
their diplomas, our failure to improve that system was evident in the number of student who
didn't graduate. On July 16, 2008 CDE reported a staggering 127, 292 high school students
dropped out during the 2006-2007 school year. This represents more than twice the number
of dropouts ever previously reported. African- American and Latino students comprised 70
percent of the total.
We must expand the accountability system to maintain pressure on dropout prevention
while allowing sufficient time to address the problem. An enhanced accountability system
should:
• Include a combination of annual dropout, 9th grade promotion, and high school
graduation rates.
• Collect and report more useful data on dropouts and the state's progress in
improving graduation rates, e.g., including 5- and 6-year graduation rates in the
calculation of the school's Academic Performance Index (API).
• Support the implementation of SB 2 1 9 that requires the inclusion of 8th grade
dropout rates and accountability data for students attending alternative schools and
community day schools in the calculation of API.
• Create "focused" districts that have schools with high dropout rates; if a district
lacks the capacity to provide meaningful support to schools, schools can join other
schools to form an alternative, regional support structure.
• Develop guidelines specifying the roles and responsibilities of districts and external
providers in providing needed supports for schools on dropout prevention.
• Undertake middle school reform to motivate and maintain students.
• Make strategic investments in proven dropout prevention strategies targeting the
most disadvantaged students and schools.
• Re-examine state high school graduation requirements to include traditional
academic skills, career tech skills as well as so-called "soft skills".
7. The board recently raised test score targets so that specific subgroups of students,
including those with the highest dropout rates, will be expected to improve their
performance even more than in the past. Given that the dropout rate in urban districts is
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estimated between 50-70 percent, how do you determine when or if the targets you are
raising are increasing or decreasing the number of dropouts?
Using a refined accountability system coupled with a better data system discussed in the
response to question #6 will provide the SBE with more accurate dropout information.
However, the SBE must begin to act on the following:
• Adopt a uniform definition of graduation rate and thus dropout calculation
methodology (e.g., the definition agreed to by the National Governors Association
which is included in the proposed federal regulations (200.19(a)(1)). Graduation
rates should include all graduates, not just those who earn a diploma in the standard
four years. California must commit to ensuring that all students leave high school
with the skills and knowledge needed to compete in the global economy. While
most students do complete high school in four years, others take more time. This
issue is even more complex in California due to the recent settlement of a multi-
year lawsuit (Valenzuela v. O'Connell) that requires schools to provide outreach to
students who have not yet passed the state high school exit examination, a
condition of graduation, for up to two years after their expected graduation date. It
is critical that schools and school districts track these students and encourage them
to complete their education even if it takes up to six years. Students with disabilities
are entitled to services until they turn 22, and a number of these students remain in
high schools more than four years.
• Focus intensively on dropout prevention and intervention by:
o Adopting quality intervention materials for students working below grade
level, including strategic intervention materials for students working one to
two years below grade-level.
o Assure that schools provide intensive intervention classes and materials for
students working more than two years below grade level and actively
engage parents in the process.
o Evaluate the effectiveness of intervention programs to assure that these
programs address students' individual needs and contribute to increasing
students' academic proficiency.
o Evaluate, monitor and approve Supplemental Education Services (SES)
providers.
o Scale up high-quality state preschool programs, especially in the low
income areas.
• Consider multiple pathways to graduation to increase student engagement and
reduce dropout rates through smaller learning communities and personalization,
mentoring programs, advisory seminars, career academies, expanded learning time,
work-based learning opportunities, and increased autonomy and scheduling
flexibility at the school level. Creating schools that are more in line with the needs
of 21st century will require the participation of legislators, families, community
members and business partners.
8. The Legislative Analyst recently released a report suggesting that federal and state
accountability standards be consolidated so that districts understand more clearly what is
expected of them. Do you agree with this recommendation? If so, what are you doing to
implement it?
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Yes, I agree that the current dual system of school improvement has major problems. The
two sets of performance measures and expectations in California send mixed messages to
teachers, parents, schools, and districts. Reform approaches that are only school-based
ignore the critical role of districts and are unsustainable. To implement the
recommendations of the Legislative Analyst, the SBE should:
• Replace the dual system with a unified system by:
o Unifying eligibility criteria for program improvement status using multiple
indicators, including PI status, number of A YP indicators failed, number of
Title III indicators failed, etc.
o Unify exit criteria and update exit criteria for state improvement programs
including Immediate/Underperforming Schools Program (II/USP, the High
Priority Schools Grant Program (HPSGP) and the Quality Education
Improvement Act (QEIA).
o Unify sanctions applied to schools and school districts (e.g., school choice,
supplemental services, corrective action, restructuring) with a system that
distinguishes among districts based on the magnitude of their performance;
(e.g., persistently low performing students or low participation rate).
• Link federal and state funds tightly to reform. Districts must think strategically
about how to allocate resources and support struggling schools; the level of support
from federal and state funds should match the intensity, degree and duration of
performance problems.
• Assure that schools and districts have high-quality, SBE-approved outside entities
that will become increasingly involved if performance problems worsen.
• Use a simpler student outcome growth model. Creating vertical alignment and/or
grade-level growth models, and alignment of academic test content from one grade
level to the next so that scores are comparable year to year, may require fine-tuning
the academic content standards that are included in state assessment (especially in
some content areas that have standards which are "a mile long and an inch deep").
• Effectively implement CALPADs and provide schools and school districts with
funding for data collection, maintenance and security.
No Child Left Behind Act
The federal No Child Left Behind Act (NCLB) requires integration of the state and federal
accountability systems. Specifically, federal law requires the state to define student proficiency
according to standards-aligned assessments, ensure that all schools make adequate yearly
progress toward defined proficiency levels, and intervene with or sanction schools that do not
make adequate yearly progress. This is in contrast to California's academic accountability
system that annually calculates an academic performance index for all California public schools,
including charter schools, and publishes school rankings based on them.
Schools that do not make their growth targets for two consecutive years are designated program
improvement schools. Districts that are unable to exit program improvement face corrective
action. In March 2008 SBE imposed sanctions for approximately 100 districts under the
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requirements of NCLB; however, the board action required the affected districts to address the
sanctions whether or not funding was provided for that purpose.
9. Some districts have been sanctioned for their failure to reach specific federal "No Child
Left Behind** goals. In addition, the state board recently increased API growth targets for
underperforming subgroups. It is not likely that state budget funding will increase for
these districts given the budget situation. As you make decisions that affect school
districts, how do you factor in the problems that districts face in a difficult budget year?
In difficult budget years, the SBE must focus on the use of available fiscal resources
effectively and make strategic decisions on human capital. Strategies may include:
• Ensure that current intervention programs (adopted curricular materials and instructional
strategies) are effective, especially those targeted at the underperforming subgroups.
• Assure that all fiscal resources provided through the state program improvement
programs (e.g., n/USP, HPSGP, QEIA) and federal funds for supplemental educational
services are targeted for desired student outcomes.
• Consider flexibility in the use of supplemental funds that are directly linked to student
success.
• Update current state-funded professional development programs to include differentiated
instruction through pacing and complexity, grouping as an aid to instruction, data
analysis and its effect on increasing pupil achievement, and statewide and local data
management systems.
1 0. The Board has responsibility for standards and curriculum. It is estimated that all
districts will be in program improvement by 2013-14. What is the long-term strategy for
developing standards and curriculum for students that address program improvement
issues?
California has rigorous standards. And, the newly-adopted frameworks and curricular
materials reflect the rigor. Program improvement districts must first have a powerful and
coherent educational improvement strategy to deliver the rigorous standards and curricular
materials in order to improve student academic achievement. But districts cannot
implement a powerful educational improvement strategy unless they have both the
leadership and teaching talent to execute the complex actions it requires. Thus, one of the
most important long term strategies is the building of human capital.
California needs to launch a campaign to significantly build human capital at school and
district sites. We must develop and implement strategies to advance talent management
practices that will bolster teacher and administrator effectiveness and dramatically improve
student achievement. Recruitment, selection, placement, induction support, mentoring,
multiple pathways to certification, professional development, rewarding performance,
performance evaluation, promotion into instructional leadership and retention of top talent
are the means to revitalizing low-performing schools. Putting these strategies into place is
not easy, and will require new thinking, assertive state and local leadership, change in
school bureaucracies, and broad political support.
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At this time, a large majority of the districts placed in Program Improvement (PI) are so
designated because they have not met established proficiency targets for English learners
and/or for students with disabilities. Thus, long-term strategies for developing standards
and curriculum must take into consideration the needs of these students. My responses to
questions #12-16 address these considerations.
1 1 . Do you believe that the board is doing everything within its power to assist districts with
meeting the requirements ofNCLB? If so, what specific steps has the board taken?
In March 2008, the SBE assigned Correction Action F to each PI LEA in Correction Action
which requires them to institute and fully implement "a new curriculum that is based on
state academic content and achievement standards, including providing appropriate
professional development based on scientifically-based research for all relevant staff that
offers substantial promise of improving educational achievement for high priority pupils."
Ca Ed Code Section 52055.57(c)(1)(F). This is an appropriate beginning in assisting
districts to meet the requirements ofNCLB.
The SBE required each LEA to amend its LEA Plan or Plan Addendum identifying
objectives and action steps to fully implement the corrective action and bring LEA Plans
and LEA Plan Addendums to the SBE for review. The SBE provides PI districts with clear
criteria for LEA Plans including direction to:
• Identify actions to build and support coherent, standards-based instructional
programs for all students, based on the most recent SBE adoptions in English-
Language Arts (ELA) and mathematics.
• Identify polices for placing ELs in ELD classes as well as policies for exit from
ELD. '
• Document delivery strategies that render content comprehensible to students
learning English.
• Ensure collaboration among general education and special education teachers by
grade level or program.
• Address the fundamental learning needs of high priority students.
• Document uniform use or development of diagnostic and placement tests to identify
students requiring strategic or intensive intervention in English/reading/language
arts and mathematics, and placement in appropriate intervention classes.
• Document presence of, or plans to provide SBE adopted intervention programs,
offered as separate, extended-period classes, for all students requiring intensive
intervention in English/reading/language arts and /or mathematics.
• Document presence of, or plans to provide, transitional and support classes for
students requiring strategic intervention in English/reading/language arts and/or
mathematics.
For PI districts that must contract with an outside provider, the SBE only certifies high-quality
expert teams with successful track records.
California High School Exit Exam
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Since the 2005-06 school year, all students, excluding students with disabilities, who seek a
public high school diploma must pass the California High School Exit Exam (CAHSEE). The
test exemption for students with disabilities ended with the class of 2007 and, unless further
action is taken quickly, students with disabilities will not be exempted from passing both parts of
the exam as a requirement for graduation.
12. There has been extensive discussion on options for students with disabilities who are
unable to pass the exit exam. Currently, there are legislative proposals addressing the
issue. However, in the meantime many students with disabilities in the class of 2008 are
left in limbo. What course of action would you recommend for those students, and what
course of action would you propose as a long-term solution?
Short tern actions for students with disabilities who are unable to pass the CAHSEE must
include:
• Streamlining the local waiver process. CAHSEE results (July 2007-March 2008
data) indicate that approximately one-third of students with disabilities who use a
modification would meet the CAHSEE requirement. As many as 10,883 students
(32.5%) passed the English/Language Arts portion using modifications and 20,168
students (33.2%) passed the Math portion using modifications.
• More outreach to inform parents of their right for modifications and request for
local waiver.
• Clear instructions to districts and schools to ensure that students with disabilities
who qualify for testing with modification are given that opportunity.
• Regional technical assistance to schools and districts that need training on how to
administer the CAHSEE with modifications.
• Availability to schools and districts of universal access materials including assistive
technology (e.g., large print testing materials, audio items, etc.).
Longer term solutions should include:
• A statistically-based forecast system that triggers "early warning" of elementary
or middle school students whop will be at risk of failing the CAHSEE.
• Increased flexibility for districts related to the use of current supplemental funds.
• Additional tutoring funds for elementary and middle school students who are
identified as at risk of low performance on the CAHSEE. Consideration should
be given to how these additional funds could be aligned with NCLB supplemental
service funds for tutoring students at schools that repeatedly fail to make AYP.
• Rigorous statewide studies of the effects of AB128 and AB347 funding on
outcomes for seniors and post-senior-year students, including an analysis of what
fraction of seniors denied diplomas agree to re-enroll for one or two more years as
envisaged under AB347.
• An evaluation of math and EL A intervention programs targeted at students at risk
of failing the CAHSEE, including whether the effectiveness of such interventions
depends on the grade and geographic variation.
• Adoption of the most successful interventions, statewide.
13. Federal law requires an alternative assessment be provided for students with disabilities
but the Board has never authorized an alternative. The Board's response has been to
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allow local districts to seek a waiver from the test for affected students. How should the
Board accommodate students who wish to take the test rather than waive the testing
requirement? Should an alternative assessment be developed for them?
Last year, the SBE approved of the California Modified Assessment (CMA) for students
with disabilities. The assessment was available in the elementary grades in spring, 2008.
CMA blue prints for middle and high school, including Algebra I and Grade 10 Science
were also adopted with pilot testing and implementation scheduled within two years. For
students with disabilities who do not choose to be tested with modifications and/or request
for local waiver, the SBE should do the following:
• Provide better outreach information to parents regarding the availability of CMA
(participation in the CMA spring 2008 administration was low).
• Provide more frequent CMA administration training to schools and school districts
(many school districts did not choose to offer the opportunities to eligible students
in spring 2008 due to lack of readiness).
• Expedite the implementation of CMA at the secondary level.
• Consider some form of alignment of CMA to CAHSEE.
If the legislature authorizes the formation of a Special Education and CAHSEE Task
Force to do a comprehensive examination of this issue, the SBE should work in
partnership with this Task Force to adopt effective and realistic policies as soon as
possible.
English Learners
The California Department of Education reports that approximately 25 percent of California's K-
12 students — about 1.6 million — are English learners. They perform at substantially lower levels
on standardized tests than English-proficient students. Test results from the high school exit
exam for first-time test takers in the class of 2009 (in grade 1 0) indicate that English learners
performed an estimated 41 percent lower than the state's overall passing rate on the English-
language arts exam, and 29 percent lower than the state's passing rate on the mathematics exam.
1 4. Concerns have been raised that the state 's Reading Language Arts and English
Language Development framework is not designed in a manner to ensure that a student
will achieve sufficient proficiency in English to meet academic standards and pass
CAHSEE. How do you respond to this criticism? What, if any, changes would you
recommend to ensure each student has the instructional materials necessary to attain
reading and English proficiency?
We serve approximately 800 English learners at Vaughn and I do agree that the current
adopted English Language Arts materials are not adequate in serving the needs of English
learners (ELs). We have been spending a great deal of resources in the purchase of
supplemental materials; teachers of English learners are having a difficult time juggling
between two programs within a tightly scheduled day.
Page 11 of 14
174
Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions)
The Reading/Language Arts (R/LA) Framework and the criteria for adoption of K- 8th R/LA
instructional materials, as revised September 2007, provide attention to the achievement of
state standards for ELs as well as other students. The new English Language Arts
Framework includes a set of extensive criteria for five program options. I believe that
Option 2 will meet our needs as it requires an integration of materials that simultaneously
meet the English Language Arts standards and the English Language Development
standards. English learners must have access to learning opportunities that address grade
level English Language Arts standards while firmly mastering the English Language
Development status at individual levels.
The main goal for ELs is to achieve English proficiency in the elementary grades and be
reclassified as Reclassified Fluent English Proficient (RFEP). These RFEP students do just
as well as, and, in some cases, even better than non-EL students on every state standardized
Test including the CAHSEE (reported by the Human Resources Research Organization).
This summer, the Curriculum Commission and the Instructional Materials Assessment
Panel will meet to review submitted materials. Some of my teachers have seen a few
distributed samples of the Option 2 program and are very excited that they finally will have
"ready to go" instructional materials for the English learners. The newly appointed English
Learners Advisory Committee will add their expertise in the program adoption and
implementation process.
The new mathematics adoption also addresses universal access. In addition, California has
also invested in supplemental programs and professional development for educators
targeted to meet the needs of ELs (AB 472). The SBE should continue to monitor the
implementation of the newly adopted materials and professional development programs to
assure that the needs of ELs are being met.
15. Should the board take any actions specific to English learners in an effort to narrow the
achievement gap?
Yes, the SBE must take actions. Being an English learner should not be a life sentence. I
have first hand experience as an English learner which includes experiences as an English
learner when I arrived the U.S. at an age of 17, then as a certified bilingual teacher in Los
Angeles (Spanish and Chinese), and as a school principal serving a large number of English
learners for more than 25 years.
As many as 1.5 million of California's 6.3 million K-12 students have been identified as
ELs; thus the SBE must take multiple actions specific to English learners in an effort to
narrow the achievement gap. These actions should include the following:
• Phase in the ELA curriculum adopted in 2008 by fall 20 1 0.
• Document steps to provide and monitor the completion of SB 472 English Learner
Professional Development (ELPD) for all teachers of English learners by fall 2010.
• Update the AB 430 professional development training program for administrator to
include intensive focus on ELs; work with PI districts to assure that all school-based
administrators receive the training.
• Establish clear reclassification criteria applicable to all districts
Page 12 of 14
175
Yvonne Chan -Senate Confirmation, August 13, 2008 (Responses to Questions)
o Consider the use of CELDT scores alone to determine proficiency (not
Proficient in CST scores) thus tripling reclassification rate
o Assure that linguistic tracking would not limit education choices, access to
quality academic programs and opportunity to advance.
o Support the proposed change related to federal funding for EL to assure that
reclassification would not be a disincentive due to funding loss.
o Disseminate best practices and examples of schools and school districts that
have successfully reclassified ELs (e.g. Long Beach Unified-22%, Corona-
Norco Unified- 16%, statewide- only 9.2%).
o Target 2nd-5th grade as the optimal zone for reclassification
1 6. SBE recently reestablished the English Learners Advisory Committee (ELAC). What role
will ELAC play in deciding board policy? What is the goal of the committee? Will you be
involved with ELAC? If so, how?
It is essential that the SBE revives the ELAC after years of inactivity. The SBE seeks the
specific instructional and assessment advice from educators with experience serving the
needs of English Learners (ELs). The SBE is additionally interested in a wide variety of
state and federal policies, funding sources, and activities that could be better focused to
meet the needs of ELS. In re-establishing the ELAC the SBE seeks the advice of a group of
parents, educators and community members who have demonstrated knowledge regarding
the educational needs of English learners. Advice from the ELAC may include the
following topics:
How can the SBE be most influential in helping ELs to overcome language barriers
quickly and to achieve academically at levels consistent with other students?
How can the SBE work effectively with stakeholders to provide high quality
educational services to ELs?
What does current data tell us about the academic achievement of students? Does
the SBE have the most comprehensive data we need to make decisions about ELs?
What type of additional data could be helpful?
How might the SBE more clearly focus state and local funds on the academic
achievement needs of ELs?
How can the SBE achieve a better understanding of educational programs that have
been successful for ELs?
Should the state encourage and/or fund local school districts to offer each student
the opportunity to learn a language other than English in elementary school in once
the student is deemed to be fluent-English proficient or otherwise in compliance
with applicable state law?
In addition to the basic instructional program materials adopted by the SBE, should
it review supplemental instructional materials, which may be of specific assistance
to specific language groups? Have the SBE-approved supplemental materials been
effective for helping students learn English? Do we have sufficient data to answer
this question?
Is primary language support needed for some students and parents to help some ELs
in their pursuit of ELD and fluent-English proficient status?
Page 13 of 14
176
Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions)
All SBE members will be engaged in the work of the EL AC. Though I'm not the SBE
liaison to this Committee, I will be actively engaged in the deliberation of the
Committee's recommendations and the adoption of policies initiated by the
recommendations.
Page 14 of 14
177
appeals board Responses of Candice Traeger to the
Senate Rules Committee
December 9, 2008
Roles and Responsibilities
Question #1 Roles & Responsibilities: To what extent do you believe you have
accomplished your goals (workplace environment fostering efficiency, teamwork, and
professionalism)?
Response to Question #1:
The best indicator of fostering efficiency, teamwork, and professionalism are the
overall results of the Appeals Board; we have eliminated the backlog of approximately
3, 752 appeals since my appointment in November 2004. In order to accomplish this the
Administrative staff, the Legal Staff, and the Administrative Law Judges ("AUs ") have
assisted in redesigning and streamlining Appeals Board processes, forms, and
regulations.
For instance, the Administrative staff implemented and refined the Appeals Board
processing of appeals filing so that we could dismiss incomplete appeals in 15 days
instead of 90 days. Their suggestions led to revisions of our appeals form and intent to
appeal letters.
The Legal staff recommended changes that were adopted, in the processing of
Petitions for Reconsideration so that we could answer petitions more effectively,
efficiently, and professionally.
The ALJs asked for and designed streamlined Orders and we implemented their
suggestions resulting in an increased number of resolutions that eliminated the backlog.
They also asked for, and received, the flexibility to cover hearings for each other and
manage each case as they desire. Because of our people we have created a working
environment that fosters teamwork, efficiency, and a very positive work environment.
Question 2: Roles & Responsibilities
What do you hope to accomplish in your second term? How will you measure
your success?
Response to Question 2
In my second term, our goal is provide excellent customer service to both internal
and external customers, expand and improve the Board 's use of information technology,
Senai 2uies ommftfoe
DEC 1 < 2008
178
Appointment
Responses ofCandice Traeger to Senate Rules 12-08
Page 2 of 8
further refine our processes and procedures, and keep pace with incoming appeals so as
not to create a backlog once again.
For the first time in Appeals Board history, we will convene an Advisory
Committee that will include representation from all interested parties to elicit
recommendations on improving our processes and procedures.
We will devise and implement a Customer Satisfaction Survey to measure the
effectiveness of process and procedure refinements made as a result of Advisory
Committee suggestions. We will also conduct an internal Customer Satisfaction Survey
so that we can listen and learn from our people and continue to improve our employee
satisfaction.
The Appeal 's Board will continue to request funding for information technology
upgrades such as digital hearing recording equipment and an automated call answering
system. Our success will be measured by the acquisition of these two upgrades at a
minimum.
In order to ensure that the Appeal 's Board processes incoming appeals without
creating a backlog we will continue to track the quality and performance of all employees
and provide feedback on job performance on a monthly basis.
Question 3; Roles & Responsibilities
What do you view as the exclusive role of the Chairperson of the Board, and what
responsibilities are those of the Board as a whole?
Response to Question 3
I believe there are two distinctions. The Chairperson of the Board ("Chair ") is
charged, under (Labor Code Section 148.2) with the responsibility to supervise all
personnel employed by the Board. This general delegation of supervisorial authority
places in the Chair the overall responsibility to ensure that the Board functions efficiently
in terms of its day-to-day operations and that the Board conforms to a variety of
personnel regulations including civil service rules and regulations and regulations of the
Department of Personnel Administration.
There is also a more commonly accepted notion of what a Chairperson does, and
that is someone who functions as a "presiding officer of a meeting or an organization or
committee " (Webster 's Collegiate Dictionary: Tenth Edition.) In this sense the
Chairperson 's function is to make sure that the Board's business handled in an efficient
manner with the ultimate objective of fulfilling its statutory mission to serve the public by
hearing and determining appeals and to determine all other matters under the Board 's
jurisdiction in a timely manner. I believe that it is the Chairperson s responsibility to
promote efficiency by promoting procedures that eliminate the backlog and remove any
unnecessarily cumbersome processes that serve as a roadblock to the processing of files
and appeals.
The Appeals Board is a small agency. The Board members and the Executive
Officer are the only managers. There are only 3 supervisors. Since any meeting of two
179
Responses ofCandice Traeger to Senate Rules 12-08
Page 3 of 8
of the three members may have implications under the public meeting laws, it falls upon
the Chairperson to meet with staff, get feedback, and communicate policy.
Finally, the role of the Chairperson of this small agency is to be a team leader,
role model, and pacesetter. To that end I have monthly meetings with staff, gather and
share data to apprise all staff of how they 're doing, roll my sleeves up and work in the
"trenches " with them regularly.
The Appeals Process
Question 4; The Appeals Process
What issues prompt you to reconsider an ALJ decision?
Response to Question #4
At the outset, it should be noted that if the Board votes to reconsider a Decision
or Order of one of its Administrative Law Judges it does not mean the Decision or Order
will be reversed. It simply means the Decision or Order will not automatically become
final. Instead, the Board will have time to independently review the evidentiary record
and the law and then either, adopt, reverse, or modify the Decision or Order of the ALJ.
That said, each party to an Appeals Board proceeding has 30 days to request
reconsideration of a Decision or Order. The parties can petition based on the following
grounds as set forth in Section 390.1 of the Board's regulations:
1 . That by the Decision or Order the Board acted without or in excess of its powers;
2. That the Decision or Order was procured by fraud;
3 . That the evidence received by the Board does not justify the findings of fact;
4. That petitioner has discovered new material evidence that petitioner could not,
with reasonable diligence, have discovered and produced at hearing;
5. That the findings of fact do not support the Decision or Order
If the parties raised such grounds, I would be prompted to reconsider the
Decision or Order. As noted above, that does not mean I would be voting to change the
ALJ Decision or Order. It would only mean that grounds had been raised that require
the Board itself to take a look at it.
The Board itself also has a 30 day period in which to, on its own action, seek
reconsideration. (8 Cal. Code Regs., Section 390.2) There might be a number of reasons
to reconsider a Decision or Order. Principal among these are cases in which the ALJ
did not properly interpret and apply safety orders, statutes, or Appeals Board precedents.
Also, though ALJ Decisions are the law of the case they decide only, they have no
precedential effect. IfAUs are interpreting the same safety order differently, the Board
may wish to clarify the meaning of the safety order by reconsidering an appropriate case
180
Responses ofCandice Traeger to Senate Rules 12-08
Page 4 of 8
and issuing a precedential decision itself. Whether or not the parties are dissatisfied with
the decision, it is incumbent upon the Board to resolve such disputes.
In short, my decision to vote to reconsider is made upon the same grounds for
each case. Is there a need to clarify existing precedent? Does the decision deviate from
existing precedent, or did the AU misinterpret or misapply law or regulation? Is there
insufficient evidence to support the AU's decision? Would reconsideration of this
particular decision possibly result in a clarification of the law for the Division and the
Employer community and will such clarification enhance employee safety.
Question 5; The Appeals Process
OSHAB has proposed eliminating appeal hearings in DOSH offices and requiring
employers and DOSH personnel to attend hearings in either Sacramento or Southern
California. Please explain the reasoning behind this proposal and how it may impact the
ability of both employers and witnesses to appear and testify at hearings.
Response to Question #5
The question poses three different issues. First, the Appeals Board, or OSHAB,
has not proposed eliminating appeal hearings statewide in local Cal/OSHA offices and
requiring employers and DOSH personnel to attend hearings in either Sacramento or
Southern California. (It was suggested during budget cuts that the Board should limit
hearing locations to two.) Rather, the Appeals Board has consolidated hearing locations
to four (4) locations in Southern California (San Diego, Santa Ana, Van Nuys, and West
Covina) and three (3) locations in Northern California (Oakland, Sacramento, and
Stockton).
The second issue involves the Board s imperative to maintain neutrality, which
impression is easily lost when all hearings are scheduled within established Cal/OSHA
enforcement offices, a practice that was common throughout the early years of the
program. The Board's precedential decisions recognize the importance of maintaining
that actual and perceived neutrality, as noted below.
"The Legislature specifically established the Appeals Board as an independent
adjudicator in order to avoid actual or presumed neutrality. " The Legislature modeled
the independent Appeals Board after the adjudicatory panel in the federal Occupational
Safety and Health Act (the Occupational Safety and Health Review Commission).
Senator Jacob Javits proposed this "separation of powers " arrangement in an
amendment to the original OSHA bill. (See Legislative History of the Occupational
Safety and Health Act of 1970, 92nd Cong, 1st Sess. (Comm. Print 1971).") Supertron
Corporation, Cal/OSHA App. 91-675, DAR (May 21, 1992) "The relationship between
the Board as an independent adjudicatory agency and the Division as a prosecutorial
agency is, respectively [required to be] observed]. " Kenko, Inc., Cal/OSHA App. 00-6" 2
through 674, DAR (Oct. 16, 2002), citing Alfred Annino/ Alfredo Annino Construction of
Nevada, Cal/OSHA App. 98-311, DAR (April 25, 2001); and Naco Industries, Inc.,
Cal/OSHA App. 95-3175, DAR (August 10, 1999).
181
Responses ofCandice Traeger to Senate Rules 12-08
Page 5 of 8
Therefore, to the extent feasible, the Board recognizes the need to hold hearings at
neutral locations such as State Building facilities where they may exist, or Appeals Board
hearing rooms.
The third issue concerns the number of locations throughout California that the
Board can feasibly conduct hearings with its current staff taking into consideration the
period of time that appeals must be processed by Federal guidelines (ten months), the
number of appeals filed per year, and the size of any backlog. There are currently more
appeals, higher monetary fines, more complex cases, and the existing staff cannot
practicably schedule hearings in the same number of locations as was originally the case
without re-creating and building a large backlog, and increasing the age of cases
awaiting adjudication.
To summarize, the scheduling and number of hearing locations, while continually
undergoing review for efficiency and fairness, accommodates the interests of fairness and
prompt and efficient adjudication, while seeking to minimize those instances where
parties and witnesses may be unconvinced.
Question 6; The Appeals Process
Please provide the following information for the last five years: number of appeals
hearings conducted by ALJs, the number of Petitions for Reconsideration filed, the
number of ALJ decisions the Board has independently chosen to reconsider.
Response to Question #6
2004 2005 2006 2007 2008
j of Hearings 49 92 176 158 122*
Petitions for Recon 30 48 51 98 122*
Board Ordered Recon 2 15 5 20 4*
Disposition of Cases IS 9D 2D 5D 3P
S = Settled IP 2P IP 7P 1R
D = DAR Issued 4R 2R 8R
P = Pending
R = Remanded
* = Through November
Question 7; The Appeals Process
The Labor appointee position to the Board is currently vacant and has -been since at least
January 2007. What effect has this had on the Board's ability to resolve appeals
182
Responses of Candice Traeger to Senate Rules 12-08
Page 6 of 8
efficiently and provide workplace safety and health guidance to the public in a timely
manner? If the purpose of designated slots is to bring specific perspectives to the Board,
how is the perspective of Labor included?
Response to Question #7
The Labor Appointee left the Appeals Board at the end of March 2007; since that
time the Governor has not appointed a person to that "slot ". The vacancy has not had
an effect on the Board's ability to efficiently resolve appeals and provide guidance to the
public in a timely manner. In fact, the Appeals Board has increased the number of
appeals resolved every year beginning in 2004. The trend had gone from 3656 in 04,
4373 in 05, 5621 in 06, 7075 in 07, and 6273 through November 08.
However, the absence does cause the Board to draw on its own labor experience
and supplement that with staff analysis and research of Legislative History and technical
literature. Clearly, the Board is well served by the Labor perspective, tries to draw upon
its own experience and others; but that is no substitute for filling the position.
It bears noting that I started my career as a clerical employee represented by the
Teamster Union. I was a Teamster for 9 years and learned many lessons which I have
carried with me into my management style.
Question 8; Calendaring
Why has the Board moved toward the policy of multiple calendaring? What have been
the unintended effects of this policy on employers and employee witnesses waiting for
their appeal hearing?
Response to Question #8
The Board began calendaring more than one hearing a day per AU in August of
2006, in order to eliminate the backlog (3752 appeals), reduce the amount of time
between the alleged violation and resolution, speed-up abatement of alleged violative
conditions. The practice was instituted after reviewing court practices, practices of other
adjudicatory agencies, and in response to a federal Complaint Against State Plan
Administration (CASPA) requiring California to process cases more quickly or loose its
ability to continue as a State Plan State. It has been extremely successful in reducing the
backlog (now 300 appeals), improving the time to process cases from 24 months to 9
months, and hastening abatement.
However, there is a down-side to calendaring multiple hearings for the same day
with one AU. Although 80-85% of Appeals Board cases settle prior to hearing and an
additional 5% at the hearing there have been a few occasions where more than one case
stays on calendar for an ALJ. When this happens there is a possibility that one of the
hearings will be continued resulting in an inconvenience to the parties.
The Appeals Board tracked and recorded information on the number of cases
calendared and the number resulting in Continuances (inconvenience) periodically. In
August 2006 (the first month when 4 hearings were set a day for each ALJ there were 273
183
Responses ofCandice Traeger to Senate Rules J 2-08
Page 7 of 8
cases set for hearing and none (0) required Continuances. In fact, over a seven month
period 1105 cases were set for hearing and only 3 required Continuances.
Although no number of continued hearings is desirable, those that have to be re-
scheduled because multiple hearings are calendared are less than one percent. The
Appeals Board believes that the benefit of multiple hearings (reducing the backlog and
time for case processing) outweighs the inconvenience.
Question 9; Staff
Have you deputized Executive Officer, Michael Wimberly, to vote on issues pending
before the Board and if so, under what circumstances was this done?
Response to Question #9
Executive Officer, Michael Wimberly, has been deputized five (5) times to serve as
an Appeals Board member for purposes of voting on Orders or Decisions.
Date Deputized Reason Type
5-21-2008 Chair Traeger: absent Full Meeting
9-08-2008 Chair Traeger: possible conflict of interest Orders (2)
8-20-2008 Chair Traeger: possible conflict of interest Decision
10-01-2008 Member Pacheco: possible conflict of interest Decision
10-01-2008 Chair Traeger: possible conflict of interest Decision
Question 10; Staff
Is there currently a backlog of pending appeals? If so, have you requested or taken steps
to increase the number of ALJs or find additional resources to assist in reducing the
backlog?
Response to Question #10
There is currently a backlog of 301 appeals or 131 cases. The Board requested
additional ALJs and though it was denied in its BCP it was encouraged to work with the
Division on fulfilling its staffing needs. As a result the Division loaned the Board two (2)
limited term ALJs for two (2) years. We also converted one of our Legal Staff positions
to an AU position. Finally, when one of our Presiding Law judges retired we down
graded the position to an AU.
Question 11; Non-Reporting Penalty
Please explain how the Board determines and sets penalty amounts for employer failure
to report workplace accidents to DOSH.
184
Responses of Candice Traeger to Senate Rules 12-08
Page 8 of 8
Response to Question #11
In July of 2006, the Appeals Board issued a precedential decision directing the
ALJs to examine the facts of each case individually and to determine if there was a
violation (of the section 342(a) reporting requirement) and to establish what penalty,
should be assessed. (Labor Code §6602.) The decision allowed the AUs to exercise
discretion in fashioning a penalty that is based on the facts of each case. In this way,
employers who technically but unintentionally violate the requirement are not treated the
same as those employers who have no safety programs at all, do not enforce safety
programs, and have a history of safety violations. The AU is required to fashion a
remedy that furthers the purposes of the Act and promotes and encourages workplace
safety. The Board members review ALJ decisions to ensure that the precedent laid- out
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California Legislature
MEMBERS
JIMBATTIN X^^^V GREGORY SCHMIDT
VICE-CHAIR //^K§^§£fi^r\ SECRETARY OF THE SENATE
. ,n,,.„] „ . ■_ .,.,„ NETTIE SABELHAUS
GILBERT CEDILLO lr°(8lsit .^0Hk»):1 appointments director
ROBERT DUTTON
ALEX FADILLA
Senate Rules Committee
DON PERATA
CHAIRMAN
November 20, 2008
Pamela Giacomini
Dear Ms. Giacomini:
As you know, the Senate Rules Committee will conduct a confirmation hearing on your
appointment as a member of the Board of Forestry and Fire Protection on January 7,
2009. We request that you appear. The meeting will begin at 1:30 p.m. in Room 113 of
the State Capitol.
We have prepared the following questions to which we would appreciate your written
responses. Please provide your responses by December 12, 2008.
We would also like to receive an updated Form 700, Statement of Economic Interest, by
December 12, 2008.
Statement of Goals
1. What do you believe you have accomplished in your first term as a member of the
Board of Forestry and Fire Protection? What do you hope to accomplish duhng
your next term? How will you measure your success?
2. The Board of Forestry has Five public members, three members in "forest products
industry" slots, and one member in a "range-livestock industry" slot, the one to
which you are appointed. As a member of the board, whose interests do you
represent? If the range-livestock industry's interests are at odds with the other
interests, what do you do?
3. Your board has few staff and depends on the Department of Forestry for its
information. What staff is available to assist you with your often-complex issues?
How are you able to regulate an entity on which you depend for information?
STATE CAPITOL • ROOM 420 • SACRAMENTO, CALIFORNIA 95814-4900 • (916)651-4151 • FAX (916) 445-0596
1887
Pamela Giacomini
November 20, 2008
Page 2
4. The board sets policy for the Department but is sometimes not included in policy
decisions, which was the case last year after the San Diego fires. How do you
determine if the board is being included and if it's not, what can you do?
California Fire Plan
The Board of Forestry and Fire Protection is responsible for developing both policy and
regulations for the forestlands and fire protection system of the state. The California Fire
Plan is the state's road map for reducing the risk of wildfire. The plan emphasizes what
needs to be done before a fire starts. The plan looks to reduce firefighting costs and
property losses, increase firefighter safety, and contribute to ecosystem health. The
current plan was finalized in March 1996.
In an October 24, 2007, letter to the Governor, the board said it would begin a critical
in-depth review of the California Fire Plan.
A September 2008 article in Ecosystems by a senior member of the U.S. Forest Service
concluded that forest fires in the Sierras are more frequent and intense, and firefighting
professionals may need to reassess the fire suppression methods currently used — quick
suppression attacks with the goal of total suppression.
5. How often is the California Fire Plan reviewed by the board?
6. What is the timeline for the board's review? Is the board, as a whole, reviewing the
plan, or is this review assigned to one of the board's committees?
7. What has the board learned in its review of how forest fires are fought? Should
some fire be left to burn ?
Coho Salmon Protection
Coho salmon, from San Francisco to the Oregon border, have experienced a significant
decline in the past 40 to 50 years. According to a study done for the National Marine
Fisheries Service, wild populations of Coho salmon today are less than one percent of
what they were in the 1 940s.
In 1994 the Department of Fish and Game petitioned the Board of Forestry and Fire
Protection to list Coho salmon as a sensitive species. The board declined. In 1996 the
state Fish and Game Commission listed Coho salmon as endangered Then in 1997 the
federal National Marine Fisheries Service listed Coho salmon as threatened.
189
Pamela Giacomini
November 20, 2008
Page 3
The timber industry is interested in the state's Coho salmon listing because, under
current statutes, if a timber operation might kill Coho salmon, the timber company must
first obtain an incidental take permit from the Department of Fish and Game.
In 2000 the board amended the Forest Practice Rules to include Protection for
Threatened and Impaired Watersheds regulations to enhance protection of listed
salmon species. These regulations were adopted in 2000 because a state scientific
review panel concluded that the Forest Practice Rules did not sufficiently protect
salmon. The Threatened and Impaired Watersheds rules were to be a first step in
increasing salmon protections. That is the only step that has been taken to date. These
regulations were temporary and were extended in 2003, 2004, 2006, and 2007. They
will expire December 31, 2008. In July 2006 the Secretary of the Resources Agency
called on the board and the Department of Fish and Game to develop a set of
comprehensive rules to protect and restore all salmon populations. Since 2006 the
discussions of the board have moved from protection of all salmon populations to
discussion on rules to cover only those streams where Coho salmon are currently
present.
Earlier this year, the board adopted Coho salmon incidental-take assistance regulations.
These regulations would apply additional protections where Coho salmon are present
and the Department of Fish and Game determines that Coho will likely be taken by
logging actions. The Department of Fish and Game provided the board with another rule
package that would have extended protections for Coho salmon in their total range, but
the board declined to adopt that package. Despite the opinion of state and federal
fisheries biologists that Forest Practice Rules did not adequately protect salmon, the
board contracted for its own scientific literature review to see if additional protections
are needed for salmon. That review was completed earlier this fall, and it is not yet clear
whether that review will result in changes to the existing rules.
In early 2008 several environmental groups sued the board alleging the board's Coho
protection rules were inadequate. These groups agreed to suspend their lawsuit and
instead filed an emergency petition with the board to strengthen the existing interim
rules. The National Marine Fisheries Service supported this petition; however, the
board, which included your "no" vote, rejected the petition. It is now likely that the board
will not have a chance to act on Coho rules until 2010.
8. What is your view of the challenges in adopting permanent regulations to protect
Coho? Why are there still no permanent regulations in place after so many years?
9. Please explain your "no" vote two months ago on the emergency petition for
greater Coho salmon protection. What factors did you consider?
190
Pamela Giacomini
November 20, 2008
Page 4
10. Should the board develop timber harvest rules that protect all salmon species, or
should the increased protections be provided for only Coho salmon? Please
explain.
Timber Harvest Reviews
The Department of Forestry and Fire Protection is the lead agency for timber harvest
reviews and is responsible for ensuring the sustainable production of timber. However,
two of the other trustee agencies — the Department of Fish and Game and the regional
water quality control boards — have statutory mandates that, on occasion, are more
protective of resources and more restrictive of logging activities. Historically, this has
created a conflict between the agencies, with the Department of Forestry and Fire
Protection often resistant to incorporating the changes requested by the Department of
Fish and Game or regional water quality control boards.
1 1. How does the board work with the Department of Forestry and Fire Protection, the
Department of Fish and Game, and the regional water boards to resolve these
conflicts? How do you as a board member monitor the degree of cooperation that
takes place?
Cumulative Impacts of Timber Harvesting
Over the last several years, governmental and scientific reports have pointed out that
the timber harvest rules do not adequately address the cumulative impacts of harvesting
timber which is the potential continuing effects of prior timber harvesting.
12. Should the issue of cumulative impacts be addressed by the board? If so, how?
Please direct your responses to Nettie Sabelhaus, Rules Committee Appointments
Director, Room 420, State Capitol, Sacramento, CA 95814.
DON PERATA
DP:KW
cc: Board of Forestry and Fire Protection
191
v dA uo u^uDp yje-
HENRY AND Pam Giacomini
Hat Creek Grown. LLC
November 21, 2008
The Honorable Don Perata Qutfrt <&j^
Chair, Senate Rules Committee '
State Capitol Room 420
Sacramento, CA 95814-4900
Dear Senator Perata:
Thank you for your letter of November 20, 2008 regarding the confirmation hearing for my
second term on the Board of Forestry and Fire Protection. My answers to your thoughtful
questions are below. Before I get to that though, I have discussed with your Appointments
Director, Nettie Sabelhaus the conflict in my calendar for the date set for my hearing. My
husband and I take our vacation each winter when our ranching obligations allow us to be away,
and make our reservations months in advance. We scheduled and paid for our vacation many
months ago prior to getting the notice for this confirmation hearing. 1 take full responsibility for
not contacting Ms. Sabelhaus many months back to discuss options for a hearing.
I would respectfully request that you grant me a private hearing with you or your staff in
substitution for a scheduled full Rules Cornmittee hearing. Again, I accept the responsibility for
not having made your staff aware of the coming conflict months ago.
Responses to Questions
1). In my first term I was tasked with being the Chair of the Resource Protection Cornmittee
as well as a member of the Management Committee. In addition, the other members of the Board
of Forestry and Fire Protection elected me to serve as the Vice Chair of the Board. In the absence
of our Chair, Stan Dixon, I step in and run the meetings. At first, all of this was very
overwhelming, then inspiring. And then you start to learn and understand how the committee
system operates, how the Board operates and what is needed to get work done to benefit the
citizens of California. I wish I had accomplished more, because there is much to be done. That
said, I have initiated a full review of the vegetation treatment programs, which has stalled due to
budget and potentially other issues. In that effort, my hope is to understand where fuels reduction
work is being done, how is it being paid for and how effective is it? In a separate but related
action, I am currently reviewing the Administrative DEIR for the Vegetation Treatment Program.
This is an updated EIR that will set targets for fuels reduction work, not just with fire, but by
Senate Rules Committee
NOV 2 4 200B 192
ADDointmeirts
Nov 21 08 02:38p p.3
November 21, 2008 The Honorable Don Perata
Page 2 of 5
herbivory and mechanical means as well. We plan to have our Administrative DEIR review and
changes completed by the December Resource Protection Committee meeting. The DEIR at mat
point will become a public document that we can take full input on and circulate for comments
and changes. I also have been extremely intense on our work on the Fire Plan, but I will address
those issues at your questions 5, 6 and 7 below. We also continually review fire safe regulations,
general plan updates and changes for counties and cities, State Responsibility Area boundaries,
Very High Severity Zone mapping, and more. As a member of the Management Committee, 1
have had the opportunity to review and help guide management of the Demonstration State
Forests. I served on the sub-committee of the Board with David Nawi to finalize the Jackson
Demonstration State Forest Management Plan and DEIR. We learned a lot through that process
and have continued to schedule reviews and updates to each of the other DSF's. I hope to
continue to accomplish the work necessary on review and implementation of programs and
regulations that allow all stakeholders to work together to be more efficient, effective and
cooperative. My view is mat each perspective is important and that by listening and receiving
input and guidance from all stakeholders, we come to better decisions and actions that benefit the
citizens of the State of California. To measure that, I will look to our finished work product. And
follow with questions to the stakeholders that are using the product and ask if it's working. If the
answer is yes, we've done good work. If it's no, then we need to revisit our actions and make
adjustments.
2). I am proud to serve as the range-livestock industry slot on the Board of Forestry and Fire
Protection. I believe that allows me to bring a larger rangeland perspective to the decisions and
actions that the Board takes. We often as individual Board members do not always agree. That's
part of a function of a good make-up to a Board. When we have disagreement, I always try to
ensure that whatever is causing the dissention is answered and attempted to be solved. I've
disagreed with public members and I've disagreed with forest products industry members. My
main attempt is to always find the best solution for the citizens of our state. That is what always
is the deciding factor for me in making a decision or taking a vote.
3). Our staff is incredible. How they do all they do, sometimes amazes me. I think that we as
Board members try to make sure that we don't burden them with unnecessary work, but work in
concert as a team to get our work accomplished. We do rely upon the Department's staff for
information on a regular basis. The relationship is very important They are often the folks that
have the responsibility for implementing policy actions that we as a Board take. But, that doesn't
ever stop me (or other Board members) from asking the hard questions. Do we always get the
answers we need. No, I'll address that later in the Fire Plan Review component. What I strive to
do is to ensure that we have a positive working and professional relationship. We have several
areas where Department staff may have implemented something in a different manner than what
the Board intended. We work to straighten that out in a productive, positive manner. It is our role
to develop policy, have the Department implement it correctly and do the oversight to ensure that
occurs.
4). There is Board policy and there is Department policy. Sometimes the line blurs a bit,
especially in a tense situation like the San Diego or Angora fires. The Board was not included in
those discussions and should have been. What do we do about it? Have the discussion with the
193
JV £. I UO \J£..yJU\J
November 21 . 2008 The Honorable Don Perata
Page 3 of 5
Department, with Agency and with the Legislature. It's important to ensure that our role as
policy making body is kept intact otherwise our oversight abilities are at risk.
5). As you know, the first state Fire Plan was completed in 1985. with the latest one being
adopted in 1996. So, they tend to have a life of 10-12 years. We began our review of the 1 996
Fire Plan over two years ago, with input from the Range Management Advisory Committee and
a special committee tasked especially with a thorough review. Their work products came then to
the Resource Protection Committee where we completed a lengthy and thorough review of the
1 996 Fire Plan in the spring of this year. We had much public input and discussion on the review
and a finalized review document that was adopted by the full Board in May 2008.
6). What we learned from the review is that California is always going to have fire. We need
to work to make the state's landscape more resilient and resistant to catastrophic fire. The loss
due to catastrophic fire is horrendous. We must look at our entire landscape and work to
accomplish appropriate fuels reduction work and fire safe clearing around structures and ensure
that building standards and fire safe regulations are implemented. Without the fuels reduction
work to create a more resilient landscape, fires will continue to be catastrophic and be hard to put
out. If we get ahead of the curve and face the responsibility for fuels reduction work head on, we
can create the landscape whereby fire can be a tool, not a catastrophic event. Your reference to
the statement by a senior member of the US Forest Service is heartening. The State and Federal
agencies tend to have different views on fire management This is a challenge that we are
working through as we rewrite the new Fire Plan. We hope to have the new Fire Plan adopted by
January 2010.
7). We have formed a Fire Plan Steering Committee, which represents a broad group of
stakeholders in order to ensure we have all of the key components addressed as we develop the
Fire Plan that will guide the state's strategy and vision forthe next ten years. This special
committee will provide input to the Resource Protection Committee and the final plan will be
adopted by the Board. All of these processes are publicly noticed and we are actively seeking
input on the rewrite of the Fire Plan for the future. It is critical in the new Fire Plan to have a
plan that is strategic, can be implemented and that implementation is measurable. We must be
able to account for the measures to learn from our successes and failures and adapt as necessary.
8). The challenge to adopting permanent regulations to benefit coho salmon is the lack of the
science. This apparently has been a continual challenge that I believe the Board is getting a
handle on. As you know, we formed a technical advisory committee that worked with a
contractor to review all the scientific literature. We recently had a presentation and then a board
workshop to learn about what the science has taught us. I believe the Forest Practice Committee
is currently working through all of that information and will start formulating regulations that we
are hoping can be adopted on a permanent basis.
9). As you know, the Board worked with the Department (CalFire) and the Department of
Fish and Game at the request of the Resources Secretary to create a regulatory package to benefit
coho that took about a year of public meetings, discussions, changes and modifications. We
194
Nov 21 08 02:38p p.5
November 21 , 2008 The Honorable Don Perata
Page 4 of 5
adopted, that package in July 2007. When the emergency package came before us, the request
was that we take immediate action with very little opportunity for public input or modifications.
My immediate question to both departments; John McCammon of the Department of Fish and
Game and Duane Shintaku of CalFire was; "Are the current regulations that we have in place
working?" The answer back was a resounding "YES". They described a healthy working
relationship of review team members on the ground working with landowners to create the best
solution for the benefit of coho salmon. This was a direct result of the package that we had
adopted that the emergency petition wrould completely unravel. That is why I voted "No". I am
fully supportive of anyone bringing us a regulatory package that we can vet through the public
process and get the best package possible to benefit the citizens and resources of California.
10). Possibly, but it needs to be done thoughtfully and carefully with full input. The challenge
is that often the needs of salmonid species compete. It's critical that we work to develop
perfomance based rules that allow the result like we got out of the coho package I mentioned
above. We want the teams on the ground to find the solutions that work. This takes cooperation
and cross agency coordination. Blanket prescriptive rules often just cost money and don't appear
to be as effective.
II). We continually reach out to each of the departments that serve on timber harvest review
teams in order to identify issues that we can help solve to make everyone's work more
collaborative and effective. For example the Chair and Executive Officer are meeting regularly
with the board chairs for the State Water Board and the Central and North Coast Regional Water
Boards. This is an effort to ensure that our departments and department staff work cooperatively
together. Another example is the field tour the Management Committee held this past July where
we pulled together field review staff from each agency in order to discuss issues with the
Sustained Yield Plans and how we solve those issues moving forward. In order to monitor that
collaboration I simply ask agency staff and landowners, howr is it going? Are there issues that we
need to help solve? Then we take those issues back to the appropriate committee and make sure
that everyone is around the table to discuss and find a solution.
12). There is no doubt that timber harvesting practices from decades far past had an affect on
our watershed resources. How that continues to affect our current resources however is unclear.
Practices have changed dramatically on the landscape and our watersheds are cleaner, and are
more productive than they have ever been. How we balance a cumulative effects analysis with
those factors in mind is truly a challenge. We need to have an appropriate analysis that isn't so
costly and burdensome that landowners choose to walk away from owning and operating our
forested landscapes but that will give the right level of information necessary to understand the
impact the actions of management of those lands is having on our resources. The key problem is
the requirement from CEQA to do a project by project analysis, making the potential cost of
cumulative effects analysis highly prohibitive and questionable as to its utility.
Thank you Senator, for your consideration. I am attaching an updated Form 700 as you
requested. I have also included an updated resume' that has changed a bit since you viewed the
last one in 2006.
195
lov 21 08 02:38p p.6
November 21 , 2008 The Honorable Don Perata
Page 5 of 5
Should you choose to reconfirm my position, I assure you that I will continue to listen to all
perspectives and work to make the best decision possible on all matters for the benefit of the
citizens and resources of California.
Sincerely yours,
- J
Pamela A. Giacomini
Sincerely yours,
Cc: Mr. George Gentry, EO
Mr. Stan Dixon, Chair
Tkank you for your support of our family ranch, enjoy our -premium, natural beef I!
196
197
602-R
Additional copies of this publication may be purchased for $9.00 per copy
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Make checks or money orders payable to SENATE RULES COMMITTEE.
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HEARING
SENATE RULES COMMITTEE
STATE OF CALIFORNIA
STATE CAPITOL
ROOM 113
SACRAMENTO, CALIFORNIA
WEDNESDAY, JANUARY 14, 2009
1:32 P.M.
GOVERNMENT
DOCUMENTS DEPT
MAY 1 8 2009
SAN FRANC/SCO
PUBLIC LIBRARY
603-R
SENATE RULES COMMITTEE
STATE OF CALIFORNIA
- -0O0- -
HEARING
STATE CAPITOL
ROOM 113
SACRAMENTO, CALIFORNIA
- -0O0- -
WEDNESDAY, JANUARY 14, 2 009
1:32 P.M.
- -oOo- -
Reported By: INA C. LeBLANC
Certified Shorthand Reporter
CSR No. 6713
1
ALSO PRESENT
SENATE RULES COMMITTEE
2
STATE OF CALIFORNIA
3
ALICE M. DOW DIN CALVILLO, Member, Public
- - 0O0- -
4
Em ploy m ent Relations Board
MARTIN N. HOSHINO, Executive Officer, Board
HEARING
5
of Parole Hearings
6
R. KIRK LINDSEY, Member, California
STATE CAPITOL
Transportation Com m ission
ROOM 113
7
SACRAMENTO. CALIFORNIA
8
- -0O0- -
9
WEDNESDAY. JANUARY 14. 2009
1:32 P.M.
