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Full text of "Hearing"

SAN FRANCISCO PUBLIC LIBRARY 



3 1223 08678 8990 




San Francisco Public Library 



Government Information Center 
San Francisco Public Library 
100 Larkin Street, 5th Floor 
San Francisco, CA 94102 

REFERENCE BOOK 

Not to be taken from the Library 







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 


- -oOo- - 


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 

4 - -oOo- - 

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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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 

- -oOo- - 
Vote-Only Item re Confirmation of 
PAMELA A. GIACOMINI, Member, State Board