- -O0O- -
10
11
INDEX
P a a e
12
P
G
ro c e
over
adings 1
nor's Appointees:
13
R
. KIRK LINDSEY, Member, California
14
15
T
ra n s
Q u
portation Commission 1
estions by CHAIRMAN STEINBERG re:
Reported By: INA C. LeBLANC
Certified Shorthand Reporter
CSR No. 6713
16
17
18
SB 375 compliance 2
Timeline 3
High-speed rail 4
19
Q u
estions by SENATOR OROPEZA re:
20
Public-private partnerships for
21
22
toll roads 5
Fairness of toll roads re
23
individual's economic means 7
l
24
25
3
1
APPEARANCES
2
MEMBERS PRESENT
1
Gender of com m ission m em bers
3
SENATOR DARRELL STEINBERG, Chair
2
3
and transportation needs of
4
5
SENATOR GIL CEDILLO
SENATOR SAMUEL AANESTAD
4
5
Q u
estions by SENATOR DUTTON re:
Proposition IB 8
6
SENATOR ROBERT DUTTON
6
Streamlining the process 11
7
8
9
SENATOR JENNY OROPEZA
7
8
W
D
it n e
A N I E
sses in Suooort of ADDOintee:
L CURTIN, California Conference of
STAFF PRESENT
9
10
11
12
13
C
D
C
A
a r p e
.J . S
o m m
LICE
10
11
MITH, Public and Private Transportation
12
13
- - o 0 o - -
M. DOWDIN CALVILLO, Member, Public
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GREG SCHMIDT, Executive Officer
14
E
m p lo
Q u
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JANE LEONARD BROWN, Committee Assistant
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estions by CHAIRMAN STEINBERG re:
16
NETTIE SABELHAUS, Appointments Cons
u It a n t
16
Approach to addressing mixed-motive
17
DAN SAVAGE, Assistant to SENATOR CED
JULIE NYSTROM, Assistant to SENATOR A
I L L 0
A N E S T A D
17
18
cases 39
18
Relevant time period for employee's
19
BILL BAILEY, Assistant to SENATOR AANESTAD
CHRIS BURNS, Assistant to SENATOR DUTTON
19
20
negative performance 42
20
Relevancy of timing of adverse
21
BRENDAN HUGHES, Assistant to SENATO
R OROPEZA
21
action and sequence of events .... 4 4
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W eight of issues in retaliation
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23
24
24
Basis for finding of retaliation.. 47
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Page 1 to 4 of 8
Amalgamated Transit Union 48
1
Question by SENATOR AANESTAD re:
Termination as a result of a
2
Commissioner confirmations for
technical violation 50
3
2009 92
Form over substance 52
4
Witnesses in SuDDOrt of MARTIN N. HOSHINO:
Past practice 54
5
DAVID WARREN, Taxpayers for Improving Public
Granting union leave 54
6
Safety 93
Constructive criticism 77
7
DONALD MILLER, Legal consultant 94
Question by SENATOR OROPEZA re:
8
-0O0-
Relevant time period for employee's
9
Vote-Only Items re Confirmation of:
negative performance 43
10
RICHARD W. FIGUEROA, Member, Managed Risk Medical
Insurance Board 99
Qualifications for position 71
Statement by SENATOR AANESTAD 56
11
1?
JOHN P. McGINNESS, Member, Commission on Peace
Questions by SENATOR CEDILLO re:
13
Officer Standards and Training 99
Criteria for reversing ruling .... 58
14
GIL VAN ATTENHOVEN, Member, Commission on Peace
Mistake in reversal 59
15
Officer Standards and Training 99
Reversals 62
16
JAMES B. HUSSEY, Member, State Bar Board
Votes reflective of policy 63
17
of Governors 99
Factors for termination 64
18
19
EDWARD R. OLSON, Member, California Veterans
Board 99
Disparate treatment and
termination 68
20
21
THOMAS A. RICHARDS, Member, California Veterans
Board 99
Statement by SENATOR DUTTON 76
Closing Statement by MS. CALVILLO 78
22
CYNTHIA L. DELLUMS, Member, Commission on the
Statement by CHAIRMAN STEINBERG 78
23
Status of Women 99
24
--oOo—
5
25
7
Witnesses in Opposition to ALICE M. DOWDIN CALVILLO:
1
Proceedings Adjourned 102
DAVID LOW, California School Employees
2
Certificate of Reporter 103
Association 22
3
APPENDIX (Responses of Appointees) 104
CAITLIN VEGA, California Labor Federation ... 34
4
LIBBY SANCHEZ, Teamsters, Machinists, SCOPE,
5
Amalgamated Transit Union, and Local 21 35
6
MICHELLE CASTRO, Service Employees
7
International Union 36
8
9
MICHAEL BOLDEN, American Federation of State,
County and Municipal Employees 37
10
TED TOPPIN, Professional Engineers in California
11
Government and California Association of
12
Professional Scientists 38
13
14
DAVID HAWKINS, California Faculty Association 39
DOLORES SANCHEZ, California Federation of
15
Teachers 39
16
-0O0--
17
MARTIN N. HOSHINO, Executive Officer,
18
Board of Parole Hearings 82
19
Questions by CHAIRMAN STEINBERG re:
20
Proposition 9/Marsy's Law 86
21
Training Commissioners 90
22
23
24
25
8 ;
Programs for lifers 96
6
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d 8 of 8 2 of 28 sheets
PROCEEDINGS
CHAIRMAN STEINBERG: Good afternoon, everyone.
The Senate Rules Committee will come to order.
Jane, if you could please call the roll.
MS. BROWN: Senator Cedillo.
SENATOR CEDILLO: Here.
MS. BROWN: Cedillo here.
Dutton. Oropeza.
SENATOR OROPEZA: Here.
MS. BROWN: Oropeza here.
Aanestad.
SENATOR AANESTAD: Here.
MS. BROWN: Aanestad here.
Steinberg.
CHAIRMAN STEINBERG: I'm here. We do have a
quorum.
We do have a couple other members that are
coming, and without objection we're going to go a little
bit out of order here today to accommodate some
appointees who are in the middle of their actual public
service, in the middle of meetings, so without objection
we will take R. Kirk Lindsey up as member of the
California Transportation Commission.
MR. LINDSEY: Thank you.
CHAIRMAN STEINBERG: Mr. Lindsey, welcome to
1
1 MR. LINDSEY: Probably very little, since we
2 don't have any money. You know that. So we're not
3 moving forward with new things. We're dealing more with
4 old things.
5 The SB 375, however, the Commission has for a
6 number of years been very in favor of the combination of
7 land use with transportation. In fact, it became part
8 of our STIP requirements. Certainly, your bill has
9 strengthened that issue, and the Commission that I'm
10 aware of, and certainly this commissioner, is all in
11 favor to move forward with reducing greenhouse gases and
12 requiring blueprints and such for transportation
13 projects.
14 CHAIRMAN STEINBERG: Is there a timeline that's
15 been developed or is being developed? I understand the
16 financial situation, obviously, but is there any kind of
17 expectation about when the CTC might get to this work?
18 MR. LINDSEY: I don't know that.
19 CHAIRMAN STEINBERG: Okay. I think one thing I
20 certainly appreciate is your looking into that, maybe
21 raising it publicly with the Commission itself, and
22 assuring us that even with the fiscal difficulties, that
23 there's an aggressive timeline planned to implement this
24 very important law.
25 MR. LINDSEY: Senator, the Commission is very,
3
you. If you have any member of your family or anybody
you want to introduce, please do so.
MR. LINDSEY: I'm good.
CHAIRMAN STEINBERG: You're good. Make sure
you speak right into that mic, and I will ask you to
make a brief, capital B, brief opening statement, if you
would like. And, if not, we can get right into the
questions.
MR. LINDSEY: I would like to be reappointed to
the California Transportation -- I've been appointed and
confirmed by y'all to the California Transportation
Commission.
CHAIRMAN STEINBERG: All right. Well, ten
points for brevity. That's excellent.
I do have a few questions, and then we'll ask
the members to do the same, and we'll take testimony.
As you know, last year the legislature passed a
bill which I authored, Senate Bill 375, which requires
the California Transportation Commission to maintain
guidelines for travel demand models as part of allowing
the Air Resources Board to determine greenhouse gas
reduction targets to implement 375.
What is the Commission doing currently to
evaluate these models and compel any necessary changes
to comply with SB 375?
2
1
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5
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7
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10
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very aware of the bill, is very, very aware of the
demand, the goodness of those things. I just don't know
the timeline. But I'll — if there is one, I'll get
back to you, and if there is not, we'll get one.
CHAIRMAN STEINBERG: Thank you very much.
Let me ask you one other question, and that is
your view on high-speed rail and how it fits in with
California's other transportation priorities.
I mean, do you believe, as a current and
prospective future commissioner, that this project is
important to the State, especially to the Central
Valley?
MR. LINDSEY: I think in the grand scheme of
things, yes. I think it's expensive. I am a little bit
challenged on funding. I mean, we put nine billion
dollars. The people of California. That's one leg of a
three-legged stool. I think you need federal funds to
match that somewhere in that same neighborhood. I also
think you need private investment to match that. The
private investment seems to be kind of out there in this
nebulous cloud that might be available. I don't see
anything that really says to the tune of nine or ten
billion dollars that the feds are at the table.
But I think in the grand scheme -- If you look
at the world of transportation from 30,000 feet, it is
: i-<
01/21/2009 04:19:111
5 of 28 sheets
Page 1 to 4 of 104
about getting people to jobs, to retail centers. It's
about moving goods. It's also about high-speed rail. I
mean, they'll all go together sooner or later. So it
may be more of a timing issue of when it gets done. And
I understand we're still ten years away, 20 years away.
It is certainly a challenge out in the future.
CHAIRMAN STEINBERG: Thank you. Let's open it
up to members of the Committee. Questions. Senator
Oropeza.
SENATOR OROPEZA: Good afternoon. Thank you
for your time yesterday. I appreciate you coming by the
office. I think we had a really good conversation.
MR. LINDSEY: My pleasure.
SENATOR OROPEZA: I did want to talk to you a
moment about one of the policy areas that seems to be
a growing area of interest and belief, that it's maybe
not the be-all/end-all, but certainly one of the main
ways that we're going to get through our infrastructure
problems in California, and that is the use of tolls as
a vehicle for financing the infrastructure. Along with
that, of course, the sort of attendant issue of
public-private partnerships and how they work.
We've had a couple examples around the state of
public-private partnerships that -- the one I'm most
familiar with is on the 91 freeway, which I spent four
5
1 that's a method to get there, maybe we have to.
2 However, toll roads, for example, because I
3 know you care about toll roads, the challenge for toll
4 roads is it may be okay, but it's got to be fair and
5 equitable, and there's got to be an alternative route.
6 It doesn't make sense that I can go from point A to
7 point B, which is six miles on a toll road for five
8 bucks, and because you don't do a toll road, it's
9 27 miles around the mountain. That's not the intent.
10 So I think if the intent is fair and equitable to
11 everybody, you know, it's okay.
12 SENATOR OROPEZA: Has the Commission ever
13 discussed that fair and equitable issue relative to
14 people's economic means? In other words, there's
15 another level at which I object to the toll roads, and
16 that's that if you've got the dough, you can go fast.
17 If you don't have the dough, you're stuck in that four
18 hours. I had the dough. I just didn't know how to do
19 it, but that's another issue.
20 But, frankly, that equity issue is also one
21 that I wonder if the Commission has had any discussion
22 about.
23 MR. LINDSEY: We have had lots of discussions,
24 and there's lots of actual tracking on who uses toll
25 roads, and it does not show the wealthy people are the
7
hours on because I didn't have a FasTrak pass, going
from Long Beach to Pamona on Christmas night, and the
other cars whizzed, whizzed, whizzed by, but there was
no easy way for me to buy one of those FasTrak things
while I was out there on the freeway, so I sat for four
hours.
Anyway, my question is: What is your view of
these public-private partnerships? You know the history
of 91 and how it initially was not so together, and then
it went over to the agency, and now it is financially, I
guess, and operationally doing fine, and the issue of
tolls as a financing vehicle.
MR. LINDSEY: My opinion is those are methods
to bridge a gap, but I don't know — I guess my
contention is they're really tinsels on a tree. The
fact of life is, if the world could find a long-term,
stable funding source for transportation that were to
carry us over a long span of time, I don't even know if
/ve would be talking about toll roads or, you know, fast
anes, or all of this stuff.
What happens is we don't have any money, so
everybody is scurrying around trying to find out how can
ve do it, and that's one of the ways to do it. I would
' uggest we don't close the door and say we're not going
o do that, because we may never find the money. So if
6
1 only users by any stretch of the imagination. Now I
2 will get you some information to show you, though,
3 because that is an issue --
4 SENATOR OROPEZA: That's great.
5 MR. LINDSEY: You know, we as the Commission
6 represent everybody in California. Not the rich
7 people -- sorry. Not the big city. We also represent
8 the little people.
9 SENATOR OROPEZA: That's right.
10 MR. LINDSEY: So it is really important to us
11 that it is fair and equitable across the board.
12 SENATOR OROPEZA: Yes. Well, I'd be very
13 interested in that. I would be interested in the
14 proportionality of the participation.
15 I'm guessing that certainly there are people
16 who the cost benefit of getting to work is worth it for
17 them to do it and others that it isn't. So I would
18 welcome that information. And I thank you very much for
19 your answers today and yesterday.
20 MR. LINDSEY: You're more than welcome.
21 CHAIRMAN STEINBERG: All right. Thank you.
22 Thank you. Get these mics right one of these days.
23 Do we have questions from other members?
24 Senator Dutton.
25 SENATOR DUTTON: Good afternoon. I'm extremely
8
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4 of 28 sheets
1 interested in IB and how it's being implemented and so
2 forth, sort of being involved in helping to negotiate
3 the bond. What I'm looking -- What I want you to share
4 with me and the Committee here is what kind of
5 challenges have you encountered with the timely
6 disposition of IB and the projects that are under your
7 supervision and control?
8 MR. LINDSEY: Well, you know, from the
9 Commission's viewpoint, if you all said you had a buck,
10 we'd like to spend it tomorrow. The world doesn't quite
11 work that way. But I will tell you the $19 billion
12 dollar Proposition IB bond, from a transportation
13 viewpoint, which we manage about
14 11 billion of that, we came out of the box with
15 CMIA within ten months, I believe, from passing, maybe
16 less than that, with passage, and that was a war zone.
17 But that was five billion. Within a year later, we came
18 out with the goods movement plan, which is $4.5 billion
19 dollars.
20 I would suggest from a Commission's management
21 of money, we have moved as fast as you can possibly
22 move. The one area we haven't is the $1 billion dollar
23 matching funds, and that's almost done but not quite.
24 That was the last piece of our puzzle.
25 The challenge, again, becomes how do you be
9
1 projects.
2 SENATOR DUTTON: What I'm kind of curious about
3 is that is something -- the time you just talked about
4 that it has to go through all these processes and all
5 these different agencies before you put the money out,
6 that we can appropriate it, and until you actually
7 allocate it, it doesn't take place. And what I'm
8 certain about is that we may have missed an opportunity,
9 because if some of these projects have actually got —
10 many of them may be started maybe a year sooner. I
11 think we still have some problems, but we may have —
12 there may be a lesser burden in some areas. That's one
13 thing I was wondering about.
14 So is there some way that you could have
15 expedited, or is there some extra steps that were
16 causing these projects having to go through without
17 taking away from the controls over -- you know, the
18 CEQA, the environment and stuff, but is there some
19 streamlining we should consider in the process?
20 MR. LINDSEY: You know, I think there's
21 always — today --
22 In the meeting today we talked about -- with
23 the feds and what they're potentially doing, and how
24 you're going to get there in 90 days or how you're going
25 to get there in 180 days, and certainly the
11
1 fair and equitable across the board to the big cities,
2 the little cities, to all of the people, and you are
3 trying to put together a congestion management plan.
4 I mean, it would be real easy to go to Los Angeles and
5 they say, "We've got 250,000 cars a day that go through
6 this intersection. We should get all the money."
7 And then you go to the little bitty town that
8 says, "I got 2,500 cars a day that go through this
9 intersection. You know, at least throw me a bone."
10 We've got to somehow figure out how to get
11 between those, so you start at the bottom. And I think
12 we did a marvelous job of going to local communities,
13 getting their input on a very fast track, and then going
14 to councils and governments, which would represent a
15 county, if you will, or a county-type area. Then you've
16 got to go through Caltrans districts, then you've got to
17 go through the State, and Caltrans State, and ultimately
18 it ends up to us.
19 So it's a challenging process, and I would tell
20 you I'm really proud of the Commission for how fast
21 we've managed most of the money. Now, have we got it
22 all out the door? No. But we also don't have it right
23 now. Sometimes the good Lord throws you something you
24 didn't expect. If we had it all out the door, I'm not
25 sure we wouldn't be potentially closing down other
10
1 environmental review and some of that comes into play.
2 Permitting issues come into play. How do I access
3 contractors to, maybe, shorten the timeline on a
4 contract bid from 90 days down to 60 days. We're right
5 now looking at every way we can so we can maximize
6 dollars if they do come available.
7 So, certainly, hindsight is a little bit 20/20.
8 Saying that a year ago we may have been able to do some
9 of those same things, we didn't.
10 SENATOR DUTTON: Okay. Thank you.
11 CHAIRMAN STEINBERG: Senator.
12 SENATOR OROPEZA: Simple question I forgot to
13 ask, and that is: I noted that there's one female on
14 the Commission. Do you find that that poses any kind of
15 a challenge relative to getting a total point of view on
16 the citizenry of California, given that over 50 percent
17 of California are female?
18 And then I would ask the same question, if you
19 could share with me, I don't know, what the top-level
20 staff looks like in terms of gender.
21 MR. LINDSEY: Top-level staff is male. Total
22 staff is probably more female than male. Total staff.
23 SENATOR OROPEZA: Meaning, going down the food
24 chain about --
25 MR. LINDSEY: Two levels is male, and then you
12
5 of 28 sheets
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01/21/2009 04:19:11 P(
1
start to diversify- Okay.
1
California Conference of Carpenters to support
2
The issue of gender on the Commission has never
2
Mr. Lindsey. One of our --
3
been an issue that I'm aware of. Again, I'm very proud
3
CHAIRMAN STEINBERG: Your name is Dan -
4
of the fellow commissioners, over the years that I've
4
MR. CURTIN: I'm sorry. Danny Curtin.
5
been there, that this isn't a boy-girl thing. This is
5
One of our leaders in the Carpenters, Bobby
6
what's good for the State of California.
6
Alvarado, is a member of the board. I think it goes --
7
SENATOR OROPEZA: Let me just share with you an
7
well, not without saying it, which we should praise --
8
example. Okay. The needs of a working mom who has a
8
This board has been extremely efficient at a very
9
couple of kids, her needs in terms of access and the
9
difficult time when there was a lot of money to move out
10
expeditious movement of her vehicle are very different
10
and a lot of demands on that money, and I think
11
than a -- let's say a male -- and I'm just giving
11
Mr. Lindsey expressed that well.
12
examples. They could be in reverse. But a female who
12
What Bobby tells me is that even though there's
13
drives one way to work and one way home. And when
13
a lot of political diversity on the board, there's a
14
considering options for what serves the most
14
cohesion and a real attempt to make this thing work,
15
Californians the best, those kinds of perspectives can
15
that Mr. Lindsey brings a lot of experience and reasoned
16
be valuable on a commission as you're making decisions.
16
thought to that dialogue. And he asked me to come up
17
So I would hope until there are -- and this is
17
here and make sure you are aware of that, and that we
18
not at your pay scale, because you don't make the
18
support him all the way.
19
appointments. Somebody else does. But what is at your
19
CHAIRMAN STEINBERG: Thank you, Mr. Curtin.
20
pay scale is, I would hope you would think about those
20
MR. SMITH: Mr. Chairman, members, D.J. Smith
21
kinds of dynamics as you go through your work and maybe,
21
representing a good deal of the public and private
22
I don't know, discuss with women in your life some of
22
transportation community in the state.
23
the issues that are relative -- that relate to them and
23
Mr. Chairman, as you know, I wrote the
24
their transportation needs. I would say while there are
24
legislation, working as a staffer 30 years ago, for the
25
many more similarities, there are differences, and it's,
13
25
Commission. We've seen commissioners come and go. It's
15
1
I think, a valuable voice on these decision-making
1
something I've been always proud of. This is an
2
bodies.
2
extraordinary commissioner who has shown leadership
3
MR. LINDSEY: Just to give you a little bit of
3
beyond belief through a very, very difficult problem
4
a comfortable feeling, I'm married. I have a wife who
4
area. You know -- As you probably know, I think a
5
is more vocal than I.
5
couple of you have been here in good times and bad
6
SENATOR OROPEZA: Where is she?
6
times. It's almost harder when you have more money to
7
MR. LINDSEY: We have four daughters. My wife
7
spend than it is less money.
8
has been on the school board for 20 years and interacts
8
CHAIRMAN STEINBERG: We would take that
9
with moms and PTAs over our whole lifetime. And so I'm
9
problem.
10
pretty dialed into what you're talking about.
10
MR. LINDSEY: Let me cut him off.
11
SENATOR OROPEZA: Ask her next time.
11
When I started on the Transportation
12
CHAIRMAN STEINBERG: And former coach of high-
12
Commission, we had two billion dollars in cash, and two
13
school girls' aquatics.
13
years later we had zero. And I'm going to promise you
14
MR. LINDSEY: Actually, I just finished my 21st
14
it is much more fun to have candy in the candy store.
15
year and am still coaching. I coach high-school
15
There's no doubt about that.
16
swimming and high-school water —
16
CHAIRMAN STEINBERG: Why don't you finish up.
17
SENATOR OROPEZA: That's great. You have to
17
MR. SMITH: This is one of the best
18
see those sports moms and dads.
18
commissioners we've ever had, and he deserves
19
Thank you. Thank you very much.
19
reappointment.
20
CHAIRMAN STEINBERG: Thank you very much.
20
CHAIRMAN STEINBERG: Thank you very much, sir.
21
Any other questions? Support the nominee.
21
Anybody else in support or opposition to the
22
MR. CURTIN: Mr. Chairman -
22
nominee? All right. If not, I'm prepared to support
23
Is this on?
23
your nomination.
24
CHAIRMAN STEINBERG: Yes.
24
SENATOR OROPEZA: I'll make the motion.
25
MR. CURTIN: - Members, I'm here on behalf of
25
CHAIRMAN STEINBERG: Go ahead, Senator Oropeza.
14
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6 of 28 sheets
1
SENATOR OROPEZA: I'll move the nomination.
1
has been a rash of late opposition to move your
2
CHAIRMAN STEINBERG: Moved by Senator Oropeza.
2
appointment, and feel free to make any kind of opening
3
Accept. Prepared to support the nomination.
3
statement that you want, but it would be fine if you got
4
Thank you very much for your dedication, your
4
right to the heart of it and responded to some of the
5
public service, and your willingness to continue.
5
concerns and criticisms that you have heard.
6
Please call the roll.
6
MS. CALVILLO: Thank you. Senator.
7
MS. BROWN: Senator Cedillo.
7
Good afternoon, Mr. Chairman and members of the
8
SENATOR CEDILLO: Aye.
8
Committee. I would like to thank you for the
9
MS. BROWN: Cedillo aye.
9
opportunity to come before you today. I'm honored and
10
Dutton.
10
humbled to serve as a member of the Public Employment
11
SENATOR DUTTON: Aye.
11
Relations Board. I'm privileged to continue my 20-plus
12
MS. BROWN: Dutton aye.
12
years of public service to the great people of the state
13
Oropeza.
13
of California.
14
SENATOR OROPEZA: Aye.
14
The charge of a PERB board member is to protect
15
MS. BROWN: Oropeza aye.
15
the rights of both the employee and the employer under
16
Aanestad.
16
the seven collective bargaining statutes under our
17
SENATOR AANESTAD: Aye.
17
jurisdiction. This is a charge that I take very
18
MS. BROWN: Aanestad aye.
18
seriously. The cases that come before us impact
19
And Steinberg.
19
people's lives and their livelihoods, and I'm respectful
20
CHAIRMAN STEINBERG: Aye.
20
and I'm mindful of these responsibilities as the board
21
MS. BROWN: Steinberg aye.
21
makes its decisions.
22
CHAIRMAN STEINBERG: Thank you very much. That
22
Mr. Chairman and members, to be an effective
23
nomination will move to the floor of the State Senate.
23
member of PERB, fairness and impartially are key. An
24
Thank you.
24
integral part of our job is to ensure consistent
25
All right. Next we will go back to the agenda
17
25
application of the board's precedent and the laws we
19
1
as it is laid out and ask Alice M. Calvillo, member of
1
administer. To this end, we are fortunate to have more
2
the Public Employment Relations Board, to come forward,
2
than 30 years of board precedent, as well as decisions
3
please.
3
from the National Labor Relations Board, to use in
4
Ms. Calvillo, welcome to you.
4
formulating our rulings.
5
MS. CALVILLO: Thank you, Senator.
5
In keeping with my belief that justice delayed
6
CHAIRMAN STEINBERG: Would you like to
6
is justice denied, resolving disputes that come before
7
introduce any members of your family or supporters that
7
PERB in a timely manner is crucial. I also strive for
8
are here today?
8
PERB's charge for neutrality and work to foster our
9
MS. CALVILLO: Yes, I would. Thank you for the
9
mission to promote harmonious labor relations. The work
10
opportunity. I have my family in the first row here, my
10
done at PERB is very important, and it is my sincere
11
husband, Frank.
11
hope that my service there may continue. And, again, I
12
CHAIRMAN STEINBERG: Welcome.
12
thank you for the opportunity to speak before you today
13
MS. CALVILLO: My brother, Stan, my mother
13
and welcome your questions.
14
Elaine, my sister, Laura, and my father, Dick Dowdin.
14
I know that there has been opposition lobbied
15
CHAIRMAN STEINBERG: Welcome all of you to the
15
against me, Senator and members. One of the allegations
16
California State Senate. Glad to have you here.
16
has been that I have not been impartial, and I have not
17
MS. CALVILLO: I also have my PERB family here
17
been fair in my rulings.
18
as well in the audience. And I thank them for being
18
Since I've been on PERB, I have participated in
19
here as well, Senator. Thank you for the opportunity.
19
making 28 decisions. That's a lot of decisions. Five
20
CHAIRMAN STEINBERG: Very good. We're glad
20
of those have been administrative in nature, requests
21
you're here. What we would like you to do is make an
21
for denial of appeal and so forth. Eleven of my
22
opening statement, a little longer then Mr. Lindsey
22
decisions have focused on -- excuse me. Eleven of my
23
here. We'd like to hear why you seek reappointment and
23
decisions were actually appeals of decisions that were
24
maybe — you know, we like to sort of cut to the chase
24
written by administrative law judges, and 12 of those
25
here. We do know that -- The Committee knows that there
18
25
appeals came from board agents who dismissed a case
20
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before us.
When you separate those two sets of appeals,
reality is I've ruled in favor of labor just as many
times as I've ruled in favor of the employer, four times
each, and I've ruled in favor of both three times. So
it's confusing to me in understanding how there is this
argument that I'm not — I haven't been fair and
impartial.
So I'd like to leave it at that. There may be
some more questions, and I'll entertain those.
CHAIRMAN STEINBERG: Right. I know I have a
series of questions of some of the cases that have been
raised, but I'm going to hold off for now. If you are
done with your statement, I would like to — I think I
would like to begin, if there's no objection, with
support and opposition testimony, because I think that
will help frame some of the questions that the members
may want to ask.
So if we could please have the witnesses in
support of the nominee please come forward.
Okay. Witnesses in opposition to the nominee.
Again, I don't know how many witnesses in
opposition are representing the same viewpoint, but if
you can organize the testimony in a way that somebody
gives the bulk of it and everybody else says, "Me too,"
21
1 through and very carefully reviewed these cases. And,
2 in fact, our opposition did come in late, but I think
3 you have to understand in her first month on the board,
4 she issued a very small number of decisions, not very
5 controversial. In the last several months, from
6 September to December, she issued a large number of
7 decisions. And the basis of our opposition is primarily
8 upon those cases that were issued in December, in
9 particular, two cases that were issued December 19th.
10 So rather than oppose her based on issues not
11 related to the facts, we carefully reviewed the details
12 of each of these cases, and the last cases she issued
13 were the most egregious cases that we found, two on
14 December 19th, one, the Amalgamated Transit Union vs.
15 Omnitrans, where she reversed the administrative law
16 judge on two of the three decisions, on three points,
17 all of which the AU ruled in favor of the union.
18 We are particularly concerned that in this
19 case, she used the past practice of the employer in the
20 first charge to overturn the AU and rule against the
21 union, and then she turned around and used the past
22 practice of the union and ignored that, rejected that
23 past practice, and instead used testimony by two
24 management workers to overturn the AU again against the
25 union. So she interprets past practice in that case in
23
if that's the way it works, we'd appreciate it.
MR. LOW: Okay.
CHAIRMAN STEINBERG: Okay.
MR. LOW: Thank you. Chairman and members,
David Low, California School Employees Association.
CSEA does oppose the confirmation of Alice
Dowdin Calvillo to the Public Employment Relations
Board, and it's a rare occurrence for us to oppose
confirmations. In my 27 years with the CSEA, I can
count on one hand the number of times I have appeared
before the Senate Rules Committee in this capacity.
However, in this case, we're very compelled to oppose
based on the general anti-labor direction that the PERB
board is taking as a whole and the specific role that
Ms. Calvillo has played.
In her short term on the board, she has issued
23 board decisions, and by our math 16 of these
decisions was decided against labor. She seems to
account where she split the decision and overturns —
but doesn't overturn the whole case against labor as a
favorable decision. We view those decisions as an
opposing decision.
We don't oppose just based on the numbers. Her
70 percent voting record against labor is not the issue.
The fact is that the real issue is that we have gone
22
1 totally opposite manners in the same case. She gives no
2 weight to the union past practice, and then she also
3 ignores precedent in that case as it relates to the
4 charge where the union is using leave to participate in
5 activities of external union matters.
6 The McPherson case, which is referenced in that
7 decision, states that it's established that activities
8 on behalf of other unions or units of employees
9 constitutes protected union activity, yet what the board
10 does is they say, "No, we're going to reject that and
11 we're going to say that because they — the banishment
12 of employees mentioned, that they said it's not a union
13 activity, we're going to reject them on precedent, and
14 we're going to decide against the union." So she states
15 that she adheres to precedent, and in fact in this case
16 completely rejects the precedent and overturns the union
17 on two charges.
18 You know, the cases of retaliation for union
19 activity are amongst the most important decisions that
20 the unions bring. This is our livelihood here in terms
21 of protecting members. Local union officers are almost
22 always volunteer officers who donate their time and work
23 at the employer's job and represent their fellow
24 members, so it's difficult to recruit these people to
25 donate their time for these jobs. And when they are
24
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8 of 28 sheets
1 found that management has carte blanche to harass,
2 intimidate, or terminate union officers, it just makes
3 that job that much harder. Yet Ms. Calvillo, in this
4 case, treats this case as if it's nothing more than a
5 simple case of forgetting to present your leave request
6 48 hours in advance.
7 In this case, the employee presented it on
8 Friday for a Monday leave. So in fact the employer knew
9 it was for union leave, it was a legitimate union leave.
10 Even though it was three days in advance, it wasn't
11 48 hours of workdays, and she just rejects any facet of
12 union representation and instead says, "No, in a lead
13 case, if you don't give 48 hours' notice, you're
14 terminated."
15 In Baker Valley Teachers Association vs. Baker
16 Valley Unified, the AU found in favor of the union in
17 both of two charges where the employer brought union
18 officers in and asked them to resign. In the one case,
19 Mr. Zear was the union president. He was one of only
20 three members of the union, because it was a newly
21 active union. The president resigned, he got thrust
22 into the presidency, and he started holding more union
23 meetings, bringing CTA representatives to the bargaining
24 table, just engaging in much more active union activity.
25 And the employer called him in after that and asked him
25
1 Mr. Zear's union activism had been ongoing and
2 recent, and the evaluations of him were six months
3 earlier. She also finds the term "classroom management"
4 is not at all vague or ambiguous, which we find fault
5 with.
6 The new standard established by Ms. Calvillo in
7 this case, and her fellow board members, sends dire
8 warnings to union leaders, which is: If you don't have
9 a spotless record, or if you have a single blemish, your
10 union activism can be discounted in a retaliation case,
11 and we will instead reach back into the record as far as
12 we can to justify these terminations.
13 In the San Mateo Firefighters case, the board
14 found in favor of the employer, and Ms. Calvillo writes
15 a concurrence in this case where she agrees with the
16 board's majority decision, but she takes it a step
17 further. The board decided that — at least in this
18 case, there's a well-established precedent that shows
19 that a person that reports a safety violation is
20 engaging in a protected activity.
21 Ms. Calvillo argues that she disagrees with
22 her fellow board members, and that a different standard
23 than the PERB precedent under the Regents of UC,
24 L.A. Unified, and Oakdale should not apply, instead an
25 NLRB precedent should apply. And we would urge you to
27
1 to resign, and the AU found that the elements of
2 protected activity were met, adverse actions, timing of
3 the charge, and he ruled the district departed from
4 standard procedures by not giving Zear a written notice
5 of opportunity for a hearing and a statement of charges
6 as required by the Ed Code.
7 Now, Ms. Calvillo reverses the AU's decisions
8 and asserts that the district is justified in their
9 violation of the Education Code because they have a
10 past practice of violating the law in other cases. So
11 because they didn't give previous employees their legal
12 right to notification of a hearing and their statement
13 of charges, she states that they don't have to give the
14 union president this legally required Education Code
15 notice of a hearing and a statement of charges, and
16 dismisses the charge and reverses the AU.
17 She also asserts the nexus is not established
18 between the connected activities, and that the forced
19 resignation of the union president is okay because he
20 had been given a previous evaluation criticizing him for
21 classroom management.
22 We find this decision onus on many levels. It
23 continues a pattern where Ms. Calvillo disregards facts
24 in favor of the union, issues a decision that has a
25 chilling effect on union representation.
26
1 read -- We have attached her actual -- her concurrence
2 opinion, because I had to read it five times. I thought
3 her logic was tortured and flawed. She concedes that
4 the employee had safety concerns; she concedes that he
5 communicated them; but she questions his motivation,
6 essentially, and finds, because he might have had some
7 self-interest, that reported safety concerns aren't
8 protected activity in this single case.
9 Finally, lastly, we find fault in the
10 California Federation of Interpreters case, Region 4,
11 where Calvillo and the board again reversed the AU who
12 ruled that the committee violated the act by denying
13 union-requested information and request to arbitrate a
14 dispute on behalf of a court interpreter. The court
15 interpreter was a contract employee. And the board
16 concedes in their decision that one of the purposes of
17 the act is to convert independent contractors to trial
18 court employees, and another key purpose of the act is
19 to give collective bargaining rights to these employees.
20 Yet Ms. Calvillo overturns the AU's decision and rules
21 the union can't receive information to represent this
22 employee, and he cannot arbitrate because the court
23 interpreter is a contract employee.
24 This case has very far-reaching ramifications
25 for all of us in labor, because we often run across the
28
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01/21/2009 04:19:11 P
1 practice of employers who misclassify workers to deny
2 them union representation and benefits in other areas.
3 They classify them as "temporary," "contractors,"
4 "intermittent," "short-term," "provisional," all sorts
5 of terms. So this throws the door wide open for these
6 abuses, because now it opens the door to grant the
7 employers the right and not to give us the information
8 to represent these people and not allow us to challenge
9 these misclassifications and make these people whole and
10 bring them in as employees.
11 For us, PERB is the equivalent of the Supreme
12 Court. Ms. Calvillo often stated when we've talked to
13 her, "The facts are the facts," but the fact is for us
14 she interprets the facts in a way that shows a very
15 strong anti-union bias, and while we applaud her for
16 issuing many, many decisions in her short tenure, while
17 justice delayed is justice denied, the fact is justice
18 denied is also justice denied, and we feel she has
19 denied justice to public employees and ask your "No"
20 vote on her confirmation.
21 CHAIRMAN STEINBERG: Thank you, Mr. Low. Could
22 you explain -- Before you leave, I noticed that Senator
23 Aanestad had a question or two for you.
24 SENATOR AANESTAD: Mr. Low, in the first few
25 cases that you quoted, one was McPherson, the other was
29
1 law judge decided in favor of the union in both charges.
2 Both of them dealt with retaliation against union
3 officers. And the board reversed the AU, and instead
4 of siding in favor of the union --
5 SENATOR AANESTAD: So it was the board that
6 reversed the AU.
7 MR. LOW: There's never a decision that goes
8 before the PERB where only one person decides. All of
9 the decisions from PERB are board decisions. There's no
10 such thing as an individual judge's decision.
11 SENATOR AANESTAD: And what is the purpose of
12 the board to meet after the AU has made their ruling if
13 not to be able to question the AU's ruling?
14 MR. LOW: We do not dispute the right of the
15 board and the responsibility the board to question all
16 AUs' rulings. What we question is -- is her rationale
17 used in these decisions.
18 SENATOR AANESTAD: Her rationale or the board's
19 rationale?
20 MR. LOW: Well, both.
21 SENATOR AANESTAD: Both. So if you had your
22 way, you would urge a "No" confirmation vote on any of
23 those members who voted against you in those two cases.
24 It just happens Ms. Calvillo is here today —
25 MR. LOW: Not just those two cases. Our
31
Baker Valley, what was the final disposition in those
cases?
MR. LOW: The final disposition on the first
case, which was ATU Omnitrans, there were three charges.
The administrative law judge ruled in favor on all three
charges. The final disposition was PERB overturned the
AU and terminated the union president on charge one,
affirmed charge two, and overturned or reversed the AU
on charge three, and it was a unilateral change charge.
SENATOR AANESTAD: And she did this
unilaterally?
MR. LOW: She did - no. It was the whole
board decision. She was one of the board members.
SENATOR AANESTAD: So this was a board decision
to overturn the AU.
MR. LOW: Yes.
SENATOR AANESTAD: Not just her decision.
MR. LOW: Right. She participated in that
decision.
SENATOR AANESTAD: And where is that case
standing today, legally?
MR. LOW: I don't know if it's been appealed or
not.
SENATOR AANESTAD: Okay. Baker Valley.
MR. LOW: Again, two charges. Administrative
30
1 opposition to confirmation aren't just those cases.
2 Those are what I've testified on.
3 SENATOR AANESTAD: Why was -
4 MR. LOW: What we would do is review the whole
5 record of anybody who came before this body, and we
6 would make our decision on opposition based on all the
7 decisions on which they participated.
8 SENATOR AANESTAD: In the Baker Valley case,
9 final disposition, legally?
10 MR. LOW: I also don't know if that's been
11 appealed or not.
12 SENATOR AANESTAD: Okay. I guess my question
13 would be: If the final findings by the board which
14 happen to be concurred with by the nominee are so
15 egregious, why have they not been appealed?
16 MR. LOW: I don't know if they've been
17 appealed. Neither of --
18 SENATOR AANESTAD: Don't you think that would
19 be a very vital part of your allegations --
20 MR. LOW: Sure, but I know --
21 SENATOR AANESTAD: - because the failure to
22 appeal would seem to me that maybe the board did make
23 the correct --
24 CHAIRMAN STEINBERG: Not necessarily.
25 MR. LOW: There's a lot of factors that go into
32
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10 of 28 sheets
1 a decision to appeal, and that is not -- that's one, but
2 that's not all.
3 SENATOR AANESTAD: The point here that I'm
4 making is: This nominee is not making these decisions
5 unilaterally, that it is the board that is making these
6 decisions. She just happens to be voting with the
7 majority of the board on this way with which you are
8 disappointed.
9 CHAIRMAN STEINBERG: That's correct.
10 MR. LOW: You use that rationale, you can't
11 oppose anybody.
12 CHAIRMAN STEINBERG: That's correct, but I
13 think Mr. Low's point is that any member has a right to
14 either join the majority or dissent --
15 SENATOR AANESTAD: And I guess I have the right
16 to make the point that if the entire board is voting to
17 overturn an AU decision, maybe the board was correct.
18 And maybe her decision, although you're unhappy with it
19 as a representative of labor, maybe her decision was
20 correct and fair.
21 MR. LOW: We will dispute that.
22 CHAIRMAN STEINBERG: That's what we're here to
23 talk about today, among other issues.
24 All right. Thank you very much, Mr. Low.
25 Other witnesses in opposition, please.
33
1 we're here. Thank you.
2 CHAIRMAN STEINBERG: Thank you, Ms. Vega.
3 Ms. Sanchez.
4 MS. SANCHEZ: Good afternoon. Libby Sanchez on
5 behalf of the Teamsters, the Machinists, Amalgamated
6 Transit Union, Local 21, and SCOPE.
7 First of all, I just want to say I'm so pleased
8 to see a court reporter here doing the good work that we
9 know they do.
10 I just want to speak, really, about the public
11 policy rationale behind the unions I represent opposing
12 the confirmation of Ms. Calvillo. It really goes to the
13 question of what is the purpose of the board. Is the
14 purpose of the board to make determinations based on
15 facts and law, or is the purpose of the board basically
16 to legislate from the bench?
17 We would contend that several of the decisions
18 that the — that Ms. Calvillo made were not based on the
19 facts before her, were not based on the law before her,
20 but rather were based on an erroneous interpretation of
21 the facts and the law before her.
22 Reasonable minds can disagree about a perfect
23 world being one in which, you know, union-side
24 determinations or management-side determinations are
25 made, but I would hope that we would all agree that the
35
1 Again, I think Mr. Low did a very thorough job
2 of going through the specific cases. I don't think we
3 need to repeat them. I know I'm going to want to ask
4 specifically about the cases myself to the nominee.
5 Go ahead, Ms. Vega.
6 MS. VEGA: Mr. Chairman and members, Caitlin
7 Vega for the California Labor Federation also here to
8 oppose this nomination.
9 We appreciate the meeting that we had with
10 Ms. Dowdin Calvillo, and after that meeting we also did
11 a review of the cases and had all of the same concerns
12 expressed by Dave Low.
13 I would just focus, for us, on the central
14 issue of what constitutes retaliation, because
15 California has strong collective bargaining laws, and
16 this legislature has determined the workers in the
17 public sector have the right to get together and bargain
18 collectively and make a better life for themselves and
19 their families, and yet when workers who stand up for
20 themselves, who attend union meetings and choose to be
21 on negotiating committees, face retaliation, are fired,
22 or pushed out, or disciplined, the message is, Don't get
23 involved with the union. Don't speak up for yourself.
24 Don't exercise these rights. And that effectively
25 undermines everything that we've fought for. That's why
34
1 purpose of the board is to appropriately interpret the
2 law and the case -- the cases before them. Thank you.
3 CHAIRMAN STEINBERG: Thank you very much.
4 Next. Ms. Castro.
5 MS. CASTRO: Michelle Castro representing the
6 Service Employees International Union. We do not wish
7 to repeat but would concur with all the statements made
8 by the prior witnesses.
9 With respect to appeals, it's a matter of
10 timing. The most egregious cases have probably not yet
11 been appealed and probably will be appealed. There have
12 been cases overturned by the Court of Appeal which is
13 the adjacent function for the PERB. Most recently, the
14 Fourth Court of Appeal overturned a case by PERB,
15 CTA v. Journey Charter School where the court lambasted
16 PERB for failing to follow the law and follow their own
17 precedent.
18 So there is a history here with this board, and
19 in particular with this member, so I just wanted to cite
20 that there may be a timing issue on some of these cases.
21 Some of these cases --
22 SENATOR AANESTAD: Was she a member of that
23 board that was --
24 MS. CASTRO: On the original decision on
25 CTA v. Journey Charter School, no.
36
11 of 28 sheets
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01/21/2009 04 19:11
SENATOR AANESTAD: So, really, that information
is irrelevant.
MS. CASTRO: With respect to this case and only
in this case. There are other cases that involve other
unions that will be going before the Court of Appeal,
and we're waiting on those decisions.
CHAIRMAN STEINBERG: Thank you very much.
Next.
MR. BOLDEN: Good afternoon, Mr. Chair and
members. Michael Bolden here for the American
Federation of State, County and Municipal Employees. We
concur with all the previous comments made. I'll keep
it short and strongly also oppose this recommendation
for appointment to the special board.
CHAIRMAN STEINBERG: Thank you, Mr. Bolden.
Appreciate it.
SENATOR AANESTAD: Question.
CHAIRMAN STEINBERG: Yes.
SENATOR AANESTAD: How many of your members
have been affected by decisions regarding this nominee's
reversal of an AU?
MR. BOLDEN: That's a very good question. I
don't have a specific number, but I do know we've had
decisions before the PERB regarding the University of
California employees which were negatively impacted by
37
1 MR. HAWKINS: Mr. Chair and members, David
2 Hawkins, California Faculty Association. We share the
3 concern of the lowering of standards that were
4 established by previous precedent, and we must oppose
5 Ms. Calvillo's appointment.
6 CHAIRMAN STEINBERG: Thank you.
7 MS. SANCHEZ: Dolores Sanchez with the
8 California Federation of Teachers. Not much more to
9 add. We are in strong opposition, and we don't take
10 these appointments lightly at all. We don't come before
11 you often, but we felt the facts in this case warrant
12 it. Thank you.
13 CHAIRMAN STEINBERG: Thank you very much. Any
14 other witnesses in opposition?
15 All right. Before we get into the questions,
16 we'll take a five-minute break, please. We'll be right
17 back.
18 (Recess taken.)
19 CHAIRMAN STEINBERG: All right. We'll call the
20 hearing back to order. I'd like to begin questioning
21 Ms. Calvillo.
22 Ms. Calvillo, I want to talk about the specific
23 cases cited by Mr. Low, but I think it's a little easy
24 to get lost in the weeds and to argue different
25 interpretations. I'd like to start a little bit
39
decisions on the board that went against the union, in
particular, cases regarding the University of
California.
CHAIRMAN STEINBERG: I can answer the question.
Of the two cases cited where there was a reversal, I
don't believe they were AFSCME cases. Thank you.
SENATOR CEDILLO: Let me ask this question. If
that law applied to you or those rulings are applied to
you, you don't get to say, "I'm from AFSCME. That was
another employee from another union"?
CHAIRMAN STEINBERG: Precedence is precedence.
MR. CEDILLO: Correct?
MR. BOLDEN: Correct.
CHAIRMAN STEINBERG: Okay. Mr. Toppin.
MR. TOPPIN: Mr. Chairman and members, Ted
Toppin for the Professional Engineers in California
Government and the California Association of
Professional Scientists in opposition to confirmation.
I think Mr. Low and others did good specifics
on the specifics of the cases. In general, we believe
the anti-labor bias now dominates the board, and it is
time to get back to what is law and precedent in
determining those decision there. Thank you.
CHAIRMAN STEINBERG: Thank you.
Mr. Hawkins.
38
1 differently, because I'm a former practitioner before
2 PERB myself, as we talked about, and know something
3 about this issue of retaliation. And so when it comes
4 to retaliation, what usually happens, of course, is
5 that -- what often happens is that there is, in fact, a
6 protected activity, and there is evidence that the
7 employer retaliated against the employee for that
8 activity. But there's also, maybe, some evidence in the
9 record that the employee was not perfect, and then
10 there's a justification made by the employer, "That's
11 the reason why we terminated or disciplined the
12 employee."
13 So what I want to ask you in general is your
14 philosophy or your approach to addressing so-called
15 mixed-motive cases. How do you determine whether the
16 motive is, in fact, the protected union activity or
17 something in the employee's record that justified the
18 action made by the employer? Can you expound on that a
19 little bit, please.
20 MS. CALVILLO: Thank you, Mr. Chairman. I
21 appreciate that.
22 Yes. I take a look at the record. It is my
23 duty, as it is my colleagues' on the board, to review
24 the record in its entirety. That is the records -- if
25 we're talking about an administrative law judge
40
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12 of 28 sheets
1 decision, the evidence in the record, the testimony at
2 the hearing, and we determine whether or not a nexus has
3 been established between protected activity and the
4 adverse action in the case of retaliation. So it's
5 truly a decision based on what the evidence provides and
6 what the testimony has provided and whether or not it's
7 been refuted by any side.
8 CHAIRMAN STEINBERG: That doesn't quite get at
9 it, so let me press a little bit. I mean, you just
10 described sort of the burdens of proof, if you will, in
11 terms of how -- analyzing a case. I'm interested in
12 something different.
13 When you look at a specific set of facts, and,
14 in fact, there may be two reasons that a reasonable
15 person could say led to the termination, one being
16 protected union activity, the other is some spot or
17 something serious in the employee's record, how do you
18 balance and weigh the two in determining which is the
19 more likely factor? How do you do that?
20 MS. CALVILLO: Again, it goes back to what the
21 evidence is before us. I think there's a -- this,
22 perhaps, will best illustrate an example of a case that
23 we had, and that has been a case that, obviously, has
24 been raised today, and this is on the Baker Valley case.
25 We had a situation where you had two teachers,
41
1 months, one year, two years, five years prior to the
2 disciplinary action? Is timing a factor, and where do
3 you generally draw the line in terms of an employer
4 being able to go back in time and saying, "This is the
5 reason why we took the action"?
6 MS. CALVILLO: I appreciate that. I don't have
7 a fixed set in my mind that it's two months or six
8 months. Again, I look at every case on a case-by-case
9 basis, and I try to —
10 CHAIRMAN STEINBERG: Excuse me. Is there an
11 outside line? So not two months, six months; but is it
12 a year, is it a year and a half?
13 MS. CALVILLO: I guess what I'm saying to you
14 is that I don't go into a case saying it's six months or
15 one year. I do the best I can, based on what the
16 evidence is that's before me.
17 I apologize if I'm not answering your question,
18 SENATOR OROPEZA: Can I give it a try?
19 How far back would you look? Say the guy is a
20 30-year employee. How far back would you look and
21 consider relevant?
22 MS. CALVILLO: It would depend on the evidence
23 that's provided to me. I don't know how far. I only
24 know how far it is now, as far as it's stated in the
25 record.
43
1 and the allegation was they were retaliated against for
2 protected activity. And in one instance, the board
3 found, as we agreed with the administrative law judge in
4 that case, that the employee did indeed -- was
5 retaliated against for protected activity.
6 With regard to the second employee, the second
7 employee's personnel record contained information
8 suggesting -- actually, there was evidence that there
9 were issues of concern with regards to the employee.
10 Now what happened during the testimony during
11 that particular case is that the employee did not refute
12 that — the testimony that was provided. They actually
13 agreed, so --
14 CHAIRMAN STEINBERG: That they had performance
15 problems.
16 MS. CALVILLO: Yes, that they had a performance
17 problem. So I'm taking a look at the evidence before me
18 as well as the testimony before me.
19 So if the employer said there were issues and
20 the employee agreed that there were issues, in that
21 particular case we found there was no -- retaliation was
22 not for protected activity.
23 CHAIRMAN STEINBERG: Does it matter, for
24 example, whether or not the negative chapter of the
25 employee's performance occurred three months, six
42
1 Again, in this case, the AU found -- The issue
2 here was the AU had found it was unclear and ambiguous,
3 and we ruled against that. That was the whole crux of
4 this particular issue. It wasn't whether or not the
5 information or the performance issues were old. It was
6 the reasoning for determining that they were a protected
7 activity. And the board did not agree that it was
8 unclear or ambiguous. We felt that based on the
9 testimony provided and the fact that it wasn't refuted,
10 that it was clear.
11 CHAIRMAN STEINBERG: It was clear that the
12 employee had performance problems.
13 MS. CALVILLO: The reasoning, yeah, and that
14 was the AU's reasoning. The AU was not looking at the
15 time issue. The AU was looking at whether or not this
16 was clear and ambiguous — unclear and ambiguous.
17 CHAIRMAN STEINBERG: You know, I don't want --
18 MS. CALVILLO: I'm sorry. Vague and ambiguous.
19 CHAIRMAN STEINBERG: Believe me, nothing but
20 respect for you and your public service and, you know --
21 and this is intended to be nothing -- nothing but civil,
22 and it's a discussion, but it's an important discussion
23 about philosophy and how you approach cases going
24 forward. That's why I'm asking this. I've tried to ask
25 it a couple ways.
44
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I think it's relevant to ask in these
retaliation cases how far back you think is reasonable
to look at past performance. And since you're not
comfortable going there, let me ask it a different way.
Is timing important itself? Is the timing of
the action, the adverse action in relation to both the
protected activity and whatever performance issues may
exist, is the timing and the sequence of those events
relevant in making a decision?
MS. CALVILLO: It could be, depending on the
circumstance and the evidence provided.
Unfortunately, I'm unable to reopen this case
and to discuss it any more than what is in the decision.
CHAIRMAN STEINBERG: I'm deliberately not
asking you about a specific case. This is where I feel
I'm now a member of the Senate Judiciary Committee in
Washington, D.C., and the Supreme Court nominee doesn't
want to talk about any potential pending cases.
So I think what's fair, as I've observed that
process over the years, is certainly not to ask you how
you would decide a case exactly, because you're right.
There always is a set of facts.
But I think it is fair for the Committee to
know and understand your approach and the reasoning that
you use, and what you've told us is that you look at the
45
1 CHAIRMAN STEINBERG: That's important to know.
2 When you found retaliation, on what basis did
3 you find it? What were the factors?
4 MS. CALVILLO: Each case, again, is different,
5 but there was a direct nexus between the protected
6 activity and the adverse action. I would have to go
7 through the details of each of those cases where we
8 established retaliation occurred, but there was enough
9 evidence to prove that. And based on precedent --
10 Another thing I consider is precedent and case
11 law, and I apply that to each and every case, looking at
12 the evidence. If timing is the issue, I'm going to look
13 to see what case law, what precedent before may have
14 addressed that issue and apply it there.
15 There are many, many cases before me, as I
16 mentioned. I've had the benefit of 30-years-plus of
17 board precedent, so certainly I don't just look at the
18 evidence. I am applying case law. I am applying
19 precedence, how my colleagues addressed this issue in
20 the past, so I apply all of those things to my cases.
21 If the crux of this issue is timing, I'm going
22 to go back and take a look at what case law or what
23 precedence dictates with regards to that. I have had a
24 case that dealt -- where everything was built on timing,
25 so....
47
evidence in front of you, and that's -- that's
important. And that's, frankly, expected, because I'm
sure you are a person of integrity, and you're going to
be impartial. But that isn't enough for us to
understand what your guiding philosophy is here.
What the union has said in general is that when
it comes to retaliation, at least in a couple cases,
that you'll pick something out of the past that may not
be nearly as weighty as the union activity that the
union believes motivated the action. So I just want to
know in general how you weigh those two things. Is
timing relevant? Do you weigh the gravity of the
performance problem versus how involved the individual
is with the union? I mean, there are ways to weigh
this, and I want to understand how you weigh it.
MS. CALVILLO: And I do. I take these things
into consideration.
CHAIRMAN STEINBERG: Take what into
consideration?
MS. CALVILLO: I would take time into
consideration. Again, in the case of question --
Actually, I've had, I believe, five retaliation cases
before me as author, and I did find retaliation occurred
24 in two and a half of those cases, just for purposes of
25 the record.
46
1 CHAIRMAN STEINBERG: Okay. Let me get right to
2 the Amalgamated Transit Union case and hone in a little
3 bit more specifically. The thing about that case that
4 bothers me that I think Mr. Low or the other witnesses
5 raised in that case -- They've raised a concern that
6 you're applying the notion of past practice in a
7 differential way, that on the one hand, the employer
8 apparently had a past practice of requiring 48 hours'
9 notification for union leave, and that that was
10 violated, and yet the union had established in the case,
11 apparently, a past practice of being allowed to use
12 leave for external activity, i.e., supporting another
13 union, and you said that wasn't valid past practice.
14 So two-part question. One is: Can you
15 describe your philosophy and view on the use of past
16 practice? And, secondly, this is the part that nobody
17 has raised that troubled me: When you're looking at
18 grounds for termination -- When you say, "I'm
19 terminating somebody," it's sort of the old death
20 penalty for employment. Why is not giving a full 48
21 hours' notice before you begin bargaining a contract
22 grounds for termination? Isn't there a
23 form-over-substance sort of issue here that also speaks
24 to the motive of the employer in this case? Two-part
25 question.
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14 of 28 sheets
1
MS. CALVILLO: Yes, I appreciate that. And I
1
and — was whether or not they were retaliated for
2
just want to preface my comments by saying that this
2
protected activity, and because — because the employee
3
case actually is now pending before the District Court
3
did not meet the notice requirement, then the activity
4
of Appeal, so I am a little bit limited in how I can
4
in which he was participating in was not protected.
5
respond. I just want to put that on the record.
5
So....
6
This was a very difficult case that came before
6
SENATOR OROPEZA: Say that again, please.
7
us, and there were actually two allegations of
7
CHAIRMAN STEINBERG: Go ahead. I understood
8
retaliation against union negotiators for time they took
8
it.
9
to conduct union business. And what we did in this
9
SENATOR OROPEZA: For me.
10
particular case is that the -- The administrative law
10
CHAIRMAN STEINBERG: Yes. Go ahead.
11
judge in this case found that, in fact, Omnitrans
11
MS. CALVILLO: The issue here was that the
12
retaliated against two union negotiators, and they also
12
employee did not provide 24 hours of notice, and
13
found two issues here, the unilateral charge had changed
13
therefore he wasn't violating — because he provided
14
the union business leave policy.
14
notice for more than 24 hours, he wasn't in compliance
15
The board, after examining the record as a
15
with past practice. And we weren't seeing that there
16
whole and anew, found that the MOU itself was silent
16
was a protected —
17
with regards to the amount of time needed to give the
17
CHAIRMAN STEINBERG: Right. He didn't follow
18
employee.
18
the rules. There wasn't protected activity to even,
19
CHAIRMAN STEINBERG: Right.
19
then, trigger an analysis of retaliation.
20
MS. CALVILLO: Because the MOU was silent, we
20
SENATOR OROPEZA: So he couldn't have been
21
regarded on several cases that dictated that we then
21
retaliated against.
22
look to past practice regarding the notice requirement
22
CHAIRMAN STEINBERG: Right, that's the theory.
23
for union leave.
23
Again, I'm asking the question whether that is, you
24
CHAIRMAN STEINBERG: It was 48 hours.
24
know, form over substance.
25
MS. CALVILLO: No.
25
Okay. I don't want to dominate --
49
51
1
CHAIRMAN STEINBERG: The past practice.
1
SENATOR OROPEZA: Is it?
2
MS. CALVILLO: The past practice was the
2
CHAIRMAN STEINBERG: Is that form over
3
employees were required to give 24 hours of notice for
3
substance?
4
union leave. The union's own witness testified that
4
MS. CALVILLO: I don't ~
5
this was the past practice.
5
SENATOR OROPEZA: I want to know. If he
6
We then -- And we actually relied on a case to
6
doesn't ask it, I will.
7
determine what actually constituted past practice, but
7
MS. CALVILLO: I'm not sure what you're asking.
8
because the board found that the MOU was silent, and
8
CHAIRMAN STEINBERG: I'm asking is violating
9
what -- the case law was showing the next best thing is
9
the 24 -- How many hours' notice did the union activist
10
to look at past practice, we determined, based on the
10
provide in this case?
11
evidence in the record, that 24 hours' notice was the
11
MS. CALVILLO: I believe he provided 48 hours.
12
past practice. One employee provided 24 hours' notice,
12
I'd have to go back.
13
one did not.
13
SENATOR OROPEZA: No. The one who didn't.
14
CHAIRMAN STEINBERG: I get that. Let me get to
14
MS. CALVILLO: There was one that provided --
15
the heart of it. Why should somebody be terminated for
15
He provided 24-hour notice.
16
violating that provision? Is that a capital offense?
16
SENATOR OROPEZA: The other one.
17
SENATOR OROPEZA: Punishment fit the crime.
17
MS. CALVILLO: It was, like, 48. It was more
18
CHAIRMAN STEINBERG: That's the part that's
18
than 24 hours.
19
striking me about this. In other words, if it is minor,
19
CHAIRMAN STEINBERG: Wait. You just said past
20
doesn't that speak to a greater likelihood of a motive
20
practice was 24.
21
for retaliation?
21
MS. CALVILLO: Yes. I'm sorry. He provided
22
I'm trying to get to your thought process here.
22
less than 24 hours.
23
Why is that technical violation grounds for terminating
23
CHAIRMAN STEINBERG: How many? That's what I'm
24
a union a union leader or any employee?
24
asking.
25
MS. CALVILLO: What we were trying to determine
25
MS. CALVILLO: I'd have to look at exactly how
50
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104 01/21/2009 04:19 11 P
much.
CHAIRMAN STEINBERG: If you could.
SENATOR OROPEZA: We've been told it was the
same day. It was in the middle of his shift instead of
the beginning.
CHAIRMAN STEINBERG: Hold on. I would like her
to go through the record, please.
MS. CALVILLO: I can look at the case itself
and tell you. It will take me a little bit of time. I
apologize. I just know it was less than 24 hours.
CHAIRMAN STEINBERG: Okay. It was less than
24 hours. Do you remember whether it was 12 or 18, or
was it just, "I'm leaving work, and I'm going to the" --
MS. CALVILLO: I don't recall. I apologize. I
don't recall.
CHAIRMAN STEINBERG: The point is, and I'll get
to the question Ms. Oropeza was going to ask, is: Let's
assume for discussion purposes that it was 12 hours. I
don't know, and you don't recall. Why does that matter?
Really, why does that matter?
MS. CALVILLO: Because my job is to take a
look — We're looking at a retaliation case, and I have
to follow precedent and case law, and the fact is I have
to show -- or I don't have to show, but the record has
to show that the protected activity has occurred, and it
53
1 MS. CALVILLO: Yeah. In this particular case,
2 the evidence showed that Omnitrans -- again, the MOU was
3 silent with regards to what specifically defined
4 authorized union business.
5 Then we look at the facts in the case as
6 presented to us. At the time the MOU was signed by both
7 parties, the union only represented employees for
8 Omnitrans. They didn't represent employees in other
9 places of work. So we -- There was no opportunity for
10 the employer to think there would be a cause for the
11 union employees to be going out taking union time to
12 participate in activities for other employers, and --
13 CHAIRMAN STEINBERG: What is the past practice
14 in that regard?
15 MS. CALVILLO: The past practice there -- The
16 past practice was it was silent, again.
17 CHAIRMAN STEINBERG: The contract was silent.
18 I'm asking what the past practice was. I'm sorry.
19 Did you analyze whether there was a practice of
20 this particular employer or an industry practice
21 allowing the union officers to get leave time to
22 organize --
23 MS. CALVILLO: They didn't ask what the reason
24 was for. The employer didn't ask what the reason was
25 for.
55
1 is because of that protected activity an adverse action
2 has occurred. That's within the PERB's jurisdiction.
3 And so there are some fine lines there, and I can only
4 rule under what's under our jurisdiction.
5 CHAIRMAN STEINBERG: Okay. Two more questions,
6 and then I'm going to be quiet for a while.
7 The issue of how you look at past practice,
8 because that was the fundamental complaint in the
9 Amalgamated Transit Union case, that you looked very --
10 Obviously, you just said it. You looked very closely
11 and held to the past practice of requiring 24 hours'
12 notice, but that on the other side, the union apparently
13 established a past practice that it was okay to use your
14 union leave time to advocate on behalf of another union,
15 and they say you ignored that past practice. Is that
16 true, and, if so, how do you justify using past practice
17 in one instance and not in another?
18 MS. CALVILLO: Okay. Again, these were two
19 different charges. You had the charge of retaliation,
20 which was against the two employees, and then you had an
21 issue of whether or not the employer actually conducted
22 a unilateral change. In the unilateral change case --
23 this is the issue with regard to whether -- when --
24 CHAIRMAN STEINBERG: Under what circumstance do
25 they grant union leave?
54
1 Generally speaking, if I recall in this
2 specific case, the employees would ask for the union
3 time, and that was granted.
4 CHAIRMAN STEINBERG: Okay. I'm going to turn
5 it over for now. Thank you.
6 SENATOR AANESTAD: I just have a question.
7 Again, I made this comment last week, and this candidate
8 has been on the docket for a month. The paper that I
9 have from the staff says, "We have received no
10 opposition to this appointment," and as of Friday, as I
11 understand it, is when the opposition came in.
12 Ms. Oropeza's comments -- I surmise that you
13 have been briefed by somebody as to the specifics of
14 this case. My staff is not aware of any of the
15 specifics of this case.
16 I continue to wonder at the late-minute
17 opposition that we're getting with such serious
18 allegations and an inability of me and my staff to be
19 able to weigh in on those who are making -- asking
20 questions of those who made the allegations until the
21 actual hearing time. And I'm just wondering if somehow
22 we can't start asking opposition to appointees to give
23 us more lead time and make sure the information is
24 shared with both the chair and —
25 CHAIRMAN STEINBERG: Senator Aanestad, I want
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16 of 28 sheets
1
to respond, because I think it's fair.
1
et cetera, but you're substituting your opinion for
2
This particular circumstance is unique in a
2
another, and I don't believe that's the appropriate role
3
couple ways. Number one, we're caught in the transition
3
in terms of your review here. It would seem to me there
4
here between legislative sessions and a new pro tern.
4
would be something -- a different criteria, as the
5
This nominee — Ms. Calvillo's nomination expires
5
pro tern mentioned, philosophy for reversal.
6
Saturday, so, again, we've only -- this is our second
6
MS. CALVILLO: Thank you, Senator. Thank you,
7
Rules Committee hearing.
7
Senator.
8
Secondly, as Mr. Low said, in fact, the
8
I believe the issue of concern here is the fact
9
opposition was late, and I've expressed some of the same
9
that myself and my colleagues in a couple of cases
10
concerns. But in mitigation, as they point out, a
10
demonstrated today have been responsible for concurring
11
number of the cases that are of concern here were cases
11
with the administrative law judge's findings and his or
12
that were, in fact, recently decided, so they didn't
12
her proposed decision.
13
have the basis for the opposition prior to very
13
Again, to preface this --
14
recently.
14
SENATOR CEDILLO: Let me ask, in fact, a more
15
So I think those two factors put us in a little
15
exact question. Was this a mistake in this case?
16
bit of a squeeze here, and I encourage anybody who
16
MS. CALVILLO: Which case, Senator?
17
opposes any nominee, if you have concerns, come as early
17
SENATOR CEDILLO: In the reversal here. It
18
as possible; and at the same time, that you'll have
18
seems to me a mistake, or fraud, or some other
19
adequate time to explore, and we would have adequate
19
intervening act would be a criteria. So either it's a
20
time, for example, to put a nominee over if we had more
20
mistake of fact, or there's fraud, or there's some other
21
questions that we wanted to ask. But we don't have that
21
factor that compels you to reverse a lower court, not
22
luxury in this instance. Okay.
22
simply a disagreement with the analysis.
23
SENATOR OROPEZA: On this particular one, but
23
MS. CALVILLO: Absolutely. And the reason for
24
that does not mean, I think, Mr. Chair, that under the
24
my uncertainty to your question is there were actually
25
normal operating procedure, there would generally be
25
two cases. Baker Valley and Omnitrans were both
57
59
1
more time, and the expectation would be that there would
1
reversals.
2
be a time for responding.
2
SENATOR CEDILLO: Omnitrans.
3
CHAIRMAN STEINBERG: Yes.
3
MS. CALVILLO: Thank you very much for the
4
SENATOR OROPEZA: With the holiday and 'da,
4
clarification, Senator.
5
'da, 'da, 'da, and this expiring, this is a unique
5
In this particular case, the administrative law
6
situation, right?
6
judge has responsibility for reviewing records and
7
CHAIRMAN STEINBERG: Yes. This is unique.
7
making a decision based on, again, case law and
8
Okay. Other questions of the nominee.
8
precedent, and then make their findings.
9
Senator Cedillo.
9
SENATOR CEDILLO: Case law and precedent facts,
10
SENATOR CEDILLO: It's interesting that -- my
10
appropriateness of the punishment in the context of the
11
colleague's concerned about timeliness. My impression
11
full record.
12
would be simply from the nominee that you're either
12
MS. CALVILLO: And there is the checks and
13
timely or not timely so we have an opportunity to object
13
balances. And there's the opportunity, when a party
14
before the hearing commences. The unions here have
14
does not agree with those findings, to appeal that
15
raised those objections. They're timely. There doesn't
15
decision to the board. And it is the board's
16
seem to be a lot of gray in this area. But let me get
16
responsibility at that time to -- given the complexity
17
more specific here.
17
and the multiple issues that are in a case — to review
18
I could see the reason in your analysis of this
18
the case as anew and as a whole, and to consider the
19
case. I might disagree with you, but, I mean, it's
19
testimony that was provided during the AU's hearing.
20
reasoned. It's very reasoned. But that's not the
20
And the fact of the matter is some of these
21
question here or my question, though, is: What is the
21
cases are very close calls, but it is our responsibility
22
criteria to reverse a ruling that comes from below? In
22
to give that second look, just as it is the
23
other words, is simple disagreement sufficient? Because
23
responsibility of the District Court of Appeal to take a
24
what we're talking about here is not your opinion about
24
second look at our cases when there is a dispute as to
25
a case, your analysis of the facts,
25
whether or not we've ruled correctly, according to that
58
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1
particular party.
1
But I have done a thorough examination. The
2
The fact is, there are a couple different
2
fact is, I have participated in 28 decisions while
3
reasons why a board or this board might reverse an
3
sitting at PERB. Five of those were administrative.
4
administrative law judge's decision. One of those would
4
I -- We granted the request to withdraw an appeal.
5
be based on legal reasons. For example, that we
5
Of the remainder 23, 11 of those appeals that
6
disagree with the application or interpretation of the
6
came before me were actual appeals of an administrative
7
law.
7
law judge decision, and, Senator, when you look at those
8
In the case of Omnitrans, this is a perfect
8
cases, that's where it can be found.
9
example, and this was cited by Mr. Low as well, the
9
I have ruled in favor of labor the same amount
10
administrative law judqe applied the McPherson case in
10
of times that I've ruled in favor of the employer, four
11
this particular instance. The McPherson case deals
11
times each; and I ruled in favor of both or against
12
specifically with retaliation. This was a unilateral
12
both, if you will, three times. And, again, it's not "I
13
change charge. The board disagreed with the application
13
ruled." Senator Aanestad brought up a good point. My
14
of that particular case to this set of circumstances.
14
colleagues. We're a panel.
15
In addition, there may be a reason based on
15
CHAIRMAN STEINBERG: Okay.
16
evidence. For example, we know we're not all perfect,
16
MS. CALVILLO: So thank you very much for the
17
and there may be a discrepancy in the testimony in the
17
opportunity.
18
record which we pick up on.
18
SENATOR CEDILLO: I know, but we're reviewing
19
In the Omnitrans case, we found that this
19
your record.
20
was — we found because the MOU was silent in this
20
MS. CALVILLO: I appreciate that. But my
21
particular instance, that we relied on past practice for
21
record shows --
22
the termination in this case.
22
SENATOR CEDILLO: Unless you're going to argue
23
So there are a couple different reasons to
23
that you voted distinctly from your panel, the only
24
reverse an administrative law judge. I have to say that
24
question we need to know is: Are these reflective of
25
the majority of my decisions, Senator, have been to
25
your policy?
61
63
1
uphold the findings of the administrative law judge. We
1
MS. CALVILLO: No. The information that you
2
have a tremendous pool of talent at PERB, and they do a
2
were given, they are not reflective of my policy.
3
great job, but every once in a while we just don't see
3
SENATOR CEDILLO: Are your votes consistent
4
eye to eye on issues. And that's why there's a
4
with the decision of the panel? Are you saying you
5
check-and-balance procedure established at PERB. That's
5
voted the minority or you voted the majority?
6
why we're there.
6
MS. CALVILLO: I sided with the majority, but
7
And to be honest with you, PERB doesn't always
7
the numbers that were provided to you are incorrect.
8
keep these close statistics, but very loose statistics
8
SENATOR CEDILLO: That's separate, but --
9
say this board has not operated differently than
9
MS. CALVILLO: Yes, Senator. I concurred with
10
previous boards with regards to the reversal of
10
my colleagues in these decisions.
11
administrative law judge cases.
11
SENATOR CEDILLO: But the panel is not here for
12
SENATOR CEDILLO: In this expression here, the
12
review. You're here for review.
13
18 -- 14 out of 18 decisions, which is about 80 percent,
13
MS. CALVILLO: No, they are not, but the
14
eight out of ten decisions you vote against labor. Are
14
decisions I concurred with, there were only 11 that
15
those reversals?
15
dealt with an administrative law judge decision, and of
16
MS. CALVILLO: Thank you, Senator, for raising
16
those -- that's the point I'm trying to make. Me and my
17
that. I appreciate it.
17
colleagues did support labor four times, as we did
18
There seems to be a discrepancy with regards
18
employers. That's where the numbers are a little bit
19
to numbers floating around, and I will tell this
19
skewed.
20
Committee that I have never spent so much time looking
20
CHAIRMAN STEINBERG: Anything else,
21
at statistics with regards to how it applied to my
21
Senator Cedillo?
22
particular docket than I have in preparation for this
22
SENATOR CEDILLO: I think you asked a very good
23
confirmation hearing, because that's not my job. My job
23
question in terms of looking at the totality of the
24
is not to keep score. My job is to look at the
24
record, right. First of all, I -- If a case comes
25
evidence, apply case law and precedence, and rule.
25
before you as it moves through an appeal process, they
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1 have to argue that there's some issue here, unless there
2 is a factual error, there's a mistake, some fraud, if in
3 reviewing the case there's some application of law or
4 practice, you look to that point. But if you say you're
5 looking at this de novo, you're looking at this
6 completely new, you're somewhat substituting. It seems
7 like a redundancy. You're not dealing with an
8 appealable issue. You're just getting a second look at
9 it, you disagree, and you reverse it and send it back.
10 That doesn't seem to be the function of any appeal
11 process as things move up.
12 Assuming that's the case, Senator, you had
13 asked the question: Even if you are looking at it de
14 novo, then there's the whole question of the totality of
15 the circumstances in which you have to look at the
16 precedent, and the circumstances that a union leader
17 gets terminated over hours difference, and how does that
18 fit within the totality of the work record.
19 So let's assume they didn't make the 24-hour
20 notice, period. Right. Notice came. You know, let's
21 say he just didn't make the notice at all. Clearly,
22 though, there seems to be a question -- If you're
23 reviewing the record and you're looking at it new,
24 there's a totality you have to look at, and to what
25 extent — what other factors were involved and not
65
1 so you can establish that technically, it's not
2 protected activity, because he didn't meet the hours.
3 So then in terms of the decision, you have to then look
4 at the totality of the circumstances, to the merit of
5 the response.
6 MS. CALVILLO: Senator, the example that you
7 just provided, just a generic example of five employees
8 that came to work late one day, and one happened to be
9 the union president, if the union president were fired
10 strictly because he came in late that day and the other
11 five employees were not fired for coming in late that
12 day, then that union president has a very good case to
13 show that there was —
14 If the union president was — If the union
15 president was late because he was conducting union
16 business, he was conducting a meeting and he was late,
17 and the other employees were late for whatever reason,
18 they weren't in the union meeting --
19 SENATOR CEDILLO: Then you would say he's
20 protected? Evidence of union activities.
21 MS. CALVILLO: Because we've been able to
22 establish -- Again, you look at the evidence. If you're
23 able to establish the nexus between the protected
24 activity, in this case, a union president conducting
25 union business --
67
1 simply is this protected activity. So you make an
2 argument this is not protected activity.
3 But what other factors were there that
4 terminates a employee, and particularly an employee that
5 is obviously noticed as the union leader/union activist?
6 Those things seem to bleed right into each other. I
7 don't know how you do that.
8 MS. CALVILLO: I appreciate your comments,
9 Senator.
10 Again, PERB has a specific jurisdiction, and we
11 have to determine, in the retaliation cases, that there
12 is a nexus between the protected activity and the
13 adverse action. And if we can't find protected
14 activity, then it's outside of our jurisdiction to rule
15 whether or not they took appropriate disciplinary action
16 against their employer.
17 SENATOR CEDILLO: But isn't appropriateness of
18 the discipline a factor in determining -- I'll say to
19 you, the appropriateness of the discipline is a factor
20 in determining retaliation.
21 So, for example, five employees come late, and
22 four employees are given a warning, and the union
23 activist is fired. You cannot say that, then, this is
24 not a retaliation. So you have to look at those -- the
25 totality of that. So while it may not be technically --
66
1 SENATOR CEDILLO: What are the factors that you
2 look at in that circumstance to enter into that
3 discussion? Is it disparate treatment? Let me say
4 this: What you're telling me is that it is the
5 disparate treatment that triggers a consideration of
6 retaliation; is that correct?
7 MS. CALVILLO: That is one of the trigger
8 points.
9 CHAIRMAN STEINBERG: We want to wrap it up.
10 Finish the question. Go ahead, Senator. Move it along.
11 All right.
12 SENATOR CEDILLO: So there's disparate
13 treatment, and that triggers a consideration of that,
14 and then it's the disparate treatment that triggers it,
15 because it's the unfairness of the discipline.
16 So five people come in, they're late, they get
17 a warning. Four get a warning, fifth person is fired.
18 That triggers disparate treatment. We abhor disparate
19 treatment. We look for fairness in the workplace. And
20 then you said we've got to find out why that's not fair,
21 and then he argues, "It's not fair. I'm a union rep,
22 and I'm doing union activity."
23 So you know he's a union rep, and he's fired.
24 But if you apply the question of protected activity to
25 the appropriateness of the notice that he gave, right --
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1 and this is the question you were going back to, the
2 substance of protection of union activity, and then if
' 3 this person was doing this but didn't give notice for
: 4 that, walked away from the work site, went upstairs,
| 5 went downstairs, didn't give the 24-hour notice or the
6 check-in with the supervisor, it's no less protected
7 activity, and it's no less anti-union activity if this
i 8 person is fired and not protected, because they didn't
9 comply with a technical requirement.
HO MS. CALVILLO: I appreciate what you're saying.
11 I apologize.
i12 CHAIRMAN STEINBERG: Do you need some more
13 water?
14 MS. CALVILLO: I have some water. My daughter
15 gave me her cold. Children do that.
16 Senator, what I can say is that there was case
17 law in the Novato case that actually establishes -- For
18 the purpose of establishing' a prima facie case to show
19 that nexus, there's a test we apply to determine that
20 nexus. So we apply this equally to each and every
21 retaliation that comes in. They have to meet these
22 nexus factors.
23 So if somebody can show that there has been
24 protected activity and an adverse action has occurred,
25 then absolutely the board is going to rule in that
69
1 unique human being. And a lot of the response that I
2 have heard is around, "Well, we had this technical --
3 this was the precedent, or we had -- This was a
4 technical thing in the law that said this."
5 I guess what I'm wondering about is where
6 humanity comes into it relative to the judgments on what
7 is fair and reasonable to a reasonable person,
8 understanding not just what the letter of the law is,
9 because it reflects a set of principles and values,
10 right? I'm so sorry.
11 MS. CALVILLO: Sorry.
12 SENATOR OROPEZA: Not just what's on the
13 written page, but the principles and values. So what
14 I'd like to ask you is: How you view yourself as a --
15 MS. CALVILLO: I'm sorry.
16 CHAIRMAN STEINBERG: You know what, take a
17 break, please.
18 MS. CALVILLO: Thank you.
19 CHAIRMAN STEINBERG: Why don't you - Take a
20 break.
21 MS. CALVILLO: Thank you.
22 (Recess taken.)
23 CHAIRMAN STEINBERG: All right. We will come
24 back to order.
25 Senator Oropeza.
71
manner, as I have in two and a half of the other cases.
Two and a half of five, I found retaliation did occur.
So I appreciate your point. I'm sorry.
CHAIRMAN STEINBERG: Do you need a break? Take
a break.
MS. CALVILLO: I think I'll be all right.
CHAIRMAN STEINBERG: She's about to choke. I
don't want that to happen.
SENATOR OROPEZA: We don't want you to choke.
MS. CALVILLO: I'm okay.
CHAIRMAN STEINBERG: You okay?
MS. CALVILLO: Yeah.
CHAIRMAN STEINBERG: Senator Cedillo.
SENATOR CEDILLO: Okay.
CHAIRMAN STEINBERG: Okay. Senator Oropeza.
SENATOR OROPEZA: This whole conversation has
been worrisome to me, because what has been pointed out
is that there are shades of gray and judgment that must
be made. Otherwise, I guess, we wouldn't have a PERB.
We would just have a little computer that would put in
all the data about what the rules are and what the laws
are, and we'd spit out a response.
So you're being asked to continue -- by the
governor to continue on this board to use your brain, to
use who you are as a human being, what you bring as a
70
1 SENATOR OROPEZA: I was actually sort of
2 closing up the question. Do you remember what I was
3 asking you about so I don't have to say the whole thing
4 all over again?
5 MS. CALVILLO: You were asking me about the
6 humanity as I began to choke.
7 SENATOR OROPEZA: So the question is about -
8 Because board members that come before us, or
9 commissioners or whatever, we have to hold them
10 accountable for using their own judgments, their own
11 value system. Otherwise, like I said, we'd be doing all
12 this by computer.
13 So with that in mind, can you tell me how you
14 feel, if you believe that you are, number one, expert
15 enough to do this, because your background is so broad,
16 but it wasn't really in the labor relations area; and,
17 two, if you feel -- given all that you have heard today,
18 if you feel that there is something that you need to
19 re-think about how you're approaching your job.
20 MS. CALVILLO: First of all, the question you
21 asked is how do I feel I can do my job, because I do
22 have a broad background. I'm not a labor law expert. I
23 don't pretend to be.
24 Again, each of our cases are paneled to three
25 board members, and each three -- excuse me -- each board
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1 member is lucky enough to have a legal advisor who has a
2 very strong background in labor law. And my legal
3 advisor, who is here today, has a very strong background
4 in labor law. He's actually practiced for firms that
5 have been primarily representing labor and also a firm
6 that primarily represents management. He spent time at
7 the National Labor Relations Board as well, so he's got
8 some public-sector experience — excuse me — and the
9 Ag Labor Relations Board as well, so both of those
10 boards, so he has some public-sector experience and
11 labor and management.
12 SENATOR OROPEZA: And he's been there from
13 before you were?
14 MS. CALVILLO: No. He came on board when I
15 started. But he has done a tremendous job in helping me
16 get through the legal analyses and ensuring that my
17 cases are based on precedent, on case law, and the
18 evidence is there. So that's how I can do my job.
19 Also, with the great work of my colleagues —
20 Again, we're three members on each of these panels, and
21 a decision can only go out with a majority vote, so we
22 collectively work very tirelessly to go through these
23 cases. And in some instances, we'll deliberate for
24 quite some time, because there aren't always -- we're
25 not always on the same page, to be honest with you,
73
1 today about the concerns that people have about — the
2 specifics in the case and also some general things about
3 how you apply whatever facts you have, is there anything
4 that you have learned or that you would change in the
5 way you approach things, or that you want to take a
6 second look at, or anything like that?
7 MS. CALVILLO: Well, one of the things I
8 believe I expressed to Senator Steinberg yesterday in
9 our meeting is that I was very surprised of the concerns
10 that were levied against me. I didn't know they were
11 out there. And I appreciated hearing their concerns,
12 because it does make me aware, and it may — when I go
13 for future cases, because certainly I can't retry cases
14 that we've already settled, it's in the past, but moving
15 forward, certainly, I will take those issues into
16 consideration. That's part of, now, my thought process.
17 So I do appreciate the concerns. I appreciate hearing
18 them. I won't know unless they are brought to my
19 attention. So certainly —
20 SENATOR OROPEZA: So if you succeed here today
21 getting confirmed or recommended for confirmation, we'll
22 see how that all shakes out in reality. And I just need
23 to tell you that while I'm not able to support your
24 appointment today, because of all of what I've heard, I
25 also, you know, will be anxious to see -- if you
75
1 Senator, so we do the very best that we can. So I do
2 feel that I'm able to do my job.
3 SENATOR OROPEZA: So what piece do you put into
4 it? You've got your legal advisor. Where do you fit in
5 terms of your perspectives, your values?
6 MS. CALVILLO: I weigh the evidence. Again, I
7 read every single page that comes before me. I read the
8 record for that page. I'm poring through the testimony
9 that's been provided; I'm poring through what evidence
10 has been presented; I'm poring through the responses
11 that have been provided with regards to the appeal, what
12 exactly is the charge being appealed, because sometimes
13 it's not the entire decision they're appealing, maybe
14 only a portion.
15 I'm reading all of that, I'm listening to what
16 my advisor is saying, and I'm making a determination
17 based on that information. But I've got enough
18 real-world experience to help me through that process,
19 so I bring that experience with me to the table.
20 SENATOR OROPEZA: And were you to achieve your
21 ultimate objective, which is --
22 MS. CALVILLO: -- to be fair and impartial, and
23 to be neutral. I was appointed to PERB to be neutral
24 and to protect the rights of employees and employers.
25 SENATOR OROPEZA: And given what you've heard
74
1 prevail, which I think you will -- how things evolve on
2 this, because it is an extremely important board that
3 you serve on. This is where the rubber hits the road
4 for workers and workers' rights and being treated fair
5 and equitably in this day, and it's a fundamentally
6 important board.
7 MS. CALVILLO: I agree with you.
8 SENATOR OROPEZA: Which is why we've spent so
9 much time on this.
10 MS. CALVILLO: I agree with you. This is a
11 very important job. I agree with you.
12 SENATOR OROPEZA: Thank you, Mr. Chair.
13 CHAIRMAN STEINBERG: Senator Dutton.
14 SENATOR DUTTON: Just to be real brief, and I
15 think it's more in the form of a statement than anything
16 else, because, obviously, today we've heard a lot of
17 concerns, some may be fact, some may be perception, and
18 that's what's really a problem, because fact you can
19 dispute, perception you can't.
20 I think what you need to do, just like any
21 of — all of us, you need to evaluate the perception and
22 make sure the concerns are met, because, obviously, this
23 board is -- provides a critical function. But if it
24 ceases to be of value, if the public perception is --
25 the perception of the employees are that they don't get
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11 Pt
1 a fair hearing here, obviously, there's no reason for
2 this to exist. So that would be my only concern.
3 This may turn out to be on my cut list if it
4 doesn't get a better reaction from the employees,
5 because, obviously, it's not doing the job.
6 CHAIRMAN STEINBERG: You might be confirmed but
7 then lose your job. That's eventually the message.
8 MS. CALVILLO: I'd like to take it one day at a
9 time.
10 CHAIRMAN STEINBERG: I do want to wait for just
11 a second for Senator Cedillo to get back, if we know
12 where he is. We're going to wait just ten seconds, and
13 I'd like to make a statement.
14 Why don't you make the closing statement.
15 MS. CALVILLO: I was going to say, would you
16 like me to provide some entertainment?
17 CHAIRMAN STEINBERG: No, just a brief closing
18 statement.
19 Senator Oropeza, I think, asked a really
20 important question, because, you know, this is our
21 chance -- This is the separation of powers, and this is
22 our chance to impress upon you our concerns and for
23 you to take that in. And some people might react to the
24 difficult questions and the opposition from advocates in
25 a real negative way going forward. Sort of like, How
77
1 I must say after participating in this hearing,
2 I do have some concerns, and I think my concerns are
3 around the lack of clarity in terms of how you go about
4 approaching decision-making, aside from the clear
5 statement that you're impartial, which I believe, and
6 that you review the evidence.
7 On this issue of retaliation, you know, in some
8 ways those of us who have law degrees and have been
9 practicing lawyers, we like to think this is a big
10 complicated thing, and in some ways it really isn't. In
11 some ways it really isn't, because the question is, in a
12 retaliation case, whether or not the employer fired the
13 employee because of the union activity, or whether the
14 employee was a bad employee.
15 So it seems to me that going forward, at least,
16 if you're confirmed, there needs to be a distinction
17 between somebody who gives 12 hours' notice instead of
18 24 hours' notice -- that just doesn't seem like a basis
19 for discipline or termination to me.
20 Now, if this same employee or a future employee
21 has a long track record of being insubordinate, or never
22 following the rules, or poor performance, then it's
23 arguable. But -- You know, we cannot let the
24 hyper-technicality of whether this was a protected
25 activity because it didn't conform to the exact letter
79
1 dare they?
2 I'm not saying that's you, but I want to know,
3 for one, you know, how do you take criticism? How do
4 you take constructive criticism? You've handled it fine
5 at the table.
6 MS. CALVILLO: Thank you.
7 CHAIRMAN STEINBERG: How do you take it going
8 forward? And this is your closing.
9 MS. CALVILLO: Senator, I was going to say as a
10 former elected official myself, having run for office,
11 I've had a lot of criticism in my day. I welcome
12 criticism, because it helps us all become a better
13 person.
14 So while I may not necessarily be happy with
15 it, I do appreciate that there are differences of
16 opinion, and there will always be differences of
17 opinion. But I appreciate the constructiveness of
18 what can be said to help us all improve.
19 CHAIRMAN STEINBERG: Okay. Thank you.
20 If I might make a statement here in terms of
21 where I come down on this.
22 First of all, I think you've impressed me as a
23 hard-working person and as a person of integrity, that
24 you're approaching your job in a serious way and that
25 you're doing your job honestly.
78
1 of the notice required in the contract rule the day.
2 The question is: Was a person participating in union
3 activity fired because of that union activity?
4 So if there's a confirmation here, I think I'm
5 going to implore you to think about that sort of
6 distinction and that sort of clarity, because what I
7 heard today, with all respect and honesty, didn't
8 comfort me in that way. It just didn't.
9 And then on the other hand, I do think you
10 point out that there have been instances in your time on
11 the board in which you have, in fact, ruled in favor of
12 the union or the employees in a particular retaliation
13 case, and so I am willing, by, really, barest of margins
14 here, respectfully, to give you the benefit of the
15 doubt, and that the facts presented, while very, very
16 important and not sufficient, given the fact that you at
17 least can demonstrate you have ruled on behalf of
18 employees on a couple occasions, and that you do
19 approach your job seriously and work very hard, aren't
20 quite enough to cross that line for me to say "No" to
21 this nomination.
22 But I do have those concerns, and I hope you
23 take the constructive criticism and the opposition to
24 heart in the most positive way, not to feel like -- not
25 to feel political pressure. You're a quasi judicial
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1 officer -- but to understand that a couple of these
2 decisions don't make sense to me, and I'm a former
3 AU myself, and that retaliation is either one or the
4 other. The guy is either a poor worker and is fired for
5 that reason or is fired because of union activity. And
6 that if the pretext, if you will, for firing a person is
7 skim, that tells you something.
8 Again, termination is termination. And in
9 these cases, we're not talking about people who were
10 given letters of reprimand, I don't think. They're
11 fired from their jobs. So I'm willing to give you the
12 benefit of the doubt, but I do hope you hear my
13 sincerity and the sincerity of the advocates here, and
14 that you think about that.
15 With that, I'm prepared to take a motion.
16 SENATOR AANESTAD: So moved.
17 MS. BROWN: Senator Cedillo.
18 SENATOR CEDILLO: (Inaudible.)
19 MS. BROWN: Dutton.
20 CHAIRMAN STEINBERG: That's a "No" for
21 Senator Cedillo.
22 Is that --
23 SENATOR CEDILLO: Yes. That's a "No."
24 MS. BROWN: Senator Cedillo no.
25 Dutton.
1 recognize that the hour is late and —
2 CHAIRMAN STEINBERG: Hold on, if we may. I
3 think we just need to wait a second for people to clear
4 the room. Here we go. Mr. Hoshino.
5 MR. HOSHINO: Chairman Steinberg, Vice-Chairman
6 Aanestad, and members, it is an honor to appear before
7 you today seeking your votes for approval and to address
8 any questions you may have about my performance as
9 executive officer of the Board of Parole Hearings.
10 I am a 22-year career public servant. I began
11 my service as a student intern at the California State
12 Controller's Office in 1986. I worked my way up through
13 the civil service rank and served in a number of
14 management and executive leadership positions. Each
15 position provided me with opportunities and experiences
16 that prepared me for the job at hand.
17 Today it is my privilege to lead the 500-plus
18 dedicated employees at the Board of Parole Hearings. We
19 solved many problems in our position for more
20 improvement in the years ahead.
21 I am the beneficiary of solid support from
22 Governor Schwarzenegger's administration, the CDCR
23 secretary, and the hard-working team at the board
24 itself. I am also the beneficiary of support from the
25 many partners and stakeholders involved in the board's
83
1 SENATOR DUTTON: Aye.
2 MS. BROWN: Dutton aye.
3 Oropeza.
4 SENATOR OROPEZA: No.
5 MS. BROWN: Oropeza no.
6 Aanestad.
7 SENATOR AANESTAD: Aye.
8 MS. BROWN: Senator Aanestad aye.
9 Steinberg.
10 CHAIRMAN STEINBERG: Aye.
11 MS. BROWN: Steinberg aye.
12 CHAIRMAN STEINBERG: Passes three to two, will
13 go to the Senate floor on Thursday. That's tomorrow.
14 MS. CALVILLO: Thank you very much.
15 CHAIRMAN STEINBERG: Thank you very much.
16 Thank you, your family, and thank you for hanging in
17 there. Appreciate it.
18 MS. CALVILLO: Thank you.
19 CHAIRMAN STEINBERG: Very good.
20 (Pause.)
21 CHAIRMAN STEINBERG: Now we have Martin
22 Hoshino, executive officer of the Board of Parole
23 Hearings.
24 Mr. Hoshino, welcome.
25 MR. HOSHINO: Good afternoon, Mr. Chairman. I
82
1 operation.
2 At the time of my appointment in January 2008,
3 it was clear to me that it was wasteful and
4 fundamentally unfair to prisoners and to all hearing
5 participants to allow the cycle of hearing postponements
6 and hearing backlogs to continue. This protracted
7 problem must be solved, and it must be done without
8 compromising the already high level of performance
9 occurring in the board's revocation operations.
10 By developing management controls and retooling
11 processes, my team and I made significant progress on
12 these major issues. The cycle of postponed lifer
13 hearings was reduced from a high of 53 percent to
14 less than 10 percent at the close of October -- excuse
15 me -- November.
16 The decade of backlogged hearings that peaked
17 last year at approximately 1500 hearings was reduced
18 to 577 hearings. More importantly, those 577 backlogged
19 hearings are currently on calendar and scheduled to be
20 heard by June of 2009. Barring any abrupt changes to
21 add capacity to produce hearings or other unforeseen
22 events, we expect to eliminate this backlog under the
23 terms of the court's conditions.
24 In addition, the board maintained and improved
25 its compliance rate with parole revocation hearings last
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1 year. For the roughly 95,000 hearings conducted, the
i 2 board was on time 96 percent of the time.
3 In recognition, the Valdivia court's special
i 4 master is determining whether the State is in, quote,
5 substantial compliance. I believe this signals the
6 beginning of the end of this 14-year-old litigation.
7 Despite the progress, significant challenge
8 remains. The State faces a $40 billion dollar budget
9 deficit. The board operates under court supervision in
j10 three separate class actions. The board is 30 days into
11 the implementation of Proposition 9.
12 This coming year will be difficult, but I
13 remain steadfast in my commitment to lead the Board of
■14 Parole Hearings. Subject to your support today, I
15 intend to lead an organization that is focused on the
16 State's goal of a long-term, sustainable rehabilitation-
17 based corrections system that protects public safety and
18 treats prisoners and parolees fairly. If I had just one
19 vision for the board tomorrow to share with you today,
20 it would be that we plan and control our future and not
21 be litigated into it.
22 Thank you for your consideration today.
23 CHAIRMAN STEINBERG: Thank you. Well, we don't
24 file lawsuits. Okay. I have some questions, but any
25 questions from members at this point. I got a few.
85
1 three-year denial. Why don't we go with those three.
2 MR. HOSHINO: That was four, Senator, but I'll
3 consolidate two of those.
4 Proposition 9 was large and sweeping. It not
5 only affected the board's procedures, which I'll get to,
6 it also went down to the streets and the courtrooms of
7 California. But suffice it to say it did change
8 significantly some of the operating procedures by
9 which we conduct our hearings at the Board of Parole
10 Hearings, within both major parts of our operation, not
11 only with respect to revocation hearings but also lifer
12 hearings.
13 And the latter part of your question talked
14 about lifer hearings in terms of -- I promise I will get
15 to that.
16 CHAIRMAN STEINBERG: Okay.
17 MR. HOSHINO: Proposition 9 had major
18 provisions, and I'll talk to the ones that affected the
19 Board of Parole Hearings. I categorize them in those
20 two or three major areas, which are organizational
21 changes, which is not getting a lot of focus from a lot
22 of folks. There is the area having to do with
23 revocation hearings and the timeliness and the provision
24 of attorneys related to that.
25 There is, then, also lots of noticing
87
1 SENATOR AANESTAD: Family or friends.
2 CHAIRMAN STEINBERG: I'm sorry. Thank you very
3 much, Senator Aanestad.
4 Do you have families and friends you'd like to
5 introduce?
6 MR. HOSHINO: Just one. My best friend and my
7 wife of 16 years is the same person, Heidi Hoshino.
8 CHAIRMAN STEINBERG: Welcome to you.
9 MRS. HOSHINO: Thank you.
10 CHAIRMAN STEINBERG: Thank you for being here.
11 Thank you for your husband's public service.
12 I want to go into one area here — I think we
13 can keep this relatively brief — and that is the
14 passage of Proposition 9, otherwise known as Marsy's
15 Law.
16 Can you — I'll ask this question in five parts
17 to expedite. I can go back over them.
18 Brief overview of Prop 9 as it affects your
19 board. You've been implementing the law for about a
20 month now. We want your assessment of how that
21 implementation is going. There's been significant
22 concern raised about the length of denials now for those
23 who are serving life sentences, and what steps your
24 board is taking to discern the appropriateness of a
25 15-year denial rather than a ten, seven, five, or
86
1 requirements, lots of hearing changes and denial
2 schedules, which most people are most concerned about,
3 having to do with the denial schedule related to life
4 prisoners.
5 CHAIRMAN STEINBERG: What does that mean?
6 MR. HOSHINO: If I could, just taking and
7 setting aside the organizational and the revocation
8 portions for a moment, because those portions, the
9 implementation of which has been staid by court action
10 in the federal court, so we are not implementing those
11 provisions today.
12 There is a hearing scheduled for March 9th for
13 which the court will hear the matter and make decisions
14 about what elements can and cannot go forward. I
15 presume because there is a famous injunction, which the
16 name -- which is Valdivia, that is controlling how we
17 conduct that process today.
18 The part that we are able to implement are the
19 parts on the lifer side, and we have done a rather
20 extensive communication roll-out related to that. We
21 have a public board that has public meetings, and we can
22 pass a lot of information through that particular
23 process starting in October, also in November, and then
24 a week-long public meeting and training session for
25 commissioners and deputy commissioners.
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24 of 28 sheets
1 With respect to the length of denial, Marsy's
2 Law made a very significant change in that respect, and
3 that change in that respect is the prior schedule by
4 which an inmate receives a denial used to be one, two,
5 three, four, or five years.
6 CHAIRMAN STEINBERG: What were they denied? A
7 hearing?
8 MR. HOSHINO: Yes. In the hearing, if I can
9 take you one step back, a life-term prisoner will come
10 up for a question of parole suitability, and whether
11 they will be returned to the community or whether they
12 need to remain incarcerated and work on factors of
13 suitability in order to gain their freedom.
14 The commissioner will make a determination,
15 suitable or unsuitable. That determination and the
16 rules and the criteria for that determination did not
17 change under Marsy's Law. What did change is if a
18 commissioner makes a determination of unsuitability,
19 what did change is the denial schedule, which previously
20 was a one-year denial, a two-year, three-year, four-
21 year, five years, and it changed it to fifteen years,
22 ten years, seven years, five years, and three years. So
23 there's still five choices, but the denial periods
24 lengthened.
25 And the reason I gave it to you in the sequence
89
1 reasonable doubt, and having a body of law and
2 instructions related to that that was provided to
3 the commissioner so that they could apply a new denial
4 schedule.
5 The method by which they would make a
6 determination inside the seven, five, three range
7 relatively remained unchanged. The regulations in
8 Title 15 that we have on the books already provide for
9 them the discretion to ascribe relative weight to
10 factors of suitability and unsuitability. The
11 prisoner's progress, the availability of programming so
12 they can meaningfully and reasonably make that progress
13 and be able to demonstrate it at the next hearing.
14 So while there's always some variation in
15 there, Proposition 9 did not change the method by which
16 they would do that, so that was made clear with respect
17 to the training. But suffice it to say we are trying to
18 pay attention to the amount of variation that's going
19 on.
20 I can tell you now, 30 days into it, having
21 explained what we believe to be the changes, having
22 provided the training and dispatched the commissioners
23 in the field, we are in real time watching what the
24 decisions are that are coming out of that, that we could
25 look for particular patterns.
91
1 of fifteen, ten, seven, five, and three is Marsy's Law
2 also flipped the schedule. And in this respect, it
3 requires the commissioners, on determination of
4 unsuitability, to start at fifteen years, and then to
5 apply an evidentiary standard of clear and convincing
6 evidence. And having found clear and convincing
7 evidence that a fifteen-year denial is not warranted, a
8 commissioner now steps it down to a ten-year denial,
9 again applying a clear and convincing evidence standard,
10 and then having found clear and convincing evidence that
11 a ten-year denial is not warranted, they are now in a
12 discretionary zone of seven, five, and three. But it
13 doesn't -- You don't have the same precedential scaling
14 down of seven, five, three. You're making a choice
15 between those three particular terms.
16 CHAIRMAN STEINBERG: How are you training
17 commissioners on that change?
18 MR. HOSHINO: The training is - After it
19 passed, we brought them to Sacramento for their
20 week-long training, and we essentially laid it out the
21 way I described it to you. We provided them the
22 evidentiary standard, because that was new. Prior to
23 that we were using a preponderance of evidence standard,
24 clear and convincing being a standard that is higher,
25 that standard more than preponderance, less than
90
1 It's difficult to talk about trend, because we
2 haven't, what I would consider, completed an entire
3 cycle of hearings. And what I mean "cycle" -- what I
4 describe for that is that there are hearings going on
5 across the state at different institutions, at different
6 levels of classification and security. So it would be
7 almost premature, after 30 days, I think, to make a
8 judgment that this is the way it's coming out with
9 respect to Marsy's Law in terms of all of the outcomes.
10 We may not have covered all of the level one, two,
11 three, four level institutions which have different
12 categories and different types of life prisoners. So
13 when those cycles close off, I think --
14 CHAIRMAN STEINBERG: You'll be able to evaluate
15 it. It's something you're looking at.
16 MR. HOSHINO: And make adjustments.
17 CHAIRMAN STEINBERG: Okay. Very good.
18 Questions from members? I'm sorry.
19 SENATOR AANESTAD: How many of your
20 commissioners are going to be up for confirmation
21 hearings this year?
22 MR. HOSHINO: Eleven of the twelve, Senator.
23 SENATOR AANESTAD: Eleven of the twelve. Does
24 that mean eleven of the twelve have been there less than
25 one year?
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25 of 28 sheets
Page 89 to 92 of 104
01/21/2009 04:19 1 1 PI
MR. HOSHINO: Some of them, because they have
status, have been there longer, but I think the majority
of the commissioners have been here for less than a
year. It might be six, it might be seven.
Am I incorrect?
MS. SABELHAUS: Some have been reappointed.
MR. HOSHINO: Yes, but I believe we at least
put six on the books last year, so there will be six up,
and the appointments director may correct me on that.
I know the number is eleven between now and
June of this year. So I'm very focused on June,
because, again, we calendared these hearings. I think
we're in a position to be in a very good place in June
with respect to the Rutherford litigation.
CHAIRMAN STEINBERG: Thank you.
Witnesses in support.
MR. WARREN: Good afternoon. My name is
David Warren. I'm appearing on behalf of Taxpayers for
Improving Public Safety.
In light of your comments to remain brief, I'll
limit it to we are supporting the nominee, although I
have some trepidation because of the burden being placed
on his wife, because the guy works 24 hours a day. But
we have noticed some major improvements in the
administrative aspects of the Board of Parole Hearings,
93
1 afterwards.
2 We, the attorneys that I work for and myself,
3 wholeheartedly support Martin Hoshino for this position,
4 because we've noticed, first of all, a great improvement
5 in accessibility to his staff, to get legal and
6 administrative problems resolved, and he seems to have
7 the talent and background to do it.
8 He certainly can't be blamed for the problems
9 that he inherited, and there's probably one or two of
10 those problems that he's powerless to resolve because of
11 a problem that exists with the board that he can't
12 control. But for all other things, I believe he is the
13 answer to resolve the majority of the problems that this
14 committee has struggled with over the last few years.
15 Lastly, and this is something that won't come
16 up until you're your facing confirmation of
17 commissioners, which Mr. Hoshino doesn't have control
18 over, one of the major problems that the Committee, I
19 would like to think about in the future, is that the
20 board now consists of nine commissioners, all with
21 law-enforcement backgrounds or peace officers, which is
22 in violation of the Penal Code Section 5075 which
23 requires the governor to appoint and this Committee to
24 confirm a commissioner that represents a cross-section
25 of the community in gender, in employment, and in all
95
and it is solely on the basis of his admission.
One of the questions I would request the
members to address on Prop 9 and its impact on the
parole hearings is the change where an unlimited number
of individuals can now participate on behalf of the
victim to testify against the inmate's parole hearing,
and the prohibition for his counsel or the parole
nominee to ask any questions about that. The burden of
being placed -- These large number of individuals coming
into very small spaces in correctional facilities
diverts correctional staff from otherwise important
tasks. Thank you.
CHAIRMAN STEINBERG: Thank you, Mr. Warren.
Other witnesses in support.
MR. MILLER: Good afternoon. My name is
Donald Miller. I'm speaking on behalf of myself. I'm a
legal consultant, and I work for eight attorneys, many
of whom do parole hearings. And my work is in
litigation in cases in court following denial of
parole by the board, by the governor. Approximately
40 life prisoners who have been denied parole on cases
we've worked have been set free by the courts.
I'm not a lawyer. I obtained my law degree
while doing a life sentence under the jurisdiction of
the parole board through my time in prison, parole, and
94
1 other respects.
2 So having said that, I hope the Committee will
3 focus on that in the future, but we fully support
4 Mr. Hoshino. He is the man who has already started to
5 resolve some of these problems.
6 CHAIRMAN STEINBERG: Thank you very much for
7 your testimony.
8 Are there witnesses in opposition of the
9 nominee?
10 Let me ask one other question, and then we'll
11 have somebody move the nomination. Our staff here has
12 had a difficult time getting the answer to an important
13 question, and that is whether or not there's actual
14 programming for so-called lifers', rehabilitation
15 programs for lifers who have more than three years left
16 before they're likely to be released. Could you clarify
17 that for all of us, please.
18 MR. HOSHINO: It's a question we are also
19 seeking an answer for at the board. We have been
20 impressing upon the commissioners wherever and whenever
21 they can get the information from the actual institution
22 that they're at when they have time to seek it out,
23 because we think local availability of information is
24 best.
25 We have made requests from the part of the CDCR
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26 of 28 sheets
1
that controls that program beyond some of those you
1
CHAIRMAN STEINBERG: Senator Oropeza moves.
2
requested. We've had some high-level presentations. I
2
Please call the roll.
3
do believe their program is in a state of flux.
3
MS. BROWN: Senator Cedillo.
4
Nevertheless, we were able to get an inventory from them
4
SENATOR CEDILLO: Aye.
5
in December of last year, I believe, of what was
5
MS. BROWN: Cedillo aye.
6
available.
6
Dutton.
7
And I was lucky enough to actually meet a
7
SENATOR DUTTON: Aye.
8
provider of programming, Prison Focused Insight, and
8
MS. BROWN: Senator Dutton aye.
9
there's a woman named Jaime Carroll, who I invited to
9
Oropeza.
10
come to the next board meeting, which will be next week,
10
SENATOR OROPEZA: Aye.
11
and make a presentation. I happened to meet it and get
11
MS. BROWN: Oropeza aye.
12
lucky and see it, and what struck me about it was that
12
Aanestad.
13
they were specifically talking about life-term inmates
13
SENATOR AANESTAD: Aye.
14
that were in this particular program. So it was
14
MS. BROWN: Aanestad aye.
15
noteworthy for me and impressed upon me.
15
Steinberg.
16
CHAIRMAN STEINBERG: How long before you might
16
CHAIRMAN STEINBERG: Aye.
17
get back to us with a little more comprehensive answer?
17
MS. BROWN: Steinberg aye.
18
MR. HOSHINO: I'm sure before the week is out.
18
CHAIRMAN STEINBERG: Thank you very much. All
19
CHAIRMAN STEINBERG: Before the week is out.
19
right. We will now go into executive session.
20
Okay. Thank you.
20
No. I'm sorry. We've got a number of
21
All right. Mr. Hoshino, by all accounts and by
21
gubernatorial appointees subject to confirmation but not
22
your testimony here today, you're obviously a committed
22
required to appear.
23
public servant and an excellent nominee, and I'm ready
23
We have Richard Figueroa, member of the Managed
24
to support you today. But I want to make the statement
24
Risk Medical Insurance Board; John McGinness, member of
25
in general that my predecessor in this job really placed
25
the Commission on Peace Officer Standards and Training;
97
99
1
a priority on scrutinizing appointees made by the
1
Gil Van Attenhoven, member of the Commission on Peace
2
governor when it comes to Corrections, and we're going
2
Officer Standards and Training; James B. Hussey, member
3
to continue with that scrutiny.
3
of the State Bar Board of Governors; Edward Olson,
4
I know there are a whole host of appointees
4
member of the Cal Veterans Board; Thomas Richards,
5
that are due to come before this Rules Committee over
5
member of the Cal Veterans Board; and Cynthia L.
6
the course of the next year. We spend way too much
6
Dellums, member of the Commission on the Status of
7
money in this area, and to expect anything less than,
7
Women.
8
frankly, the kind of performance you're exhibiting will
8
Are there a few that you're not prepared to
9
make no sense to the State legislature. We want people
9
support, Senator Dutton?
10
who focus on reform, we want people focused on
10
SENATOR DUTTON: Yes, items 2D and 2J.
11
efficiency, and we want folks who can give quick answers
11
CHAIRMAN STEINBERG: Okay. If we can take a
12
and appropriate answers and full answers to the
12
motion on items 2E, F, G, H, and I, we'll take those
13
legislature when it comes to our oversight of this
13
first. Moved by Senator Dutton.
14
still-troubled department.
14
Please call the roll on those nominees.
15
It should be of great embarrassment to all of
15
MS. BROWN: Senator Cedillo.
16
us that we're under the jurisdiction of a federal
16
SENATOR CEDILLO: Aye.
17
receiver here. And that's not anybody's fault in
17
MS. BROWN: Cedillo aye.
18
particular. It's -- you know, I say all of us. And so
18
Dutton.
19
this is going to be a core piece of our work with the
19
SENATOR DUTTON: Aye.
20
Rules Committee to make sure we have in place people --
20
MS. BROWN: Dutton aye.
21
not only with the Board of Parole Hearings, but
21
Oropeza.
22
throughout the entire department that are focused on
22
SENATOR OROPEZA: Aye.
23
reform and fixing these multitude of problems.
23
MS. BROWN: Oropeza aye.
24
So I'll take a motion.
24
Aanestad.
SENATOR AANESTAD: Aye.
25
SENATOR OROPEZA: I'll move.
25
98
100
27 of 28 sheets
Page 97 to 100 of 104
01/21/2009 04 19 1 1 Pf
1 MS. BROWN: Aanestad aye.
2 Steinberg.
3 CHAIRMAN STEINBERG: Aye.
4 MS. BROWN: Steinberg aye.
,5 CHAIRMAN STEINBERG: All right. Those will go
1
2
-oOo-
I, INA C. LeBLANC, a Certified Shorthand
3
4
5
6
Reporter of the State of California, do hereby certify
that I am a disinterested person herein; that the
foregoing transcript of the Senate Rules Committee
hearing was reported verbatim in shorthand by me,
6 to the floor.
7
INA C. LeBLANC, a Certified Shorthand Reporter of the
7 With regard to Richard Figueroa, is there a
8
State of California, and thereafter transcribed into
-8 motion on Mr. Figueroa?
9
typewriting.
9 SENATOR OROPEZA: I move.
10
I further certify that I am not of counsel or
0 CHAIRMAN STEINBERG: Senator Oropeza.
1 Please call the roll.
2 MS. BROWN: Senator Cedillo.
3 SENATOR CEDILLO: Aye.
11
12
13
14
15
attorney for any of the parties to said hearing, nor in
any way interested in the outcome of said hearing.
IN WITNESS WHEREOF, I have hereunto set my hand
this ^l^davof ^atWLO^TLj .2009.
4 MS. BROWN: Cedillo aye.
16
5 Dutton. Oropeza.
6 SENATOR OROPEZA: Aye.
17
X^C.-£l£U~
7 MS. BROWN: Senator Oropeza aye.
18
INA C. LeBLANC
8 Aanestad.
CSR No. 6713
9 SENATOR AANESTAD: Aye.
19
0 MS. BROWN: Aanestad aye.
1 Steinberg.
2 CHAIRMAN STEINBERG: Aye.
20
21
22
--0O0--
3 MS. BROWN: Steinberg aye.
23
4 CHAIRMAN STEINBERG: All right. Cynthia
24
5 Dellums, member of the Commission on the Status of Women
25
101
103
1 moved by Senator Oropeza. Please call the roll.
2 MS. BROWN: Senator Cedillo.
1 APPENDIX
3 SENATOR CEDILLO: Aye.
2
«4 MS. BROWN: Cedillo aye.
3
5 Dutton. Oropeza.
4
6 SENATOR OROPEZA: Aye.
5
g
7 MS. BROWN: Oropeza aye.
7
8 Aanestad. Steinberg.
8
9 CHAIRMAN STEINBERG: Aye.
9
0 MS. BROWN: Steinberg aye.
10
1 CHAIRMAN STEINBERG: Okay. Both of those -
11
2 Figueroa and Dellums move to the floor.
12
3 (Thereupon, the Senate Rules Committee hearing
14
4 adjourned at 3:53 p.m.)
5
15
16
6
7 --0O0--
8
9
0
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n
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f 104 28 of 28 sheets
JOHN CHALKER, Chair
BOB ALVARADO, Vice Chair
LUCETTA DUNN
JAMES EARP
DARIO FROMMER
JAMES C. GHIELMETTI
CARL GUARDINO
R. K. LINDSEY
PHILLIP H TAGAMI
JOSEPH TAVAGLIONE
LARRY ZARIAN
SENATOR ALAN LOWENTHAL, Ex Officio
ASSEMBLYMAN MIKE ENG, Ex Officio
STATE OF CALIFORNIA
ARNOLD SCHWARZENEGGER
GOVERNOR
Sesate Rules Committee
DEC 2 9 2008
Appointments
JOHN F BARNA JR., Executive Director
CALIFORNIA TRANSPORTATION COMMISSION
1120 N STREET, MS-52
P. O. BOX 942873
SACRAMENTO. 94273-0001
FAX (916) 653-2134
(916)654-4245
http://www.catc.ca.gov
December 23, 2008
Ms. Nettie Sabelhaus
Senate Rules Committee Appointments Director
State Capitol, Room 420
Sacramento, C A 95814
Dear. Ms. Sabelhaus:
I am pleased to provide a response to the following questions for my upcoming confirmation hearing for
re-appointment to the California Transportation Commission. Also enclosed please find my Form 700 as
requested.
Proposition IB
1. What have been some of the greatest challenges in implementing Proposition IB? Do you have
any suggestions for statutory changes related to Proposition IB or future infrastructure bond
legislation?
The California Transportation Commission's (Commission) greatest challenge has been to fulfill
its promise to implement Proposition IB programs under its purview thoughtfully and
expeditiously. At the close of 2008, the Commission had adopted guidelines, established
application processes, approved project evaluation criteria, held public hearings and developed
baseline agreements for eight of nine bond programs it is responsible for; and approved more
than $10.6 billion in projects. In December 2008, the Commission adopted guidelines for the last
remaining program, the State-Local Partnership Program, with program adoption (project
approval) expected in April 2009.
In 2009 and beyond, the challenge will be delivering these projects. The longer the budget deficit
is allowed to linger, the more difficult the atmosphere becomes for issuing transportation bonds,
let alone other types of infrastructure bonds. Given the state's precarious cash position, lack of
bond proceeds may result in the Commission re-evaluating how much Proposition IB funding can
be allocated for the balance of the 2008-09 year, and beyond.
Senate Rules Committee
DEC 3 3 2008
105
Ms. Nettie Sabelhaus
December 23, 2008
Page 2
Proposition IB infrastructure projects, along with other transportation projects, require funding
from a variety of sources, including state funds such as the State Transportation Improvement
Program, and federal and local funds. When state funding sources are suspended, projects must
be delayed, or if available, other funding sources need to be used to keep the projects going. This
has a domino effect with the Department of Transportation (Caltrans) and regional agencies
taking funding from one project to complete another delaying the project that the funding was
originally committed to.
In its 2006 and 2007 annual reports the Commission recommended that the Legislature convene a
blue-ribbon transportation funding task force to examine options for enhancing transportation
revenues and to consider additional ways to raise revenue. An added impetus to establish a
dedicated, special funding source is that the Federal Highway Trust Fund will likely not have
enough resources to meet all of its obligations by the end of the decade. Statutory changes to
Proposition IB are not necessary. What is necessary is stable, reliable, growing funding sources
for transportation that enable project sponsors to bring their projects forward for Proposition 1 B
funding.
2. Through September 2008, only $97 million of the $41 7 million appropriated to the CTCfor the
Trade Corridor Improvement Fund (TCIF) had been allocated to projects. Why is this program
moving along so slowly? What needs to be done to move funds "to the streets " more quickly?
In its program adoption actions for most Proposition IB programs, including the TCIF, the
Commission mandated that bond funding be limited to the cost of construction - - resulting in the
back-loading of construction funding. This mandate ensures bond funds are only expended for
physical capital improvements with quantifiable benefits.
In keeping with the 5-year time frame of the Corridor Mobility Improvement Account (CMIA)
and State Route 99 (SR 99) Corridor programs, the Commission also required that projects must
begin construction by December 31, 2013, putting a premium on project delivery.
In adopting the initial TCIF program, the Commission directed the nominating agencies to
provide executed Project Baseline Agreements that set forth the proposed project scope,
measurable expected performance benefits, delivery schedule, and a project budget and funding
plan. For investments in rail projects, the Commission required that the project baseline
agreement include a memorandum of understanding between the private railroad and the regional
transportation planning agency and/or Caltrans, if applicable.
As of January 1, 2009, the Commission had approved 70 of the 79 project baseline agreements.
Several of the remaining agreements consist of rail projects that are engaged in active
negotiations. The bottom line is that projects in the TCIF are not as far along in their
development as those in the CMIA program.
106
Ms. Nettie Sabelhaus
December 23, 2009
Page 3
What procedures has CTC implemented to ensure and evaluate project delivery after bond funds
are allocated? Please describe.
The Commission put forth an accountability implementation plan that incorporates provisions
from Proposition IB, the Governor's Executive Order S-02-07, and Senate Bill (SB) 88. The
accountability implementation plan emphasizes transparency and accountability throughout the
lifetime of a project.
In its programming actions, the Commission required the development of project baseline
agreements that are signed by the recipient agency's Executive Director and the Director of
Caltrans Director, and for some programs the Commission's Executive Director. The baseline
agreements set forth the agreed upon project scope, schedule, cost and expected benefits. These
agreements also include the estimated cost and the start and completion dates for the
environmental, right-of-way, design, and construction phases of the project. The baseline
agreement is considered the front-end document that forms the foundation for the Commission's
in-progress and follow-up accountability.
The Commission requires recipient agencies to report, on a quarterly basis, on the activities and
progress made toward the implementation of a project, including those activities taking place
prior to the allocation of bond funds. The quarterly progress report includes approved budgets,
actual expenditures and forecasted costs, as well as approved schedules, progress to date, and
forecasted completion dates for each phase of a project.
The Commission's accountability implementation plan requires the recipient agency to develop a
corrective plan to address anticipated deviations or variances from the approved project baseline
agreement. Efficiency measures for possible cost increases or schedule delays are addressed on
an ongoing basis by the project team and documented through the corrective plans.
The Commission incorporated audit requirements in its program guidelines as mandated by SB
88. The audits will be performed at the completion of construction when the facility becomes
operable (typically when the construction contractor has completed the work and the recipient
agency has opened the facility to traffic) and at the conclusion (close-out) of all project activities
to document the full cost of the project.
The Commission provides semi-annual reports to the Department of Finance and the Legislature
on the status of each program to communicate whether projects are being executed in a timely
fashion and are within the scope and budget identified in the executed baseline agreements. The
Commission also provides in its annual report to the Legislature a summary of its activities
relative to the administration of bond programs highlighting significant issues with these
programs, and may recommend legislative proposals that could facilitate their implementation.
The Commission's accountability measures are designed to help manage projects to successful
delivery. This level of project scrutiny, combined with bi-annual reporting requirements, is
unprecedented at the state level. The Commission spends a considerable amount of time working
with Caltrans and regional agencies to ensure that project oversight is appropriate and
transparent. Our view is that the enhanced reporting and accountability will become the norm for
transportation infrastructure projects.
107
Ms. Nettie Sabelhaus
December 23, 2009
Page 4
4. Because of the state 's poor fiscal condition, the State Treasurer has indicated that allocations to
projects funded by the historic infrastructure bond package of 2006 need to cease. How many
projects would be affected? How would the CTC decide which projects to move forward with and
which will be stalled?
Based on the action taken by the Pooled Money Investment Board (PMJB) to suspend
disbursements, Caltrans notified the Commission and regional agencies that they had suspended
awards of State-administered bond-funded construction contracts and that the situation could also
have an impact on ongoing construction projects. Caltrans is evaluating the cash flow situation to
determine if they can continue State-administered projects that have been awarded. Caltrans
advised regional agencies not to enter into any new construction, or agreements or contracts that
would be funded from State bonds until further notice, and that the State will not be able to
reimbursement them for expenditures on bond-funded projects already underway until authorized
by the PMIB.
Given the state's precarious cash position, lack of bond proceeds may result in the Commission
re-evaluating how much Proposition IB funding can be allocated for the balance of the 2008-09
year, and beyond. This would negatively impact project baseline agreement schedules and fail to
provide any economic stimulus through increased construction activity. The Commission's re-
evaluation will be done through a consensus effort with Caltrans and the regional agencies as has
been done in the past when state transportation funding has been suspended.
5. Are there enough eligible projects ready to go within the Governor 's proposed time constraints if
expedited Proposition IB funds were made available?
Yes, there are enough eligible Proposition IB projects ready to go. However, these projects
depend on the state's ability to sell bonds. If the state can not sell bonds in any given year, these
projects will be at risk.
6. Are there additional projects, above and beyond those identified by the Governor that could be
advanced with an earlier appropriation of bond funds? Please provide some examples.
The Commission staff worked with Caltrans staff to develop the lists of projects identified by the
Governor. Our general impression is that bond projects that are scheduled for construction during
the first six months of the 2009-1 0 fiscal year may be able to come in earlier for construction
allocations if increased bond appropriation levels are approved for the 2008-09 fiscal year.
However, this assumes that project sponsors are on schedule to begin with and are in a position
to expedite final approvals.
7. Critics fear that in order to accelerate funds for infrastructure projects, the state will waive key
environmental regulations. How would you respond to those concerns?
Even though the Governor has proposed CEQA waivers as part of the state's economic stimulus
plan, my understanding is that in practice project-level environmental considerations and
mitigations would continue, although the administration's desire is for review and permit
processing relief. For a project to even be considered for CTC programming, it must undergo an
initial scoping document that identifies environmental impacts, admittedly at a lower level of
1 qq analysis than an official environmental document. The issue, in mind, is not trading off
Ms. Nettie Sabelhaus
December 23, 2009
Page 5
environmental regulations for project acceleration but how to achieve streamlining in both areas
that ensures that appropriate environmental impacts are mitigated and mobility benefits are
achieved earlier. One way to achieve this streamlining is through agreements on the front-end of
plan development, such as proposed by SB 375. Another way is to build impact avoidance into
project design, which happens frequently but is often unrecognized.
Transportation in a Post-AB 32 World
8. Given the climate change goals ofAB 32 and SB 3 75, as well as evidence of the negative health
effects of air pollution from mobile sources, how do you recommend incorporating air quality
and climate-change concerns into the planning and programming of transportation projects?
In 2007 the Commission led a consensus-building effort to incorporate AB 32 objectives into
regional transportation plan guidelines. In May 2008, the Commission adopted an addendum to
the 2007 Regional Transportation Plan (RTP) Guidelines addressing climate change and GHG
emissions during the RTP process. The addendum included guidance for smart growth, land use
and transportation modeling. The Commission's effort predated SB 375 but was ultimately in
concert with the overall direction of the bill.
Passage of SB 375 left several unanswered questions for the transportation community, questions
the bill's author has indicated a willingness to answer in 2009.
In reviewing this legislation, the Commission composed a letter to the Governor highlighting two
issues that should be addressed in clarifying legislation: 1) that transportation sales tax measures
passed by 2010 should be exempt from evaluation under SB 375 requirements, and 2) that GHG
analyses should be done at the program level and that individual project environmental
documents tier off from the program analyses.
In 2009, the Commission will have an opportunity to begin incorporating SB 375 and AB 32 in
its regional transportation plan guidelines, 2010 fund estimate, and 2010 STIP guidelines. While
the Commission stands ready to facilitate the transportation community's efforts in this regard,
we need to advise you that without reliable, sustainable, and increased transportation funding in
the next decade the transportation community will not meet its AB 32 reduction targets.
9. What role do you think CTC should play in helping to achieve the goals ofAB 32 and SB 3 75?
As provided in #8, the Commission will incorporate the requirements ofAB 32 and SB 375 into
its RTP Guidelines and 2010 fund estimate, and 2010 STIP guidelines. Our general view is that
regional agencies and Caltrans will have every incentive to comply with AB 32 and SB 375. As a
result, reducing greenhouse gas emissions will become part of implementing transportation. The
Commission's role as an allocation body would remain the same; the emphasis of the projects to
which allocations are made will evolve to incorporate greater air quality considerations.
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Ms. Nettie Sabelhaus
December 23, 2009
Page 6
10. What is the CTC doing to implement the requirements of SB 375? For example, has the
commission begun assessing travel-demand models in an effort to have those models better
respond to land-use decisions?
As the Commission does not have the staff expertise or resources available to assess travel-
demand models to better respond to land-use decisions, the Commission will rely on Caltrans and
the regional agencies during the transportation planning process.
Federal Economic Stimulus and Transportation Reauthorization
11. How can the state 's transportation sector best be positioned to take advantage of any economic
stimulus package passed by the federal government in 2009? Has the CTC or Caltrans begun
identifying projects or programs that it would focus such federal dollars on in California? If so,
could you identify those priorities?
The Commission has been in involved with ongoing discussions with Caltrans and state and local
partners regarding the proposed economic stimulus package since early December. Discussions
have revolved around the disbursement of the funds through existing state laws and federal
transportation funding requirements. Key issues such as formulas and restrictions, as well as
subjective preliminary policies, have also been discussed.
Caltrans has been tasked with combining project lists with ready-to-go projects submitted from
its partners in an effort to position California as ready to implement federal funds when
available. The key issue the group is facing is the size of the list emerging; many cities and
counties are asking for funds for all projects they deem as important to their respective areas.
Discussion has emerged of a formula-based disbursement through existing programs that would,
in essence, increase appropriation levels for these programs. The benefit of this approach is that
all regions of California would participate in the stimulus: some regions by virtue of having
projects funded immediately and others by having needed projects funded later with the
increased appropriation.
This idea is being considered so California is assured that funding is not lost to other states for
failure to deliver. No projects have yet been chosen, and the disbursement of funds to any
projects would be impacted by the requirements set forth by the federal government and all
existing state laws. The proposed idea is to use current state law in regards to existing programs,
and not developing new programs. The Commission's role would cany broad authority to assure
that funding is focused on projects that provide short-term economic stimulus with longer term
benefits. An agency that did not get stimulus funding now would still get an increase in other
formula funds later, while an agency that got a project now would get an adjusted amount toward
their shares later.
Priority projects would be those projects that can be ready for construction within 120 days of
the funds being available. The most likely projects will be pavement rehabilitation and
maintenance projects at the state, county and municipal levels. If the stimulus includes funds for
projects ready to go to construction within a year, we would expect to fund Proposition 1 B and
STEP projects.
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Ms. Nettie Sabelhaus
December 23, 2009
Page 7
12. With respect to SAFETEA-LU reauthorization, what programmatic changes are the CTC
advocating for and why? What are the state 's priorities for the next round of multi-year federal
transportation funds ?
The Commission supports the Consensus Principles developed by Caltrans and the regions. The
Commission has also participated in field hearings held by the Environmental and Public Works
Committee in recent months. The principles include an emphasis on Goods Movement as a
national priority, enhancing mobility within and through major metropolitan areas, rehabilitating
and preserving the infrastructure already in place, and reducing congestion and its impacts,
sustainable funding and establishing funding and performance criteria. —
California is already implementing these principles through the Proposition IB programs, as well
as through the implementation of SB 375. The Commission along with other transportation
stakeholders in California should be working to achieve a reauthorization package that provides
funding and legislative flexibility that supports California's efforts. Interestingly, the voice that is
often not heard in these discussions is the Legislature's. We would encourage the Legislature to
participate in the reauthorization discussions here and in Washington, D.C.
13. How could California become more effective in competing fro federal discretionary
transportation funds ?
California has been very effective over the years in competing for federal discretionary
transportation funding. Each year during the August re-distribution California has received a
significant amount of money from the federal government. Historically, the state has received
over $20 million, and in recent years the amount received has been closer to $100 million which
supports and is a reflection of California's willingness and ability to use any available funds that
come its way. The passing of the High Speed Rail bond, the GMAP, and Proposition IB bonds
are significant examples of California laying the groundwork to programs that can offer
guidelines and resource for funding that becomes available.
An example of how California is currently working with other like-minded states, specifically
Oregon and Washington, with similar objectives, by beginning a multi-state effort aimed at
exploring and testing the possibilities of alternative approaches to our transportation system and
funding structures, such as congestion pricing. Studies completed by our neighboring states have
also concluded that a vehicle miles traveled (VMT) fee structure appears to nicely compliment
several priorities shared amongst the West Coast States - namely: reducing congestion, reducing
greenhouse gas emissions, increasing the use of alternative transportation modes, and identifying
a sustainable, long-term transportation funding source. VMT and congestion pricing are two
alternative funding sources that have potential to warrant the interest and support of federal
government funding options.
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Ms. Nettie Sabelhaus
December 23, 2009
Page 8
High Occupancy Vehicle Lanes, Tolls Roads, and High Occupancy Toll Lanes
14. Is the AB 1467 program working as intended? Have any public-private partnerships, as
authorized by that bill, come before the CTCfor evaluation or approval? Do you have any
suggestions for statutory changes to the program?
On October 27, 2007, the Commission adopted the Public Partnership High Occupancy Toll
Lane Guidelines and Application to implement the requirements of AB 1467. In order for the
Commission to consider a project eligible for consideration by the Legislature, a nominating
agency was required to submit an application in accordance with the guidelines and provide
evidence that the project is consistent with Streets & Highways Code Sections 149-149.7; that
there is cooperation with Caltrans and consistency with state highway system requirements; that
the project is technically and financially feasible; that the project is consistent with the Regional
Transportation Plan; and that there are performance measures established for project monitoring
and tracking.
Subsequent to adopting the HOT Lane Guidelines, the Commission received two eligible
applications, both from Southern California. On December 13, 2007, the Riverside County
Transportation Commission (RCTC) submitted its Public Partnership Application for HOT
Lanes for the Interstate 15 Corridor and HOT Lane Project in Riverside County to the
Commission. The Commission found the RCTC application eligible for consideration by the
Legislature on April 9, 2008. The Northern California hearing was held on April 10, 2008 and
the Southern California hearing was held on April 24, 2008. AB 1954 authorizing the RCTC
project was passed by the Legislature in August 2008 and signed by the Governor on September
27,2008.
On March 31, 2008 the Los Angeles County Metropolitan Transportation Authority (LA Metro)
submitted its application for the Los Angeles Region Express Lanes Project to the Commission.
The Commission found the LA Metro application eligible for consideration by the Legislature on
July 23, 2008. The Southern California hearing was held on July 23, 2008 and the Northern
California hearing was held on July 28, 2008. Senate Bill 1422 authorizing the LA Metro project
was passed by the Legislature in August 2008 and signed by the Governor on September 28,
2008.
As agencies achieve more success with pubic-private partnerships, the Commission would hope
that the Legislature would reward the transportation community with increasing partnership
powers.
15. Although numerous bills authorizing individual toll facilities, toll roads, and HOT lanes have
been passed, critics argue that the state lacks an overall policy on developing and financing toll
facilities. What recommendations would you make to the Legislature informing a statewide
policy on toll roads and HOT lanes?
The passage of AB 1467 signaled the state's willingness to re-enter the public-private partnership
fray. The bill contains several implementation challenges, the most noticeable of which is the
prohibition against auto tolls. Without the ability to toll automobiles, it is unclear whether truck
tolls can generate enough revenues to enable truck-only toll lanes to be built.
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Ms. Nettie Sabelhaus
December 23, 2009
Page 9
The Commission recommends that the Legislature and administration revisit public-private
partnership in 2009. The success of other countries and other states with similar political,
demographic, environmental, and transportation challenges suggests that the institutional
challenges to public-private partnerships can be overcome.
A key threshold question that needs to be answered in the policy debate is where will the funding
come from to build the transportation capacity a California with 40 to 45 million people will
need. Proposition 1 B is a much-needed shot in the arm for transportation funding; however, the
resources in Proposition IB are inadequate to deal with the capacity needs of 2015 and beyond.
Based on the experience of other countries and states, gas and sales taxes cannot be raised high
enough to meet these needs; tolls and user fees are necessary to pay for the needed mobility.
However, the Commission recognizes that the current political and transportation environment
requires developing a new California approach to public-private partnerships. Such an approach
might emphasize the need for public-public-private partnerships in which the State and regional
agencies enter into agreements that the private sector implements with appropriate public-sector
oversight on toll rates, procurement, and implementation. And, the next iteration of public-
private partnership legislation needs to include design-build authority for at least the public-
private partnership projects.
16. Do you agree with criticisms of HOT lanes? How would you proposed to address equity
concerns raised by opponents of HOT lanes?
Based on patronage data from the managements of the 91 Express Lanes and the 125 Southbay
Expressway, Joe the Plumber and Sue the Soccer Mom are as likely to travel those tolled
facilities as the executive in a Lexus. HOT Lanes are about paying for transportation choices,
which we have precious little of in transportation in California. The HOT Lanes that have been
built in California and are proposed for future consideration all have "free" alternatives that
compete with these facilities. I think rational pricing of transportation with suitable alternatives
provides Californians at all economic levels with the ability to choose the travel option that best
works for them. As the owner of a trucking firm, my drivers often don't have the choice of when
to travel over certain highways, our customers determine when and where we need to be. But, if
my drivers could pay to avoid congestion, pay for a guaranteed travel time, they would do it in a
heartbeat.
State Transportation Improvement Program
1 7. Do you have any concerns with how public transit funds are distributed in the STIP process? Do
you have any suggestions for how these funds might be distributed more efficiently?
Public transit funds are not distributed any differently than the other funds in the STIP. The
problem with transit funds is not in the distribution formula but the unreliable and unstable
funding source from which these funds come from. The PTA is a transit-only funding source, and
yet $1.3 billion in funds have been diverted away from transit in the past year. Proposition 42
funds are more flexible as far as distribution to both transit and highway projects, yet these funds
teeter on the verge of being raided at any time. All STIP funds are flexible to the regional
priorities, but the average amount of money available through the STEP has declined as well.
Transit funds from the STIP are distributed based on what the regions view as their priorities. -t -j o
Ms. Nettie Sabelhaus
December 23, 2009
Page 10
Transit has an opportunity to play a very important role in reducing congestion, enhancing
mobility and partnering with alternative modes of travel in the reduction GHG emissions. It is up
to the Legislature to define and support the role of transit to our state and provide secure and
reliable sources of funding for it to be successful.
18. Do you have any concerns with how STIP funds are distributed among urban and rural areas?
How do you describe your approach to balancing the transportation needs of rural and urban
areas?
The biggest concern for the STIP funding program is not the distribution or distribution formulas
of the funds but the funding system itself. The threat of borrowing from programs like
Proposition 42 and the PTA leave the STIP as an unstable and insufficient funding source to
meet both the urban and rural area needs. The key to providing a balanced approach to
addressing rural and urban needs is to not divert or take away any further funding to this program
or the other programs that flow into the STIP.
Where urban and rural, or smaller, counties do differ significantly in addressing their funding
needs is over sales tax measures dedicated to transportation. Nearly all of the state's urban
counties have transportation sales tax measures. Some even have more than one. Those counties
have a distinct advantage in terms of advancing their regional priorities and making those
priorities competitive for STIP funding. Having just chaired a losing sales tax measure effort in
Stanislaus County — a small, more rural county — I can tell you how difficult it is to achieve the
two-thirds vote requirement for these tax measures. We missed winning by hundreds of votes,
having garnered over 66 percent of the vote, but not the required 66.7 percent. If the two-thirds
vote requirement could be changed, to say 60 percent, smaller counties would be better
positioned to address their regional transportation challenges.
Sincerely,
R. KIRK LINDSEY
Commissioner
Enclosure
114
Alice Dowdin Calvillo, Public Employment Relations Board
Prepared December 29, 2008
Goals and Responsibilities
1. What do you hope to accomplish during your tenure as a member ofPERB? How will you
measure your success?
PERB is a quasi-judicial agency charged with overseeing public sector collective bargaining in
California while promoting harmonious labor relations among employees, employers and
employee organizations. To this end, PERB administers seven collective bargaining statutes,
ensures their consistent implementation and application, and adjudicates disputes between the
parties subject to them.
As a Board member, the majority of my time is spent reviewing appeals from determinations
made by Board agents filed by employers, employees and employee organizations. More
specifically, the Board reviews appeals from: 1) dismissals of charges found insufficient by the
General Counsel's office to show that an unfair labor practice occurred; 2) proposed decisions of
Administrative Law Judges following evidentiary hearings on unfair labor practice complaints;
and 3) findings regarding representation petitions.
The Board itself issues precedential decisions that make up a large and important part of the
body of law governing public sector collective bargaining. Therefore, it is imperative that I,
whether as author or panel member,1 issue decisions that not only correctly apply the law to the
evidence presented, but also provide clarity and guidance to better enable the parties to meet
their collective bargaining obligations. I take this charge very seriously and work hard to
produce clear, concise and legally sound decisions.
In addition, it is my goal to help reduce the Board's appeal backlog. Until last year, the Board
functioned with less than five members resulting in more appeals assigned to each Board
member. I am a proponent of the adage that "justice delayed is justice denied," and work
tirelessly to complete as many cases as possible. Although first appointed in January 2008, 1 was
on maternity leave until the end of March. Since that time, I have authored 18 decisions and
participated in multiple others as a panel member. Although new appeals are assigned weekly,
PERB appeals, using an already established, neutral process, are assigned to panels of
three Board members with one member designated as the author of that decision. The
remaining two panel members also review the record to ensure the decision is compliant with
the law and addresses the issues and merits of the case. This results in all three panel members
being responsible for the final decision once it is issued.
Senate Rules Committee
DEC 3 1 2008
Alice Dowdin Calvillo
Senate Rules Committee
Confirmation Hearing Date
January 14, 2009
115
sometimes daily, to date I only have six appeals and one motion for re-consideration on my
personal docket.
I also strongly support PERB's outreach to constituents by enhancing the resources of the agency
available to them. In recent years, the Board developed a process for filing unfair practice
charges on-line and since then has expanded and enhanced the offerings available through its
website. PERB has conducted two very successful conferences in the past few years, providing
union and management representatives insight into PERB processes and available resources such
as mediation. Finally, PERB's Advisory Committee, composed of key members of the public
sector labor and management communities, plays a valuable role in developing
recommendations in areas relevant to PERB's mission of promoting harmonious public sector
employer-employee relations in California. Meeting with this group enables the Board to
explore ideas for enhanced services and receive input from our constituencies on where we can
do better. Receiving feedback from our constituencies is a good measurement of our success.
During my tenure at PERB, I hope to ensure justice is served by issuing timely and well-
reasoned decisions and being an effective Board member by being responsive to my peers as
well as our constituency. My success in these areas can be measured by the reputation I hold
among my colleagues and throughout PERB's constituency regarding productivity, neutrality,
fairness, and responsiveness.
2. What is your understanding of PERB 's role in labor relations? What do you believe is the
board member's role within the framework?
PERB's primary role in the scheme of public sector labor relations is to resolve labor disputes
by investigating and adjudicating unfair practice charges in a fair and impartial manner.
PERB's efforts to facilitate voluntary settlement of disputes are an important but often
overlooked aspect of this process. I believe that PERB has had great success in this area. For
example, traditionally half of the cases filed with PERB result in voluntary settlement by the
parties. PERB also plays an important role in safeguarding the statutory right of employees to
have union representation, or to not have union representation, by conducting elections,
processing unit modification petitions and verifying proof of support in "card check" cases.
The main function of the Board itself is to issue timely legal decisions on appeals from
determinations made by Board agents. These decisions must provide clear guidance to public
employers and public employee organizations regarding their rights and obligations under the
seven collective bargaining statutes PERB administers. In addition, it is the Board's
responsibility to ensure that public employers and employee organizations have a clear
understanding of how PERB administers its collective bargaining statutes. We do this through
effective outreach (e.g., participating in labor relation conferences) and communication.
Finally, the Board is also responsible for adopting sound regulations to implement the statutes
it administers to ensure that its mission of promoting harmonious labor relations is realized.
Alice Dowdin Calvillo
Senate Rules Committee
Confirmation Hearing Date
January 14, 2009
116
3. Based upon the types of complaints PERB reviews and adjudicates, what, in your view, are
the most important labor relations issues facing employers and employees? What
challenges do you see PERB facing during your tenure?
In my opinion, the most important labor relations issues facing both public employers and
employee organizations today stem from the significant reduction of revenue available to
public agencies due to the downturn in the economy. While PERB to date has not seen a
noticeable trend of increased filings on any one issue, there are several that are likely to
produce more charges in the near future. Negotiations over salary increases, which are often
conducted yearly in connection with the State budget, are more contentious as government
revenues decline. This will likely result in more charges being filed over bargaining conduct
and implementation of wage agreements and, correspondingly, more job actions and requests
for injunctive relief. The cost of health care benefits for both current employees and retirees is
the subject of several charges currently before PERB. Additionally, because most of the
State's bargaining units are currently without collective bargaining agreements, PERB has seen
an increase in filings by unions representing State employees. Finally, if employers are forced
to make staff reductions, PERB could see charges based on the way in which the reductions are
implemented, as well as charges that particular employees were laid off unlawfully. But of
course, even a charge involving a single employee is important to the parties involved.
The financial crisis facing the State also provides a challenge to PERB itself in ensuring that it
can adequately manage its workload and carry out its statutory charges. PERB is a General
Fund agency, which means that we must compete for funds with many other State agencies
that provide important services to the public. As the pie gets smaller, PERB's slice is reduced,
resulting in our having to make difficult choices as to how we ensure all of our constituent
needs are being met. The elimination of PERB's fact-finding allocation in the last budget is a
prime example of this. To address the allocation elimination, the Board reduced the contract
amount it pays fact-finding panel chairpersons. PERB recognizes that more budget cuts are
likely on the horizon and will continue to do its best to make sure it can carry out its mission.
Budget-Balancing Reductions
4. What steps has the board taken to address the deletion of funding for fact-finding, given
that the mandate was not eliminated, and what impact will this have on PERB and its
constituencies?
Fact-finding is part of the mandatory impasse resolution process under both EERA and
HEERA. During fact-finding, the parties present their proposals and financial information to a
three-member panel, chaired by a neutral member selected either by PERB or by the parties
(under EERA, if the parties elect to go with their own chairperson, then they, not PERB, pay
for his or her services). If the chairperson is selected by PERB, PERB is required by statute to
pay costs of the services of the panel chairperson, including per diem fees, if any, and actual
and necessary travel and subsistence. However, the law is silent as to what the per diem rate
shall be.
3 Alice Dowdin Calvillo
Senate Rules Committee
Confirmation Hearing Date
January 14,2009
117
As a result of today's tough financial times, PERB's budget for fiscal year 2007-08 was
enacted without an allocation for fact-finding services. However, the statutory requirement for
fact-finding remained. Therefore, PERB was tasked with finding monies to pay for the
contract amount for neutrals serving as fact-finding panel chairs while continuing to provide
essential services to the remainder of its constituencies.
PERB's annual budget for this year is $6.26 million and $5.12 million or 81 percent of that is
dedicated to salaries and benefits given that this agency's "product" is service. Of the $5.12
million, the majority of this goes to pay for rent at PERB's three offices located statewide.
This leaves very little to pay for other essential services such as fact-finding. As a result, at its
October 27, 2008 public meeting, the Board voted to divert funds from other PERB vital
functions to pay for fact-finding services at a maximum rate of $100 per day for a maximum of
three days (a reduction from $800 per day with an overall contract cap of $4,000). The Board
did this in an attempt to balance, to the extent fiscally possible, its statutory obligations with
the invaluable services provided by fact-finding chairpersons. This is not the first time the
Board has taken such an action. The rate was reduced to $100 per day in fiscal year 2002-03
and was not increased until fiscal year 2004-05 when financial times for the State improved.
The result of this reduction is that of the 46 individuals who were eligible to receive fact-
finding chairperson appointments, seven people directly communicated to PERB that they
were willing to serve as fact-finding panel chairpersons at the newly reduced rate. Some of
PERB's constituencies contend the reduction in the pool of applicants will lead to delays in the
fact-finding process that could result in further confrontation between the parties. However,
PERB notes that since the rate reduction, three requests for fact-finding services have come to
PERB, and of those one is pending and in two cases, the parties chose and will pay for their
own fact-finding chairperson.
It is my thought that when the State's financial crisis is over and there are more monies
available in the General Fund, PERB will again seek an augmentation to its budget to cover
fact-finding services.
Meyers-Milias-Brown Act
5. Do you feel the staffing level at PERB is sufficient to meet current workload requirements?
If you do not believe the staffing level is adequate, how would you propose to address this
issue considering the current budget deficit?
I am constantly amazed that an agency as small as PERB can and does accomplish so much
important work. Charged with administering seven collective bargaining statutes, one would
easily think this agency must have a large staff to be as successful as it is. However, with just
slightly more than 40 people statewide, we are fortunate to have experienced, hard-working
staff who are sincerely dedicated to PERB's mission.
Alice Dowdin Calvillo
Senate Rules Committee
Confirmation Hearing Date
January 14, 2009
118
When the Legislature gave PERB jurisdiction over the Meyers-Milias-Brown Act (MMB A) in
2001, budgetary conditions precluded the addition of new staff to accommodate the new
workload. Instead, PERB got creative with its existing resources. We cross-trained our staff,
allowing our specialists in representation, for example, to train regional attorneys. Regional
attorneys have also gained experience mediating settlement conferences, conducting formal
evidentiary hearings on representation matters and handling litigation. Veteran staff are able to
mentor less experienced staff. The cross -training and skills have broadened the staffs depth of
understanding of collective bargaining and labor relations and stretched our resources to cover
increasing workload.
Since 2001, as the number of unfair practice charges increased and State funding restrictions
eased a little, PERB sought and received authorization for additional staff. PERB made certain
that consistent workload increases supported the requested 'resources as opposed to asking for
new staff before the workload was realized. PERB does not have excess staff by any means of
the word, but we have been responsive in difficult fiscal years by waiting until additional
staffing requests were fully justified. And in light of our current fiscal crisis, our main
objective now turns to preserving PERB's existing staff so that we can continue to provide a
high level of service while being responsive to continued budget cuts.
6. Do you think the law in this area needs to be changed or clarified? Why or why not? If
yes, what changes would you recommend?
The issue in question is whether or not PERB has exclusive initial jurisdiction over essential
employee strikes under the MMBA. The term essential employees is used to designate
employees whose absence from their jobs would threaten public health and safety. The issue
of PERB's jurisdiction over essential employee strikes under the MMBA first arose in 2006.
Between June 2 and September 7, 2006, the City of San Jose, and the counties of Contra Costa
and Sacramento each sought injunctive relief from the superior court to prohibit certain
essential employees from going on strike. PERB intervened in each case, claiming that it had
exclusive initial jurisdiction over the threatened strikes because they potentially constituted
unfair practices or, alternatively, were protected conduct under MMBA. The court in the
San Jose case agreed with PERB; the other two courts disagreed and issued injunctions
prohibiting the essential employees from striking. All three cases were appealed.
Decisions were issued in the three appeals this year. Two courts of appeal, in the San Jose and
Sacramento cases, held that local agencies must come to PERB when seeking to enjoin a strike
by essential employees. The court in the Contra Costa case held that local agencies could go
directly to superior court for such injunctions.
On June 1 8, 2008, the California Supreme Court granted review in the San Jose case (City of
San Jose v. Operating Engineers Local Union No. 3 (2008) 160 Cal.App.4th 951, review
granted June 18, 2008, SI 62647). The Court has since granted review in the other two cases,
but those cases are on hold pending the decision in City of San Jose. PERB, like so many
others, is actively watching these cases and anxiously awaiting the Court's ruling.
5 Alice Dowdin Calvillo
Senate Rules Committee
Confirmation Hearing Date
January 14, 2009
119
The fact that two Courts of Appeal ruled in favor of PERB's jurisdiction, while a third ruled
against it, is a strong indication that this area of the law needs clarification. I am hopeful that
the Supreme Court, in its review of City of San Jose, will provide a definitive and clear
statement of jurisdiction for essential employee strikes under MMBA to alleviate any future
confusion. Until the Supreme Court rules, I believe it is counterproductive to make any
changes to the statute.
Alice Dowdin Calvillo
Senate Rules Committee
Confirmation Hearing Date
January 14. 2009
120
TATE OF CALIFORNIA — DEPARTMENT OF CORRECTIONS AND REHABILITATION
ARNOLD SCHWARZENEGGER, GOVERNOR
OARD OF PAROLE HEARINGS
0. BOX 4036
ACRAMENTO, CA 95812-4036
Senate !Ul»C«m*Btt*
OEC 2 9 200B
Appointments
December 29, 2008
The Honorable Senator Darrell Steinberg
Senate Pro Tempore
State Capitol, Room 400
Sacramento, CA 95814
Attention Nettie Sabelhaus
Martin N. Hoshino, Executive Officer
Board of Parole Hearings
Post Office Box 4036
Sacramento, CA 95812-4046
Dear Senator Steinberg,
I appreciate the opportunity to provide the Senate Rules Committee with the following
information in preparation for my confirmation hearing on my appointment as the
Executive Officer of the Board of Parole Hearings (BPH). I look forward to appearing
before the Senate Rules Committee on Wednesday, January 14, 2009 at 1:30 to
respond to any other questions the Committee may present.
In addition, I have reviewed the Form 700, Statement of Economic Interest, which was
attached to your letter dated December 9, 2008, and there are no changes.
I have prepared the following written answers in response to the questions submitted
December 8, 2009.
Statement of Goals
1 . What are your goals and objectives as the Executive Officer of BPH? What
are the top priorities for your tenure?
My goals, objectives and top priorities are:
• Develop or amend BPH programs to produce timely and fair parole suitability and
revocations hearings.
• Establish an accurate baseline of BPH operations in the areas of missions
performance, staffing, budget, and working conditions.
121
Senate Rules Committee December 29. 2008
Martin N. Hoshino
Page 2 of 23
•
Develop a workforce and change management function to guide and control
corrective actions and to self-identify, coordinate solutions and prevent problems.
• Develop a leadership structure and recruit a management team to better serve
the BPH and provide for stable leadership succession.
• Increase and balance BPH collaboration and coordination with partners,
suppliers, stakeholders and other interested parties.
• Increase operational support for commissioners and deputy commissioners
including enhanced training, legal advice, and availability of scientific and
evidentiary information for stronger decision making.
• Develop strategies for three class action lawsuits.
• End the wasteful cycle of multiple hearing postponements for life term inmate
hearings.
• Reduce the backlog of life inmate suitability hearings.
2. To date, what are your accomplishments and how do you measure your
success?
The following is a list of what I consider to be accomplishments by the Board since
my arrival:
Organizational
• Developed management controls to reconcile BPH positions to accurately
identify vacancies and manage BPH's budget.
• Reorganized the BPH structure to increase promotional opportunities within the
BPH, increase leadership stability, and manage change.
• Participated in ensuring all Commissioner positions were filled.
Lifer Suitability Hearings
• Reduced and ended the cycle of hearing postponements.
• Reformed processes associated with parole suitability hearings to control and
reduce the backlog of hearings.
• Developed exit strategy for Rutherford litigation.
• Increased the meet and confers with Rutherford plaintiffs' counsel in an attempt
to come to agreement on outstanding issues of the lawsuit.
• Created a scheduling backfill process in order to optimize the ability to have full
hearing days
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• Redesigned lifer training curriculum for Commissioners.
• Contributed to filling all vacant Commissioner positions (first time full since 1989
except for 3 months in 1998).
Filled new psychologist positions.
• Trained psychologists and Commissioners in use of the assessment tools.
Eliminated backlog of psychological evaluations.
• Changed the decision review process to expand reviews of life term parole
suitability hearing denials as well as grants. All decisions to grant parole and a
percentage of the denials are being reviewed by BPH and legal staff to ensure
that decisions are soundly based in fact and law.
• Initial implementation of Proposition 9 (Marsy's Law) related to the hearing
process for inmates sentenced to life with the possibility of parole
• Provided training to additional Deputy Commissioners (DC) and retired
annuitants in the lifer process with the new training unit.
• Continued deployment of reliable data system for the tracking and reporting of
lifer events (LSTS).
• Developed monitoring of lifer hearings to ensure quality and due process.
Revocation Hearings
• Participated in development and roll out of Parole Violation Decision Making
Instrument (PVDMI).
• Finalized the process for revocation and treatment of the mentally ill parolees.
• Continued negotiations for a decision review process for revocation hearings.
• Implemented a monitoring/compliance unit to oversee identified problems and
take corrective action to remedy problems.
• Trained DCs on discharge process so more parolees are discharged if
appropriate.
• Continued the Cooperative Personnel Services study of discharges, improving
the numbers.
• Hired additional DC retired annuitants to ensure compliance with Valdivia
timeframes.
• Conducted regular supervisor staff meetings with field Associate Deputy
Commissioners (ACDCs) to allow the field more participation in decisions and
increase input into field problems.
• Increased communication with the field staff through conference calls, site visits
and mailings.
• Continued to modify the scheduling and tracking system for the revocation
hearings in order to provide more accurate and efficient data to courts.
• Currently in the process of filling vacancies (the process has been slowed or
delayed due to budget difficulty).
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*^x
Other
• Increased number of Foreign Prisoner transfers
• increased timeliness of Foreign Prisoner transfer investigations by setting
performance and review measures
I measure success by monitoring progress against performance objectives set by law,
court orders, policy or management. Where no performance objectives exist, I develop
measures consistent with our goals. I survey staff, partners, stakeholders and critics of
the BPH for input, whether negative or positive. I review intended management reports
and reports issued by courts, special masters, CDCR's office of Court Compliance and
external oversight agencies.
Training and Quality Control
BPH is governed by Title 15 of the California Code of Regulations, yet changes occur in
law and/or court decisions that affect the board's proceedings.
3. The Rules Committee has encouraged BPH to improve training of
commissioners to prevent errors and heighten consistency in hearings.
What inroads have you made toward that goal? Whose job is it to examine
hearings for consistency?
Shortly after coming to BPH I evaluated the quality of the Commissioner training
program. To begin improvements to the BPH training program, BPH conducted a gap
analysis to identify training needs. This analysis utilized interviews of hearing
participants and interested parties, a survey of Commissioners, a review of past training
protocols and a comprehensive review of hearing transcripts. The results of this
analysis provided BPH with the necessary information to develop a new training and
monitoring methodology. It was clear that the training could be more effective if more
comprehensive. In May 2008, at the conclusion of the evaluation, I assigned staff to
begin the development of a more comprehensive training academy, focusing on all
portions of the Commissioner's job with special focus on the areas identified by the
Commissioners as needing more training and clarification. The development of the
training academy included development of training modules that could be used in all
future training academies to promote consistency in the training of each new
Commissioner. The new training model was first implemented in July and August 2008.
One of the most significant needs identified was the need for more practical training. To
address this, the training academy condensed the headquarters training to 2.5 weeks,
including several days of mock hearings. The new Commissioners were then assigned
to lifer hearings at institutions with experienced Commissioners and Deputy
Commissioners for two weeks. During this two-week period, the new Commissioners
observed and then participated in the hearings as a third panel member with the
guidance of the experienced Commissioner and Deputy Commissioner. Based on
participation in the headquarter training, prior training and professional backgrounds,
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the trainers identified areas of strengths and weaknesses of the new Commissioners.
The training group provided individual assessments of the new Commissioner's skills in
order assist the new Commissioners' to improve in weak areas. After the two-week
period in the field, the new Commissioners were assigned to hearings with experienced
Deputy Commissioners for a 3-4 week period. During this period they were provided
phone numbers in order to receive any necessary support from the legal and training
units at BPH headquarters. This practical and individualized approach provided our new
Commissioners with a more solid foundation in which to begin their tenures at the BPH.
In addition to the new Commissioner training, the semi-annual training for all
Commissioners was restructured by the training unit to address new and emerging
issues and policies on a more real time basis. Based on the continuous reviews of
decisions, the training modules for the semi-annual training focused on identified
systemic problems and practical applications of new policies or laws. The semi-annual
training covers changes in regulation, policy, Title 15 compliance legal updates and
refresher sessions in decision making skills. For example the May 2008 semi-annual
training emphasized integrating facts into the suitability consideration factors found in
Title 15 when issuing decisions. The second semi-annual training in December 2008
included changes in the law resulting from the passage of Proposition 9.
In order to ensure hearings are conducted consistently and in accordance with the laws
and regulations governing lifer suitability and rescission hearings, monitoring protocols
were developed and implemented. Pursuant to Title 15 § 2041(h), BPH legal staff
reviews all grants and 1-10% of denials. BPH randomly selects denial cases on a
monthly basis and conducts a thorough review of the hearing transcript. This review
encompasses Title 15 compliance, including but not limited to whether panels afforded
prisoners with procedural rights, compliance with the Americans with Disabilities Act,
and whether the panel addressed all legal objections. This random review of denials
also includes a determination of whether there exists an error of law or fact within the
hearing itself and whether the panel used the suitability factors found in Title 15 §§
2402, 2281 in making a decision of unsuitability.
The training unit's subject matter experts also participate in the monitoring effort. The
training unit reviews hearing transcripts with a focus on the quality of the hearing. The
subject matter experts also monitor the Lifer Hearing database, called the Lifer
Scheduling and Tracking System (LSTS). Staff reviews entries daily, which provide real-
time guidance on developing issues for panel members in the field. The board
addresses isolated individual challenges by re-training and develops new training
modules for systemic issues. Finally, the BPH headquarters' training and legal staff is
available for guidance and support during case preparation and hearings.
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4. How are board members and deputy commissioners notified when there is a
change in law or a court decision that affects board proceedings?
Commissioners and Deputy Commissioners receive information from the Board
regarding changes to the law or court decisions affecting the board proceedings in a
variety of ways. When laws change, the Board's training unit, together with the legal unit
create training modules, and present the material to Commissioners and Deputy
Commissioners during semi-annual training seminars (Note: due to the Valdivia
Permanent Injunction and the vacancy rate the BPH has been unable to train all Deputy
Commissioners at the semi-annual training and instead must use regional training
where the trainers go to the field). Many changes in the law immediately affect Board
proceedings. In these instances, the Board outlines the changes and typically provides
the information by email to Commissioners and by email, voicemail and hard copy in
weekly mailings to Deputy Commissioners. The BPH then drafts instructional memos for
distribution to all affected staff. When the change is particularly complicated and
requires immediate implementation the Board employs other means, such as group
conference calls for Deputy Commissioners, and short training modules during Board
meetings for Commissioners, to assure that members have the tools they need to
effectively implement the change while continuing to provide fair hearings and protect
public safety.
For example, in August 2008, the California Supreme Court's Lawrence and Shaputis
decisions had enormous impact on parole suitability hearings in that it changed the
standard required to evaluate life term inmates for parole. In anticipation of these
decisions, the BPH, at the semi-annual training in May, emphasized the importance of
applying the facts of an individual case to the suitability or unsuitability factors found in
Title 15. The training specifically stressed the need to provide decisions that go beyond
the commitment offense. The training included use of a revised worksheet to render
decisions and to provide Commissioners with a practical tool to facilitate application of
the law. After the Court rendered the decision, the BPH provided copies of the decision
with an overview via email to the Commissioners. The Deputy Attorney General who
supervised and argued the case was invited and appeared at the next Board meeting to
discuss the decision and answer questions. The Board also prepared an instructional
memo for Deputy Commissioners related to changes in the Lifer hearings that included
Lawrence and Shaputis, as well as Marsy's Law and other related topics. We followed
the issuance of the memo with a conference call to provide direction and answer
questions. At the semi-annual training for Commissioners in December, the BPH
dedicated an afternoon to applying the new standard given by the Court in Lawrence
and Shaputis. This comprehensive approach to changes in the law provides our
Commissioners and Deputy Commissioners the information and tools that they need to
make sound decisions.
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*&x
5. The use of multi-year denials in lifer hearings seems to vary significantly
among commissioners. Are all members and deputy commissioners
expected to follow similar guidelines or policy?
During training the Commissioners and Deputy Commissioners are instructed on the
general guidelines set forth in Title 15 §2402 and §2281, respectively, that outline
factors demonstrating suitability and unsuitability. These factors are used to determine
if the prisoner remains a danger to society if released to the community. If the prisoner
is found unsuitable the panels then consider the amount of time reasonably necessary
for the prisoner to become suitable and to correct any identified deficits. The
regulations give each panel member the discretion to assign relative weight to the
suitability and unsuitability factors. Depending on the weight the panel attaches to the
particular case factors, such as the prisoners progress in available programming, the
panel determines the proper denial length. Given that the weight provided to each
factor is within the discretion of each panel member and that the composition of panels
change weekly, some variance in denial lengths are to be expected. Each panel
considers all circumstances related to a prisoner's case when coming to a decision on
the amount of time needed for the prisoner to become a stronger candidate for parole.
6. The Rules Committee in the past has found fault with the quality of the audio
taping process at lifer hearings, the timeliness of the transcripts, and the
timeliness and quality of psychological evaluations, all of which result in
greater expense when hearings must be postponed or re-done because of
these problems. What progress have you made to improve these aspects of
the hearing process?
Upon coming to the Board in February 2008, there were a number of issues and
problems already identified as in need of a remedy. The three issues in this question
were three of those problems. Regarding rehearings due to equipment problems, the
review revealed that many of these mistakes are attributed to human error. In response,
hearing panel members all received training on the use of the recording equipment. The
equipment also had instructional cards attached to remind staff of proper use. The
training emphasizes the importance of checking the equipment prior to each hearing,
and re-checking the equipment during the hearing. When hearing equipment
malfunction necessitates a re-hearing, the Scheduling Unit notifies the responsible
panel members and provides re-training on proper use of the equipment. A comparison
of re-hearings due to recording equipment malfunction between calendar years 2007
and 2008 shows a reduction from 59 cases in 2007 to 28 cases to date in 2008.
The investigation into the timeliness of transcripts determined most of the problem was
due to the increase in the number of hearings. The sole transcriber used could not
keep up with the increase within the timeframes prescribed. In response, contracts with
additional vendors were issued, resulting in timely transcriptions. All transcripts are now
available for every inmate, upon their request. It should be noted, pursuant to Penal
Code Section 3041 .5(a) (4): The prisoner shall be permitted to request and receive a
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stenographic record of all proceedings." Furthermore, California Code of Regulations,
Title 15, Division 2, Section 2254, states: "... The prisoner is entitled to a copy of the
record of the hearing upon request. "
The third issue, timeliness and quality of Psychological Evaluations, was probably the
largest and most significant issue facing the lifer hearing process. The timeliness of the
evaluations accounted for the majority of the postponements attributed to the Board. In
turn, these postponements sometimes created multiple postponements and added to
the already overwhelming backlog of hearings. Part of the remedy to the problem was
set in motion prior to my arrival, but efforts had stalled or slowed for a variety of
reasons.
The Rutherford project management team tackled the problem by:
• Working with the scheduling unit to develop a process that would give more
notice prior to the hearing if a psychological evaluation was needed.
• Additional contract psychologists were hired until permanent staff could be put in
place
• Additional psychologists were hired and trained.
• LSTS entries regarding postponements and psychological evaluation protocols
were monitored in real time and remedied where necessary.
As the additional staff became competent to do the evaluations they were immediately
deployed to the field (resulting in a smooth transition from contract psychologist to BPH
psychologist doing the evaluations). Postponements related to psychological reports,
previously the largest contributor attributable to the state's reasons for postponement,
were reduced between March 2008 and October/November. This in turn resulted in a
significant decrease in the overall postponement rate attributed to the state by October
2008. Extensive training was provided to Commissioners on the appropriateness of
postponements based on the psychological evaluations. A scheduling "backfill process"
was developed and implemented in May 2008. The "backfill process" required staff to
review lifer hearing packets well in advance of the scheduled hearing. This allowed for
cases not ready for a hearing, due to missing or invalid psychological reports, to be
removed from the calendar. The hearing removed from the calendar was replaced by
another case that was ready to be heard. This process made it possible to avoid losing
the time allotted for a hearing.
The BPH's believes that the quality of psychological evaluations has increased due to a
number of factors. Prior to my appointment, BPH developed a separate Forensic
Assessment Division (FAD) to address issues of quality and consistency. In order to
determine best practices relative to the report, the Board at that time received input from
internal and external stakeholders, as well as experts in the field of psychology. For my
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part, I ensured that FAD clinicians completing psychological evaluations were given
training in the use of one consistent format with clear expectations for the quality of their
work. In addition to the interview with the prisoner, the clinicians were trained in use of
three-assessment tools. To create consistency, the Board expanded the FAD by hiring
additional clinicians, creating a supervisory structure, and streamlining the report format.
As a result, the Board recently issued a new Psychological Report guideline, effective
January 1, 2009. The new guideline standardizes the scope of the report, the
appropriate use in parole suitability hearings, the report format, including use of three
risk assessment instruments, and the review process.
7. What training do commissioners and deputy commissioners receive about
the psychological evaluations and the tools for evaluating them?
To expand the understanding and consistent use of the reports, Panel members
received training on the new format, including the assessment tools relied on by
clinicians in forming opinions as to prisoners' risk of future violence. Training on the
psychological reports is a part of the permanent training modules used for
Commissioner and Deputy Commissioner training. Panel members also received
training as to the relative importance of psychological reports in their determination of
parole suitability, with emphasis on how the clinicians' opinions relate to the panel's
obligation under Title 15 to assess a prisoner's mental state and attitude towards the
crime. Finally, panel members were trained on the use of opinion evidence, such as
psychological reports, including the necessity of determining reliability based on a
review of all the evidence and case factors, and assigning relative weight to the reports
accordingly.
8. Your predecessor indicated that when the BPH forensic unit was started to
oversee psychological reports, including those done by contract
psychologists, they were to be reviewed and cosigned by senior
psychologists. Eventually, the senior psychologists were to commence a
random sampling of reports. Is this random sampling being done and, if so,
what are the results?
Prior to my appointment to the BPH, a process existed that required the senior
psychologists to review evaluations prior to hearings if a new evaluation had not
occurred or there was insufficient time to do a new evaluation. With the implementation
of the scheduling backfill plan and other coordinated efforts the need for the senior
psychologists to sign off on a prior report was reduced. Since the filling of the vacant
psychologist positions the need for contractors and the inability to provide a new
psychological report has been reduced. All reports are now signed off by supervising
clinicians - eliminating the need for random samplings.
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Risk Assessment
9. CDCR has focused much attention on developing and implementing new
tools for risk assessment What risk assessment tools does the BPH employ
in parole suitability hearings for lifers or revocation hearings for parolees?
How have board members and deputy commissioners been trained to use
the tools?
In the lifer process the BPH employs licensed clinical psychologists, who are trained in
the use of standardized risk assessment instruments. The BPH clinicians use
standardized risk instruments when they prepare psychological reports for prisoners
scheduled for parole suitability hearings. The BPH clinicians use standardized risk
assessment to assist them in determining the prisoner's risk for future violence should
the prisoner be granted parole and released into the community. The risk assessment
instruments most used in this process include the following:
•
•
Psychopathy Checklist-Revised (PCL-R)
History-Clinical-Risk 20 (HCR-20)
Level of Service Inventory- Revised (LSI-R) / Level of Service-Case
Management Inventory (LS/CMI)
• Static 99 - a supplement to other tools when there is a history of sexual
offending, or sexual overtones in the life crime.
The following is a brief description of each of the instruments:
Psychopathy Checklist-Revised (PCL-R)
The PCL-R (also known as the Hare) is a psychological assessment instrument first
developed by Dr. Robert Hare in 1991 to operationalize and quantify the identification of
psychopaths (extreme anti-social personality disorders). Research indicates that the
20-item scale not only identifies such individuals, but also has strong predictive value for
violence. Advantages of the instrument are that it has been extensively validated on
prison inmates, is utilized in many other risk measures, and identifies individuals who
are the most seriously violent and least likely to change. Disadvantages are that it
requires clinical psychologists to administer and interpret, has significant training costs,
and is limited to identification of a relatively small population of offenders whose
extreme personality profile is the primary basis of their criminality.
History-Clinical-Risk 20 (HCR-20)
The HCR-20 is an instrument developed in 1997 to account for some of the inherent
limitations in the PCL-R (above), while maintaining a high level of reliability and
predictive validity. Based upon a comprehensive review of the research literature, the
developers identified 20 risk factors that had been shown to have a significant
relationship to violence. In addition to 10 "static" factors, 5 clinical variables and 5 future
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risk variables were identified. Advantages are that it contains both static and dynamic
(changeable) factors, is very easy to administer and score, has been validated on a
population of mentally ill subjects, and is low cost. Disadvantages are that it was not
primarily designed as a tool for prediction of violence and derives most of its validity
from the same factors covered in the PCL-R.
Level of Service Inventory- Revised (LSI-R) / Level of Service-Case Management
Inventory (LS/CMI)
The LSI-R is a structured judgment personality inventory tool first developed in 1995 in
Canada and subsequently implemented and validated in widespread jurisdictions
throughout the United States (not California) and other countries. The most recent
derivative of the original instrument is the LS/CMI, which has been adjusted to
consolidate some variables, and enhance the case management component of the
analysis. The advantages are that it has a much greater value for assessing causative
factors in criminal behavior, developing treatment and management programs to deal
with this behavior, and measuring change over time. It requires extensive training, but
can potentially be administered by non-clinicians.
Static 99
This is a 10 item checklist of factors found to be most predictive of recidivism in a study
of rapists and child molesters in Canada. The actuarial type instrument has
subsequently been widely utilized for this purpose in Canada, Great Britain, and the
United States. It is a key indicator used for identification of Sexually Violent Predators
in California. It will be utilized in this program as a supplement to other tools when there
is a history of sexual offending, or sexual overtones in the life crime.
The BPH provided training for the Commissioners and Deputy Commissioners on the
use of psychological reports in the lifer term parole suitability hearing process. The
Senior Psychologist Supervisors conducted the training. The training included the
history and use of each of the instruments above. The senior psychologist supervisors
during training explained that part of the intent is to ensure consistent quality and
adherence to specified forensic mental health standards in the psychological reports
used in the life term parole suitability hearing process. In training it was explained that a
primary benefit of the new assessments is that they are based upon valid and reliable
instruments developed and implemented in prisons and mental hospitals both in this
country and internationally, rather than the simple opinion of a particular evaluator.
The training also included the new report format and emphasized that assessment of
risk is one of the factors to be considered in determining parole suitability, but is not the
only factor in considering parole suitability.
In the revocation process a risk assessment tool (the California Static Risk Assessment
[CRSA]) has been incorporated into the Parole Violation Decision Making Instrument
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(PVDMI). After approximately 18 months development the department rolled out a pilot
using the PVDMI which was designed to reduce the risk of recidivism, enhance success
on parole, and utilize resources in the most effective manner. The PVDMI is also
expected to make the dispositional recommendations to the BPH from parole agents
more consistent. The PVDMI utilizes the CRSA tool combined with the severity of the
violation to reach the appropriate recommendation for disposition of the charged
violation. The BPH line staff and management participated in the training on how to use
and interpret the PVDMI. The Associate Deputy Commissioners and Deputy
Commissioners were trained in how the BPH should use the PVDMI in conjunction with
the guidelines set forth in the California Code of Regulations for violation assessments.
If validated, the PVDMI could prove to be an invaluable tool for both the department of
Adult Parole Operations and the BPH in determining the best disposition for a parole
violator.
Proposition 9 - Victims rights and Protection Act
Under the recently approved Proposition 9, inmates would be entitled to fewer parole
hearings and the number of people permitted to attend and testify at the hearings would
increase. Changes would occur in both lifer and parole revocation hearings.
10. What changes in hearings do you foresee as a result of passage of
Proposition 9, and how will they impact the board's workload? How are you
training board members in the wake of Proposition 9?
In summary, Proposition 9 amends and or adds to both the State Constitution and penal
code. The Proposition expands the legal rights of crime victims and the payment of
restitution by criminal offenders, restricts the early release of inmates, makes significant
changes to the life parole consideration hearing procedures, and makes significant
changes to the parole revocation hearing procedures. Proposition 9 will impact the BPH
by requiring procedural changes to both the life parole suitability and parole revocation
hearing processes, and in doing so, impacts both the Valdivia and Rutherford/Lugo
stipulated agreements/court ordered remedial plans. The statutory changes of the
Proposition will require regulatory changes to BPH's Division of California Code of
Regulations.
The impact to the BPH's workload as a result of Proposition 9 requires some
speculation. We anticipate minimally additional staff work due to the expansion of the
notification to victims, the need for law and regulatory changes and the need for
training. Lengthier hearings are likely due to the increased rights of victims in both
parole consideration and revocation proceedings.
Specifically in the parole revocation process, Proposition 9 changes the requirement for
appointment of counsel which will result in the BPH Deputy Commissioners being
required to assume some of the duties that the attorneys had been performing. The
Proposition reduces the time frames for conducting probable cause which will require
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the BPH to change the present process and advance the hearing in which probable
cause is found. The timeframes for the revocation hearing is lengthened - having no
real impact on present process. It provides additional protections for victims or
percipient witnesses, which will require additional staff work for notification and longer
hearings due to added victim participation.
Specifically in the life term parole consideration hearing process, the change in
available denial periods when a prisoner is found unsuitable has been changed from 1-5
years to 3, 5, 7, 10 and 15 year denials. Although the longer denial lengths may seem to
reduce the number of hearings, the future workload for these hearings will depend on
denial lengths; because the number of prisoners eligible for suitability hearings
continues to increase yearly, the Board anticipates no significant short term drop in the
number of hearings required. The expansion in the definition of a victim and victim's
next of kin, the creation of greater obligations for notice to victims, (90 days prior to the
hearings, 30 days prior to the hearings and then the date and time of the hearing shall
be confirmed at 14 days prior to the hearing), and the provision that all victims shall also
be notified when a prisoner makes a request for an advanced hearing (which may occur
once every three years following the prisoner's denial of parole) will increase the
workload associated with the notice requirements, and the expansion of victim
participation in life parole consideration hearings, including uninterrupted statements by
victims, may substantially increase the length of each hearing reducing the number of
hearings that can be conducted daily. Additionally, all victims have the right to request
and receive stenographic records (transcripts) of the hearings. There will likely be
increased BPH workload associated transcriptions services, prisoner petition for
advanced hearings, and reconsideration hearing workload. Further, the proposition
requires the creation of a process for prisoners to petition to advance hearing dates,
and the reconsideration of parole grants. The current process has only been available
to 5 year denials so the workload connected to this new process is unknown.
In December 2008, Commissioners were trained on the new denial scheme requiring
three to fifteen years between suitability hearings, including emphasis on the
requirement to show clear and convincing evidence in order to give less than a 15 or 10
year denial. Commissioners also received training on the expanded scope of what
qualifies as a victim or a victims' next of kin and their participation in our hearings.
Parole Suitability (Lifer) Hearings
There are about 30,570 life-term inmates who have the possibility of parole. In 2007
BPH scheduled 3,790 lifer hearings. Of those hearings, 86 percent were subsequent
hearings, meaning that it was at least the inmate's second parole eligibility hearing.
From January to September 2008, the hearing total was 3,065, and 81 percent were
subsequent hearings.
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*;rv
11. You indicated at the October BPH meeting that there has been a dramatic
reduction of the hearing backlog to 20 percent in September compared to 48
percent in the first six months of calendar year 2008. Please describe what
you have done to drive down these numbers. Also, describe how the board
is currently calculating the backlog. Please explain the current status of the
backlog, the expected timeframes for its elimination, and how you will
monitor progress.
The BPH defines "backlog" as all cases that are late due to the fault of the State. The
Lifer Scheduling and Tracking System (LSTS) tracks the backlog based on an assigned
"no later than date" (NLT) which represents the last day to schedule the hearing in order
to be timely. When cases are not scheduled prior to the NLT, or when cases are
postponed for reasons under the State's control or if there is not a Commissioner
available to hear the case, LSTS reports the case on the Backlog Report. At this time,
the BPH believes it may eliminate the current backlog by June 2009 and reduce the
ongoing backlog to 10% percent or less. The BPH plans enhancements to LSTS'
reporting functions during 2009 in order to more closely monitor hearing delays and
specific causes.
In order to tackle the backlog of Lifer hearings, the BPH identified the primary factors
contributing to the backlog. The analysis indicated that the BPH and CDCR had gaps in
the processes that support the Lifer hearings and showed that the vast majority of
hearing postponements, which drive the backlog, were caused by issues with
psychological evaluations, panel unavailability and inmate requests to delay their
hearings. The BPH undertook to address each identified challenge. To clarify the
premise for this question, at the October BPH public meeting, I announced that the
postponement rate of hearings had dropped from 48% to 27% in September 2008.
Additionally, it is worth noting that the backlog decreased from 1456 in May of 2008 to
744 in November 2008. The postponement rate is directly related to the "backlog" of
hearings, but is not the same deficiency.
The BPH and the Division of Adult Institutions (DAI) began meeting twice a month to
address issues related to Lifer hearings. The group first worked on identified
deficiencies, such as the need for additional copy machines at the institutions for
records staff that compile Board packets for Lifer hearings. The joint taskforce then
began to address coordination and gaps between the divisions at the institution level.
As communication improved between the divisions, the leadership at both BPH and DAI
were able to re-direct staff and make modifications where needed.
In order to address postponements due to psychological reports, the BPH restructured
the Forensic Assessment Division (FAD), streamlined the reports and created realistic
expectations for all stakeholders as to the proper use of the information contained within
the reports. The FAD now has an internal structure that includes a Chief, four Senior
Psychologists to act as first line supervisors, and a work force of clinicians to complete
the necessary assessments prior to the hearing. The newly developed structure enables
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Martin N. Hoshino
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the BPH to have more control over the timeliness and quality of the reports. The BPH's
past reliance on subcontractors and institution clinicians with competing workload made
it difficult to have accountability. Additionally, the BPH undertook to align the scheduling
function at FAD with the scheduling of Lifer hearings to establish a prioritization of
cases. The prioritization is focused on inmates with calendared hearings. The
development and implementation of a backfill process where staff reviews upcoming
hearing calendars is to ensure that the scheduling unit assigns a clinician to complete
the psychological report and that the clinician completes the report on time. BPH staff
review cases as the hearing date approaches to ensure that the necessary documents,
reports and notices occur on time prior to the hearing. Finally, the BPH provided
extensive training to panel members about the scope and use of psychological reports
during hearings; then distributed a new guideline to all partners and stakeholders to be
implemented on January 1, 2009.
With respect to panel unavailability, the BPH currently has 12 presiding Commissioners.
This is not only the greatest number of Commissioners assigned to the BPH, but it is the
first time since 1989, when there was only a possibility of nine Commissioners, that the
BPH has had a full complement of Commissioners. The BPH worked with the
Governor's office, and the CDCR's Secretary's office to fill vacancies, and to minimize
time between appointments when Commissioners are not confirmed, retire or resign.
The BPH also streamlined its training program to reduce the time required to place
Commissioners on calendars after appointment. We are also exploring means to reduce
the number of locations where the BPH conducts hearings in order to control our
scheduling functions. This will require resources and coordination with DAI, but could
eliminate postponements and prevent future backlogs due to the fact that there are
Lifers who need hearings every week at 33 locations, but there are only 12
Commissioners available. Of course, panel unavailability represents significant risk to
the BPH's ability to control the backlog.
Our analysis also showed that many cases postpone because the inmates are not
ready to proceed. Postponements that occur at hearings, regardless of the reason,
create an undue burden on the system, because other cases that are ready to go, are
not heard. The required documents, reports and notices for each case must occur well
in advance of the hearing date, making it impossible to place a different case on the
calendar where a postponement occurs on the day of the hearing. To address the
competing interests of scheduling cases in a timely manner and allowing delays for
prisoners that are not ready to proceed, the BPH amended its regulation. Specifically,
Title 15, §2253 was amended to allow prisoners the ability to voluntarily waive hearings
when the request is made 45 days in advance of the hearing date; and to postpone
hearings only where the prisoner informs the BPH of the need at the earliest possible
date. Historically, prisoners had to admit that they were not suitable for parole in order
to avoid a hearing in situations where the inmate was unprepared to go forward. The
BPH implemented the new regulation on November 1 , 2008.
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12. Your predecessor said he was researching the lifer and parole revocation
processes used by other states. Are you continuing the research begun
under your predecessor? What has your office learned about national best
practices that could help you with California's backlog as well as training
policies, quality assurance, consistency, and/or oversight?
I am not aware of any research of this type occurring prior to my appointment. I have
been informed by staff that a prior Rutherford/Lugo taskforce developed ideas of
possible changes to the lifer process based on research by individuals on the taskforce.
However, the current Rutherford workgroup has contacted other states to research the
structure, workload, tenure of parole commissioners and composition of parole panels.
Similarly we are currently engaged in research about life prisoner suitability hearing
processes and types of hearings. We are also having dialogue with the Association of
Paroling Authorities International (APAI) on a regular basis on periodic issues.
There has been no research into how other states conduct their revocation process
since the process in California is controlled by the Valdivia Remedial Plan and is far
more restrictive than any other state in the United States. In the past the BPH has
attended the U.S. Parole Commission seminars held in various parts of the United
States yearly, but in the past two years due to the budget crisis in California the Board
has been unable to send a representative to the seminars.
Postponements of Lifer Hearings
The number of scheduled hearings has increased from about 4,500 in 2004 to almost
7,000 in 2006, and over 30 percent of these hearings continued to be postponed in
2006. In 2007, 6,252 hearings were scheduled and 2,335, or 37.3 percent, were
postponed. From January to September of this year there were 5,582 scheduled
hearings and 42.4 percent were postponed. The postponements represent a loss of
taxpayer dollars and additions to the backlog, as well as being inconvenient and costly
for victims, families, inmates, and attorneys who have prepared for the hearing.
13. Many postponements have been the result of board members determining on
the day of the hearing that the file is incomplete. Who is responsible for
ensuring that the files are complete and updated and when should the
determination be made? Does this problem continue to result in significant
numbers of postponements? Please be specific.
In our Lifer workgroup with the Department of Adult Institution (DAI), we have reiterated
the importance of timely documents. The institutions currently complete a hearing
checklist prior to sending the packets to the Board. Additionally, the BPH reviews cases
prior to the hearing to ensure that packets include the necessary documentation. Due to
improved communication with DAI, BPH staff now work with DAI staff to remediate
missing documentation prior to the hearing in many cases. Historically, the largest
contributor was psychological reports which the BPH has largely rectified.
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14. To the extent that hearings are postponed due to incomplete files or
information not provided in a timely manner, how do you track these
occurrences so you can identify if there are particular problems at certain
institutions? How do you communicate this information to CDCR?
Currently, BPH staff must review hearing transcripts and LSTS entries to identify
postponements and trends at certain institutions. BPH and DAI have a bi-weekly
workgroup meeting in order to identify problems and reach a solution together. The
BPH staff complete a monthly Executive Summary Report identifying each
postponement specifically by issue, reason and institution. The results are discussed at
our bi-weekly DAI workgroup meeting. The BPH plans enhancements to the reporting
functions in LSTS that will improve our ability to pinpoint and correct at specific
institutions.
15. The Rules Committee has heard testimony about psychological evaluations
that were too old to be useful. How old can an evaluation be and still be valid
in the hearing so postponement is avoided?
The policy prior to January 1, 2009, was a three-year validity period on psychological
evaluations. Effective January 1, 2009, our new Psychological guidelines require a
Comprehensive Report every five (5) years and a Subsequent Report prior to every
hearing. However, existing reports before the implementation of the guideline will
remain valid for three (3) years.
Stipulations
In addition to postponements, 20 percent of the board's denials in the first nine months
of 2008 and 17.8 percent last year were the result of a stipulation in which the inmate
"voluntarily" agrees to postpone his/her hearings on the grounds of unsuitability for
parole. By declaring himself or herself unsuitable, an inmate takes himself out of
consideration for one to five years because he believes he is not ready to be reviewed.
16. In 2007 there were more than 646 stipulations and 581 in the first nine
months of 2008. Prior to 2000 there were less than 100 per year. What is the
reason for the change? How do you track the reasons for stipulations? Has
the policy or training changed in a way that would impact stipulations?
Stipulations present an opportunity for inmates who recognize that they are not yet
prepared to parole, the opportunity to request the BPH to schedule another hearing at a
future requested time. A review of the increase in the number of stipulations does not
clearly show a particular reason or trend. The reason for the increase is speculative, it
may be due to the fact that the number of hearings conducted has doubled since 2000.
The increase in prisoner litigation that tests the parameters of the Board's and the
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Governor's jurisdiction may also contribute to the increase, as inmates look for courts to
weigh in prior to participation in hearings.
The Board, due to a recent regulatory change, anticipates a significant decrease in the
number of Stipulations in the coming years. The modification in BPH policy is reflected
in Title 15, §2253. Specifically, the Board by regulation created a voluntary waiver that
allows the prisoner to waive the parole hearing for one to five years without making an
admission to unsuitability. The Board presumes valid waiver requests made 45 or more
days prior to the hearing. The Commissioners and Deputy Commissioner have been
trained in the change of regulation and the implementation of the new regulation.
The ability to track the number of stipulations has been available for years, but the
tracking of the reasons for stipulations was only recently developed through the Lifer
Scheduling Tracking System. The process remains the same: inmates request
stipulations by filling out a form that states the reasons for the request and the panel's
findings when granting or denying the request. CDCR retains a copy of the form in the
prisoner's central file. Additionally, panel members and Board staff record the
disposition of all scheduling hearings, including Stipulations, in the LSTS database.
17. The Valdivia lawsuit has resulted in significant changes in the parole
revocation process with the goal of providing fair and timely hearings. How
do you measure your success in complying with Valdivia?
Parole Revocation Hearings
The heart of the Valdivia Remedial Plan requires the BPH to meet specific timeframes
not only in conducting return to custody assessments, probable cause hearings and
revocation hearings, but also requires the BPH to ensure that each parolee is appointed
counsel at a specific time in the revocation process. The remedial plan additionally
requires the consideration at every step of the process to placing the parolee into a
remedial sanction. The BPH Deputy Commissioners are required under the remedial
plan to only use hearsay in the hearings if the introduction of the hearsay evidence
meets a case law standard. In order to ensure that the BPH is in compliance we
maintain various systems to measure compliance with the Valdivia remedial plan. The
primary system used by the BPH is referred to as the Revocation and Scheduling
Tracking System (RSTS). With the assistance of an outside contractor, BPH developed
RSTS, which is a real time database designed to assist with management of daily
workload and with the monitoring of compliance with the remedial plan. The BPH has
continued to upgrade RSTS by adding new reports to more accurately measure levels
of compliance with various components of the Injunction. RSTS is also used as a
management tool to assist the BPH with other requirements such as remedial
sanctions.
The RSTS system contains detailed information about each case in the system and is
capable of producing a number of reports tailored for management purposes and it
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Martin N. Hoshino
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allows the BPH to measure how it comports with requirements of the injunction. These
reports allow for the examination of performance standards of individual staff. The
reports can also alert managers of approaching deadlines. In addition RSTS generates
several reports that measure timeliness in the various Valdivia steps in the revocation
process. According to a recent Valdivia timeliness report in RSTS, the BPH averaged
95.6 % compliance with timeliness at the probable cause and parole revocation hearing
steps between January 2008 and November 2008. The BPH considers this substantial
compliance and discussions have begun with the Special Masters appointed by the
Valdivia Court, to define how the Court measures "substantial compliance".
Probable cause and revocation hearings are conducted by deputy commissioners.
Given the large number of hearings conducted in the revocation process (in 2007 there
were 91,063 probable cause hearings and almost 22,000 parole revocation hearings)
BPH considers the 95.6 % to be successful implementation.
18. What do you believe are the biggest challenges for BPH in the revocation
process?
Currently, the biggest challenge for BPH in the revocation process is coordinating a
Valdivia exit strategy with all parties pertinent to the class action. In order to begin this
process the department must come to an agreement with the Plaintiffs' and Federal
Special Masters on the definition and meaning of "substantial compliance" as it pertains
to the requirements set forth in the Injunction. In addition, there are a few remaining
issues that need to be implemented before the BPH can be completely in substantial
compliance, for example implement the finalized mentally ill revocation process plan,
and complete negotiations on the BPH decision review process.
19. Do you track consistency in revocation decisions? If so, please explain this
process.
In addition to utilization of RSTS reports, the BPH established a Quality Control Unit
(QCU) and Monitoring Compliance/Review Units (MCRU). The purpose of the Quality
Control Unit is to review a random 10% of all revocation decisions to ensure not only
consistent decisions, but quality decisions. The regulation under the California Code of
Regulations (CCR) sets forth guidelines for the BPH hearing officers to use when
assessing whether a return to custody is warranted. The Quality Control Unit staff
conducts random reviews on a percentage of all parole revocation hearing actions to
ensure they comply with policies and regulation. The results of the random reviews and
a subsequent analysis are forwarded to the Associate Chief Deputy Commissioner
(ACDC) over the two units. The ACDC of Quality Control and Monitoring reviews and if
appropriate forwards to the supervising ACDC and Deputy Commissioner (DC) that
heard the case. These reviews are used to ensure quality, consistency, compliance
with policy, identify systemic problems and for training purposes. These reviews help to
supplement direct supervision. In addition to the random reviews, ACDCs are also
required to perform routine monitoring and review of DC decisions. These reviews
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Martin N. Hoshino
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assist the supervisors to ensure quality assurance and the information garnered from
these systems also helps to guide with the development of remedial training .During the
course of numerous meet and confers with plaintiffs' counsel and the federal special
masters in Valdivia the court ordered the State to develop a self-monitoring unit. The
self-monitoring unit goes to the field to monitor the department's compliance in the
various areas of the remedial plan. At the conclusion of the monitoring tour, a report is
compiled and sent to each division of CDCR with observation both negative and
positive. In response, the BPH has developed a Monitoring Compliance/Review Unit.
This unit reviews the portions of the monitoring reports by the self-monitors as well as
all compliance reports submitted to the court by the Special Master and Deputy Special
Masters that speak to the BPH's portion of the process, compiles the identified
deficiencies and forwards to the appropriate ACDC of the area monitored. The ACDC
then reviews and responds with a written corrective action plan. The monitoring unit
follows up monthly and documents the results of the corrective action plan.
20. A deputy commissioner may choose to order remedial sanctions for a
parolee rather than return the parolee to state prison. Are your deputy
commissioners kept informed of the availability of remedial sanction
options? Is it possible that remedial sanctions can be ordered but not
provided due to lack of alternative programs?
The Deputy Commissioners have been provided with the names and locations of all
programs that have contracted with the state to provide remedial sanctions to parolees.
The policies and procedures under Valdivia require that when a parolee is referred by
the Department of Adult Parole Operations (DAPO) to a remedial sanction the
availability of space is confirmed by a Parole Administrator prior to referral to the Deputy
Commissioner. Further, if the Deputy Commissioner decides to place the parolee into a
remedial sanction when the parolee was not referred for placement by DAPO the
Deputy Commissioner contacts the Parole Administrator for confirmation of bed space.
Daily availability in programs is provided by the Department of Addiction Recovery
Services to the Parole Administrators and Deputy Commissioners.
In some cases the beds are full or the available beds are filled on the same day, but
prior to the referral. There are occasions when parolees are ordered to a remedial
sanction program and the remedial sanction program is no longer available when the
parolee is ready for placement. In order to reduce and eliminate this problem the
DARS, BPH and DAPO are increasing their coordination activities.
Coordination Between the Board and Department
There are a number of issues related to coordination between BPH and CDCR where it
is unclear who bears the ultimate responsibility for these issues.
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Martin N. Hoshino
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21. At the Division of Juvenile Justice, parole board members have met regularly
with superintendents of juvenile facilities, with both sides indicating the
experience was positive. Do BPH members meet with wardens or other
custody staff to improve coordination?
In January of 2008, the BPH and CDCR established a workgroup to review the entire
life parole consideration hearing process and to identify problems or inefficiencies, and
to develop solutions. The Undersecretary of CDCR and the Executive Officer headed
the workgroup. One of the first recommendations implemented is increasing
communication between the Wardens and their designees and the Commissioners.
The Undersecretary met individually with each Commissioner to hear their concerns.
The Undersecretary directed the Wardens or their designees to meet regularly with
Commissioners who were conducting hearings at their prisons to address any ongoing
issues at the institutions.
In the revocation process the lines of communication are open between departments by
way of a bi-weekly Valdivia taskforce meeting. All CDCR divisions are represented at
the taskforce meetings. Additionally, there are regular meetings with BPH, DAPO, DAI
and DARS staff whenever a problem with compliance is identified and needs resolution
between departments. The open and frequent communication between departments
has been pivotal in CDCR's success in compliance with the Valdivia Remedial Plan.
22. The department has taken steps to assess more inmates upon entry to
prison and send them to appropriate educational or treatment programs in
their final three years of incarceration. Has CDCR discussed with you the
impact of this change on the ability of life-term inmates to participate in
education and other programs, including drug treatment? How are board
members informed of programs available to life-term inmates?
The state's current fiscal crisis creates significant challenges for CDCR as it relates to
providing programming for inmates. As resources for education and drug related
programs are reduced, programs directly available to the Lifer population diminish
accordingly. CDCR faces specific challenges related to the Lifer population as the
timeframes for these inmates' releases remain unknown, making allocation to Lifer
programs difficult given the competing interest of funding programs aimed at serving
prisoners within three years of release.
In order to keep the Commissioners apprised of the CDCR's policy surrounding prisoner
programs, the BPH invited Carol Hood, Chief Deputy Secretary, CDCR Programs, to
present an overview of the AB900 implementation related directly to prison programs at
the September 2008 Board Meeting. Additionally, the Commissioners were provided a
field guide of programs available by institution during our semi-annual training seminar
in December 2008
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Martin N. Hoshino
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Compensation and Monitoring of Attorneys
Compensation for attorneys who conduct parole revocation hearings is governed by the
Valdivia lawsuit in which a federal court found that delays in the parole revocation
process violated due process protections. Attorneys receive a flat fee of $185 per case
for these parole revocation hearings. Compensation for those who handle lifer hearings
has not been adjusted in recent years. These attorneys receive $30 per hour, with a cap
in most cases of six to eight hours including travel time to the prison.
23. Who decides to request an increase in compensation for lifer attorneys? Is
that your responsibility, the BPH chair, or CDCR?
In my opinion, the first line responsibility to request a salary increase for lifer attorneys
rests with the Executive Officer of BPH. Like any request for increased funding, it
should be based on reasoned public policy, should either solve or prevent a problem,
and be based on sound fiscal analysis. In response to previous questioning on this
subject, the BPH agreed to analyze the issue. We learned the thirty dollar per hour rate
for lifer attorneys had remained unchanged for roughly ten years and that the BPH was
having difficulty funding attorneys for this work both in general and in certain
geographical areas of the state (central valley and southern desert). When compared to
similar markets (e.g. counties, public defenders), we found that our thirty dollar an hour
rate was below market. Our survey suggested a fair and competitive market rate would
approximate fifty dollars per hour. The BPH and CDCR recommended this increase as
part of the state's budget proposal. The CDCR concurred and forwarded the
recommendation to the Department of Finance for consideration.
24. BPH had a salary structure that gave little incentive for deputy
commissioners to seek promotion to the supervisor level because they
receive a more generous retirement than their supervisors (2.5% at 50 and no
deductions for social security as opposed to 2% at 55 with deductions for
social security) that results in several hundred dollars monthly less take
home pay. Has this problem been addressed? Are there other issues of
salary compaction at BPH? Please explain.
The BPH salary compaction problem between Deputy Commissioners and their
supervisors has existed for approximately eight years. BPH and CDCR recently
proposed a number of options to remedy the problem and we are actively working with
DPA on a viable solution.
25. How is the quality of attorney representation monitored for both parole
revocation and parole suitability hearings?
In the revocation process the BPH has a contract with the McGeorge School of Law to
provide attorney representation for parolees statewide. The division of McGeorge that
provides the attorneys is called the California Parole Advocacy Program (CalPAP). The
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Senate Rules Committee December 29, 2008
Martin N. Hoshino
Page 22 of 23
Compensation and Monitoring of Attorneys
Compensation for attorneys who conduct parole revocation hearings is governed by the
Valdivia lawsuit in which a federal court found that delays in the parole revocation
process violated due process protections. Attorneys receive a flat fee of $185 per case
for these parole revocation hearings. Compensation for those who handle lifer hearings
has not been adjusted in recent years. These attorneys receive $30 per hour, with a cap
in most cases of six to eight hours including travel time to the prison.
23. Who decides to request an increase in compensation for lifer attorneys? Is
that your responsibility, the BPH chair, or CDCR?
In my opinion, the first line responsibility to request a salary increase for lifer attorneys
rests with the Executive Officer of BPH. Like any request for increased funding, it
should be based on reasoned public policy, should either solve or prevent a problem,
and be based on sound fiscal analysis. In response to previous questioning on this
subject, the BPH agreed to analyze the issue. We learned the thirty dollar per hour rate
for lifer attorneys had remained unchanged for roughly ten years and that the BPH was
having difficulty funding attorneys for this work both in general and in certain
geographical areas of the state (central valley and southern desert). When compared to
similar markets (e.g. counties, public defenders), we found that our thirty dollar an hour
rate was below market. Our survey suggested a fair and competitive market rate would
approximate fifty dollars per hour. The BPH recommended this increase as part of the
state's budget proposal. The CDCR concurred and forwarded the recommendation to
the Department of Finance for consideration.
24. BPH had a salary structure that gave little incentive for deputy
commissioners to seek promotion to the supervisor level because they
receive a more generous retirement than their supervisors (2.5% at 50 and no
deductions for social security as opposed to 2% at 55 with deductions for
social security) that results in several hundred dollars monthly less take
home pay. Has this problem been addressed? Are there other issues of
salary compaction at BPH? Please explain.
The BPH salary compaction problem between Deputy Commissioners and their
supervisors has existed for approximately eight years. BPH and CDCR recently
proposed a number of options to remedy the problem and we are actively working with
DPA on a viable solution.
25. How is the quality of attorney representation monitored for both parole
revocation and parole suitability hearings?
In the revocation process the BPH has a contract with the McGeorge School of Law to
provide attorney representation for parolees statewide. The division of McGeorge that
provides the attorneys is called the California Parole Advocacy Program (CalPAP). The
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Senate Rules Committee December 29, 2008
Martin N. Hoshino
Page 23 of 23
contract between McGeorge and the BPH requires CalPAP to be responsible for the
training and oversight of the attorneys to ensure quality representation to parolees
during the revocation process.
Respectfully submitted,
Martin N. Hoshino, Executive Officer
Board of Parole Hearings
144
Arnold Schwarzenegger, Governor
The California Managed Risk Medical Insurance Board Board Members
_ _ n-rert Clifford Allenby, Chair
PO BOX 2769 Areta Crowell, Ph.D.
Sacramento, CA 95812-2769 Richard Fi3ueroa
_, ,„*!, , *„„,- Sophia Chang, M.D., M. P. H
Phone: (916)324-4695
r- /r\A^\ oo>i Ao-tn Ex Officio Members
Fax: (916)324-4878 jackcampana
Kimberly Belshe
Dale E. Bonner
December 15, 2008
Honorable Darrell Steinberg, Chair Senate itetes Commitfefe
Senate Rules Committee , fi .,fin«
State Capitol, Room 420 DEC (xm
Sacramento, CA 95814
Dear Senator Steinberg:
Thank you for considering my reappointment to the Managed Risk Medical Insurance
Board (MRMIB). I have enjoyed serving two Governors, the Insurance Commissioner
and the people of California in that capacity. I have endeavored below to answer the
questions posed to me by the Rules Committee.
Goals
1. You have a long history of working for and with MRMIB. For five years you were
deputy director at MRMIB, and previously attended MRMIB meetings representing
Insurance Commissioner John Garamendi as a voting member. Please provide us
with a brief statement of your goals. What do you hope to accomplish during your
four-year term as a board member of MRMIB? How has MRMIB changed over the
years from its initial formation and the creation of HFP?
I have been honored to both work at MRMIB and serve on the Board these last five
years.
As you know, MRMIB is frequently looked to for its policy expertise in the health
insurance area and, as important, its facile and prompt implementation and smooth
operation of its health insurance programs. One of my primary goals is to sustain this
capacity during the difficult period of the state's fiscal impairment. Another long
standing policy of the Board is to provide guidance to staff from the perspective of good
government. While there are appointees on the Board from the Governor, the Senate
and the Assembly, the Board works very effectively as a team because the members all
have the same goal; ensuring that our programs provide cost-effective, high quality
coverage to our subscribers. I will continue to work in this co-operative, principled
partnership as we seek to enroll all eligible children into Healthy Families. It is also my
goal to achieve universal coverage for children and to implement comprehensive health
insurance reform such that the necessity for the Major Risk Medical Insurance Program
ceases to exist.
145
Honorable Darnell Steinberg, Chair
Senate Rules Committee
December 15, 2008
Page 2
I think the Board's role and philosophy has been consistent over the years. While its
program responsibilities and staffing has grown, it has always focused on providing
cost-effective, quality health care using the latest technology (delivery practices and
medical homes). And it has always sought to be a voice for covering the uninsured, a
role it takes very seriously.
2. What do you see as the biggest challenges before the board?
I am hopeful that as California and the country continue to wrestle with the need to
enact comprehensive health reform, MRMIB will be able to be of service. I was, of
course, disappointed by the failure of AB 1X and had looked forward to the Board's role
in implementing many of its provisions. AB 1X presented many implementation
challenges but I felt that the Board would have been able to handle the challenges
effectively. The Board's public decision-making forum, the fact that Board members
have the confidence of the Legislature and the Governor, and the Board's track record
of listening to all but making timely decisions would have produced a good result. In the
context of the Board's current programs, I especially valued the provisions of AB 1X
that would have eliminated the need for a separate program for medically uninsurable
people and covered all children.
In addition, as all of the Board's programs are heavily dependent on state funding, the
state's fiscal crisis may mean that the programs will struggle for sufficient funding. Of
course this is the case for all of the state's General Fund supported programs, but
having to manage programs without additional funds will be a major challenge.
SCHIP
3. How much would SCHIP need to be increased if the costs of California's current
HFP and AIM and expected program growth were to be covered?
The amount of SCHIP needed will vary depending on the reauthorization period. The
California Health Care Foundation contracted with Harbage Consulting to update a
report released last spring titled Funding California's SCHIP Coverage: What Will It
Cost. Harbage Consulting is currently updating the figures included in that report which
is scheduled for release early in 2009. According to the first report, the estimated
federal contribution needed for Healthy Families Program (HFP) is between $4.7 billion
to $5.7 billion over the next five years. This amount reflects federal dollars only and is
based on HFP costs per child, the growth in enrollment, and the costs for severely
emotionally disturbed children and other programs funded through S-CHIP dollars. . It
was Mr. Harbage's assessment that the first bill vetoed by President Bush, referred to
as CHIPRA, would have provided this level of funding to California.
146
Honorable Darrell Steinberg, Chair
Senate Rules Committee
December 15, 2008
Page 3
The estimated amount needed for the Access for Infants and Mothers (AIM) is between
$566 million to $695 million in federal funding over the next five years. This amount is
based on the growth in payment rates and enrollment. Funds needed for AIM were
included in the CHFC report.
The Board will continue to advocate the appropriate amount to fulfill its long-term
enrollment projections.
4. Has the board taken any position regarding SCHIP reauthorization? Is it working
with the Governor's office or the California Congressional delegation on
reauthorization or looking into other options to address the shortfall?
The Board has taken a very active role in working for SCHIP reauthorization. It solicited
assistance from the California Health Care Foundation for an analysis of California's
funding requirements. Harbage Consulting, which issued this analysis last May, is in
the process of updating the figures right now as noted above. MRMIB's Executive
Director is part of the SCHIP Director's workgroup on reauthorization. Representing by
far the largest SCHIP program in the country, she has testified before Congress and
conducted several briefings with Congressional staff. In January, she will be speaking
on SCHIP to new Congressional staff at the National Health Policy forum. She
participates in periodic meetings with California advocates and stakeholders who are
tracking SCHIP reauthorization. I would add that the Governor himself has been very
involved in ensuring that California's interests are addressed in SCHIP reauthorization.
Healthy Families Program
5. How much has recent caseload growth differed from the board's original estimated
caseload? Does HFP have any historical data to draw from the estimate caseload
in recessionary times?
The most recent budget estimates assumed enrollment of 905,486 as of June 30,
2009. This included an expected caseload reduction of 30,362 children due to the
implementation of a premium increase for families with incomes above 150 percent of
federal poverty level (FPL). Research has documented caseload decreases when
premiums were increased. However, given the severe decline in the economy, it is not
known whether or not this enrollment decline will occur. The caseload estimate without
the projected decrease would have been 935,848.
MRMIB has historical HFP caseload data going back to its inception, but MRMIB has
never done an analysis examining caseload during times of recession. There does not
appear to be consensus on when California's economy was in a recession.
http://Recession.org indicates that the most recent recessions were: April 2000 to
147
Honorable Darrell Steinberg, Chair
Senate Rules Committee
December 15, 2008
Page 4
October 2001 and October 2008 to present. Another source indicates that the most
recent recessions were March 2001 to November 2001 and December 2007 to present.
During the period April 2000 to October 2001 , HFP caseload increased from 271 ,738 to
489,257 children (an 80 percent increase). It is unclear what percentage of this growth
was due to the recession or the fact that there was a significant media budget and
campaign underway at that time and that the program was still relatively new. Between
December 2007 to November 2008, HFP experienced caseload growth from 866,031 to
894,009 children (a 3.2 percent increase). As a result, it is hard to draw any
conclusions (yet) from the available data.
6. Although the board is required to operate HFP within its budget, it is not precluded
from requesting additional funds from the Governor. Has the board discussed any
other options for funding?
The Board directed the Executive Director to assess and pursue alternate funding
possibilities. The Board worked closely with the California Health and Human Services
Agency to seek funds from the California First Five Commission. Thankfully, the State
First Five Commission voted to provide the funding necessary to forestall a waiting list
in this fiscal year. Additionally, two members of the Board, Doctors Chang and Crowell,
sent the Governor and the Legislative leadership a letter requesting assistance so that
the Board did not have to establish a waiting list.
Major Risk Medical Insurance Program
7. Historically, MRMIP has been funded annually with $40 million of Proposition 99
funds, but the program has had ongoing waiting lists. This year Proposition 99
funding was reduced to $36 million. With the additional $10 million from the
Managed Care Administrative Fines and Penalties Fund, what does MRMIB
estimate will be the number of subscribers it will be able to enroll? Will this
additional funding eliminate the waiting list? What does MRMIB estimate the level of
transfer will be from the Managed Care Administrative Fines and Penalties Fund for
the next five years?
Due to declining Proposition 99 revenues, the proposed 2008-09 Governor's Budget did
reduce funding for the Major Risk Medical Insurance Program (MRMIP) to $36 million.
However in the May Revision, the proposed funding level for MRMIP was increased by
$2.9 million. This action was approved by the Legislature and resulted in a total of
$38.9 million for MRMIP in 2008-09.
148
Honorable Darrell Steinberg, Chair
Senate Rules Committee
December 15, 2008
Page 5
The $10 million transferred to MRMIP as a result of SB 1379 (Ducheny) allowed
MRMIB to offer slots to 91 5 (all) potential subscribers who were on the wait list as of
October 2008. However, the wait list immediately started rebuilding.
At the Board's November 18, 2008 meeting, the Board set the MRMIP enrollment cap
based on an analysis PricewaterhouseCoopers (PwC) conducted using the most recent
enrollment and cost information. PwC recommended that MRMIP enrollment
immediately return to an enrollment level of 7,100 through normal population attrition
once the enrollment from the 915 offers had occurred. PwC further recommended that
no additional slots be offered beyond the 915 unless needed to sustain the 7,100
enrollment target. As of December 7, 2008, 213 individuals were waitlisted due to the
enrollment cap.
SB 1379 provided a one time transfer of $10 million to MRMIP. In future years,
however, SB 1379 provides for the transfer of any DMHC fine revenues that exceed $1
million to MRMIP annually each September. The table below shows the history of fine
revenue collected by DMHC in past years:
Fiscal Year
Fines
Collected
Fine Revenue
Over $1 million
2000-01
$ 409,000
0
2001-02
$ 640,000
0
2002-03
$2,116,000
$ 1,116,000
2003-04
$ 779,000
0
2004-05
$ 1,141,000
$ 141,000
2005-06
$ 965,000
0
2006-07
$ 3,907,000
$ 2,907,000
2007-08
$7,018,000
$ 6,018,000
2008-09
$13,000,000
$12,000,000**
'SB 1379 actually transferred $10 million
o MRMIB in 2008-09
There is no way to predict what DMHC fine revenues might be available to MRMIB in
the future. A simple average would indicate that had this bill been in place, MRMIB
would have received an average of $2.5 million in fines over the past nine years.
However, the fine revenue collected in 2008-09 is twice the amount ever collected due
to the unusual circumstances surround the HMO rescission issues. Therefore, an
average of the previous eight years would be $1 .3 million. The real solution is to enact
the Governor's proposal to offer guarantee issuance of individual coverage coupled with
an individual mandate so that persons with high-risk conditions do not have to rely on
declining (tobacco tax) or unstable (fines) funding sources to assist in spreading their
medical risk.
149
Honorable Darrell Steinberg, Chair
Senate Rules Committee
December 15, 2008
Page 6
5. The Governor vetoed AB 2 (Dymally) that would have stabilized MRMIP by creating
two new funding sources for the program. AB 2 would have required carriers in the
individual health insurance market to accept for coverage all persons assigned to
them for MRMIP or pay a fee, and included program changes to enable MRMIP to
be eligible for federal funds. MRMIB took a support position on AB 2. Will you, as a
board member revisit this issue in 20091
I am immensely concerned that persons wishing to purchase coverage in the individual
market are left uninsured because they have a condition viewed as risky by an insurer.
The rest of the Board and I will revisit this or any other proposal as put forth by the
Governor or the Legislature. The bottom line is that the Board stands for coverage of
all individuals and will carefully review any and all means of achieving this goal.
Thank you again for your consideration of my re-appointment to the Managed Risk
Medical Insurance Board. I am available to answer any questions.
Respectfully,
Richard Figueroa v
Board Member
150
California Legislature
MEMBERS
GREGORY SCHMIDT
SAMAANESTAD /^SiSS^'V secretary op the senate
vice-chair £5?Ml2§W$^ NETTIE SABELHAUS
APPOINTMENTS DIRECTOR
GILBERT CEDILLO
ROBERT DUTTON
JENNY OROPEZA
December 18, 2008
Senate Rules Committee
DARRELL STEINBERG
CHAIRMAN
Hon. John P. McGinness
Sacramento County Sheriffs Department
711 G Street
Sacramento, CA 95814
Dear Sheriff McGinness:
The Senate Rules Committee will conduct a confirmation hearing on your appointment
as a member of the Commission on Peace Officer Standards and Training (POST) on
Wednesday, January 14, 2009. You are not required to appear, but we request that you
respond in writing to the following questions. Please provide your responses by January
6, 2009.
We would also like to receive an updated Form 700, Statement of Economic Interest, by
January 6th.
Goals
1. Please provide us with a brief statement of your goals. What do you hope to
accomplish as a member of the commission? How will you measure your success
in meeting these goals?
Background
After your election as Sacramento County Sheriff in June 2006, you made a number of
changes in the Sacramento County Main Jail. Among your actions you:
■ Pushed for an inspector general to provide independent oversight of the
Sacramento County Sheriffs Department;
Overhauled the Main Jail's command structure by putting the department's legal
advisor in charge;
STATE CAPITOL • ROOM 420 • SACRAMENTO, CALIFORNIA 95814-4900 • (916)651-4151 • FAX (916) 445-0596] 5^-
John P. McGinness
December 18, 2008
Page 2
Appointed a community liaison to help inmates and their families negotiate the
system;
Opened the jail to public tours: "I want a jail with glass walls," you said of your goal
of making jail operations "transparent."
2. What lessons from your own experience as sheriff, especially in overseeing the jail,
are useful as you help shape statewide law enforcement standards?
POST Background
POST was established by the Legislature in 1959 to set minimum selection and training
standards for California law enforcement. It consists of 14 members appointed by the
Governor, plus the Attorney General. The POST organization, with more than 130 staff
members, functions under the direction of an executive director appointed by the
commission. POST coordinates a comprehensive training program, with hundreds of
certified courses.
One major issue is recruitment of new officers. "For several years, California law
enforcement professionals and POST academy directors have expressed concerns for
the difficulties they are having in recruiting qualified police officer candidates. POST
provides various recruitment-related assistance," according to the POST web site. In
2007 the Contra Costa Times reported that there were 15,000 vacancies among the
95,000 budgeted peace officer jobs in California.
3. Please spell out the role the commission is playing to help departments recruit
qualified candidates. Do you see a wider role for the commission in publicizing the
need for police personnel?
4. The commission has considered raising entry-level qualifications to become an
officer. What is the status of these discussions? If it is done, how would the change
affect recruitment?
5. Are any efforts underway to diversify law enforcement agencies? If so, please
describe.
152
John P. McGinness
December 18, 2008
Page 3
Employment
The commission's strategic goals state: "The costs associated with subpar employee
productivity, turnover, and counter-productive behavior are substantial, both from a
monetary and public safety standpoint."
6. What steps have you taken to help departments weed out potentially subpar
employees before they are hired? What sort of training is available on this topic?
Training
In a July 18, 2008, memorandum, POST Executive Director Paul Cappitelli said that
while POST'S budget has remained relatively flat, the number of trainees for whom
agencies could seek reimbursement climbed from 54,000 in 2003 to more than 68,000
in 2007, a 25.9 percent jump. "With no commensurate increase in revenues, this trend
cannot be sustained," Cappitelli said.
7. How is this impacting your training programs? Are you encouraging agencies to
utilize more online courses?
8. One of your goals has been to develop a distance learning plan for delivery of
Web-based training. What progress have you made toward this goal?
9. Some information on the POST Web site was last updated in 2007. Given an
expected increase in Web use, what plans do you have to regularly update the
Web site?
Please send your written answers to these questions to Nettie Sabelhaus, Senate Rules
Committee Appointments Director, Room 420, State Capitol, Sacramento, CA 95814.
Thank you for your help.
Sincerely, / "*)
DARRELL STEINBERG ^
DS:MG
cc: Commission on Peace Officer Standards and Training
153
John McGinness Responses
1 . My goal as a POST Commissioner is to continue the enhancement of the public image and
professionalism of California law enforcement. We are in a very sensitive period of time in which
we are suffering from diminishing resources and rampant turnover in the ranks of law
enforcement professionals. If we fail to consider the totality of these factors in planning the future
training and educational requirements, as well as fundamental needs in that regard, we will most
certainly compromise the extent to which future generations of Californians will enjoy quality of lif
2. The veil of secrecy that has been the traditional model in law enforcement no longer works. The
reality is the media and the public, especially members of special interests groups, demand to
know what goes on within law enforcement agencies. The greater the resistance to
transparency, the greater the likelihood of runaway perception of wrongdoing. The greatest
casualty to such a practice within the law enforcement is the dedicated professionals who do
good work yet have their reputations sullied by innuendo. We owe it to our personnel to create
an environment that is open to the public, to the extent allowed by law and appropriate sensitivity,
and fosters an element of confidence and trust on the part of the public.
3. The issue of effective recruitment has changed dramatically in the last few months. As a result of
the fiscal crisis of late 2008, many qualified people have taken an interest in the law enforcement
profession. During the economic boom time, however, a large segment of qualified people
resisted law enforcement work for a number of reasons. Much of the resistance could no doubt
be attributed to shift work and challenges associated with meeting the high standards critical to
the appropriate practice of our profession. However, it has been my belief that the controversial
nature of police work and the image of our profession as portrayed by the media, had a significant
detrimental impact on hiring efforts. Notwithstanding the fact that we seemed to have evolved
back into an era in which a strong interest in police work exists, we are well advised to look
forward to the inevitable day when concerns about image discourage participation on the part of
good candidates. Clearly, the best way to address that is through continued high standards and
working with the media and the public in a way which showcases the good work of our officers
and professional staff.
4. Given the current trends in terms of increased interest in law enforcement, I believe increasing
the entry-level qualifications is worthy of consideration. With that in mind, due consideration must
be given to ways to enhance the image of law enforcement long after the job marked stabilizes
and employment opportunities become readily available.
5. In my practice, we have sought to create a law enforcement agency which represents the
community we serve, in terms of ethnic make up. While we have made significant strides, there
continues to be room for improvement. The success we have had, and that which I believes to
be most effective, is engaging in the community to encourage interest. At the risk of being
redundant, the ever important issue of image is also critical in this regard. If the perception of law
enforcement in the minority community is that police are oppressive and corrupt, highly qualified
members of diverse communities are not likely to seek employment. If however, we are effective
in illustrating the talent that exists within our ranks, the interest on the part of highly qualified
candidates is likely to grow.
6. In my department we have taken extra steps to ensure the candidates for employment in peace
officer positions are screened far beyond the extent required by law. Canvassing neighborhoods
where candidates work and live has been a very effective tool in identifying behavioral trends in
individuals that indicates a predisposition for anger management issues, hostility, homophobia or
racism far more effectively than merely relying upon those references listed by the applicant.
7. We absolutely encourage our staff to participate in on-line training as well as semester courses or
certificate courses offered at colleges and universities. We suffer from the same root fiscal
154
concerns as POST. However, we make reasonable effort to accommodate scheduling challenge
and other resources to accomplish such critical educational pursuits. The exchange for our
accommodation is that personnel are expected to share the benefit of their enhanced knowledge
with their colleagues.
We have collaborated very effectively with CSU Sacramento and implemented an on-site
Bachelor in Vocational Arts Degree program. The program has been very effective and has been
published in education periodicals. The first band of students was limited to our own personnel.
However, we have opened up to allied law enforcement agencies throughout the region. It has
elevated our educational and professional profile as a law enforcement agency.
Recognizing the fact that Web based communication is extraordinarily popular, we should make
every effort to update our Web Site consistent with Commission Meetings as well as periodically
given the fluid nature of our business and related factors such as the economy. The rapid rate at
which major developments have occurred in the past year is very critical. We will serve our
constituency much more effectively if we reflect that pace.
155
156
California Legislature
MEMBERS
GREGORY SCHMIDT
SAM AANESTAD /^tflMB^h secretary of the senate
vice-chair M£&V&5W®ti\ NETTIE SABELHAUS
APPOINTMENTS DIRECTOR
GILBERT CEDILLO
ROBERT DUTTON
JENNY OROPEZA
Senate Rules Committee
DARRELL STEINBERG
CHAIRMAN
December 18, 2008
Gil Van Attenhoven
Dear Mr. Van Attenhoven:
The Senate Rules Committee will conduct a confirmation hearing on your appointment
as a member of the Commission on Peace Officer Standards and Training (POST) on
Wednesday, January 14, 2009. You are not required to appear, but we request that you
respond in writing to the following questions. Please provide your responses by January
6, 2009.
We would also like to receive an updated Form 700, Statement of Economic Interest, by
January 6th.
Goals
1. Please provide us with a brief statement of your goals. What do you hope to
accomplish as a member of the commission? How will you measure your success
in meeting these goals?
Background
You have served since 1984 in various positions with the California Department of
Justice, and are currently a senior special agent who manages, directs, and implements
narcotic and law enforcement training programs for the Advanced Training Center.
2. What lessons from your own experience in the Department of Justice are useful as
you help shape statewide law enforcement standards?
— STATE CAPITOL • ROOM 420 • SACRAMENTO, CALIFORNIA 95814-4900 • (916)651-4151 • FAX (916) 445-05961^
Gil Van Attenhoven
Date
Page 2
POST Background
POST was established by the Legislature in 1959 to set minimum selection and training
standards for California law enforcement. It consists of 14 members appointed by the
Governor, plus the Attorney General. The POST organization, with more than 130 staff
members, functions under the direction of an executive director appointed by the
commission. POST coordinates a comprehensive training program, with hundreds of
certified courses.
One major issue is recruitment of new officers. "For several years, California law
enforcement professionals and POST academy directors have expressed concerns for
the difficulties they are having in recruiting qualified police officer candidates. POST
provides various recruitment-related assistance," according to the POST Web site. In
2007 the Contra Costa Times reported that there were 15,000 vacancies among the
95,000 budgeted peace officer jobs in California.
3. Please spell out the role the commission is playing to help departments recruit
qualified candidates. What impact has the nation's slowing economy had on
recruitment of officers? Do you see a wider role for the commission in publicizing
the need for police personnel?
4. The commission has considered raising entry-level qualifications to become an
officer. What is the status of these discussions? If it is done, how would the change
affect recruitment?
5. Are any efforts underway to diversify law enforcement agencies? If so, please
describe.
Employment
The commission's strategic goals state: "The costs associated with subpar employee
productivity, turnover, and counter-productive behavior are substantial, both from a
monetary and public safety standpoint."
6. What steps have you taken to help departments weed out potentially subpar
employees before they are hired? What sort of training is available on this topic?
158
Gil Van Attenhoven
Date
Page 3
Training
In a July 18, 2008, memorandum, POST Executive Director Paul Cappitelli said that
while POST'S budget has remained relatively flat, the number of trainees for whom
agencies could seek reimbursement climbed from 54,000 in 2003 to more than 68,000
in 2007, a 25.9 percent jump. "With no commensurate increase in revenues, this trend
cannot be sustained," Cappitelli said.
7. How is this impacting your training programs? Are you encouraging agencies to
utilize more online courses?
8. One of your goals has been to develop a distance learning plan for delivery of
Web-based training. What progress have you made toward this goal?
9. Some information on the POST Web site was last updated in 2007. Given an
expected increase in Web use, what plans do you have to regularly update the
Web site?
Please send your written answers to these questions to Nettie Sabelhaus, Senate Rules
Committee Appointments Director, Room 420, State Capitol, Sacramento, CA 95814.
Thank you for your help.
Sincerely,
DARRELL STEINBERG
DS:MG
cc: Commission on Peace Officer Standards and Training
159
160
(£| Van f+HenhtM
1 . As a member of the POST Commission, one of my fundamental goals is to raise
the standards for the selection of peace officer candidates. With the state of the
current economy and the layoffs of numerous employees in the private sector,
law enforcement agencies are going to see an increase in peace officer
candidate applications. The Los Angeles Police Department (LAPD) is even
advertising their police officer positions as being recession proof. This caused a
117% increase in police officer candidate applications from December 2007 to
December 2008. The LAPD saw the number of applicants taking the written test
increase from 401 persons to 870 persons.
During this critical time, it is important that law enforcement agencies maintain or
raise their hiring standards and not settle for sub-standard candidates. POST has
already developed a candidate pre-assessment package for prospective peace
officer candidates and a candidate information page on their website.
As a member of the commission, I hope to continue to increase the quality of
training made available to CA peace officers. With the reduction in budgets,
sometimes training is the first area cut in many agencies. In my 28 (+) years in
law enforcement, I have had the opportunity to travel throughout the United
States and participate in training programs to numerous local and state law
enforcement officers. California peace officers consistently receive more training
and higher quality training than officers in other states in the country. One of my
goals would be to ensure that officers continue to receive the training they need
and require.
One way to measure the success in meeting these goals would simply be to
check POST records to determine the number of officers that attended POST
certified training classes during Fiscal Year 2008/2009.
2. As stated in the previous paragraph, I have over 28 years of law enforcement
experience, working at first for a local agency and now with the California
Department of Justice. In my role with the CA Department of Justice, I am
responsible for narcotic and law enforcement training programs, whereby we
present courses to local, state and federal law enforcement officers throughout
California. Last year our unit trained over 6,000 officers. I have also had the
opportunity to travel throughout the United States and meet with officers from
other parts of the country and compare training courses and programs. I firmly
believe that California law enforcement officers receive the finest training
available, and that is due to the standards set forth by the POST Commission.
My role with the CA Department of Justice has helped prepare me to recognize
quality training programs and I would utilize that experience when voting on
POST Commission issues.
Senate Rotes Commits
fjAN i ■■') y\m
161
3. The POST commission has been addressing recruitment issues for the last
several years and the topic is currently part of POST'S Strategic Plan. POST has
conducted five recruitment symposiums during the last ten years. Each
symposium involved presentations by subject matter experts regarding
recruitment and retention issues. These symposiums were attended by
representatives from several hundred law enforcement agencies.
The slowing economy has led to an increase in peace officer applications, as
evidenced by the increase in police officer applications for the Los Angeles
Police Department. The slowing economy has also led to peace officer layoffs,
and hiring freezes by many law enforcement agencies.
POST can assist law enforcement agencies with recruitment by providing
recruiter training, enhancing the POST website to reflect career opportunities,
develop best practices on recruitment, and provide pre-academy preparation
materials for peace officer candidates. Most law enforcement agencies have a
pro-active recruitment program in place due to a large number of vacancies
because of retirements. Some of the issues concerning the difficulty in filling
those vacancies are due to a lack of qualified candidates and the length of time it
takes to complete the hiring process.
4. The commission addressed the issue of raising entry-level qualifications to
become a peace officer in the 2006 Strategic Plan. There were three objectives
that covered this concern:
• Study the feasibility of raising the entry-level education requirement above
a high school education or GED.
• Study the feasibility of raising entry-level reading and writing requirements.
• Study the feasibility of requiring reading and writing testing for entry into
the basic academy.
The status of the discussions are:
• The commission approved staffs recommendation to not raise the
education requirement because of the negative impact it would have upon
law enforcement recruitment.
• The commission approved staffs recommendation to not raise the entry-
level reading and writing requirement because of the negative impact it
would have upon law enforcement recruitment.
• The commission approved the staffs recommendation to not establish a
reading and writing requirement for entry into an academy.
162
After reviewing the feasibility discussions, the commission believed that the
elevation of selection standards for peace officer candidates would be
detrimental to recruitment efforts of law enforcement.
5. POST conducted several surveys during the last eight years and determined that
for many law enforcement agencies there continues to be a need and interest in
ensuring that agencies reflect the diversity of the communities they serve. POST
however, does not have a direct role in the hiring decisions made by law
enforcement agencies. POST staff did work with subject matter experts and law
enforcement agencies as well as human resource professionals to develop best
practices that agencies can use in addressing the need to increase diversity
within law enforcement agencies.
6. POST has conducted statewide research regarding the selection and training
standards for entry-level peace officers. This has included the development of
valid selection tests used by law enforcement agencies to identify qualified
candidates. The POST Commission also developed written and performance
based tests to assess the knowledge and skill levels of all peace officer trainees
in all of California's POST certified Basic Recruit Training Academies.
This helps ensure that the best possible candidates are hired by law enforcement
agencies. This also makes certain that all standards and procedures are job-
related and will hold up in court if challenged. POST staff also works closely with
California Basic Recruit Training Academies to ensure that the trainees master
the skills and knowledge required to become a peace officer.
POST does not make the hiring decision, but the commission does provide
resources to law enforcement agencies that assists them in making hiring
decisions. POST provides this assistance through reading tests, writing tests,
background investigation procedures, and medical screening guidelines.
POST has established several basic training and assessment programs and
projects that are designed to identify and screen qualified candidates. These ten
programs are:
• On-going Basic Course Delivery Functions
• On-going Basic Course Cognitive Testing Program
• On-going Scenario Testing Program
• On-going Basic Academy Physical Conditioning Program
• Competency-based Training and Assessment Project
7. In July 2008, the POST Commission reduced the number of reimbursable
Continuing Professional Training (CPT) hours for California peace officers to 40
hours per fiscal year. This was due to a $2 million reduction to POST'S
163
2008/2009 Fiscal Year budget. The impact of this ruling has reduced the number
of attendees in many of the Advanced Training Center's (ATC) courses. During
Fiscal Year 2007/2008, the ATC trained over 6,900 officers and we anticipate a
reduction in the total of officers we will train during fiscal year 2008/2009.
The POST Commission is encouraging law enforcement agencies to utilize
online courses. For example, the commission developed a First Aid/CPR course
that is available through the POST Learning Portal. Many agencies are now
utilizing this tool to certify their officers in First Aid/CPR.
8. POST has made excellent progress in the area of Web-based training programs.
The POST Commission currently has five Computer Based Training Courses
through the POST Learning Portal and there are others in the development
stage.
There are over 17,500 registered users for the Learning Portal. There have been
over 16,300 users that have completed training courses through the portal and
there have been over 20,300 resource downloads through the portal. I believe
the statistics show that the POST Learning Portal is a successful program.
9. POST made changes to their website last year and the website is current. If you
were to log on to the POST website at www.post.ca.gov you will find a current
site that lists events for January 2009. The site has been revised and it is easier
to navigate and was last updated on December 30, 2008. The commission will
ensure that the website is regularly updated and will remain current.
164
July 16,2008
Nettie Sabelhaus
Rules Committee Appointment Director
Room 420, State Capital
Sacramento, California 95814-4900
Dear Ms. Sabelhaus:
In response to your letter of July 14, 2008, please find below my responses to the
questions posed by the Senate Rules Committee. It is my understanding that the
hearing will occur on August 13, 2008, and that I am not required to appear.
Role of the State Bar
The State Bar is governed by a 23 -member Board of Governors (BOG), with six
public, non-attorney members. The Board of Governors establishes policy and
guides the operation of the State Bar. The State Bar is the administrative arm of
the California Supreme Court in matters involving the admission, regulation, and
discipline of attorneys. Californians rely on the State Bar to protect them from the
unethical or unauthorized practice of law and to help uphold and improve the
justice system.
Goals
/. Please provide us with a brief statement of goals. What do you hope to
accomplish during your time on the State Bar Board of Governors? How will
you measure your success?
As one of the Public Members of the Board I see my role as advocate of the
public interest and protection against illegal and improper practice of law in
California. Since my arrival on the Board, my focus has been concentrated on
public protection issues. This has become the common goal of the Public
Members. My previous experience on the Committee of Bar Examiners and my
many years of service on Corporate Boards has given me an accelerated start as a
new member. I hope that during my term I will help to bring balance and fiscal
responsibility for the citizens of California. As we move forward, I would like to
see the Bar become respected and trusted, not only by the public, but also by its
own members. This is critical to the support it receives from the State of
California. Member oversight must be fair and balanced for this to happen. My
success on the Board will be best measured by how the Legislature views the
State Bar at the expiration of my term.
2. How will the 14 years you have served on the State Bar Committee of Bar
Examiners help you in your new role on the State Bar Board of Governors?
Senate Rules Committee
AUG 0 5 2008
165
Appointments
Senate Rules Committee
July 16, 2008
Pages 2 of 4
During the 14 years I served on all of the committees of the Examining
Committee, the majority of my time was spent on the Operations and
Management Committee and the Moral Character Committee. The insight I
gained from the many Informal Conferences and the difficult struggles during the
darkest days of the Bar and its budget gave me a vast amount of experience
during a very difficult time. Proposing and implementing a three year plan to
bring the Committee back from the brink of financial collapse was my greatest
challenge. My service on the Moral Character Committee gave me a great amount
of understanding for the difficulties faced by applicants who were not fortunate
enough to attend an ABA school. This experience has allowed me to jump start
my service on the BOG. Knowledge of fundamentals and structure of the Bar has
allowed me to solidify relationships with employees of the Bar and the members
of the Board of Governors.
Disclosure of Professional Liability Insurance Proposal
How does the State Bar propose to enforce the attorney disclosure requirement?
How will the Board of Governors be kept informed of enforcement efforts?
In May of this year, after a three year process, the board voted to recommend a
proposed new Rule of Professional Conduct to the Supreme Court. The Supreme
Court will ultimately decide whether to approve the proposal, alter it or reject it.
Under the proposed rule, a lawyer who does not carry professional liability
insurance must disclose that to a client (a) in, writing, (b) at the time of
engagement and (c) if the representation will exceed four hours. Although the
proposed new rule represents a compromise, I supported this rule because I
believe it strikes an appropriate balance between the consumer's right to know
whether their attorney is covered by insurance and realities of the attorney-client
relationship.
If the Supreme Court approves the proposed new rule, the insurance disclosure
requirement would be in a new Rule of Professional Conduct. The rule would
require disclosure of the absence of insurance directly to the client, and not to the
State Bar. The rule would be enforced like the other rules of professional conduct.
If a client complained to the State Bar about a violation of the rule, investigation
and enforcement would begin. If charges are brought against an attorney, that will
become a matter of public record. The Board of Governors could also ask for
confidential reports relating to the investigation of alleged violations of the
particular rule, and receive periodic reports so it could monitor enforcement
efforts relating to the new rule. While the proposal will increase the work of the
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Senate Rules Committee
July 16, 2008
Page 3 of 4
Regulations, Admissions and Discipline Committee (RAD), which I serve on, I
view it as another step toward consumer protection.
4. What is the State Bar doing to help make professional liability insurance more
affordable and available to attorneys, particularly small firms and solo
practitioners?
I have been informed by State Bar staff that the Bar has made every effort to
make the coverage available and affordable to sole practitioners and small firms.
The State Bar sponsors a Professional Liability Insurance program which is
designed for small firms and solo practitioners. The State Bar's program is
managed by a group of volunteer attorneys through a committee of the Bar
(COPLI) who review the program at quarterly meetings. Each of the committee
members are experts in the professional liability business. Malpractice insurance
in California is not easily obtainable and affordable, so the State Bar has
developed a program which is managed by Lawyer's Mutual, and insures several
thousand members, most of whom are solo or small firms. The affordability issue
is always an issue with each professional occupation in California. As the number
of insured's increases, assuming claims stay the same, the premium will decrease
for new applicants. Due to all policies being written on a "Claims Made" basis,
premiums for in force policies will increase each year due to the extended periods
an insurer is exposed. Volume and claim management will significantly improve
the affordability issue.
Access to Justice
5 With an influx of almost one million dollars this year to help increase access
to justice, how does the State Bar plan to allocate these funds? What factors
would you consider in prioritizing the granting of these funds!
The support of the legal community for the new Justice Gap Fund has been
extremely heartening, and the Bar is indebted to members of the task force that
worked hard to set up the Fund.
When AB 2301 was enacted, it called on the Bar to establish the task force, with
input from the legislature and the Supreme Court, to make a recommendation to
the Board of Governors about how to implement the legislation. The bill was
signed in September of 2006, and by the next month, the Bar had already set up
the Task Force on Lawyer Support for Legal Services.
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Senate Rules Committee
July 16, 23008
Page 4 of 4
That Task Force deliberated over the next few months, received input from all
relevant stakeholders, and recommended an implementation policy to the Board
of Governors by July of 2007. With regard to who would be the recipients of the
new funds, the Task Force recommended, and the Board of Governors concurred
that the funds be distributed through the State Bar's Legal Services Trust Fund
Program. Further, the policy recommended that the funds be distributed using the
same statutory formula as the Interest on Lawyer Trust Account (IOLTA)
Program.
The Board of Governors determined that it was best to use the statutory formula
so that they would be evenly distributed throughout the state, based on the poverty-
population. Thus, nearly 100 local legal services programs that are eligible
recipients of the Trust Fund Program will use the Justice Gap Funds to serve the
low-income clients in their communities.
Following their policy recommendations, the Task Force did extensive outreach
to bring the new Fund to the attention of various segments of the legal
community, resulting in the nearly $1 million in contributions. The staff and
Board at the State Bar will work hard to increase that fund in future years. I
strongly believe that all citizens should have access to legal assistance should the
need arise.
What types of legal services is most needed by the indigent in order to ensure fair
access to the justice system?
Low-income Californians need legal help in a number of ways. Families need
help when there is domestic violence and they don't know how to protect
themselves and their children. They need legal help when they face eviction, and
possible homelessness, especially when they are dealing with unscrupulous
landlords. Grandparents need help establishing guardianships. Citizens existing
just above the poverty line who are threatened by identity theft and unsavory
lenders also need help to protect there identity and credit.
168
California Legislature
MEMBERS
SAMAANESTAD
VICE-CHAIR
GILBERT CEDILLO
ROBERT DUTTON
JENNY OROPEZA
December 12,2008
Edward R. Olson
Dear Mr. Olson:
GREGORY SCHMIDT
SECRETARY OF THE SENATE
NETTIE SABELHAUS
APPOrNTMENTS DIRECTOR
Senate Rules Committee
DARRELL STEINBERG
CHAIRMAN
As you know, the Senate Rules Committee will conduct a confirmation hearing on your
appointment as a member of the California Veterans Board on Wednesday, January 14,
2009. You are not required to appear, but we request that you respond in writing to the
following questions. Please provide your responses by January 5, 2009.
We would also like to receive an updated Form 700, Statement of Economic Interest, by
January 5th.
Statement of Goals
1. What goals and objectives do you hope to accomplish duhng your tenure as a
member of the Veterans Board? How should we measure your success?
2. What experience do you bring that will be helpful to the Veterans Board?
Roles and Responsibilities
Section 72 of the Military and Veterans Code states that the California Veterans Board
shall determine the policies for all operations of the Department of Veterans Affairs
(DVA). The board also acts as an appellate body for veterans who wish to appeal a
ruling made by the department. Yet the board has few staff of its own, relying almost
entirely on DVA for its information. In June 2003 the California State Auditor issued a
report on the Veterans Board. The report noted that in February 2003, DVA tried to
challenge the board's authority and characterize the role of the board as "advisory."
3. What training have you received for your role as a board member?
STATE CAPITOL • ROOM 420 • SACRAMENTO, CALIFORNIA 95814-4900 • (916)651-4151 • FAX (916)445-059
^6^
Edward R. Olson
December 12, 2008
Page 2
4. Do you view the role of the Veterans Board as one of policy setting for DVA or
advisory? What is your experience with how the department views the board's
role?
5. Please give an example, if possible, of a policy the board has set for the
department in the time you have been a member.
The auditor's report also noted that the board lacked independent legal counsel, and
that using DVA lawyers in rulings on appeals of department decisions might introduce a
conflict of interest. At the December 7, 2006, meeting the board decided that it would
utilize the department's legal counsel when developing policy, but would conduct the
hearing on its own without legal counsel when hearing an appeal. The board would only
ask for outside independent counsel when it determined that the hearing was especially
difficult. During 2007 and most of 2008, the board did not hear any appeals because all
were settled by the department. However, at the October 2, 2008 meeting — for the first
time since the new appeals policy was instituted — the board heard two appeals.
6. Was the appeals policy adopted in December 2006 followed at the October board
meeting?
7. Has the board made, or does it plan to make, any changes to the appeals policy?
In April 2008 the California State Auditor issued a report on the Veterans Home of
California at Yountville. The report noted that, although the auditor reviewed five
complaints submitted to the board between June 2006 and December 2007, it was
unable to determine how the complaints were resolved "because neither the Veterans
Board nor Veterans Affairs could locate documentation concerning actions they took on
complaints." The report further noted that "although the Veterans Board adopted a
policy indicating the type of complaints it will process and those it will direct to Veterans
Affairs, it did not specify a time frame for resolving the complaints it will process."
8. Has the board adopted a policy specifying time frames for resolving complaints? If
so, please describe. If not, why not?
9. Has the board established procedures for tracking complaints? If so, please
describe. If not, why not?
Oversight of Existing Veterans Homes
The department operates three state veterans homes in Yountville, Chula Vista, and
Barstow. The new Franklin D. Roosevelt Annex Memory Care Center, which serves
veterans with Alzheimer's and dementia, opened at the Yountville home in fall 2007.
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Edward R. Olson
December 12, 2008
Page 3
10. How do you stay informed of living conditions and staffing issues at the veterans
homes in Yountville, Barstow, and Chula Vista?
1 1. Does the department seek the board's advice on any changes in policies with
respect to admittance of veterans to a veterans home, definitions for the levels of
care provided by the department at the homes, or other regulations that might
impact the board's authohty over the appeals from veterans who were denied
admittance to a veterans home? Please provide examples.
12. Have there been significant successes or challenges in the first year of operation of
the Yountville Memory Care Center? Is the center operating at capacity?
Construction of New Veterans Homes
The US Department of Veterans Affairs lists California as one of two states in "great
need" of additional veterans homes. Proposition 16 of 2000, placed on the ballot
pursuant to SB 630 (Dunn), Chapter 728, Statutes of 1999, along with subsequent
legislation in 2002 and 2004, made funds available to build new veterans homes in
Lancaster, Ventura, West Los Angeles, Fresno, and Redding. Construction is in
progress on the Ventura and Lancaster homes, and is slated to begin soon on the West
Los Angeles veterans home.
13. What role does the board play in monitoring funding and construction of new
veterans homes?
14. Are lessons learned from the building and inspection issues at the Yountville
Alzheimer's/Dementia Unit transferable to the construction of the new veterans
homes?
15. What are the expected completion and opening dates for each of the three new
veterans homes?
CalVet Loans
Through the CalVet Home Loan Program, DVA provides California veterans loans to
purchase farms and homes. The number of CalVet loans issued has dropped
significantly in recent years, from 2,752 loans in 2000-01, to 1,116 loans in 2007-08.
Since 1921 California voters have approved approximately $8.8 billion of general
obligation bond sales to finance the CalVet program. The department estimates that
bond proceeds will run out in 2008. Proposition 12, placed on the ballot pursuant to
SB 1572 (Wyland), Chapter 122, Statutes of 2008, was approved by voters this month
171
Edward R. Olson
December 12, 2008
Page 4
and will provide an additional $900 million in general obligation bonds for the CalVet
program.
16. How does the board monitor the CalVet loan program?
1 7. Do you believe the loan program is adequately providing California veterans with
lower cost loans? What changes, if any, would you recommend to make the
program more effective?
18. As California and the rest of the country are experiencing a housing and economic
crisis, has the CalVet Home Loan Program experienced any related problems? Do
you anticipate an increase in CalVet Home Loan applications because of the
difficulty in securing new, mortgages from traditional pnvate-sector lending
sources?
Homeless Veterans
While veterans make up 1 1 percent of the adult population, the National Alliance to End
Homelessness estimates that 26 percent of the homeless in the United States are
veterans. In California there are more than 49,000 homeless veterans.
19. What recommendations, if any, has the board given the department to try to assist
homeless veterans?
New Veterans
A RAND study published earlier this year noted that, "As a group, the veterans returning
from Afghanistan and Iraq are predominantly young, healthy, and productive members
of society. However, about a third are currently affected by PTSD (Post Traumatic
Stress Disorder) or depression, or report a possible TBI (traumatic brain injury) while
deployed."
20. Are there any policies, programs, or initiatives you believe the state should be
implementing to help the younger generation of veterans created post-9/1 1 ?
172
Edward R. Olson
December 12, 2008
Page 5
Please send your written answers to these questions to Nettie Sabelhaus, Senate Rules
Committee Appointments Director, Room 420, State Capitol, Sacramento, CA 95814.
Thank you for your help.
Sincerely,
DXRRELL STEINBERG ^
DS:ER
cc: California Veterans Board
173
174
UI/tfb/ zbtJy lZ'.za /o/yaqaiwa yuum ville. ml, urriui r«uc o^
Edward R Olson
CalVet Board Member
ZdunrcL O^Son
January 2, 2009 «
Nettie Sabelhaus o. -
Committee Appointments Director ' "T^&pO ft S^-o
Room 420 State Capitol
Sacramento, Ca 95514
Dear Nettie Sabelhaus
The following are my answers to the questions asked by the Senate Rules Committee.
Statement of Goals
1 -What goals and objectives
a) See attached current goals and objectives of the Board
b) Measure the success of the goals and objectives by a yearly review,
2-What experience do you bring
I am currently a member of the Veterans Home at Yountville. I have lived there for
three and a half years and am the Vice Chair of the Allied Council. As we are largest
Home with the most members in California and the most active Allied Council we are, I
believe, a model and guide for the other homes existing and new to follow. I have
intimate knowledge of the problems and needs of the veterans living at the home which
help to understand the problems of all veterans young and old.
Roles and Responsibilities
3 -What training have you received
As a Board Member I was sent a PowerPoint overview of the Department functions, and
received a new member binder that covers all of the Department divisions, ethics training,
Bagley Keene Open Meeting Act information, Appeal Process and the travel guidelines.
The CDVA's legal counsel also gave an overview from each division as well as meeting
individually with the executive staff.
4-Do you view the role
I believe that the Board to some degree is both Policy setting and advisory. I feel that the
Board is putting effort into becoming more active and involved in the supporting all of
the CDVA's issues with in the limits of time we are allowed,
5-Please give an example
The Board has set policy recently-See Copy of policy C-12
Senate Rales Committer
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6-Was the appeals policy
Yes the policy was followed in the October meeting.
7-Has the board made
There are no plans at this time to make changes to the appeals policy
8-Has the Board adopted a policy
Yes it has. See attached complaint procedure adopted by the Board
9-Has the board established procedures
Yes and again See attached procedure
Oversight of Existing Veterans Homes
10-How do you stay informed
We stay in formed by yearly tours of the Homes and the Secretary updates the Board at
each meeting. As I am a member of the home at Yountville and Vice Chair of the Allied
Council I am aware and involved with all the veterans living conditions which help with
the reviews of the other homes. I am currently working with the CD VA' s Deputy
Director of Homes on standardizing the Allied Councils Constitution.
1 1-Does the department seek
Yes — the Deputy Director of Homes works closely with the Board's Policy and
Procedures Committee, as well as the Committee on Homes, of which I am Chair, to
identify and discuss areas for review and revision.
12-Have there been significant
The Memory Care Center is functiorung very well. It has a capacity of 75, and there are
currently 40 residents. The State budget did not allow for the addition of new residents.
Therefore, the plan is to transfer existing residents in other SNF units to this new unit as
they begin to exhibit memory or dementia issues.
13-What role does the board
Monthly updates are provided to the Board at each meeting. If any Item looks out of line
we may question it and ask for more detail.
1 4-Are lessons learned from the building
The Department of General Services is responsible for the construction of all State
facilities. A lesson learned, is that the Department needs to take a very active role with
DGS. As such they are brining on staff earlier and headquarters staff is making more
frequent visits to the site to monitor the progress. From the planning perspective, the
Department is diligent in working with VA and State agencies to improve the facilities to
meet current standards of care and service. As an example, all skilled nursing facility
rooms in the new homes will have private bathrooms as opposed to a shared bathroom in
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the homes under construction. This is a new VA standard. Another example is that the
new Homes will be more energy efficient.
15-What are the expected completion
Completion an opening dates
Lancaster. Completion- April 2009 and Opening -June 2009
Ventura: Completion-march 2009 and Opening May 2009
West LA: Completion-March 2010 and Opening June 2010
Cal-Vet Loans
16-How does the board monitor
Reports are provided at each Board meeting and the Board requested the Department's
CalVet Loan Chief to present an overview of the loan process, which was given at the
last meeting. I had asked, as a board member, that the Vet Loan Chief look at and be sure
that when a Veteran is turned down for a loan that extra steps are taken to be sure the
Veteran understands why and what his options are.
1 7-Do you believe the loan program —
The program is continually evolving. Re-financing options are the next changes that the
program is pursing. The Department just presented their program before Fitch and
Moodys in New York and it will maintain its current rating (AA) (A+-). The program is
on solid footing.
1 8 -As California and the rest of the country- —
Foreclosures have increased, but are still less than VA or industry averages. Because the
CalVet Program is the contract holder, they have better controls over the loan. The
applications are controlled as much by the availability of funds as they are by the
marketplace. It is possible because of the sever problems of the private setting that more
Veterans will apply for CalVet Loans. Many people including Veterans are trying any
thing and everything in the line of home loans.
Homeless Veterans
19-What recommendations, if any, has the
The Board has monitored the Department's outreach efforts for homeless veterans by
having the Deputy Secretary of Veterans Services present a detailed report on the
situation and what is being done to address it. The Stand Downs that the Department
sponsors has been very successful and well attended by homeless veterans. At these
Stand Downs, services are offered and several Vets have accepted admission to the
Homes. The Board's Veterans Committee Chair is currently working with a homeless
shelter that was closed due to safety violations, to help secure donation to re-open the
shelter. We need to stay focused on the homeless Veterans problems as it will probable
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be amplified by the current economy. All parts of the CDVA need to relate more to the
Veterans that need the most help.
New Veterans
20-Are there any policies, programs
The Board is proud of the Yountville Pathway Home Program established for younger
veterans with TBI and PTSD, and the Board just toured it at their December meeting. I
feel that the CDVA in all parts is constantly working on how to better provide for all the
young Veterans that are and will be entering civilian life as the current conflicts come to
an end.
178
California Veterans Board
Goals and Objectives
1. Goal: To work in concert and partnership with the Secretary and Department of Veterans Affairs.
a. Objective: Foster understanding & cooperation between CalVet Board & CDVA.
b. Objective: To identify priorities for Board and CDVA activities, advocacy and legislative
indicatives,
c. Objective: Identify realistic, mutually agreeable objectives, based upon those priorities and
founded upon available resources.
2. Goal; As required by law, to develop, institute, and monitor policies for the California Department
of Veterans Affairs that complement the Department's stated principles and protect veterans' rights
throughout California.
a. Objective: Review and update Board policies on a biannual basis, deleting outdated or
unnecessary policies.
b. Objective: in concert with the Department, develop new policies that enhance the operations
of the Department in the service of veterans.
3. Goal: To provide legislative advocacy for veterans' issues before the California State Legislature, the
Governor of the State of California, the Department of Veterans Affairs, the U.S. Congress, and the
President of the United States as appropriate and/or necessary to enhance and/or protect the rights
and benefits of Ca lifornia's veterans.
a. Objective: Monitor and review federal and state legislative proposals that may enhance or
detract from veterans' benefits.
b. Objective: Consider and enact appropriate resolutions in support for or against legislation that
may affect veterans' benefits.
c. Establish Legislative Priorities for the Board:
1) Veterans healthcare (especially mental healthcare)
2) Veterans employment
3) Veterans homelessness reduction and treatment
4. Goal: As dictated by law, to hear and render decisions on veteran's appeals.
a. Objective: Provide timely and considered Review of Records, Informal hearings, or Formal
Hearings for all appeals
b. Objective: Provide timely decisions to the appellant and Department.
c. Objective: Maintain appropriate and accurate records of all appeals.
5. Goal: To ensure that the more than 2.1 million military veterans residing in California and their
dependents are treated fairly and have access to all information relating to benefits authorized by
state law.
a. Objective: Increase the per capita amount of Federal money coming into California.
b. Objective: Establish a network relationship with veterans' organizations; provide a forum for
current dialogue about veteran issues and concerns that can be turned into CDVA policy and
legislative advocacy as appropriate; and leverage those organizations to assist in both advocacy
and the dissemination nf it ifui n ration about veterans' issues and initiatives.
c. Objective: Increase and improve communications with the Veterans Service Organizations and
individual veterans
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01/Bb/^UWy Yl\ ZV /U/yaatilWb ruumviLLc. ho urnn:
d. Objective: !n partnership with the Department, institute a regular newsletter for veterans.
e. Objective: Work with the County Veterans Service Officers on informing veterans of upcoming
Board meetings and veterans' activities.
6. Goal: To provide policy statements and guidance to ensure that the CDVA provides quality care and
services in an environment of continuous improvement to ensure that the veteran's homes of the
California system will be recognized as a modei of excellence and innovation for integrated
extended care for the aged and/or disabled California veteran.
a. Objective: Meet oeriodicaiiy in each veterans home to monitor its practices, procedures, and
patient morale
b. Objective: Monitor all issues, complaints, initiatives to ensure compliance with Federa and
State regulations, the fair treatment of all patients, and the highest possible standards of z^re
and treatment.
7. Goal: To Involve veterans' organizations in the Board meetings and improve the image and value of
the Board with the veterans' community,
a. Objective: Have veterans' organizations make presentations at the Board meetings.
b. Objective: Involve veterans' organizations in the ceremonial aspects of the Board meetings, e.g.
Pledge of Allegiance, Color Guard, invocation.
c. Determine the expectations of the Board by veterans and Veterans Service Organizations by:
Using a survey to gain feedback from veterans and veterans organizations; asking tne attendees
at Board meetings; reviewing past communications and suggestions.
8. Goal: To provide oversight to the Cat Vet Farm and Homes loan program.
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CALIFORNIA VETERANS BOARD
YOUNTvTLLE AC OFFICE
C-12
MTLEl ^': r ■-•
€AMEORNIA VETERANS BOARD VETERANS HOMES! POLICE
SECTION
C-12
ADOPTED
8/11/06
REVISED
REVIEWED
04/12/07
SUBJECT
Resident Participation in Health Service Plans
PURPOSE: The purpose of this policy is to maximize resident participation in federal, state, V.A., ox private
health service plans and to ensure that the Department seeks reimbursement for health care that is provided to
the residents of the Veterans Homes of California.
POLICY: It shall be the policy of the Department that resident participation in federal, state, V.A., or private
health service plans is maximized
• Resident participation in federal, state. V,A., or private health service plans will benefit the
Department by helping to ensure that all available resources have been utilized in the effort to
reimburse the costs associated with providing high quality health care to our Veterans.
» Residents of the Veterans Homes of California shall make the administrations of the respective
Homes aware of their participation in a health service plan or their eligibility for participation.
• Henceforth, non-veteran applicants must be participating in a federal, state or private health service
plan to be admitted to the Home.
• Henceforth, veteran applicants, if eligible for federal, state, or VA medical programs, must apply for
such programs in order to he admitted to the Home.
• Individuals admitted to the Home after the effective date of this policy will be required to maintain
participation m the federal, state., VA., or private health service plan if they remain eligible. If a
member's eligibility lapses because of circumstances beyond his or her control, the member will not
be discharged from the Home but he or she will be expected to reapply for coverage as soon as
practical. However, any member who refuses to apply for and maintain coverage., but has the present
ability to do so, may be discharged from the Home.
The Department shall determine the manner or method, and shall develop plans and establish procedures for
imp) ementation of this policy to achieve its purpose as fully as possible.
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182
cTRomas At ^cfiarrfs
Lieutenant Colonel, USMC (Ret.)/ NC, MA, MBA
o
21 January 2008
Senator Darrell Steinberg
Senate Rules Committee
State Capitol, Room 420
Sacramento, CA 95814-4900
Dear Senator Steinberg,
Hereafter follow my responses to the questions proffered in your letter of 12
December.
1. What goals and objectives do you hope to accomplish during your tenure as a
member of the Veterans Board? How should we measure your success?
I would like the California Department of Veterans Affairs (CDVA) expand its
role to offer more support to more of the 2. 1 M veterans who reside in California.
The Department is currently funded primarily to supervise and maintain the
Veterans Homes and provide farm and home loans to veterans via the CalVet
Loan program. Those are both excellent programs and I believe they should be
continued, but together they provide services for only a small fraction of
California veterans. CDVA receives very little funding for additional programs
and services beyond those, despite the fact that veterans have additional needs.
I have attached a copy of proposed veterans priorities that, at my behest, the Board
adopted at the October meeting.
While, in light of the current State fiscal difficulties, it appears unlikely that the
CDVA budget will increase in the near future to include additional services, I
believe that low-cost opportunities exist for CDVA to provide more support to
more veterans. I believe, however, that opportunities exist for CDVA both to
improve support for veterans while, in long run, also increasing State revenues.
For example, California ranks 38th in nation (on a veterans per capita basis) for
receiving Federal Veterans Administration Disability Compensation. Improving
that ranking will increase revenues from Federal government into California. I
also believe that California can improve the employment environment for
veterans, thereby increasing employment, and the levels of employment and
increasing tax revenues.
I believe that CDVA can become more efficient and effective, in part, by
improving its communications with and among veterans, informing them of their
benefits and changes thereto, encouraging them to avail themselves of those
benefits, and improving the rate (both per capita and in time) at which they do.
CDVA can accomplish this in part by leveraging the support of veterans and
veterans organizations which, at this time, are fragmented, to extend its voice and
effectiveness. Improving communications can be accomplished, I believe, at very
low cost and with a very high return, though the implementation will require
concerted and dedicated efforts.
I also believe that those men and women who volunteered to serve "in harm's
way" deserve to be employed upon the completion of their service, but also to
beemployed at a level commensurate with their skills and abilities. It is tragic and
incomprehensible that young veterans suffer higher rates of both unemployment
Senate Rules Committee
JAN 0 6 200S
183
and underemployment than their peers and that a number on municipalities in this state, which enjoys
a significant presence of military bases and service members, do not have current veterans hiring
policies. While I do not advocate legislating this requirement, State officials can advocate at local
levels and provide assistance in drafting those policies. Additionally, State officials can advocate
among the corporate leadership of the State to hire veterans and also provide tax and other incentives
for doing so.
While veterans healthcare is primarily a Federal responsibility, gaps in healthcare, especially
mental healthcare, exist. If those veterans are to live healthy and productive lives, it is
incumbent upon California both to ensure that they receive the VA benefits they rate and to
provide interim care for them while they are awaiting VA treatment and compensation.
All time, effort, and money spent in this endeavor is an investment in the future of California and
its veterans, and, indeed, all of its citizens, which, I am convinced, will pay dividends long into
the future in many ways.
► I would like my success can be measured by the extent to which CDVA expands its role
address issues beyond veterans home and the CalVet loan program. I am fully aware
that the State legislature must support and lead in that effort.
2. What experience do you bring to the board that will be helpful to the Veterans Board?
I am an active volunteer/community servant and have gained invaluable knowledge and
experience from those activities. I am the immediate past national commander of the Legion of
Valor. I have participated as a member of the San Diego County United Veterans Council for
more than ten years and have commenced my third year as chairperson of that body. Other
current volunteer roles include: the secretary of the California State Commanders Veterans
Council; a member of the Board of Directors of the San Diego Veterans Museum and Memorial
Center; the senior vice commandant of the San Diego Bulldog Detachment 835, Marine Corps
League; a member of the Marine Corps Committee of the San Diego Council of the Navy
League; the coordinator of the Marine Corps Air Station, Miramar, Provisional Rotary Club; and
as a mentor to the San Diego State University Student Veterans Organization. Additionally, I
have served in a variety of volunteer/community service roles, including a number of boards of
directors, all of which have valuable experience, some of it specific to veterans issues, some of
it more pertinent to governance and leadership. I have attached a summary of my community
service activities for your review.
3. What training have you received for your role as a board member?
I received a formal orientation from CDVA, including briefings by the secretary and each of the
deputy secretaries. I have also received training regarding ethics and conflict of interest and have
completed the California Ethics Interactive Training.
4. Do you view the role of the Veterans Board as one of policy setting for DVA or advistory? What
is your experience with how the department views the Board's role?
MILITARY AND VETERANS CODE
SECTION 72. The California Veterans Board shall determine the policies for all operations of
the department.
It is my opinion that the Secretary and the Department fully comprehend the both the Spirit and
the intent of Section 72, above.
In my experience as a member of boards of directors, I believe that a critical responsibility of
board members is to be able to comprehend the difference between strategic and tactical issues
184
and to refrain from micro-managing the organizational leadership and employees. The
responsibility of the Board is to determine policies and the extent to which the Department
implements those policies effectively and efficiently. It is not the role of the Board to dictate to
the Secretary the methods of that implementation.
5 . Please give an example of a policy the board has set for the department in the time you have been
a member.
I do not recall that the Board has established a new policy. We did, however, discuss whether
veterans with criminal records should be admitted to the veterans homes. After somewhat
lengthy discussion, we determined that the issue was more tactical than strategic and suggested
to the Secretary and the Deputy Secretary for Veterans Homes that the Department review its
procedures to include more effective background checks for prospective residents, and to
standardize the admissions procedures among all of the veterans homes, including future homes.
During my tenure, the Board reviewed all current policies and determined them to be sufficient.
The Board intends to review its policies regularly to ensure that they are current, relevant, and
necessary.
6. Was the appeals policy adopted in December 2006 followed at the October Board meeting?
Prior to hearing each of the two appeals during the October meeting, the Board received briefings
and advice from the CDVA legal department. After hearing the evidence in each case, the Board
determined in both cases that it could render decisions without further legal advice.
7. How has the board made, or does it plan to make, any changes to the appeals policy?
I have had the pleasure of working with the CDVA counsel, Robert Wilson, on several occasions
and I find him to be both competent and fair. Further, I feel confident that he fully grasps the
respective legally mandated roles of the Board and the Department and also feel confident that
he and the CDVA legal division can and will properly support and advise the Board. I do
recognize, however, that, in order to prevent the "appearance of impropriety," it might, under
some circumstances, behoove the Board to seek independent counsel. The Board's budget,
however, does not include the requisite funding to retain an independent counsel. If the
legislature and the Governor desire that the Board be capable of fulfilling its role unencumbered
by conflicts of interest, it should make provisions for the Board to be able to hire independent
counsel if that need arises.
The Board does not currently have an agenda item to change the appeals policy.
8 . Has the board adopted a policy specifying the time frames for resolving complaints? If so, please
describe? If not, why not?
The Chairperson is adamant that appeals should be processed and resolved as expeditiously as
possible. I concur with her sentiment and I believe that the other members do, as well.
The Board has not developed a specific policy regarding a length of time for resolving disputes.
Currently, CDVA notifies the Board's executive officer (EO) when it receive claims and the EO
notifies the Chairperson, who maintains a dialogue with the EO and CDVA regarding each
appeal. If CDVA cannot resolve the claim expeditiously, then the EO and the Chairperson
schedule the appeal to be heard at the next Board meeting.
Under Mr. Wilson's leadership, CDVA has been much more efficient in processing and
resolving claims. Resultantly, claims have been resolved faster and fewer claims have required
Board hearings. Mr. Wilson's competent management of claims has, I believe, obviated the need
for a new policy.
-3-
185
9. Has the board established procedures for tracking complaints? If so, please describe? If not,
why not?
In my opinion, the tactical responsibility for tracking complaints, recording hearing results, and
for filing them, rests with the Board's EO. In my brief experience on the Board, I believe the EO
has demonstrated competence in the handling of claims and the she has, under the guidance and
supervision of the Chairperson, established the requisite procedures.
10. How do you stay informed of living conditions and staffing issues at the veterans homes in
Yountville, Barstow, and Chula Vista?
In the past, the Board has schedule most of its meetings to occur on a rotating basis at one of the
veterans' homes. During each of those visits, the Board members receive a tour and a briefing
about the homes, including any significant issues that had occurred, from staff members of the
respective home. Board members have the opportunity to ask questions and probe on issues of
concern. Additionally, the Secretary' s briefings to the Board include "significant matters" which
include issues of concern pertaining to the homes. The Deputy Secretary for Veterans Homes
also attend Board meetings and offers additional comments.
At the December meeting, the Board agreed to conduct visits in groups of two to the veterans
homes and report the results of those visits to at subsequent Board meetings.
11. Does the department seek the board's advice on any changes in policies with the respect to
admittance of veterans to a veterans home, definitions for the levels of care provided by the
department at the homes, or other regulations that might impact the board's authority over the
appeals from veterans who were denied admittance to a veterans home? Please provide
examples.
Please refer to paragraph #s 4 and 8, above.
I do not recall an occasion during my Board experience in which the Secretary/CDVA has
solicited advice, other than as discussed in # 8, above, pertaining to a policy or prospective
policy. The Secretary, though, at each Board meeting has provided the Board with ample
opportunity to comment on significant issues and query CDV A leadership about effective policy
implementation, and, if necessary, to suggest prospective policy changes. CDVA Counsel
Wilson has advised the Board on matters pertaining to existing policies.
In my experience, the Board enjoys an excellent relationship with CDVA and all of its leadership
staff members and I find the relationship between the Board and CDVA to be open,
collaborative, and founded in mutual respect.
May I respectfully reiterate my belief that the Board should limit its business to strategic issues
and leave the tactics to the CDVA leadership.
12. Have there been significant successes or challenges in the first year of operation of the
Yountville Memory Care Center? Is the center operating at capacity?
I do not serve on the Homes Committee and have not received and information, either positive
or adverse, regarding the Memory Care Center, other than that it exists. The Homes Committee
has not reported any concerns to the Board.
13. What role does the board plan in monitoring funding and construction of new veterans homes?
CDVA provides updates at each Board meeting about the progress of construction of the new
veterans homes. Although this is, of course, of interest to the Board, it seems to me that, once
the policy decisions have been made to build additional homes, there is very little that the Board
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186
can do to influence the contracting and construction processes. Indeed, it is my understanding
that the design, contracting, and construction processes are managed and supervised by an
agency(ies) external to CDVA.
14. Are the lessons learned from the building and inspection issues at Yountville
Alzheimers' /Dementia Unit Transferable to the construction of the new veterans homes?
Intuitively, I must respond affirmatively, but, not being on the Homes Committee, I have not
been briefed at the level of detail that would enable me to comment knowledgeably on this issue.
Once again, the Homes Committee has not reported any concerns to the Board.
15. What are the expected completion dates and opening dates for each of the three new veterans
homes?
The Department projects dedications of the Lancaster and Ventura homes in May or June of this
year, with residents being admitted in mid-summer; it project the West LA home to follow about
one year later.
The progress of the Redding and Fresno homes is currently dependent upon State finances and
the actions of the Pooled Money Investment Board.
16. How does the board monitor the CalVet loan program?
At each Board meeting, CDVA provides as part of its briefing the status of the CalVet loan
program, including current interest rates, and other relevant statistics. At the most recent
meeting, the Deputy Secretary for the CalVet Loan program delivered a detailed and very
comprehensive presentation about the program.
17. De you believe the loan program is adequately providing California veterans with lower cost
loans? What changes, if any, would you recommend to make the program more effective?
I believe that the CalVet loan program provides the lowest interest rates possible. While those
may not always be lower than market rates, the combination of interest rates and lower cost
insurance will continue to make CalVet loans attractive to veterans.
I would like the program to include the capability to offer re-financing loans to veterans, rather
than just initial financing of properties new to the veterans.
1 8. As California and the rest of the country are experiencing a housing and economic crisis, has the
CalVet Home Loan Program experienced any related problems? Do you anticipate an increase
in the CalVet Home Loan applications because of the difficulty in securing new mortgages from
traditional private-sector lending sources?
Media resistance (albeit relatively few organizations opposed it) to the recent Proposition 12
bond initiative resulted primarily from the increasingly adverse market conditions. If that
opposition increased in the future, it could pose the greatest potential threat to the program.
Increasingly adverse employment conditions in the State will make it more difficult for some
percentage of veterans to qualify for loans.
In my opinion the potential increase of loan applications due to market conditions will probably
be fairly small, but with the change in the law to enable the program to provide loans to post-
Vietnam veterans will result in more applications.
19. What recommendations, if any, has the board given the department to try to assist homeless
veterans?
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187
The veterans homes accommodate a small percentage of homeless veterans, and CDV A staff
members attend "Stand Downs" in the state, but CDV A, regrettably, does not receive sufficient
financing to address veterans homelessness effectively. Veterans homelessness is a complex
issue which is best accomplished by treating the symptoms; that is by preventing homelessness.
Doing so requires a multi-facted solution, including improving mental healthcare (for combat
stress/PTSD/TBI), improving veterans educational and employment opportunities, ensuring
affordable housing, providing alternative sentencing and veterans courts, and supporting
substance abuse treatment. If CDVA is to improve it efforts to reduce and treat homelessness,
it must receive additional funding.
20. Are there any policies, programs, or initiatives you believe the state should be implementing to
help the younger generation of veterans created post 9/11?
I believe that the substance of this answer to this question can be found above and in the veterans
priorities, below.
California must strive to ensure that veterans of the "Global War on Terror'" are not treated as
my generation was, that is reviled, disrespected, and suffered benefit reductions due to the
influence of anti-war activists. We must distinguish between war and the warriors, recognize
their service, sacrifice, and contributions and reward them for them.
Our veterans are the very flower of their generation. They are the ones who accepted the call to
duty and responsibility for defending us and our nation. They were healthy and fit for duty,
capable both mentally and physically. They are the risk-takers of their generation. They
accepted the risks of personal injury and even death, of personal and family sacrifice. In business
and finance, risk is often rewarded. If we are to expect future generation to emulate the current
one, we as Californians should reward our current veterans and honor them. That, too, is an
investment in our future, the future of our State, our Nation, and, indeed, in the lives of all of us.
They will be our future, out community and political leaders. We should do all we can to enable
their success.
Respectfully submitted,
/ Lch~g:\ Af n^MLJs:
Thomas A. Richards
Lieutenant Colonel, USMC (Ret.)
6-
188
California Veterans Board Priorities
(Sequence does not connote priority;
• Veterans' Healthcare (especially mental healthcare;
♦ Disseminating information to California veterans about their Federal VA healthcare benefits;
the process of applying for VA disability compensation; and the appeals process.
♦ Disseminating information to California veterans about combat stress, PTSD, and TBI;
treatment options; and where and how to apply.
• Veterans' Employment
♦ Develop legislative initiatives to improve the climate for veterans employment throughout
California, including governments and municipalities at all levels and the private/corporate
and non-profit sectors.
♦ Develop initiatives to work with and encourage private and non-profit sectors to hire
veterans.
• Veterans' Education
♦ Develop legislative initiatives to ensure that all California colleges and universities provide
information and assistance to all veteran students regarding Federal VA education benefits
and how to apply for them.
♦ Advocate for educational benefits for members of the California National Guard
• Veterans' Homelessness Reduction and Treatment
♦ Develop legislative initiatives to help prevent veterans homelessness by:
■ Treating the root causes and thereby reducing its incidence among veterans
■ Improving veterans' employment opportunities:
■ Encouraging the full implementation of California's alternative sentencing law and
establishing Veterans' Courts
■ Increasing substance abuse prevention programs and substance abuse treatment programs
■ Increasing funds for rehabilitation of homeless veterans
• Improving Communications with and among Veterans
♦ Increasing the number of veterans receiving CDVA communications
♦ Increasing veterans' enrollment in the Veterans Administration Healthcare System
♦ Encouraging veterans' Membership in Veterans Service Organizations (VSO
♦ Communicating these priorities and resulting programs and legislative initiative to
veterans at every opportunity', including speaking engagements by CD V A representatives and
CalVet Board members.
• CalVet Home and Farm Loans
♦ Disseminate information to California veterans to ensure the highest possible level of
participation
Attachment (1 )
"59
Lieutenant Colonel Thomas A. Richards, USMC (Ret.)
Community Service Activities
LtCol. Richards retired from active duty at Washington, DC, in 1995 and returned to
California — where he had served several active-duty tours — shortly thereafter. He had been
active in serving his communities for nearly more than a decade. While living in Virginia, he
served as the Programs' Chairperson of the National Capitol Chapter of the American Society for
Quality, as Vice President of the Northern Virginia Chapter of the American Society for Quality
and Productivity, and Programs Chairperson for the National Capitol Commandery of the Naval
Order of the United States. In the latter capacity, he instigated changes that resulted in more
events, events that more closely adhered to the mission of the organization, and events that
attracted greater attendance than had previously been achieved. One of those events, a debate of
the Kimmel-Short Pearl Harbor responsibility controversy between the famous WWII submarine
skipper, naval hero, and best-selling author (Run Silent, Run Deep), Captain Ned Beach, and
military historian, Dr. Joseph Strange, was extremely successful in promoting the Naval Order of
the United States and the National Capitol Commandery. He has continued his affiliation with
the Naval Order of the United States and in 2004 served on the planning committee for its
National Congress, which was held in San Diego during Fleet Week in October, 2004.
A recipient of the Navy Cross, LtCol. Richards is active in the Legion of Valor (chartered by
Congress in 1890, the Legion of Valor regular membership comprises recipients of the
Congressional Medal of Honor and of the Navy Cross, Distinguished Service Cross, and/or Air
Force Cross) in which he served as the National Commander for fiscal year 2008 and continues
to serve as the Commander of California Chapter, the largest and most active of all Legion of
Valor chapters. In his capacity as a national officer, he is spearheading an initiative to develop a
national marketing strategy to gain greater recognition for the organization. In pursuit of that
objective, in 2004 he coordinated the participation of thirteen Legion of Valor members (three
Congressional Medal of Honor and thirteen service cross recipients) in the opening ceremony of
the national convention of the Navy League of the United States. Additionally, he instigated
Legion of Valor participation in Fleet Week, which resulted in the "Sea Services Salute to
Heroes," a reception, coordinated jointly by Fleet Week San Diego and the Naval Order of the
United States, on board the USS Midway on Friday, 15 October 2004. He also served as the
chair of the Society's Museum Committee, which oversaw the staff of the Legion of Valor
Museum in Fresno. As the Southern California Chapter commander, he implemented a new
newsletter format, is regularizing the meeting schedule, improving the quality of the meeting
programs, improving communications with Chapter members, and attracting greater attendance
at the meetings. During 2005, he combined the two California chapters into one and now
coordinates events and communications statewide.
LtCol. Richards served four terms as a member of the board of directors of the MCRD [San
Diego] Museum Historical Society. During 2004, he served as chairperson of its strategic
planning and marketing committees. That strategic planning process resulted in: a board of
directors committee restructuring, including specific responsibility assignments for each of those
committees; a capital campaign planning initiative; revised by-laws; and the board approval to
hire an executive director of the Society. He assumed responsibility of chairperson of the board's
Marketing Committee in July, 2004.
From 2003 to 2005, he served on the board of directors of Veterans' Villages of San Diego,
co-chaired its strategic planning process, which developed provided a strategy for its growth in
Attachment (2)
190
its new facility. He also served as a member of VVSD's Capital Campaign and Finance
Committees and worked to develop a board of directors' recruitment and orientation policy.
Widely known in San Diego for his service with Spirit of the Fourth, Inc., which produces the
Independence Day celebration in Rancho Bernardo each year, LtCol., Richards is in his eighth
year of participation on the committee, including five years as president and two as 1st vice
president/immediate past president. The celebration includes a VIP reception, a community fair
during the day, with a pancake breakfast, booths, vendors, entertainment, a vehicle show, a
veterans' memorial service, a parade, and in the evening more entertainment and a grand
fireworks show. As president, he reorganized the board of directors and the planning committee
and recruited new members. During his tenure as president and 1 st vice president, Spirit of the
Fourth, Inc., has added activities to its schedule, improved the overall quality of the celebration,
and increased both community participation and attendance at the event. As costs rose, he
successfully spearheaded the efforts to increase revenues (from $28,000 in 1999 to more than
$70,000 in 2006) which allowed the organization to have some reserve operational funds. He
supervised the production of the annual magazine and improved its advertising revenues while
also improving its content. Under his leadership, Spirit of the Fourth, Inc., continues to strive to
improve the Independence Day activities. Finally, he coordinates the participation of the Legion
of Valor in the memorial service and the parade and assists in coordinating active duty military
participation in the celebration. He will serve again as president for the 2009 Independence Day
celebration.
LtCol. Richards is active in the Rotary Club of Rancho Bernardo. In 2002, he served as on
the International Committee as the Polio Eradication Campaign representative and raised $6,500
(from 100 members) for Rotary' s international campaign to eradicate polio from the Earth. In
2003, he served as the Club's coordinator for a three-club international grant of more than
$20,000 for a "Village Banking" project in Ecuador. Additionally, he coordinated the Club's
participation in the Spirit of the Fourth Independence Day activities and as the coordinator of the
club's sponsorship of Marine Wing Communications Squadron-38 at MCAS, Miramar. He
served for three years on the Club's board of directors and also for two years on the board of
directors of the Club's fundraising arm, the RB Rotary Foundation. He is currently the project
coordinator of the effort to establish a Rotary Club on the Marine Corps Air Station, Miramar,
which will be only the second service club on an active military base.
LtCol. Richards served three years on board of directors of the Rancho Bernardo Historical
Society in 2004, which established a temporary museum facility at the Bernardo Winery early in
2005 and is planning for a permanent headquarters and museum. In 2005, he was re-elected to
the board and as 2nd Vice President, in which he served until 2006.
On the environmental front, LtCol. Richards served for two years on the fund-raising
committee of the Blue Sky Community Foundation, helping to plan the fundraising gala event.
The 2005 Gala fund-raising event occurred in March and raised nearly $50,000 for the Blue Sky
Reserve and the 2006 raised even more. He served as co-chair of information systems and
software representative on the committee and was appointed to its board of directors in 2007.
LtCol. Richards previously served three years as a vice commander of the General J. P.
Holland Chapter of the Military Order of World Wars and for two years as a member of the
board of directors of the Rancho Bernardo Veterans Memorial Committee, which produces three
memorial services each year at the Veterans' Memorial in Rancho Bernardo. He served in 1997
as the marketing representative on the planning committee of the Four Chaplains'
- 2 - Attachment (2)
191
commemoration which occurred at the Organ Pavilion in Balboa Park and attracted an audience
of 700. And, he helps plan reunions of his Marine Corps Officers' Basic School class of 1974.
For six years, LtCol. Richards has nominated panelists for and participated in annual San Diego
NROTC's Combat Leadership Panel at the University of San Diego.
From 2005 to 2007, LtCol. Richards served as the Marine Corps Committee Chair of the San
Diego Council of the Navy League. In that role, he coordinated the Council's award recognition
for Marines and Sailors of the Quarter and Marines and of the Year, represented the Council at
the award presentations, also presided as master of ceremonies at the Council's annual Marine
Corp Birthday Luncheons. He continues to serve on Marine Corps Committee. He also serves as
the senior vice commandant of the San Diego Bulldog Detachment 835.
LtCol. Richards also produces the "Band of Brothers Marine Corps Birthday Celebration"
each year on 1 0 November. Active duty, former and retired Marines, members of the Marine
Corps family, and sister service members are welcome at the event. Demographically, the 2003
event included attendance by three general officers, a former private first class, a reserve
corporal, and all ranks between, including Marine veterans of Guadalcanal, Iwo Jima, Korea,
Vietnam, Desert Storm, Somalia, and Iraqi Freedom, a Congressional Medal of Honor and four
Navy Cross recipients, and two former Navy corpsmen and two Army Vietnam veterans. The
2005 event included twenty-one active duty members, including five Marines recuperating from
combat wounds at the Balboa Naval Medical Center, and was the largest event to date.
In July, 2004, Fifth District City Council Member Brian Maienschein has asked LtCol.
Richards to serve as the 5th District Veterans' Liaison. In that role, he met with staff members of
the San Diego Housing Commission regarding low cost housing for veterans.
An active member of the San Diego County United Veterans Council, LtCol. Richards was
recognized as the Marine Corps honoree at the first annual San Diego County Veterans' Ball in
June, 2005. He served as the chair person of the first annual San Diego County Veterans'
Seminar & Resource Fair, a full-day event in Balboa Park which occurred in June 2007 included:
the Seminar with six hours of discussion forums; a luncheon with RADM Ronne Froman, USN
(Ret.) as the keynote speaker; and the Resource Fair with more than seventy veteran-oriented
vendor booths. He also chaired the 2007 event, partnering with the California Employment
Development Department, which was even more successful. In November, 2006, he was elected
to the chairpersonship of the San Diego County United Veterans' Council and was reelected for
the 2008 term.
In 2007, LtCol Richards was elected to the board of directors of the San Diego Veterans
Museum and Memorial Center in Balboa Park and he is the co-chair of its Marketing Committee.
In 2006 he became a mentor to the San Diego State University Student Veterans Organization
and continues to serve in that role. As a result of his advocacy of veterans' issues, he was
appointed by Governor Arnold Schwarzenneger in February 2008 to a four-year term on the
California Veterans Board, which establishes policy for the California Department of Veterans
Affairs. In April, 2008, he was elected as the acting secretary of the California State
Commanders Veterans Council (a non-profit organization comprising the State leadership of
twenty veterans organizations) and in October was elected to a full term in that role.
During 2005, LtCol Richards delivered leadership presentations to the Southern California
Military Order of World Wars' Youth Leadership Conference at the University of San Diego and
to the Freedom Foundation of the Michigan National Guard in Alpena, Michigan. He also
- 3 - Attachment (2)
192
delivered patriotic presentations at the Rancho Santa Fe Republican Womens' Club's "Salute to
America" and monthly meetings of the Mission Valley Rotary Club and the DeAnza Chapter of
the Daughters of the American Revolution. He delivered informational presentations about the
Vietnam Veterans of San Diego homeless shelter to a Legion of Valor chapter meeting and a
monthly meeting of the Navy League.
In recognition of his community service, LtCol Richards was selected in 2005 for
membership in the Rancho Bernardo Hall of Fame, one of only ninety-selectees since 1 974 and
of forty-three living members. In 2007 he served on the selection committee for the 2008
nominees.
LtCol. Richards is a life member of the Legion of Valor, the Military Officers Association of
America, the Military Order of World Wars, The Military Order of the Carabao, the 1 st Marine
Division Association, the Third Marine Division Association, the Naval Order of the United
States, the Marine Corps Scout Sniper Association, the Military Order of the Purple Heart, the
Navy League of the United States, and Veterans of Foreign Wars. He is an annual member of the
Marine Corps Association, the Marine Corps Heritage Foundation, the Marines Memorial
Association, the American Legion, the Marine Corps League, the Disabled American Veterans,
the Society for Military History, the Sierra Club, the National Geographic Society, the
Wilderness Society, the National Wildlife Society, the Highpointers Association, the American
Hiking Society, the Professional Association of Diving Professionals, The San Pasqual Volunteer
Battlefield Association, and more.
Attachment (2)
193
194
CI IV OF OAKLAND
Cm MALL • 1 FRANK H. OGAVVA PLAZA. 3RD FLOOR • OAKLAND. CALIFORNIA 946
Office o! the. Mayor
Honorable Ronald V. Deliums
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December 11,2008
The Honorable Darrell Steinberg
Chairman, Senate Rules Committee
California State Senate
State Capitol Room 420
Sacramento, C A 958 14
Dear Senator Steinberg:
Thank you for giving me the opportunity to discuss with the Committee my short and
long term goals as a commissioner on the Commission on the Status of Women. In the
immediate future, I intend to highlight the concerns of women and girls in the Bay Area
and specifically, in Oakland. In Oakland, women face such barriers to success as child
prostitution, illiteracy, childhood obesity, asthma and much more. Many of these
concerns have been captured in the legislative agenda recently voted on by the
Commission. In the long term, I intend to focus on education. I believe that children
should be allowed to establish the life-ling love of learning that will provide them with
the foundation to make informed life decisions and propel them into prosperous and
productive future. I also believe that the Arts play a large role in providing an educational
tool to teachers and students alike and can enhance all curriculums. Every child should
have access to arts education at their respective campus. In Oaklancl and in California,
our school system has not yet reached this potential. I intend to assist in making it so.
Sincerely,
Cynthia L. Deliums
First Lady, City of Oakland
Senate Rules Commjcge*-
DEC J o ?
195
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HEARING
SENATE RULES COMMITTEE
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SACRAMENTO, CALIFORNIA
WEDNESDAY, JANUARY 28, 2009
1:38 P.M.
MAY l g 2009
PUB<-'C LIBRARY
604-R
SENATE RULES COMMITTEE
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HEARING
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WEDNESDAY, JANUARY 28, 2 009
1:38 P.M.
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SENATE RULES CCKMITTEE
STATE OF CALIFORNIA
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ALSO PRESENT fcont.)
3 DEIDRA E . LOWE, Member, Workers' Compensation
Appeals Board
4
INDEX
7 P a o e
8 Proceedings 1
9 Governor's Appointees:
10
PHYLLIS W. CHENG, Ph.D., Director, Department
11 of Fair Employment and Housing 2
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Introduction by SENATOR LIU 2
Opening statement by Ms. Cheng 3
Questions by SENATOR OROPEZA re.
Backlog/expiration of com plaints 5
Improvement of the DFEH 7
Questions by CHAIRMAN STEINBERG RE:
Performance audit 8
Perception of practitioners and
others regarding the DFEH 9
Average number of successful
prosecutions per year 11
Caseload of investigators 12
Witnesses in Support of Appointee
MIKE FEUER, 42nd Assembly District 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
APPEARANCES
MEMBERS PRESENT
SENATOR DARRELL STEINBERG, Chair
SENATOR GIL CEDILLO
SENATOR SAMUEL AANESTAD
SENATOR ROBERT DUTTON
SENATOR JENNY OROPEZA
STAFF PRESENT
JANE LEONARD BROWN, Committee Assistant
NETTIE SABELHAUS, Appointments Consultant
SANDY KENYON, Principal Consultant
DAN SAVAGE, Assistant to SENATOR CEDILLO
BILL BAILEY, Assistant to SENATOR AANESTAD
CHRIS BURNS, Assistant to SENATOR DUTTON
BRENDAN HUGHES, Assistant to SENATOR OROPEZA
ALSO PRESENT
PHYLLIS W. CHENG, Ph.D., Director, Department of
Fair Employment and Housing
CYNTHIA D. FLORES, Member, California State Lottery
Com m ission
Witnesses in Support of Appointee (cont.I:
JERRILYN MALANA, Littler Mendelson, PC
PHIL HOROWITZ, California Employment
Lawyers Association 17
1 5
,TTI PEREZ, Labor & Employment Law Section
of the California State Bar
PAULA PEARLMAN, Executive Director,
Disability Rights Legal Center
1 9
2 0
10
11
12
13
14
15
16
17
18
CYNTHIA D. FLORES. Member, California State
Lottery Commission 24
Introduction by SENATOR DUCHENY 24
Opening statement by Ms Flores 27
Question by CHAIRMAN STEINBERG re
Potential to realize five billion
dollars in budget 28
Question by SENATOR AANESTAD re
New o ffic e b u ild in g 31
- - o 0 o • -
19 DEIDRA E LOWE, Member, Workers' Compensation
Appeals Board 34
20
21 Opening statement by Ms. Lowe 34
22 Question by CHAIRMAN STEINBERG re
23 SB899reforms 35
24 - - o 0 o • •
25 Proceedings Adjourned 39
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1 of Fair Employment and Housing.
2 After having had the honor and privilege of
3 serving in this position for almost one year, I can say
4 with the utmost conviction and enthusiasm that this is
5 the best job in the world. I am proud to say that the
6 DFEH is the largest and finest state civil rights agency
7 in our nation. The department's dedicated and
8 professional workforce is unmatched in civil rights
9 enforcement. I consider it the highest privilege to be
10 asked to lead such an outstanding organization and
11 valiant staff.
12 Senators, in the year that I have directed the
13 DFEH, I have seen the department carry on its proud
14 tradition of civil rights enforcement into a new era.
15 Using available technology, the department has improved
16 its efficiency and effectiveness in serving the public
17 by automating an online appointment system by
18 transitioning from in-person to telephone intakes and by
19 better targeting the right amount of resources to
20 investigations using a case-grading system.
21 At the same time, the DFEH has reached out
22 to employers, housing providers, and businesses to
23 proactively prevent these violations. We have
24 produced acclaimed videos to outreach to young people
25 about their rights and responsibilities in the
4
1 backlog, which I understand — I guess it would be
2 called a backlog.
3 There are — Complaints expire after a year
4 if they're not concluded; is that correct?
5 MS. CHENG: Yes. Senator --
6 SENATOR OROPEZA: And when you started,
7 wasn't there a great big backlog, and it was reduced
8 over —
9 MS. CHENG: We don't have backlog in the
10 traditional sense that, say, the federal government
11 would have at the EEOC, because they do not have a
12 statutory period that expires. So there are periods
13 of backlog.
14 SENATOR OROPEZA: Right. I guess I should
15 say expirations.
16 MS. CHENG: Yes.
17 SENATOR OROPEZA: There were more
18 expirations.
19 MS. CHENG: We have a few cases that have
20 gone beyond the 365 days, but not very many days
21 beyond 365 days. It could be 366, it could be
22 370 days. And the reason for that is sometimes we
23 are trying to resolve these cases, and the parties
24 cannot agree to a settlement. So we do work on
25 those, but you cannot really force it beyond, you
6
workforce.
On this 50th anniversary of the Fair
Employment and Housing Act, the department is
collaborating with many groups to commemorate the
half-century mark of California civil rights law.
If confirmed, I will devote myself to
carrying out the department's noble civil rights
mission for all Californians. I will provide the
leadership, management, and energy necessary to
enable my talented and dedicated staff to do their
jobs as effectively and efficiently as possible.
Mr. Chairman, the governor has honored me
with this appointment. You and the members of this
committee have added to that honor by your courtesy
in hearing my testimony today, and in my meetings
with your staff.
Thank you, Mr. Chairman, for the opportunity
to be heard. Thank you.
CHAIRMAN STEINBERG: Thank you very much,
Ms. Cheng. We appreciate that.
Are there questions from members of the
Committee? I know I have one or two.
Senator Oropeza, why don't you go first.
SENATOR OROPEZA: Thank you for being with
us today. I just had one question with regard to the
5
1 know, even though the statutory period is ending.
2 So we do work on those in as timely manner
3 as we can, and we have, in fact, reduced those cases
4 that have gone beyond 365 days from over 80 cases to
5 just over 60 cases.
6 SENATOR OROPEZA: That's what my
7 understanding was. To what do you attribute that
8 reduction, that improvement?
9 MS. CHENG: Staff effort, better efficiency.
10 Having automated a lot of the work we do, we have
11 more resources available to devote to settlement and
12 mediation.
13 SENATOR OROPEZA: Do you think there will
14 come a day when there will be no one whose
15 application or appeal expires?
16 MS. CHENG: We certainly are working on
17 that, Senator. I hope that day will come.
18 SENATOR OROPEZA: Yes. I was just wondering
19 in the climate that we're in now, and I know the
20 governor has asked for reductions from all
21 departments, so I'm sort of asking in that context.
22 This is a really important department, as
23 you know, and I was just wondering do you anticipate
24 continuing to improve, or do you think it's going to
25 be tougher, or --
7
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Page 4 to 7 of 41
01/30/2009 11:41:48 AM
MS. CHENG: Senator, I anticipate that we
will improve. The staff is extremely motivated. We
are putting in systems that make it more efficient.
We're using technology, and I think that's why we're
seeing the results of that right now.
SENATOR OROPEZA: Very good. Okay. Thank
you.
MS. CHENG: Thank you.
CHAIRMAN STEINBERG: Thank you very much,
Senator.
A couple questions myself. As I understand
it, Ms. Cheng, the department has commissioned,
essentially, a performance audit through UCLA and
Rand to look at not only past accomplishments, but to
make recommendations about the future. When will the
study be completed, and will it be shared with the
legislature?
MS. CHENG: Senator, yes. I have asked UCLA
and the Rand Corporation, which has a public policy
program, to devote its energies to studying the
massive amount of data we have collected at the
department. Just in the 12 years, we have almost a
quarter million cases that have come through us.
And, of course, the purpose of the study is to assess
how far the law has come, what it has achieved, how
8
1 objective, necessarily, here, as the person that
2 leads the agency, but if you can give us your
3 perception whether or not practitioners and others
4 feel the DFEH is still kind of a mill, a passageway
5 where you have to go through in order to get to
6 court, or whether or not you really are able
7 resource-wise or otherwise to grapple
8 administratively to resolve issues of discrimination.
9 MS. CHENG: Senator, the statute, the Fair
10 Employment and Housing Act, provides that all
11 employment complainants must exhaust their
12 administrative remedies through the department, and
13 that is the reason why all the complaints come to us.
14 CHAIRMAN STEINBERG: I know that.
15 MS. CHENG: Partly because of the success of
16 the work of the department in prosecuting these cases
17 both before the administrative body, which is the
18 Fair Employment and Housing Commission, and in civil
19 court. We have really developed the law in such a
20 fashion that today, as compared to when we first
21 started, the employment bar is gigantic. There's a
22 huge professional corps of attorneys doing this work
23 both on the plaintiff's as well as on the defense
24 side.
25 So, naturally, because there is a very
10
it can perform even better, and which direction it
may go in the future. And, yes, I will make every
effort when that report is done, hopefully by the end
of the year, end of 2009, to make that available to
all policymakers and all stakeholders and put that on
our Web site. And, hopefully, that will be an
important document in the future for shaping the
future of the Fair Employment and Housing Act.
CHAIRMAN STEINBERG: All right. Thank you.
The other question is this: I noted in the
background file here that of the almost 20,000
complaints filed last year, that for almost half of
them, 9,300, a so-called right-to-sue letter was
issued right away without there being any
investigation. And it kind of harkens back, because
I'm a former practitioner before your agency when I
used to do labor law, and the reputation 15, 20 years
ago of the DFEH was the following: Good people,
understaffed, under-resourced, and, frankly, a bit of
a mill. You know, you file your complaint, you've
got to go through the administrative -- you know,
you've got to go through the administrative process;
but what you're really looking for is your ticket to
go to court to file a discrimination suit.
And I'm wondering -- I know you're not
9
1 sophisticated bar, you're going to get a lot of people
2 who are going to be approaching attorneys who are
3 well-qualified and who advise them to come and seek a
4 right-to-sue letter right away, because they don't
5 intend to stay in the administrative system. That is
6 why we've seen a growth in the number of right-to-sue
7 requests, and that is why we responded to that by
8 creating an automated system.
9 Now, half of the other cases still stay in our
10 system. So of the other 10,000 or so cases that stay,
11 some people will stay long enough to get the
12 investigative evidence and then leave the system. We
13 take care of the rest of these cases. About one-third
14 of the cases will generally not have sufficient
15 evidence, but of the remaining ones, we actually
16 prosecute those cases very effectively -- that's still
17 over 2,000 cases -- and we settle the vast majority of
18 them, and we also prosecute them. And through our
19 prosecution, we've reached very large judgments and
20 settlements and -- that are very satisfactory to both
21 the complainants involved as well as to the respondents,
22 the businesses and landlords and employers, because it
23 would have cost so much more had they been in court.
24 CHAIRMAN STEINBERG: How many successful
25 prosecutions a year, on average?
11
/30/2009 11:41:48 AM
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4 of 12 sheets
1 MS. CHENG: Well, out of about 100
2 accusations issued, I would say 95 percent or more.
3 CHAIRMAN STEINBERG: So it's a hundred. A
4 hundred is the base out of the 20,000 that go from an
5 initial complaint to accusation?
6 MS. CHENG: Yes, because we resolve nearly
7 2,000 of them.
8 CHAIRMAN STEINBERG: I understand.
9 Last question. What is the average caseload of
10 your discrimination investigators?
11 MS. CHENG: I believe the average caseload
12 varies, depending on whether they do housing or
13 employment cases, but I would say about 75 to
14 80 cases would be the average caseload for our
15 consultants who are often investigators.
16 CHAIRMAN STEINBERG: And is that -- I mean,
17 think about different ratios to maybe completely
18 inapplicable — class-size reduction, social-worker-
19 to-child ratios. What kind of workload is that for
20 analysts? Can they spend the amount of time that
21 gives you the confidence that they can be thorough
22 with caseloads of 65, 70, 75 cases?
23 MS. CHENG: Senator, and that is why we are
24 now creating a new system of processing the cases
25 which we're putting in place — it's called a
12
1 CHAIRMAN STEINBERG: Can you introduce
2 yourself for the record.
3 THE WITNESS: Oh, yes. I'm sorry.
4 I'm Mike Feuer. I represent the 42nd
5 Assembly District.
6 This marvelous, wide-ranging background, pretty
7 much having done anything that might be relevant to this
8 role, and she's done it all with great distinction, and
9 it's no surprise that her role at the department has
10 continued to exemplify the kind of leadership that all
11 of us want there, firm, reform-minded, steady, balanced
12 leadership designed to be cost effective, and, most
13 importantly, from the standpoint of workers, very
14 responsive. So I'm delighted to be here and to lend my
15 voice in support for a candidate who undoubtedly can
16 look at the total picture for the committee. Thank you
17 very much.
18 CHAIRMAN STEINBERG: Thank you very much,
19 Mike. We appreciate it.
20 Other witnesses in support?
21 By the way, Ms. Cheng, is there any member
22 of your family that you want to introduce, or anybody
23 special -- anybody that you would like to introduce?
24 MS. CHENG: Thank you, Senator. They're
25 either at school or busy with other things.
14
case-grading system — so we can see at the outset
how complex the cases are and what kind of time is
required for the investigation so that the more
complex cases will be assigned to more experienced
consultants for investigation. We anticipate them to
take more time. We'll have attorneys working with
them at the outset.
And for the cases which are more simple and
straightforward, we would assign to our more junior
consultants so that all the cases are dealt with in a
manner that receives resources they deserve.
CHAIRMAN STEINBERG: Okay. Thank you very
much. I just wanted to make sure that you are
leading an agency that has the capacity, if you will,
to do all that the statute charges the agency with
doing, and it keeps people out of court.
Anyway, witnesses in support? Very briefly.
Mr. Feuer, welcome.
MR. FEUER: Thank you very much,
Mr. Chairman, Mr. President, members of the
Committee.
I can tell in a moment where brevity is all
but necessary here, but let me just underscore my
constituent, Ms. Cheng.
As you've heard, this marvelous --
13
1 CHAIRMAN STEINBERG: I just wanted to make
2 sure you had the opportunity.
3 MS. MALANA: Senator Steinberg and
4 distinguished members of the Senate Rules Committee,
5 my name is Jerri Malana, and I'm a partner with the
6 law firm of Littler Mendelson in our San Diego
7 office, and I'm here with other partners,
8 Garry Mathiason and Bruce Sarchet.
9 Littler Mendelson has over 760 lawyers
10 nationwide, and in California we have over 240
11 attorneys. And we're the largest law firm in the
12 world devoted to representing management in
13 employment and labor law matters.
14 And Littler Mendelson proudly supports
15 Phyllis Cheng's confirmation as director of the
16 Department of Fair Employment and Housing. She is
17 well-qualified to be the director. You heard already
18 that she has a balanced background. She has the
19 employer/management side background. She was a
20 valued colleague in our Los Angeles office. Phyllis
21 was an attorney in our L.A. office. She also has the
22 employee side, as in her work experience she formerly
23 worked as a plaintiffs attorney for the esteemed
24 law firm of Hadsell & Stormer. So she has that
25 background.
15
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01/30/2009 11:41:48 AM
She's also worked as a neutral. Ms. Cheng
has worked as a certified arbitrator, as well as a
certified mediator. She also has public-sector
experience along with her private-sector experience.
You've also heard that she's worked as judge pro tern
in Los Angeles County Municipal Court, and she's also
served as a senior appellate court attorney for a
Court of Appeal.
In addition to her job, she also gives back
to the legal profession by being active with the
State Bar of California. She served on the committee
of bar examiners, as well as the executive committees
for the labor and employment law section as well the
public law section.
We've heard about her scholars -- and I know
time is brief.
CHAIRMAN STEINBERG: Please.
MS. MALANA: I wanted to, on a personal
note, let you know that along with my role as an
attorney at Littler, I also am the president of the
San Diego County Bar Association. We are the largest
legal- related organization in the region, with over
10,000 members, and Ms. Cheng has come to San Diego
and addressed our labor and employment section and
our members with regard to the initiatives and
16
1 employees in discrimination and other cases.
2 I'm here to enthusiastically support Phyllis
3 Cheng as director of the Department of Fair
4 Employment and Housing. She's smart, she's
5 hardworking, she's very productive. I've known her
6 for six years or so. We served together on the
7 executive committee of the state bar's labor and
8 employment law section when she was editor-in-chief
9 of the Law Review. She did a great job on that. She
10 still sends out case alerts about all the newly
11 decided appellate cases in California -- a couple
12 times a day they come out — as continuing her
13 volunteer work.
14 The automated right-to-sue-letter system
15 that she set up helped very much. The lawyers do
16 want to just get an immediate right-to-sue letter and
17 go to court. It allows you to keep control of
18 everything. It saves them time. And her idea of
19 doing, basically, a case-triage system where she
20 divides cases into ones that need a more thorough
21 investigation versus ones that need fewer is a good
22 step forward in efficiency for the department. We
23 support her wholeheartedly.
24 CHAIRMAN STEINBERG: Thank you.
25 MR. HOROWITZ: Thank you. Good luck.
18
mission of the Department of Fair Employment and
Housing, and we were pleased to have her in
San Diego.
And I was also pleased to have her support
at my own personal swearing in as president, because
I'm the first Asian Pacific-American attorney to hold
the position in 110 years in San Diego, and it goes
to show that Ms. Cheng also supports and mentors
others in the community and is dedicated to
increasing diversity and inclusion in our profession.
So on a personal note, I wanted to be here.
CHAIRMAN STEINBERG: Thank you very much for
your testimony, and congratulations to you on your
honors.
MS. MALANA: Terrific. And, again, Littler
Mendelson proudly supports Phyllis Cheng's
confirmation. Thank you.
CHAIRMAN STEINBERG: Thank you.
Next witness. Again, if you could be very
brief.
MR. HOROWITZ: I will, of course, Senator.
Good afternoon, Senators. I'm Phil
Horowitz. I'm here on behalf of the California
Employment Lawyers Association, which is a statewide
association of more then 850 lawyers who represent
17
1 MS. PEREZ: Good afternoon, Senators. My
2 name is Patti Perez, and I'm an employment attorney
3 in San Diego. I'm also a newly appointed member of
4 the Fair Employment and Housing Commission and am
5 proud to be working with Phyllis as a commissioner.
6 I'm here, however, representing the section
7 of -- the labor and employment law section of the
8 California State Bar, as I serve as vice chair on
9 that committee. Phyllis and I serve together on that
10 committee, and, as Phyllis mentioned briefly, she did
11 outstanding work on that committee on behalf of our
12 6,000-plus members that represent the entire gamut of
13 employment attorneys.
14 We recently did a membership survey, and the
15 top two benefits that our members found to be of most
16 value were the Law Review, which I can proudly say
17 that Phyllis was the primary reason for its wonderful
18 quality, and the second was specifically Phyllis's
19 e-alerts. That's how we refer to them. So it is
20 something that all of our members have benefited
21 from, and these are members or attorneys who are key
22 constituents to the Department of Fair Employment and
23 Housing.
24 One of the points I thought was really
25 relevant or really important that I've heard a lot of
19
30/2009 11:41:48 AM
Page 16 to 19 of 41
6 of 12 sheets
1 our members talk about is that Phyllis has brought
1
CHAIRMAN STEINBERG: Okay. Thank you.
2 relevance back to the DFEH, and I think that's very
2
MS. PEARLMAN: So she's fabulous. Thank you
3 important.
3
very much.
4 CHAIRMAN STEINBERG: Thank you very much.
4
CHAIRMAN STEINBERG: Thank you very much.
5 SENATOR OROPEZA: Excuse me. May I ask you
5
Are there any witnesses in opposition to the nominee?
6 do you represent employers or employees?
6
SENATOR OROPEZA: I'll move the vote in
7 MS. PEREZ: I actually have a consulting
7
support.
8 company, so I do neutral work.
8
CHAIRMAN STEINBERG: Moved.
9 MS. PEARLMAN: I promise I'll be brief, but
9
It's obvious that you are well-respected,
10 I have to tell you this is —
10
well-regarded, and well-liked, and I am pleased to
11 CHAIRMAN STEINBERG: Your name first.
11
support your confirmation. The only thing I ask is
12 MS. PEARLMAN: Paula Pearlman, dear friend
12
that you come to us if you feel the agency does not
13 of Phyllis. I'm also the executive director of the
13
have sufficient capacity or resources to be able to
14 Disability Rights Legal Center, so I'm really
14
genuinely protect people from discrimination, because
15 bringing diversity to this table as well, to this
15
we like to believe we have made great advances, and
16 esteemed body, so thank you very much.
16
we have, but we know that we still have a long way to
17 Phyllis has all the qualities you want,
17
go, and I want to make sure that this agency is
18 e-mails at two in the morning on the e-alert
18
really working on behalf of the people who are such
19 responding to mine, because we both became executive
19
victims.
20 directors —
20
Please call the roll on the nominee.
21 CHAIRMAN STEINBERG: And that's a good
21
MS. BROWN: Senator Cedillo.
22 thing?
22
SENATOR CEDILLO: Aye.
23 MS. PEARLMAN: It's fabulous. I know, of
23
MS. BROWN: Cedillo aye.
24 course, you want your public servants and your
24
Dutton.
25 nonprofit lawyers to be working efficiently. We take
25
SENATOR DUTTON: Aye.
20
22
1 time off. Phyllis has a wonderful family. I can
1
MS. BROWN: Aye.
2 speak on their behalf. Maxwell is her son who has
2
Oropeza.
3 autism, and he volunteers for me, and he has for the
3
SENATOR OROPEZA: Aye.
4 past year, and I just brought him into a grant so I
4
MS. BROWN: Oropeza aye.
5 can pay him and not be a volunteer. And her daughter
5
Aanestad.
6 and —
6
SENATOR AANESTAD: Aye.
7 We gave a reception for Phyllis, and those
7
MS. BROWN: Aanestad aye.
8 kids showed up. And they love their mom. So even
8
Steinberg.
9 though she's busy at two in the morning, they know
9
CHAIRMAN STEINBERG: Aye.
10 that. Her family comes first, so don't worry about
10
MS. BROWN: Steinberg aye.
11 our personal lives.
11
CHAIRMAN STEINBERG: Thank you very much.
12 CHAIRMAN STEINBERG: All right. I'm not. I
12
Your nomination will go to the floor of the state
13 promise.
13
Senate. I believe we take it up --
14 MS. PEARLMAN: Really, it's a privilege to
14
MS. SABELHAUS: Next week.
15 be here. There's unemployment with people with
15
CHAIRMAN STEINBERG: Next week.
16 disabilities at an all-time high. The accessible
16
MS. CHENG: Thank you very much, Senator.
17 housing stock is diminishing due to loopholes and new
17
CHAIRMAN STEINBERG: Thank you very much.
18 construction rules and accessibility statutes, and
18
Senator Aandestad, my fault. We had a
19 the DFEH is an essential institution for people with
19
little time mix-up here, so we want to lift the call
20 disabilities.
20
on the reference bills here.
21 We have an options counseling line, over
21
SENATOR AANESTAD: Okay.
22 7,000 calls a year. We refer people to the
22
MS. BROWN: Senator Cedillo.
23 Department of Fair Employment and Housing who have
23
SENATOR CEDILLO: Aye.
24 both employment and housing discrimination cases
24
MS. BROWN: Cedillo aye.
25 related to their disability. She's —
25
Aanestad.
21
23
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01/30/2009 11:41:48 AM
1 SENATOR AANESTAD: Aye.
2 MS. BROWN: Aanestad aye.
3 CHAIRMAN STEINBERG: Very good. That
4 measure passes.
5 Why don't we take number two here before we
6 go to the next nominee. I understand Senator
7 Aanestad has something to raise before we take a
8 motion on the standing rules of the Committee -- the
9 standing rules of the Senate. Excuse me.
0 (Discussion off the record.)
1 CHAIRMAN STEINBERG: All right. Very good.
2 Next we want to call up Cynthia Flores, who
3 has been appointed as a member of the California
4 Lottery Commission, and I want to welcome our
5 colleague, Senator Denise Ducheny, to introduce her.
6 SENATOR DUCHENY: Thank you very much.
7 Mr. Chairman and members, I just wanted to
B take the opportunity to introduce one of our
9 residents of the Coachella Valley, Cynthia Flores,
Q who has been a member of the lottery commission since
1 last March, so almost a year now.
2 She is a dean of students, associate dean,
3 at Cal State University San Bernardino at the
X Palm Desert campus, and I've known her prior to that
5 where she also served on the Imperial Valley campus
24
1 negatively to.
2 Having those committees, having a full
3 commission who can then engage in that appropriate
4 oversight can push the staff to give them the
5 appropriate information when they seem reluctant to
6 do so.
7 We hope they're listening. You know, it's
8 something that would help us all on the budget
9 committees and on the other issues with the lottery,
10 and so — particularly for that leadership on the
11 audit committee — in the hope that somebody with a
12 little experience now can help keep that program back
13 on line as we try to seek increased revenues and
14 dedicate -- ensure that our education systems get
15 what they're entitled to out of that system.
16 I recommend to you and am happy to be here
17 to introduce Cynthia Flores.
18 CHAIRMAN STEINBERG: Thank you very much,
19 Senator Ducheny.
20 Ms. Flores, welcome.
21 MS. FLORES: Thank you.
22 CHAIRMAN STEINBERG: Would you like to make
23 a brief statement?
24 MS. FLORES: Sure.
25 CHAIRMAN STEINBERG: Or you don't have to.
26
of San Diego State.
And for reasons that are still a mystery to
me, she chose to apply for this job, but I think what
she's been doing there has been positive. I think
her interest actually stems from the side that gets
money, which are the universities and the schools,
and trying to make sure that the lottery is as
effective as it can be in producing some income to
those institutions and to education.
She's been concerned about the integrity and
the fairness and the security of the system, and she
has been -- and her most interesting accomplishment,
I think over the year, that I want to point out to
the Committee, as the Committee views others, and I
know there was a discussion last year and a lot of
you will remember some of the controversy around the
problem with the lottery and how they were spending
their money, and Ms. Flores was a leader in promoting
an audit committee for the commission.
We encourage you to help encourage the
governor to make sure we actually get a full lottery
commission, because the public oversight, like
Cynthia, is what can keep the directors and the
systems from doing some of the things we saw last
year that so many of us and the public reacted
25
1 MS. FLORES: Nice and brief.
2 CHAIRMAN STEINBERG: You're welcome to.
3 MS. FLORES: Good afternoon. I'm Cynthia
4 Flores. I have the honor of serving on the lottery
5 commission for nearly one year now. You need me.
6 You need me in this position. You need me, quite
7 frankly, because you need an educator as a
8 commissioner on the lottery commission. It only
9 makes logical sense to have an educator there.
10 I come with 32 years as a member of the
11 California State University system. I've also served
12 in the community college system for seven years. I
13 was a high-school trustee, board member, earned my
14 dues. So I feel that I represent different segments
15 in education. And I come here for one simple reason:
16 To try to increase revenues for the lottery.
17 When I left the commission meeting this
18 morning, which I just came out of right now, I saw
19 the individual that represents the California
20 Teachers Association, and we spoke. And she said,
21 you know, "We're going to lose 25,000 new teachers
22 next year." Twenty-five thousand. She said, "Our
23 classroom size from grades one through five is going
24 up to 35." She said, "We can't afford to lose one
25 penny in revenue that comes to education."
27
730/2009 11:41:48 AM
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8 of 12 sheets
1 And, yes, lottery seems to have, to the
2 public, this magic big number, but it doesn't. What
3 it translates to is a very small number, about $145 a
4 student. But yet that money can be used for upgrades
5 in technology, et cetera, that's much needed. So we
6 can't afford to lose anything in education. So I'm
7 here to tell you, you need me, and I hope you'll have
8 me. And I'm here to answer any questions that you
9 might have.
10 CHAIRMAN STEINBERG: Thank you very much.
11 I'd like to begin very briefly by — I'll
12 tell you the number one thing on my mind when it
13 comes to the lottery, and that is whether or not if
14 the voters approve the securitization measure that
15 will be on some battle in the future that the
16 legislature approved as part of last year's budget
17 solution, will we in fact — Are you confident or do
18 you know whether or not we will in fact have the
19 potential to realize the five billion dollars or so
20 that is plugged into the budget?
21 The reason why -- I know you're not a
22 securities expert —
23 MS. FLORES: Thank you, because I'm not.
24 CHAIRMAN STEINBERG: -- or a bonds expert,
25 but part of the success depends on whether we are
28
1 will this affect education? Because that's what I'm
2 concerned about. That's truly what I'm most concerned
3 about. So that was the question placed to me this
4 morning. So it's my understanding that the base will
5 slightly increase for education under this plan, so I'm
6 here to say that.
7 CHAIRMAN STEINBERG: I understand it's not
8 your expertise. What I really want to know is
9 whether or not — Is there any buzz about this over
10 at the lottery?
11 MS. FLORES: Oh, yes.
12 CHAIRMAN STEINBERG: In other words, are
13 people talking about this, working on it, figuring
14 out how do we get the whole five billion, or is it
15 something that you're leaving to the Department of
16 Finance and others? Is there a lot of talk about it?
17 MS. FLORES: Okay. On the -- Assembly Bill
18 1654, the idea there is that we're going to try and
19 increase our revenues, and we're going to increase
20 our revenues by trying to find out what can we do to
21 improve what we presently do.
22 For example, we have certain restrictions that
23 are facing us now in the lottery. With AB 1654, some of
24 these restrictions come off, and we have the ability to
25 generate more funding. That's the part that is most
30
1 marketing the lottery in the most appropriate,
2 aggressive ways. You know, what's your sense of that
3 very critical issue facing the legislature?
4 MS. FLORES: This morning when I was in
5 Senator Aanestad's office, a similar question came to
6 me, so I went to do my research as fast as possible.
7 CHAIRMAN STEINBERG: Good, good.
8 MS. FLORES: But it's my understanding that
9 if this were to pass at some future time by the
10 California voters, that the California State Lottery
11 Commission would securitize our future profits, and
12 that would mean that the State would issue bonds that
13 would be backed by the lottery proceeds, and then
14 it's estimated, what you said, that in '09-'10, we
15 would have approximately — bond sales that would be
16 approximately five billion, and the following year
17 another five billion.
18 Now, this proposal would establish what's
19 been termed the debt retirement fund, and, no, I'm
20 not a securities expert. That's why I'm reading a
21 little bit here. But these moneys could go to the
22 general fund, and then they could be used for
23 whatever purpose.
24 Now, what I did was I asked the question that
25 was asked of me earlier this morning. Will this — How
29
1 important to us at the Lottery. Yes, that's generating
2 tremendous buzz.
3 CHAIRMAN STEINBERG: Okay. Thank you.
4 Other questions?
5 Witnesses?
6 SENATOR AANESTAD: I just have a question
7 that I wanted to ask this morning, but I'd forgotten,
8 and I don't even know if you can answer. But I know
9 that the meeting this morning was out at the new
10 site, talking about the new 150,000-square-foot
11 building that Lottery is building, and the first
12 thing that came to mind was: In these economic times
13 with the State being in the position it is with all
14 kinds of vacant office space available, why is the
15 lottery commission going ahead with the building of a
16 very expensive -- in fact, if you can tell us the
17 cost. I don't even know what the cost is. Somebody
18 told me it's many millions of dollars. Why do we
19 need a brand new building for the lottery?
20 MS. FLORES: Yes. Thank you for your
21 question.
22 I'm charged, as a commissioner, to protect
23 the employees of the lottery, so I take that very
24 seriously. We have approximately 300 in our
25 headquarters. Right now, the building that we have
31
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has a sinking foundation, number one.
Number two, it's not seismic compliant.
Number three, it's not fire compliant, and
it is not ADA compatible.
We are taking samples — and as I walk
through the building, I have to go from office to
office many times, because they're taking air samples
for molds.
So the building is deteriorating. It — We
own the land. It is much more efficient for us to
build a new building. We have done analyses and
studies regarding this.
This morning we did -- we passed what we
call the mitigation negative report, the
environmental study to look at the situation. And
so -- We support this measure. We believe that we
are going to save millions of dollars, and we are
going to provide 900 new jobs. We also help the
rivers -- the Sacramento River build-up plan. I'm a
Southern California girl, so you're going to have to
excuse me. I don't know what this part -- the river
district, upgrade that. So I think it's important.
Yes, I understand that.
CHAIRMAN STEINBERG: All right. Thank you.
Other questions? Witnesses in support?
32
1 Deidra Lowe, member of the Workers' Comp
2 Appeals Board. Welcome.
3 MS. LOWE: Thank you.
4 CHAIRMAN STEINBERG: Before we get started,
5 we're going to go off calendar just for a minute,
6 because a gentleman just walked in the room.
7 (Discussion off the record.)
8 CHAIRMAN STEINBERG: Okay. Last but
9 certainly not least we have Ms. Lowe, who's up for
10 appointment as a member of the Workers' Compensation
11 Appeals Board.
12 Welcome.
13 MS. LOWE: Thank you, Chairman.
14 CHAIRMAN STEINBERG: Please.
15 MS. LOWE: Chairman Steinberg, Vice
16 Chairman Aanestad, and members of the Committee, I'm
17 very pleased to be here this afternoon and would like
18 to thank you for this opportunity to appear before
19 the Committee.
20 It's kind of fitting that my confirmation
21 hearing should be held here in Sacramento this month,
22 because it was here in Sacramento 30 years ago that I
23 began in the field of workers' compensation, joining
24 the well-known and very successful firm of Green &
25 Azevedo, representing injured workers.
34
Witnesses in opposition?
Senator Oropeza —
SENATOR OROPEZA: Move.
CHAIRMAN STEINBERG: - makes the motion.
Happy to support the nomination. Thank you
very much.
MS. FLORES: Thank you for your time.
CHAIRMAN STEINBERG: Call the roll.
MS. BROWN: Senator Cedillo.
SENATOR CEDILLO: Aye.
MS. BROWN: Cedillo aye.
Dutton.
SENATOR DUTTON: Aye.
MS. BROWN: Dutton aye.
Oropeza.
SENATOR OROPEZA: Aye.
MS. BROWN: Oropeza aye.
Aanestad.
SENATOR AANESTAD: Aye.
MS. BROWN: Aanestad aye.
Steinberg.
CHAIRMAN STEINBERG: Aye.
MS. BROWN: Steinberg aye.
CHAIRMAN STEINBERG: Thank you very much,
Ms. Flores. This will go to the floor.
33
1 Over the next 30 years, I've been a
2 practicing attorney in this area of law, and I've had
3 the privilege and pleasure of representing both
4 injured workers and employers and carriers.
5 Because I devoted my professional career to
6 this field of law, I was extremely honored and
7 delighted to have been appointed to the Workers'
8 Compensation Appeals Board. That board is vested
9 with all the judicial powers concerning the workers'
10 compensation system. Serving on the board provides
11 me with an opportunity not only to use my many years
12 of experience, but also, and more importantly, to
13 serve the workers' compensation community and the
14 people of the state of California.
15 During my short time on the board, I have found
16 the work to be extremely rewarding and challenging, and
17 I would very much like to continue serving on the board.
18 For this reason, I'm asking that the Senate confirm my
19 appointment.
20 I'd like to thank you for your
21 consideration, and I'll be happy to take any
22 questions you might have.
23 CHAIRMAN STEINBERG: Thank you very much.
24 Are there questions from the members?
25 I have one or two, and that is, really, to
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1 seek your assessment of the SB 899 reforms, which, I
2 think it's fair to say, continue to be controversial.
3 Your view of the positive of those reforms
4 and maybe any concerns, or what you think have been
5 negative consequences of the reforms.
6 MS. LOWE: Overall in my experience as a
7 practicing attorney for just a few years after SB 899
8 was passed, and as a commissioner for almost a year
9 now, I would say that for the most part the reforms
10 are working as intended. And it's my understanding
11 that the system as a whole is functioning very
12 efficiently.
13 I think upwards of 90 percent of injured
14 workers do not even have litigated cases. Most of
15 the cases are resolved on an informal-settlement-type
16 basis. All settlements do have to go through the
17 Workers' Compensation Appeals Board and be approved
18 by a judge, so they all do get seen by a judge for
19 the final disposition of the case. But overall, I
20 feel the benefit delivery system has worked well.
21 Medical care has improved; I think return-to-work has
22 improved.
23 CHAIRMAN STEINBERG: You are a fine nominee,
24 and I intend to support your nomination.
25 MS. LOWE: Thank you, Senator.
36
1 MS. BROWN: Senator Cedillo.
2 SENATOR CEDILLO: Aye.
3 MS. BROWN: Cedillo aye.
4 Dutton.
5 SENATOR DUTTON: Aye.
6 MS. BROWN: Dutton aye.
7 Oropeza.
8 SENATOR OROPEZA: Aye.
9 MS. BROWN: Oropeza aye.
10 Aanestad.
11 SENATOR AANESTAD: Aye.
12 MS. BROWN: Aanestad aye.
13 Steinberg.
14 CHAIRMAN STEINBERG: Aye.
15 MS. BROWN: Steinberg aye.
16 CHAIRMAN STEINBERG: Before you leave, I
17 understand that you may have some family here. Would
18 you like to introduce them?
19 MS. LOWE: Yes. Thank you very much,
20 Senator. My husband of almost 20 years and our son
21 are here back in the third row.
22 CHAIRMAN STEINBERG: Welcome.
23 MS. LOWE: Thank you very much.
24 CHAIRMAN STEINBERG: Why didn't you come up
25 and testify?
38
1 CHAIRMAN STEINBERG: But this forum here is
2 always an opportunity for us to send, you know, an
3 appropriate message to the administration, or at
4 least any member to send an appropriate message to
5 the administration, and I would like to use this
6 opportunity to say we have some significant
7 frustration about the lack of progress on fairly
8 compensating permanently injured workers.
9 This is an issue which has been sort of
10 caught up in the political football for the last
11 several years. The administration has put forward a
12 16 percent increase, which I think is far too low,
13 and even that, you know, has not happened.
14 So while we're in the midst of this fiscal
15 crisis, I think it is important to just say a word on
16 behalf of injured workers who, when injured, are
17 unable to receive the full benefit of their salaries
18 and suffer great economic hardship. I don't know if
19 there's anything that you can do about it as a
20 commissioner. I know much of this is legislative,
21 but I just wanted to say that.
22 With that, are there witnesses in support?
23 Witnesses in opposition?
24 Motion to move by Senator Oropeza.
25 Please call the roll.
37
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MS. LOWE: I think it's better that -
CHAIRMAN STEINBERG: You didn't say
anything. I'm just kidding. Welcome and thank you.
The nomination will go to the floor of the
Senate tomorrow.
MS. LOWE: Thank you.
(Thereupon, the Senate Rules Committee hearing
adjourned at 2:33 p.m.)
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I, INA C. LeBLANC, a Certified Shorthand
Reporter of the State of California, do hereby certify
that I am a disinterested person herein; that the
foregoing transcript of the Senate Rules Committee
hearing was reported verbatim in shorthand by me,
INA C. LeBLANC, a Certified Shorthand Reporter of the
State of California, and thereafter transcribed into
typewriting.
I further certify that I am not of counsel or
attorney for any of the parties to said hearing, nor in
any way interested in the outcome of said hearing.
IN WITNESS WHEREOF, I have hereunto set my hand
this 3^^dav of JtUxLLJUrlj 2009.
INA C. LeBLANC
CSR No. 6713
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STATE OF CALIFORNIA - State and Consumer Services Agency ARNOLD SCHWARZENEGGER, Governor
DEPARTMENT OF FAIR EMPLOYMENT & HOUSING California
S^ S«8 7^™™^?' ?aJ6J7TJ™ FaiT Em ployment & Housing Act
(916)478-7251 TTY (800) 700-2320 Fax (916) 478-7329 Senate RuleS Committee '
January 7, 2008 JAN 0 8 »
Nettie Sabelhaus, Appointments Director rr ^mf* Employments Housing
Senate Rules Committee
State Capitol, Room 420
Sacramento, CA 95814
Re: Response to Senate Rules Committee Questions
January 28, 2009 Confirmation Hearing
Dear Ms. Sabelhaus:
In response to Senate President Pro Tern Darrell Steinberg's request, I have
prepared the below responses to questions posed by the Senate Rules
Committee pursuant to the January 28, 2009 confirmation hearing on
my appointment as Director of the Department of Fair Employment and Housing
(DFEH). In addition, I have enclosed my updated Form 700, Statement of
Economic Interest.
STATEMENT OF GOALS
1. What are your goals as the director of DFEH? What do you hope to
accomplish during your tenure, and how will you measure your
success? What challenges do you anticipate to meeting your goals?
a. Goals as DFEH Director:
1 ) Improve delivery of public service.
2) Vigorously enforce the law where violation is found.
3) Expand outreach to stakeholders.
4) Provide civil rights leadership.
b. Measure of Success:
1) Improve Delivery of Public Service.
a) Online Appointment System: The DFEH established an automated
appointment system for the public to maximize efficiency and
convenience. Goal is 10 percent in the first year. Since its February
2008 inception, Achievement is 20 percent to date. (See
www.dfeh.ca.gov.)
b) Online Right-to-Sue System: Working with the California
Employment Lawyers Association (CELA), the DFEH instituted an
automated right-to-sue system for complainants who are already
represented by counsel. Goal is 20 percent in the first year. Since
42
its June 2008 inception, achievement is more than one-third (34 %)
of all requests for right-to-sue letters to date. (See
www.dfeh.ca.qov.)
c) Telephone Intakes: To save on complainants' time and travel
expenses, and to expedite intake processing, developed a pilot
project to conduct telephone rather than in-person intakes. Goal is
40 percent of all employment district offices. Achievement is 40
percent to date. The system will be expanded to 100 percent of all
employment district offices by the close of FY 2008/09. All housing
district offices are already conducting telephone in-takes.
d) Case Grading System: In process of launching a new system of
triaging pre-accusation cases by significance, so that those having
the greatest systemic impact are given the highest priority for
investigation and prosecution. The system is expected to be in
place in 100 percent of all district offices by the close of FY 2008/09.
2) Vigorously Enforce the Law.
a) Vigorously enforce the laws under the DFEH's jurisdiction where
violations are found (See press releases on 2008 settlements and
judgments at http://www.dfeh.ca.qov/announcements/pressReleases.aspx ) :
i. More Prosecutions: Goal is to increase the filing of
accusations by 15 percent. In comparing the DFEH Legal
Division's performance for the last six months of 2007 to the
last six months of 2008, the Department has increased the
number of accusations filed by 28 percent (42 to 54).
ii. Higher Settlements: Goal is to increase settlement amounts
by 15 percent. During the same period above, the DFEH has
increased the total dollar amount in post-accusation
settlements by 1 8 percent ($1 ,667,489 to $1 ,970,826). These
increases are impressive considering that they occurred
during the spending freeze and when the Department
experienced a 25 percent turnover in the attorney staff due to
CEA appointments, retirements and transfers.
b) Take a leadership role in advancing civil rights law and in shaping
public policy. New initiatives:
i. Director's Complaints: Goal is to begin issuing one or more
Director's complaints on high impact and/or underserved
cases (i.e., pre-employment inquiry cases). No Director's
complaints had been filed in the year prior to my tenure. In
2008, the Department achieved this goal by issuing a
Director's complaints against respondents (Pacific Motor
Trucking and Jack Cooper) engaged in a pattern and practice
of unlawful pre-employment inquiries regarding disability and
medical condition, and declining to hire and/or interview
applicants with these conditions.
Response to Senate Rules Committee Questions
43
ii. Class Complaints: Goal is to consolidate multiple individual
complaints against the same respondent into one or more
class complaints. In 2008, the Department filed and settled a
civil class action suit, Dept. of Fair Employ. & Hous. v. Plaza
Court Apartments, where multiple complaints were merged
into a class of tenants who encountered familial status
discrimination. The class action suit recently settled for
$618,000 and affirmative relief. In addition, the Department is
currently litigating another employment class action/Director's
complaint against a company's widespread and continuous
use of a medical test designed to deny employment for
individuals who allegedly have a propensity to develop Carpal
Tunnel (Starcrest Products). There are several other class
complaints under investigation.
iii. Collaborate with Other Governmental Agencies: To optimize
limited resources, consider opportunities to co-counsel and
conduct joint investigations with the U.S. Equal Employment
Opportunity Commission, Agricultural Labor Relations Board,
and U.S. Department of Justice (US DOJ). The DFEH is
currently in discussion with all these agencies and have
participated in numerous joint training events with them. The
US DOJ's Office of Special Counsel has additionally invited
the DFEH to apply for a grant to eliminate immigration status
discrimination in FY 2009/2010.
iv. Special Investigations Unit: To better address systemic
discrimination cases, in August 2008 reestablished the
DFEH's Special Investigations Unit, which was discontinued
in the 1990s. Currently, the SIU is investigating seven
systemic discrimination cases that may be filed as individual,
class action and/or Director's complaints.
v. Education: To proactively prevent violations of the FEHA, in
June 2008 developed a set of "Equal Rights 101" educational
videos and a special Web site on employment discrimination
for youth outreach under an EEOC grant. The videos have
been posted on a special page on the DFEH Web site and on
YouTube, where it has received over 3,000 hits and 4 Vz out
of 5 stars. (See http://www.dfeh.ca.gov/egualrights101/ and
http://www.youtube.com/califdfeh.) The State Bar Labor &
Employment Law Section recently awarded another grant to
further develop and disseminate the video. Three additional
sets of outreach videos will be produced in 2009 on housing,
public accommodations and hate crimes. The DFEH is
coordinating with the Department of Education to disseminate
the DVDs and accompanying educational materials to all
California public high schools.
Response to Senate Rules Committee Questions 3
44
3) Expand Outreach to Stakeholders.
a) Expand Outreach and Technical Assistance: In 2008, I made
44 keynote speeches/presentations (see Appendix A: Director's
Speaking Engagements Summary Log 2008); outreached to
numerous groups and organizations; and the DFEH staff
engaged in 40 presentations/outreach activities (see Appendix
B: DFEH Staff Speaking Engagements & Outreach Events
2008) statewide to the following groups:
i. Civil and human rights organizations.
ii. Employee and employer groups.
iii. Tenant and landlord representatives.
iv. Plaintiffs' and defense bars.
v. Private and public sectors.
vi. All stakeholders in our diverse state.
b) Revitalize the Employment Roundtables: In 2008, the Director
continued active involvement with the Employment Round Table
of Southern California, which sponsored four training meetings
and an annual conference; and revitalized the Central and
Northern California Employment Round Tables, which will
sponsor training to employer groups during FEHA's 50th
anniversary.
i. Southern California
ii. Central California
iii. Northern California
c) Initiate Support for Fair Housing and Public Accommodations:
i. In addition to active participation in the Labor &
Employment Section of the State Bar of California, I
launched a new Fair Housing and Public
Accommodations Subsection at the State Bar to develop
the practice area.
ii. The new Subsection is planning two fair housing/public
accommodations conferences to train attorneys on all
sides of the issues.
4) Provide Civil Rights Leadership.
a) Take a leading role in celebrating the 50th anniversary of the
FEHA in 2009. To celebrate the Act's half-century mark, work in
partnership with stakeholders to collaborate on events
throughout California to celebrate the advancement of the law
(see FEHA 50th Anniversary Brochure and Civil Rights Year
Calendars for January-March 2009 at www.dfeh.ca.gov):
i. Civil rights community.
ii. Unsung heroes.
iii. Model employers, businesses and housing providers.
iv. Plaintiff and defense bars, minority bars and neutrals.
v. Private and public sectors.
Response to Senate Rules Committee Questions
45
vi. All branches and levels of government.
b) Planning the Next 50 Years:
i. Conduct studies to take measure of the Act's
accomplishments, its gaps, and to recommend policies
for the future
ii. Invite academic and research institutions to study the
FEHA:
(a) UCLA Law School-RAND Study.
(b) Loyola Law School Study.
iii. Provide the studies to policymakers and all stakeholders
in late 2009.
iv. Recommend a blueprint on advancing the FEHA for the
next 50 years in late 2009.
c) Plan the Act's Renaissance in 2010:
i. Issue DFEH administrative regulations in 2010.
ii. Scope of regulations would cover intake to issuance of
accusation,
iii. Hold regulatory hearings statewide,
iv. Invite public comments and testimony,
v. File with and seek approval from the Office of
Administrative Law.
vi. Promulgate approved regulations as new sections in the
California Code of Regulations.
2. What have been your most significant accomplishments as director of
DFEH?
All of the above are significant accomplishments integral to moving civil rights
and the Department forward. I believe the following are the most salient.
Service to the Public.
In the delivery of public services, the Employment Unit's online appointment,
riqht-to-sue, and telephone intake systems have made service delivery more
accessible for complainants and their counsel. Complainants' counsels have
given rave reviews to the right-to-sue system. At the same time, they have
modernized case processing, increased the Department's efficiency and reduced
expenses at a time of state budget challenges. The new case grading system
will further help to target cases requiring the most demanding investigation and
prosecution efforts.
Response to Senate Rules Committee Questions 5
46
Enforcement
■ The Enforcement Division.
In the vigorous enforcement of the law, I am proud of the increased prosecution
and better results in settling cases. With additional federal funding to add a
limited term housing district office, the Housing Unit increased productivity by 35
percent. Even with a 10 percent staff reduction, on dual-filed cases with the
federal government, the Enforcement Division brought in revenues of $2.5 million
from the EEOC and $2.6 million from HUD, the latter the highest in the history of
the Department.
■ The Legal Division.
During my first year at DFEH, the Legal Division faced several significant
challenges. First, my administration inherited an over 30 percent turnover in both
the Legal Division's attorney and secretarial staff. Second, for nearly two months
during the fall of 2008, a spending freeze due to the late approval of a state
budget significantly hampered the Legal Division's efforts to prosecute its civil
rights cases. Third, numerous vacant attorney and support staff positions
remained unfilled for much of the 2008 in order obtain salary savings for the
department.
Despite these obstacles, the Legal Division improved its productivity. After hiring
a new Chief Counsel and implementing a more aggressive commitment to
litigating the department's cases, the Legal Division increased both its new case
filings and settlements. Specifically, when compared to the last six months of
2007, in the last six months of 2008 the Legal Division increased its filings of new
Accusations from 42 to 54 (a 28% increase). Similarly, during this same
timeframe the Legal Division increased its total negotiated settlement dollars
from $1,667,489 to $1,970,826 (an 18% increase). In light of the Legal Division's
significant challenges in 2008, these productivity increases in the second half of
2008 were impressive. The Legal Division anticipates continued increases in the
future.
In addition to overall productivity increases, 2008 also marked several impressive
individual settlements and victories by the Legal Division. For example, in DFEH
v. Plaza Court Apartments, the Legal Division successfully negotiated a
$618,000 out-of-court settlement in a class action complaint against a large
apartment complex that was discriminating against children. Specifically, the
complex prohibited children from ever playing alone outside of their apartment
units, and threatened to evict families who violated such discriminatory rules. As
a result of the Legal Division's settlement, the complex was required to adopt
written policies that would prohibit future familial status discrimination against
tenants with families. In DFEH v. Lakeshore Villas Homeowners Owners
Association, the Legal Division successfully negotiated a $150,000 out-of-court
Response to Senate Rules Committee Questions
47
disability discrimination settlement with a condominium's home owner's
association (HOA). In that case, the HOA wrongfully removed a terminally ill
tenant's wooden ramp from a designated handicap parking space. As a result of
the HOA's actions, the tenant could not access his van, and he was virtually
house-bound for about ten weeks. Finally, in DFEH v. Terra Linda Farms, the
Legal Division won a precedential employment retaliation decision on behalf of
two seasonal farm workers before the Fair Employment and Housing
Commission (FEHC). In a decision that awarded over $11 1,000, the FEHC
agreed with the Legal Division's arguments that Terra Linda Farms unlawfully
retaliated against farm workers Maribal Rivas and Maria Santillan. (See press
releases On these settlements at http://www.dfeh.ca.qov/announcements/pressReleases.aspx.)
■ Proactive Prevention of Violations.
Under a grant from the EEOC and now a new grant from the State Bar Labor &
Employment Law Section, the DFEH used mass communications technology to
produce "Equal Rights 101" educational videos with its own staff. The videos,
dedicated Web site and YouTube postings have received outstanding reviews
from viewers. I have shown these to hundreds of persons at conferences; and
the video has been viewed by thousands online. On YouTube, the videos have
received over 3,000 hits and garnered 4 1/4 out of 5 stars. (See
http://www.dfeh.ca.gov/equalrights101/and http://www.youtube.com/califdfeh.) Three
additional sets of outreach videos will be produced in 2009 on housing, public
accommodations and hate crimes. The DFEH is further coordinating with the
Department of Education to disseminate the DVDs, posters, locker magnets and
cards to all California public high schools for use in a life skills class. In addition,
the DFEH is coordinating with bar groups to develop a speakers' bureau for high
schools.
Outreach
■ Outreach and Technical Assistance.
In 2008, my 44 keynote speeches/presentations (see Appendix A: Director's
Speaking Engagements Summary Log 2008), outreach to numerous
organizations, and the DFEH's staffs additional 40 presentations/outreach
activities (see Appendix B: DFEH Staff Speaking Engagements & Outreach
Events 2008) created greater awareness of civil rights laws under the
Department's jurisdiction among the following groups:
o Civil and human rights organizations.
o Employee and employer groups.
o Tenant and landlord representatives.
o Plaintiffs' and defense bars.
o Private and public sectors.
o All stakeholders in our diverse state.
Response to Senate Rules Committee Questions
48
■ Support for Fair Housing and Public Accommodations.
Unlike the employment bar, which has developed a robust practice and a
balance of plaintiffs' and defense counsel, there is nearly no private bar for fair
housing and public accommodations. As a result, there is a dearth of case law
and attorneys trained to guide landlords and businesses on how to comply with
the FEHA and the Unruh Civil Rights Act. To remedy this deficiency, I
approached the State Bar to initiate a new Fair Housing and Public
Accommodations Subsection under the auspices of the Real Property Law
Section. Bringing together a balanced representation of plaintiff, defense,
government, and neutral attorneys, the Subsection was launched in December
2008 to develop the practice area. The new Subsection is planning two fair
housing/public accommodations conferences during the FEHA's 50th anniversary
year to train attorneys on both sides of the issues. The Subsection will make
long-term contributions to the development of fair housing/public
accommodations law in California.
Civil Rights Leadership.
■ 50th anniversary of the FEHA.
To celebrate the FEHA's half-century mark in 2009, I have worked in partnership
with private and public sector stakeholders to collaborate on events throughout
California to celebrate the advancement of the law (see FEHA 50th Anniversary
Brochure and Civil Rights Year Calendars for January-March 2009 at
www.dfeh.ca.gov). A kick-off press conference is planned to honor civil rights
heroes at the Capitol. The Department is creating a short introductory video on
the anniversary that includes greetings from Senate President pro Tern Darrell
Steinberg, Assembly Speaker Karen Bass, Senator Abel Maldonado, State and
Consumer Services Agency Secretary Rosario Marin, DFEH Director Phyllis
Cheng and FEHC Chairman George Woolverton. The video will be played
before every keynote address at conferences and will be posted on the DFEH
Web site and on YouTube. In addition to a review of the law and new
developments, the conferences will also serve as forums to honor the civil rights
community; unsung heroes; model employers, businesses and housing
providers; plaintiff, defense, general and minority bar groups; private and public
sector groups; and all branches and levels of government.
■ Policy analysis and planning.
With approximately 19,000 complaints filed per year, the DFEH is a repository of
rich statistical data that has been untapped for policy analysis and planning
purposes. No research has measured the impact of the law on California.
Accordingly, I invited academic and research institutions to study the
Department's data. The UCI_A-RAND Center for Law and Public Policy has been
contracted to study the Act's accomplishments and gaps, and to recommend
Response to Senate Rules Committee Questions
49
policies for the future. The study is expected to be released in late 2009. The
Department plans to make the results available to the Administration, the
Legislature and all stakeholders, and to post the report online. In addition, the
Department has shared disability discrimination data with Loyola Law School,
which may undertake a similar study focused on disability and the FEHA.
Hopefully, these studies will make long-term contributions to the future
development of the FEHA.
GENERAL GOVERNANCE
DFEH is charged with enforcing California's civil rights laws and protecting
people from discrimination in employment, housing, and public
accommodations. DFEH is the country's largest state civil rights agency.
The department is responsible for receiving and investigating
discrimination complaints in its twelve district offices.
In general, between 16,000 and 20,000 discrimination complaints were filed
with the department over the last ten years. The director's recent
comments to the National Commission on Fair Housing and Equal
Opportunity indicate that more than 80 percent of these complaints were
employment related. [1] DFEH intake consultants first interview
complainants and then draft formal complaints and accept cases for
investigation.
3. How do you prioritize the department's responsibilities, particularly
given current budgetary realities?
I prioritize the Department's responsibilities in accordance with its mission to
protect Californians from employment, housing and public accommodations
discrimination, and hate violence. In response to the recent budgetary
challenges, the Department has eliminated many top and middle management
positions in favor of retaining investigative consultant and attorney positions
directly engaged in the enforcement of the FEHA, Unruh Civil Rights Act, and
Ralph Civil Rights Act.
o Under the budget-balancing reduction of 10 percent across all General
Fund departments for FY 2008/09, the DFEH's reduction meant $1.9
million, including 18 positions. After considering many alternatives, the
Department determined that the most appropriate response to this budget
challenge was to first eliminate a number of management positions that
resulted in a reorganization of the Department.
Structurally, the elimination of these positions and the growth in the Department's
housing program led to a division of the duties of the Enforcement Division
1 However, on the filing of DFEH Accusations, 60 percent are in employment and 40 percent are
in housing.
Response to Senate Rules Committee Questions 9
50
between two Deputy Directors: one in housing; and the other in employment.
Both positions report directly to the Director.
As described more fully below under item 11 , the Department has instituted new
case processing methods to timely investigate and triage complaints. In addition,
the Department is considering a reduction in space rental as well as the
institution of electronic transmission and scanning as a result efficiencies
generated by its automation, telephone intake and case grading procedures.
4. Do you attend meetings of the Fair Employment and Housing
Commission? How do you keep yourself abreast of the relevant issues?
My top staff and I regularly attend every FEHC meeting. Of the Commission's
four meetings In 2008, I attended two, Chief Counsel Tim Muscat attended one,
and Oakland Housing District Administrator Susan Sheftel attended one meeting.
I believe it is beneficial for the Commissioners to meet as many of the
Department's staff as possible, so that they have a better understanding of all
functions within the DFEH. I have additionally met and collaborated with FEHC
Chairman George Wool verton, other Commissioners, and Executive and Legal
Affairs Secretary Ann Noel on non-litigated matters.
As a former two-term Vice Chair and Commissioner of the FEHC, I am well
familiar with the work of the Commission. I ruled on 78 en banc FEHC decisions,
issued 17 precedential decisions, and promulgated four sets of regulations during
my Commission tenure. I have read every Commission decision since 1993 and
the vast majority of all precedential decisions before that time. From 1999 to
2003, as a Deputy Attorney General in the Civil Rights Enforcement Section, I
further represented the FEHC and DFEH as my clients before various trial courts
and the Court of Appeal, winning all of these cases, including a published
housing decision before the Court of Appeal. From 2003 to 2007, as a Senior
Appellate Court Attorney at the Second District Court of Appeal, I further worked
on numerous FEHA cases. Moreover, in private practice, I have litigated FEHA
cases on both the plaintiff side at Hadsell & Stormer from 1993-1994 as well as
the defense side at Littler Mendelson from 2007-2008.
Moreover, I am active with the State Bar and knowledgeable about labor and
employment law. As a former member of its Labor & Employment Law Section
Executive Commission, I launched and continue to prepare its "Labor &
Employment Case Law Alert," an e-alert on breaking new case law, which is
disseminated to nearly 7,000 members of the employment bar. To do this work, I
must review each and every labor/employment published decision of the U.S.
Supreme Court, Ninth Circuit Court of Appeals, California Supreme Court,
California Court of Appeal, and the FEHC. I also continue to write a regular
column on "Cases Pending before the California Supreme Court "in the bi-
monthly California Labor & Employment Law Review, the official publication of
the Section. To do this work, I must review each and every labor/employment
Response to Senate Rules Committee Questions 10
51
case pending before the California Supreme Court and be abreast of its status. I
also edit a column entitled "Employment Case Notes," which summarizes recent
labor employment case law. I further serve on the Law Review's editorial board,
was Co-Editor-in-Chief of that journal, and have published numerous articles in
this and other publications. In addition, I am a frequent speaker at the Section's
Annual Meetings, Public Sector Conferences and Webinars.
Finally, as described under Item 2 above, I have launched a new Fair Housing
and Public Accommodations Subsection under the State Bar Real Property Law
Section, whose purpose is to grow these practice areas. I developed an E-Circle
for this practice under the State Bar Web site for those interested in learning
about the practice. I also forward to this group any and all new fair
housing/public accommodations cases and articles. To do this work, I must
review each and every case and article on these topics.
5. DFEH consultants are responsible for conducting intake interviews and
accepting complaints for investigation. How do you ensure that they are
sufficiently trained?
Keeping the DFEH staff informed and trained is a high priority. The Deputy
Directors of Employment and Housing, and their respective District
Administrators, ensure that all consultants are well trained.
In March 2008, I issued an Update of the Case Analysis Manual, refereed by
practicing attorneys, to all DFEH consultants and District Administrators. The
Manual guides consultants on case processing and investigations.
In August 2008, the Department launched an internal blog for all District
Administrators, so that they can discuss and share strategies on the investigation
of cases. The District Administrators and DFEH Staff Counsel also receive my
"Case Law Alerts," "Cases Pending before the California Supreme Court,"
selected Daily Journal articles, and other new information to keep abreast of new
developments. The information is passed onto investigative consultants to guide
them in their work.
In December 2008, all District Administrators, attorneys and some senior
consultants received a full-day of training from the EEOC on the investigation of
systemic discrimination cases as well as a case grading system. The training
material is further disseminated by the District Administrators to their
investigative staff.
Further, HUD provides annual training to all new District Administrators and
consultants in the Housing Unit.
I post a current PowerPoint of my EEO Legal Update on the Department's Web
site that is accessible to everyone within and outside the DFEH, so that they can
Response to Senate Rules Committee Questions 1 1
52
keep current on the state of the law. I also receive every Webmaster posting
from the public to ascertain the level of knowledge in resolving cases among the
staff. The legal community and members of the public also e-mail me directly
about case processing. I respond to and/or assign a manager to respond to
every e-mailed or mailed complaint and monitor their resolution by the
consultants.
In addition, during the 50th anniversary year of the FEHA, all educational
programs will be videotaped and posted on the Department's Intranet as training
tools for the DFEH staff.
6. Your predecessor made use of volunteers because of lack of staff.
What is the current mix of paid staff and volunteers and what functions do
volunteers currently perform, if any?
The Department utilizes unpaid intems/externs in its Contract Compliance
Program, Legal Division and Volunteer Mediation Program. The current
percentage of unpaid volunteers is nearly 0.5 percent (9 unpaid volunteers/21 1
paid staff).
Starting in January 2009, the Department will sponsor an unpaid, part-time Public
Policy Intern at Headquarters. A graduate student in the California State
University, Sacramento, Public Policy and Administration Program, the intern's
primary assignment will be to assist the Compliance Program. He will help
analyze and present the Department's statistical data in graphical formats that
can be used for many purposes, including inclusion on our Web site and in a
Department annual report. In addition, he will assist with Public Records Act
requests and have the opportunity to observe and assist in the work of the
Executive Team.
The Legal Division regularly sponsors two to three unpaid Legal Externs from
various ABA-accredited law schools. These externs assist the Chief Counsel,
Associate Chief Counsels and Staff Counsels with legal research on cases
prosecuted by the Department.
The Volunteer Mediation Program currently utilizes five unpaid volunteer
mediators in the Employment Unit: four in Southern California and one in
Northern California. The Department will soon be entering an agreement with
Loyola Law School Center for Conflict Resolution. In addition, the DFEH
Volunteer Mediation Program is seeking experienced mediators to serve on its
Northern California Volunteer Mediation Program panel. Selected applicants will
be asked to participate in a full-day mandatory orientation tentatively scheduled
for January 12, 2009 in Oakland. We hope to increase volunteer mediators from
five to ten persons.
Response to Senate Rules Committee Questions 12
53
7. At her confirmation hearing before the Senate Rules Committee on
May 25, 2005, the previous DFEH director indicated that the department's
call center equipment had been updated with state-of-the-art equipment to
enable the department to track call volume and wait times. Please provide
the committee with any statistical data or anecdotal information on this
subject. Has the department had to redirect resources to address these
needs — for example, to address high call volume?
In the time since Director Ambrose was confirmed until the present, the
Communication Center has made several improvements in order to best handle
calls in an expeditious manner.
Although the Communication Center is working with less staff members, the
Center is able to handle calls quickly with shorter wait times. Equipment which
tracks the volume of calls and the length of time callers remain on hold, as well
as how many disconnect prior to getting through to a representative, has been
useful in scheduling staff to assure they are available during peak periods. A call
status board, which shows the number of calls waiting and the wait time, has also
been added which is visible to all Communication Center staff.
In early 2008, the Department additionally introduced an Online Appointment
System which allows persons seeking services to schedule appointments at any
time, day or night. Currently, over 20 percent of the appointments made are
made through the online system. As a result, this has lowered the number of
calls to the Communication Center.
PROCESSING OF COMPLAINTS
In the 1990s the department had a serious backlog in processing
complaints. Because of this backlog the 1996 Budget Act required the
Bureau of State Audits to perform a comprehensive audit of DFEH. The
audit, issued in January 1997, found that 30 percent of discrimination
complaints took longer to process than the one-year limit imposed by law.
Following the audit the department instituted a number of reforms and the
backlog was reduced substantially. The following table contains
information provided by the department detailing an overview of
complaints and the backlog.
Response to Senate Rules Committee Questions 13
54
FY
1995-96*
FY
2004-05
FY
2005-06
FY
2006-07
FY
2007-08**
FY
2008-09
(7/1/08-
10/31/08)
Filed for Investigation
9,149
7,788
8,303
7,152
8,168
2,915
Filing Purposes Only***
N/A
2,070
1,738
1,518
1,598
565
Immediate Right to Sue
N/A
7,809
7,538
7,950
9,337
3,567
Total Complaints Filed
18,101
17,667
17,579
16,620
19,103
7,047
Cases Exceeding 365 days
2,727
38
62
203
156 21
The FY 1995-96 data is from the 1997 audit. It is included for comparison purposes.
DFEH notes that the FY 2007-08 statistics have not yet been finalized and may change
when final statistics are subsequently produced.
Non-jurisdictional cases and those not supporting further inquiry.
The following table contains information provided by the department regarding
the average caseload:
FY
2004-05
FY
2005-06
FY
2006-07
FY
2007-08*
FY
2008-09
(7/1/08-
10/31/08)
Average
Nonhousing
Caseload
64.6
70.7
66.9
56.1
61.2
Average
Housing
Caseload
24.9
43.7
56
41.4
30.3
8. In the last few years backlog in cases exceeding the one-year
deadline has begun to increase with 203 such cases in FY 2006-07 and 156
cases in FY 2007-08. While the department has made substantial progress
since the 1997 audit in reducing the backlog, what actions or policies could
be instituted to further expedite and improve the department's processing
of complaints?
In January 2009, the Employment Unit will be introducing a "Case Grading"
System. The system will place cases into various categories of processing
depending on complexity and likelihood of a merit finding. This method will allow
the Department to prioritize more complex, which generally take longer to
investigate, and begin investigation immediately. In putting the focus on the
development of cases, rather than on the "first in, first out" process currently
used, it is anticipated that delays in case processing will be reduced. The
Employment unit is also aggressively taking action to correct the performance of
several employees who are responsible for approximately 40 percent of the
cases closing after one year. The processing of cases assigned to them is being
55
Response to Senate Rules Committee Questions
14
closely monitored by their supervisors to ensure that agreed timeframes are met
and that long delays in case processing are not occurring.
9. Are there certain complaints that are more difficult to resolve in a
timely manner? If so, why?
Certain types of employment cases are more difficult than others and take a
longer time to process. Cases involving disability discrimination, denial of leave,
denial of accommodation, and some harassment cases often require securing
medical records, locating witnesses, and conducting on-site visits. Delays may
also be caused by recalcitrant respondents, who refuse to submit requested
information or submit incomplete information. It is necessary in these cases to
initiate formal discovery which requires time to prepare and causes delay in case
processing. With rising caseloads, and based on the current "first in, first out"
manner of processing cases, consultants may not begin investigating these more
time-consuming cases until several months after the date of filing — and may run
out of time before they can secure the evidence necessary to make a
determination. It is anticipated with the new Case Grading system, which
prioritizes case processing based on complexity rather than date filed, work on
these more difficult cases can commence earlier in the process.
10. There appears to be a general upward trend in the number of
complaints filed with the department in the last two years. What might be
the reasons for this increase in filed complaints?
There is no clear factor as to why the number of filed complaints has increased in
the last two years. Some of this increase may be attributable to the downturn in
the economy, with people being let go from their positions or demoted. There
does not seem to be a particular trend emerging to demonstrate an increase in
any particular type of complaint being filed or a rise in complaints from any
particular industry.
However, the literature on prior recessionary economies shows fiscal downturns
and the excess supply of labor generate an increase in employment
discrimination claims. (See Donahue & Seligman, Law and Macroeconomics:
Employment Discrimination Litigation over the Business Cycle (1993) 66
So.Cal.Law.Rev. 709.) In California, this trend has reemerged under the
prolonged economic slow down. Total employment discrimination cases dual
filed with the DFEH and the U.S. Equal Employment Opportunity Commission
(EEOC) grew from 4,404 in FY 2006/07 to 5,229 in FY, an increase of 825 cases.
More than 20 labor and employment appeals, some pertaining to the FEHA, are
currently before the California Supreme Court. Despite these fiscally challenging
times and an increasing case load, DFEH continues to vigorously enforce the law
wherever discrimination is found. As we approach the 50th anniversary of the
FEHA in 2009, civil rights enforcement is proving to be more vital than ever.
Response to Senate Rules Committee Questions 15
56
wherever discrimination is found. As we approach the 50th anniversary of the
FEHA in 2009, civil rights enforcement is proving to be more vital than ever.
1 1 . The average consultant caseloads have fluctuated over the last few
years. What has been the impact of these changes on the department,
complainants, and respondents?
In March 2007, approximately 35 employment consultants, more than one-third,
had been on the job one year or less. It takes, on average, between one to two
years for a consultant to be trained to the point where they are fully producing.
The challenge is to process the same number of cases with fewer consultants.
In FY 2005/06 the Employment Unit was augmented with eight new consultant
positions. However, in FY 2007-2008 the Employment unit lost seven consultant
positions as the result of budget reductions, most of which had been left vacant
for more than six months to meet the expected cutback. Currently, in anticipation
of FY 2008/09 budget cuts, the Employment Unit has left nine consultant
positions unfilled in order to have the least impact on existing staff. Coupled with
the reassignment of several consultant positions to the newly-created Special
Investigations Unit, the Employment Unit has gone from 86 consultant positions
in November 2006 to 78 positions in November 2008, 68 of which are currently
filled.
The Employment Unit plans to meet this challenge with switching from in-person
intake interviews to almost exclusively telephone intake interviews, and with the
implementation of the Case Grading System. In offices where the lag-time for
intake appointments is long, appointments are being redirected to other offices
with shorter lag-times. Cases are redistributed between offices to try to equalize
caseloads. These efforts are aimed at attempting to maintain the same level of
service to the public while working with diminished resources. DFEH staff
members are still available to provide assistance to employers and to conduct
outreach activities.
CONSUMER ASSISTANCE AND OUTREACH
DFEH's statutory mandate requires the department to receive, investigate,
and resolve complaints alleging discrimination in employment, housing,
public accommodations, and hate violence. The department recently
implemented an automated online appointment system allowing
complainants to schedule intake appointments with DFEH consultants in
cases of job-related discrimination or harassment. The department has
also set up a system permitting complainants to request a "right-to-sue
notice" online.
Response to Senate Rules Committee Questions 16
57
In addition to investigating complaints, DFEH also provides technical
assistance to employers, businesses, and housing providers to help them
better understand their responsibilities under California's civil rights laws.
12. Requesting a right-to-sue notice has important implications: if an
individual requests a right-to-sue notice, the department will not
investigate his or her complaint. The department's Web site currently
advises individuals of this fact and suggests that waiving the department's
investigation is advisable only if the individual has an attorney. What has
been the feedback on the online right-to-sue notice system? Have any
issues been raised about the advisement?
Since the Automated Right-to-Sue System went online, the comments received
have been overwhelmingly positive. Where issues are raised, they are more of
the nature of difficulties encountered in filling out the form, problems printing, and
recommendations for improvement. To date, over 2700 complaints have been
filed using the automated system which represents approximately 34 percent of
all cases filed to obtain the immediate right-to-sue notice during this period. The
majority of the users are attorneys, and comments from them, particularly from
the plaintiffs' bar, have been encouraging.
I hold monthly meetings with the California Employment Lawyers Association
(CELA) and spoke at its 2008 Annual Conference. The comments I received on
the Right-to-Sue System have been overwhelmingly positive.
13. A recent visit to the department's Web site found that only the
homepage contained a link to the online system permitting complainants to
request a right-to-sue notice. Other areas of the Web site, such as the
"Complaints" tab or "Right-to-Sue Notice" tab do not appear to contain a
link to the system. Are there plans to update these other areas of the
department's Web site to also include a link to this system so that
complainants may request a right-to-sue notice online?
The Automated Right-to-Sue system was developed with the intent of making it
easier for attorneys or complainants with attorneys to obtain the "right-to-sue"
notice from the Department. As noted above, the Department is careful in
directing only those persons for whom this is the case to the Automated Right-to-
Sue system. Care must be taken to assure that members of the public do not
erroneously file complaints using this system thinking they are filing a complaint
which will be investigated by the Department. Notice of the availability of this
process online has been directed chiefly to the plaintiffs' bar and there is a
general awareness of this system prior to them visiting the Department's Web
site. However, a link to the automated system is appropriate for the "Right-to-
Sue Notice" tab to explain that the packet may be completed and submitted
online. Addition of this is currently underway.
Response to Senate Rules Committee Questions 17
58
14. What resources are available to non-English speakers through your
Web site or elsewhere regarding the activities of the department?
DFEH publications regarding the laws the Department enforces and the services
it provides the public are available on the Department's Internet Web site. Most
publications are available in Spanish as well as English. Also available from the
Web site is the Department's hate violence rights and remedies fact sheet that is
published in Arabic, Bengali, English, Farsi, Gujarati, Hindi, Punjabi, Sinhalese,
Spanish and Urdu.
The Enforcement Division has a policy directive which guides staff in the
procedures for providing services to persons who are Limited English Proficient
(LEP). When making appointments, Communication Center staff note any special
language needs, and this information is automatically sent via email to the
appropriate District Office informing them of the need for an interpreter. The
District Office then makes arrangements to have an interpreter available using
someone within the Department or contracting with a vendor. This same option
is available for persons making appointments through the Department's Online
Appointment System. Where an LEP individual presents himself/herself to a
District Office, staff uses a "Language Identification Guide" to assist in
determining the language spoken by the individual. Additionally, in the lobby of
each District Office is a "Notice of Interpreter Services" in the four most
commonly used languages of that service area. This informs LEP individuals
that they may request an interpreter, and also presents contact information for
those not satisfied with the interpreter services offered. Similar instructions are
provided to staff ensuring that members of the public with hearing, speech, and
vision impairments are provided full access to Department services.
MEDIATION
The department received $1 million in the 2000-01 budget for a pilot
program to handle employment discrimination complaints through
mediation. While ongoing funding of this pilot was not renewed in
subsequent budgets, the previous department director indicated at her
confirmation hearing before the Senate Rules Committee on May 25, 2005,
that the department had begun to re-implement the mediation program. A
recent visit to the department's Web site indicates that it is looking for
volunteer mediators to serve on its Northern California Volunteer Mediation
Program Panel.
15. Please update the committee on the status of mediation of
employment discrimination complaints as an alternative to investigations
of these complaints by the department.
The Department has maintained a Volunteer Mediation Program for employment
discrimination complaints since January 2006. To expand its current Southern
Response to Senate Rules Committee Questions 18
59
Angeles District Office, particularly those filed by low-income and/or mono-lingual
Spanish employees and applicants. The Department also has expanded its
panel of Northern California volunteer mediators and is conducting an orientation
for new panelists on January 12, 2009, in Oakland. In 2008, the Department also
implemented a mediation program for housing discrimination complaints.
Please let me know if I can answer any other questions. Thank you.
Sincerely,
\J —
Phyllis W. Cheng
Director
Enclosures:
Appendix A. Director's Speaking Engagements Summary Log 2008.
Appendix B. DFEH Staff Speaking Engagements & Outreach Events 2008.
Appendix C. Updated Form 700.
Response to Senate Rules Committee Questions 19
60
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71
Senate Rules Committee
JAN 0 6 2009
SUBMITTED JANUARY 6, 2009 Appointm
SENATE RULES COMMITTEE
CONFIRMATION QUESTIONS
CYNTHIA D. FLORES
Statement of Goals
What are your goals as a member of the Lottery Commission? What do you
hope to accomplish during your term? How will you measure your success?
My goal is simple - to assist the Lottery in increasing revenues so that California's
education system can benefit from an increase in much needed funds. This
increase in funding stream to education will also serve as a means to measure my
success as a Commission member. To accomplish this, I will continue to both
substantively review and benchmark the Lottery's activities against the foundation
that was laid out in the strategic Business Plan. As the Lottery moves forward, only
through the Commission's diligent oversight and review can the Lottery hope to
achieve continued success in long term planning, maintaining customer satisfaction
and confidence, improvement of brand image, increasing prize payouts, and
modernizing operations.
What have been your most significant accomplishments as a member of the
Lottery Commission?
One of my most significant accomplishments as a member of the Lottery
Commission has been the recent establishment of an Audit Committee. The Audit
Committee will play a critical role in maintaining an ethical environment at the
Lottery, as well as assisting in maintaining compliance with laws and regulations.
In addition, an Audit Committee can assist the Commission in fulfilling its oversight
responsibilities for (1 ) the integrity of the Commission's financial statements, (2) the
company's compliance with legal and regulatory requirements, (3) the independent
auditor's qualifications and independence, and (4) the performance of the
company's internal audit function and independent auditors.
Another accomplishment is that on January 17, 2009, we are airing our new game
show, "Make Me A Millionaire." This tremendous achievement required many
hours and a huge group effort from nearly every corner of the Lottery. The show is
a highly polished and first-rate.
Over the last year, the Lottery grew our network to more than 20,500 stores
through vigorous recruitment of more retailers and faster processing of their
applications. Further, we successfully completed our test project with CVS and we
reached agreement to begin service with their network of over 350 pharmacies in
Southern California.
72
Cynthia D. Flores
January 6, 2009
Page 2
At the Lottery, I am proud to say we have instilled a belief that it is not simply talk
when we say there is nothing more important to our success than integrity and
maintaining consumer confidence. To this end, the Commission adopted our first-
ever Consumer Protection Strategic Plan, and authorized the first undercover sting
operation in North America. The sting focuses on the criminal theft of lottery tickets
from customers. The 500 operations that have been conducted to date have been
extremely successful, and have resulted in multiple criminal prosecutions. So
much so, that our operations have been chronicled by Dateline NBC for a story to
be aired in the coming year.
Finally, the Lottery made more progress than ever before toward amending the
Lottery Act to allow us to increase prize payouts. Through much hard work, the
Lottery assisted the passage of Assembly Bill (AB) 1654. This was the result of
many staff working together providing data and analysis to policymakers. Although
AB 1654 puts prize payouts on the ballot for the next statewide election, this is a
major step in the right direction for both the Lottery and California.
Securitization of the Lottery
The 2008 budget package includes legislation that, if approved by the voters, would
authorize the California State Lottery to "securitize" future profits. Under the
securitization plan, the state would issue bonds backed by lottery proceeds. It is
estimated that bond sales would raise $5 billion in 2009-10 and $5 billion in 2010-11.
The proposal would also establish a Debt Retirement Fund (DRF) into which bond
proceeds would be deposited. DRF monies could be used by the Legislature for any
General Fund budgetary obligation.
3. Under the ballot proposal, there are technically no limits on the amounts that
can be borrowed against lottery proceeds. What steps is the commission
prepared to take to increase revenues if the plan is approved by voters and
additional revenue is necessary?
Allowing the Lottery to increase prize payouts is the most significant revenue
generator in Assembly Bill (AB) 1654. If approved by the voters, AB 1654 will allow
the Lottery to increase prize payouts by increasing the percentage of revenue
allocated to prizes, allowing the Lottery to reinvest interest income and unclaimed
prizes into prize increases.
Our research of states that have increased prize payouts shows that maximizing
profits over the long term requires a gradual increase in prize payouts rather than a
dramatic one-time infusion. Other states' experiences also indicate that we need to
73
Cynthia D. Flores
January 6, 2009
Page 3
carefully monitor prize payout levels to ensure the state is receiving the maximum
return from this strategy. For example, it is possible to increase prize payout levels
to a point where profits are not maximized, i.e. too much revenue is allocated to
prizes to the detriment of bottom line profits.
At our December 3, 2008, Commission meeting, the Commission approved
alternative prize structures for Scratchers games in anticipation of voter approval of
changes to the Lottery Act. These prize structures are modeled after other state
lotteries that have successfully increased prize payouts in a responsible and
sustainable manner. This action will allow us to begin implementation as soon as
possible after voter approval.
Other states' experience shows that profits can double and, in certain
circumstances, even triple using this strategy for responsible, sustainable growth.
Lottery Performance
One of the underlying issues framing recent policy discussions about the lottery has
been its low sales per capita relative to other states. In 2005-06 lottery sales per capita
in California were about one-half of the national average.
The commission's 2007-10 business plan states that the lottery's history of short-term
planning is holding it back, and that the organization needs significant change if it is
going to survive in today's marketplace. The plan identifies marketplace options such as
changing the payout level of games to maximize profits, expanding the base of retail
outlets, and breaking into the multilane retailers such as Wal Mart and Sears. The plan
also states that many in the lottery industry believe California has the most onerous
restrictions in the nation.
4. Regardless of whether the lottery proposal is approved by the voters, what
changes are you planning for the lottery to better compete in the
marketplace?
In 2007, the Commission adopted a long-term business plan to position the Lottery
for sustainable growth given these realities and even without changes in law. The
four key strategies are to focus on long term planning, improve brand image, shift
the jackpot paradigm, and modernize operations.
Long term planning is essential because the Lottery needs fundamental change to
survive and grow in today's environment. The Lottery previously planned one year
at a time, which only served to perpetuate existing business practices.
74
Cynthia D. Flores
January 6, 2009
Page 4
Consumer product businesses such as the Lottery thrive on a positive brand image
to grow and maintain customer loyalty. Prime examples are Starbucks and Coca
Cola. The Lottery has not paid much attention to its brand image over the years.
As a result, consumers constantly ask where the money goes and why no one wins
the Lottery anymore. A recent brand audit conducted by the Lottery's marketing
vendor confirmed this. It is important for the Lottery to focus on improving its brand
image through proactive messaging and operating transparently.
Shifting the jackpot paradigm is a strategy to get players to play at lower jackpot
levels rather than waiting for the $200 million jackpots. Achieving this will increase
sales and provide sales that are more consistent. Recently, the Lottery
implemented a successful campaign that asked, "Isn't any jackpot worth playing
for?" This campaign increased sales at lower jackpot levels by as much as 7%.
The Lottery will continue exploring different ways to gamer more sales at lower
jackpot levels.
Modernizing operations is a broad category that involves everything from
technology to business models. Our accounting systems are outdated and require
manual processing and redundancy. Our business models served us well over the
last two decades but do not reflect current retail needs or consumer shopping
trends. Our gaming system requires months of advanced planning for any
changes. To take efficient and effective advantage of business opportunities as
they arise, these areas require updating.
In alignment with these strategies, the Lottery launched a new TV game show that
replaces the Big Spin in January and recently signed an agreement with CVS
Pharmacy to implement an innovative business model in 350 of its stores.
However, without voter approval of the statutory changes proposed by Assembly
Bill 1654, the impact of each of these efforts will undoubtedly be limited.
5. Under current law, what restrictions prevent the lottery from maximizing its
revenues? Will you be proposing legislation to address any such
restrictions?
Assembly Bill (AB) 1654 addresses some of the restrictions that prevent the Lottery
from maximizing its revenues, including:
•
prize payout restrictions,
inability to allocate interest income and unclaimed prizes, and
inability to use retained earnings.
75
Cynthia D. Flores
January 6, 2009
Page 5
Unfortunately, AB 1 654 directs these changes to be put to a vote of the people at
the next statewide election before the Lottery can begin to implement them.
The Business Plan discusses four additional restrictions that, if removed, could
generate additional sales. They are: prohibitions against fixed prizes, technology
restrictions, ticket dispenser restrictions, and theme restrictions.
Problem Gambling
The California Research Bureau estimates that problem and pathological gambling
costs the state $1 billion a year. In FY 2008-09 the lottery entered into an interagency
agreement with the state Office of Problem Gambling within the Department of Alcohol
and Drug Programs to coordinate problem gambling efforts
The lottery ballot proposal — if approved by voters — would provide $1 million annually
from the lottery for problem gambling. The proposal would allocate this funding to the
Office of Problem Gambling and require the office to report to the commission on the
effectiveness of problem gambling awareness and treatment efforts.
6. How is the commission currently coordinating with the Office of Problem
Gambling under the interagency agreement for problem gambling efforts?
How are you informed of Office of Problem Gambling activities?
In a 2007 hearing, the Senate Governmental Organization Committee made it clear
that problem-gambling efforts in the state should be centralized under the
Department of Alcohol and Drug Programs (DADP) Office of Problem Gambling
(OPG). To that end, for FY2008-09, the Lottery committed $250,000 to OPG to
cover the cost of help-line consolidation and provide funding for local assistance
programs. The Lottery has committed to providing OPG with an additional $60,000
annually for ongoing maintenance of effort. This collaborative funding model
allows the professionally trained staff at OPG to more broadly administer the
programs and services they understand to benefit Californians.
The Deputy Director responsible for the Office of Problem Gambling (OPG)
provides regular updates to the Lottery Commission on OPG activities, including
updates of activities planned for Problem Gambling Awareness Week, which is
traditionally in March of each year.
Additionally, the Lottery receives information relative to OPG activities on an
ongoing basis as a representative on the OPG Advisory Board. OPG maintains the
Advisory Group for essential input as the Office develops services and updates the
76
Cynthia D. Flores
January 6, 2009
Page 6
statewide plan, which was first drafted in 2006. The Advisory Group meets three to
four times annually.
What level of oversight do you believe the commission should have over the
Office of Problem Gambling's expenditure of the $1 million if the ballot
proposal is approved? For example, will the commission adopt any criteria
that it will apply in reviewing the report from the Office of Problem Gambling
to ensure effective use of the $1 million? If so, what criteria?
Following guidance provided by the Senate Governmental Organization
Committee, the Lottery began the process of consolidating problem gambling
efforts in the state, specifically by consolidating the existing help-lines to the current
1-800-GAMBLER. The Lottery subsequently began widespread publication of this
number on our various products, signs, terminals, and brochures, and was
completed in the Summer of 2008. In FY2008-09, the Lottery committed $250,000
to OPG to cover the cost of the consolidation of the help-lines, as well as to provide
funding for other prevention efforts statewide. The Lottery has committed to
providing OPG with an additional $60,000 annually for ongoing maintenance of
effort.
The $1 million detailed in Assembly Bill 1654, should it be approved by voters,
should be monitored and maintained in much the same fashion as the existing
monies - through an interagency agreement (IA) between the Lottery and OPG.
The current IA requires that the Lottery be provided with monthly reports and
comprehensive outcomes studies comprised of statistical data collected from calls
fielded on the help-line. The data includes but is not limited to help-line usage,
broken out by Lottery and non-Lottery callers, referral source, and demographic
information.
As more information, treatment options, and monies (tribal and card room) become
available in California, the Lottery is committed to continue to collaborate with OPG
to address opportunities to increase awareness of the issues surrounding problem
and pathological gambling, and to provide essential treatment options. OPG
received $5 million and two PY's in FY2008-09 from the State General Fund to
address needed problem gambling treatment issues in the state.
Additionally, as previously stated, the Lottery provides oversight and guidance to
the Office of Problem Gambling's (OPG) as a member of the OPG Advisory Board
since its inception in late 2005. In addition, the Department of Alcohol and Drug
Programs Deputy Director responsible for OPG has provided regular updates to
the Commission on OPG activities; the activities of which are mandated by the
Welfare and Institutions Code.
77
Cynthia D. Flores
January 6, 2009
Page 7
This guidance and participation has ensured effective and efficient collaboration
between the Legislature, Lottery, and OPG, keeping each of the agencies efforts in
concert with one another, as well as the other stakeholders statewide.
Employee Incentives
AB 1654 (Committee on Budget, Chapter 764, Statutes of 2008) provides express
authority for the Lottery Commission to, among other things; approve lottery-related
expenditures, including "employee incentives." A $50,000 California Lottery employee-
recognition party was the focus of a state Senate hearing and State Controller's audit in
2008.
8. How do you interpret the Commission's authorization regarding "employee
incentives"? What actions have been taken to increase scrutiny of such
expenditures?
The Commission took action at our May 20, 2008 commission meeting to address
employee incentives for non-sales staff. At this meeting, the Commission restricted
employee recognition to the types of recognition offered by other state agencies
consistent with Department of Personnel Administration rules and guidelines.
These are the rules and guidelines I intend to enforce.
Submitted to:
Nettie Sabelhaus
Appointments Director
Senate Rules Committee
State Capitol, Room 420
Sacramento, CA 95814
78
79
STATE OF CALIFORNIA
Arnold Schwarzenegger, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
WORKERS" COMPENSATION APPEALS BOARD
455 Golden Gale Avenue, 9th Floor
San Francisco, CA 94102
Telephone: (415) 7034580
MAILING ADDRESS:
P.O. Box 429459
San Fnuvisco, LA 94142-9459
January 5, 2009
Chairman Darrell Steinberg
Senate Rules Committee
State Capitol Room 420
Sacramento, CA 95814-4900
Dear Chairman Steinberg:
Thank you for your letter of Dec. 17, 2008 requesting a written response to the questions which
you have posed, along with an updated Form 700. Enclosed herewith please find my responses,
along with the updated Form 700. Please let me know if you or the Rules Committee would like
any additional information.
/. Please provide a brief statement of your goals for your term on the board. What do you
expect to accomplish? How wUlyou measure your success?
My goals as a Workers' Compensation Appeals Board Commissioner are to:
1. Render fair and impartial decisions that uphold the Constitutional
mandate to provide workers' compensation benefits to the injured
workers of this state in an expeditious and cost-efficient manner;
2. Participate in en banc and significant panel decisions that will
provide guidance to the workers' compensation community and
that will ensure that the workers' compensation system functions
in a manner consistent with the Constitutional mandate;
3. Participate in formulating regulations to implement various
provisions of the Labor Code as needed; and
4. Assist the Chairperson of the Appeals Board as he/she determines
or requires.
^raate Rnie£ Committee
y*: ^ 2009
80
As a judicial officer whose primary responsibility is to review decisions and orders from the
district offices, T hope lo serve the workers' compensation system with distinction by providing
clear, well-reasoned decisions for the guidance of the community. My success will be measured
by whether I achieve a reputation for excellent, impartial decisions.
As a commissioner, how does your role in deciding cases and reviewing petitions for
reconsideration enable you to identify key issues impacting the workers' compensation
system? What are the benefits of circulating these decisions? What, if any, leadership can
a commissioner provide when issues are identified?
Issues which are important to the workers* compensation community and thus are
the subject of frequent litigation, are identified by their recurrence in the petitions
which we review. Such issues are also identified through information obtained by
talking with one another, with workers' compensation judges and with members
of the workers' compensation community, as well as by reading various
publications devoted to workers' compensation issues and concerns.
Commissioners provide leadership to the workers1 compensation community by
issuing en banc and significant panel decisions to clarify areas of law which pose
difficulties and litigation potential, and by speaking at educational seminars and
conferences. In addition, the Appeals Board provides leadership by writing clear
and concise regulations governing workers' compensation procedures.
3. The board's website states that it provides "guidance and leadership" to the workers
compensation community through case opinions and regulations. Should the board look
for methods to enhance dissemination of its decisions to proved guidance? If so, how?
In addition to the Appeals Board's website, which provides the full text of all en
banc and significant panel decisions of the Board, there are numerous
publications, both in print and online, to disseminate these and other decisions. In
addition, there are a multitude of continuing education classes, conventions,
seminars and articles available to the inquiring practitioner to supplement and
improve his or her knowledge and expertise. Because of the ready availability of
these resources, there doesn't appear to be a need for additional methods to
disseminate these decisions.
4. Based upon your experience hearing cases before the appeals board, what are the
most significant issues upon which the board has issued decisions that affect
injured workers?
In the context of permanent disability, the most significant Appeals Board
decision since I began at the Board is the Boughner 73 Cal.Comp.Cases .
(decision, issued in June of this year, in which we upheld the validity of the 2005
Permanent Disability Rating Schedule.
81
Prior significant en banc decisions in the area of permanent disability have
included:
Escobedo, (2005) 70 Cal.Comp.Cases 604, which upheld the new law on
apportionment under Labor Code §4663 and 4664 and clearly articulated that
apportionment to pathology and other factors, which was impermissible under the
former statutes, is now allowed in the proper circumstances, and which set forth
the standard of proof defendants must meet in order to establish apportionment to
nonindustrial causes;
Nahors, (2005) 70 Cal.Comp.Cases 856, which held that the proper determination
of permanent disability after apportionment is to calculate the overall percentage
of permanent disability, and then to subtract the percentage of permanent
disability caused by other factors under Labor Code §4663, or a prior award under
Labor Code §4664, leaving the percentage of industrial disability for which
indemnity is payable;
Sanchez, (2005) 70 Cal.Comp.Cases 1440, and Strong, (2005) 70
Cal.Comp.Cases 1460, which provided that a prior permanent disability award
will be conclusively presumed to exist and that defendant has the burden of proof
as to the award's existence and the overlap between the prior award and the
disability or impairment resulting from the subsequent injury;
Pasquollo, (2006) 71 Cal.Comp.Cases 223, which held that an Order Approving a
Compromise and Release, without more, is not a "prior award" within the
meaning of Labor Code §4664(b);
AldL (2006) 71 Cal.Comp.Cases 783, Baglione II, (2007) 72 Cal.Comp.Cases
444, and Pendergrass II, (2007) 72 Cal.Comp.Cases 456 which held that the new
2005 Permanent Disability Rating Schedule applies to injuries occurring before
Jan. 1, 2005 unless one of the exceptions outlined in Labor Code §4660(d) is
present. Those exceptions include a pre-2005 comprehensive medical- legal
report, or a pre-2005 treating physician's report which indicates the existence of
permanent disability, and/or where the duty to send out notice pursuant to Labor
Code §4061 arises before Jan. 1, 2005;
Costa I, (2006) 71 Cal.Comp.Cases 1977, and Cost II. (2007) 72 Cal.Comp.Cases
1492, which held that the 2005 Permanent Disability Rating Schedule is
rebuttable under Labor Code §4660; and
Benson. (2007) 72 Cal.Comp.Cases 1620, which held that the former Wilkinson
{Wilkinson v. WCAB (1977)19 Cal.3d 491) doctrine generally no longer applies
to multiple injuries, and that a separate permanent disability award must be made
for each injury rather than one, larger award which combines the disabilities.
[This case is currently pending before the First District Court of Appeal, which
heard oral arguments in late 2008.]
82
In areas other than permanent disability, there have been significant decisions
since the passage of SB 899 that have interpreted Labor Code §4656 and the two-
year limitation of temporary disability [Hawkins, (2007) 72 Cal.Comp. Cases 807,
Cruz, (2007)72 Cal.Comp.Cases 12817; the provisions of Labor Code §4600 and
the Medical Provider Networks [Knight, (2006) 71 Cal.Comp.Cases 1423,
Babbitt, (2007)72 Cal.Comp.Cases 707; calculation of penalties and attorneys'
fees under Labor Code §58 14(a) and 5814.5; [Ramirez (2008) 73 CCC 1324 and
Abney (2(X)4) 69 CCC 1552], and utilization review procedures under Labor Code
§4610 [Simmons (2005) 70 CCC 866]. This is not intended to be an exhaustive
list, but to illustrate some of the more recent, significant decisions of the Appeals
Board.
Do you believe the reduction in permanent disability benefits has impacted litigation? If
so, how?
The new laws regarding permanent disability and apportionment seem to have
reduced litigation for a number of reasons. It appears that the parties arc now able
to resolve more cases informally without the necessity for litigation before the
Board. Where injuries are promptly reported and employers/carriers have an
efficient adjusting system, injured workers are usually receiving the treatment
they need to minimize the effects of the injury and to return to work, with
modifications if necessary, as quickly as possible, with resolution of the
permanent disability in a timely and satisfactory matter.
The addition of the American Medical Association's Guides to the Evaluation of
Pertnanent Impairment, 5th Edition as the basis for the determination of
permanent disability, along with the new 2005 Permanent Disability Rating
Schedule, has resulted in additional litigation in some areas. The Guides are
sometimes difficult for physicians to use and for parties to understand, and this
creates a need for doctors' depositions and/or requests for supplemental reports in
some cases. In addition, there have been challenges to the use of the Guides, and
to the application of the diminished future earning capacily factors contained in
the 2005 Permanent Disability Rating Schedule. As these issues are pending
before the Appeals Board at this time, I cannot make further comment here.
6. What impact do you believe the reduction in permanent disability benefits has had on
injured workers ?
Many injured workers are experiencing a reduction in permanent disability as
compared to the permanent disability rating schedule in effect before SB 899.
While some injured workers have experienced financial hardship because of
lower permanent disability benefits, many have benefitted from receiving prompt
medical treatment, early return to work, and a prompt resolution of their
permanent disability and future medical entitlements.
83
7. Please give us your interpretation of Labor Code Section 3202 which states "This division
and Division 5 (commencing with Section 6300) shall be liberally construed by the courts
with the purpose of extending their benefits for the protection of persons injured in the
course of their employment."
Labor Code §3202 requires that the law in workers' compensation cases should be
viewed and interpreted in the light most favorable to the applicant. Thus, where a
given statute is capable of two equally-plausible interpretations, the interpretation
which extends the most benefits and/or rights to the injured worker should be
implemented, consistent with legislative intent.
Labor Code §3202 must be construed with Labor Code §3202.5, which requires
that all parties prove the necessary elements for the relief they seek by a
preponderance of the evidence.
8. Are there steps that could be taken to make WCAB work more efficiently? Is the current
staffing of WCAB adequate, and how are workload fluctuations managed?
The seven-member Appeals Board, which exercises all judicial powers vested in
it by the Labor Code, is functioning well based on my experience for the past 11
months. The number of cases reviewed by the Board depends entirely on the
number of trials held at the district level and on whether one of the parties wishes
to challenge the Workers' Compensation Judge's determination by filing the
appropriate petition. Petitions are assigned by the Chairman, on a rotating and
random basis, to panels of three commissioners for decision. The Appeals Board
is able to review the cases which come before it and to issue decisions in a timely
fashion.
The efficient functioning of the workers compensation system as a whole,
including the management of the workload, staffing and other administrative
concerns, is the responsibility of the Director of the Department of Industrial
Relations and his or her staff, including the Administrative Director of the
Division of Workers' Compensation and the Court Administrator. The seven-
member Appeals Board is not involved in these administrative functions.
I trust that these answers will be of help to the Rules Committee in considering my
appointment to the Appeals Board. Please let me know if I can provide any additional
information. I look forward to meeting with you at the confirmation hearing scheduled
for Wednesday, January 28, 2009 at 1:30PM.
Very truly yours,
Deidra E. Lowe
84
92984
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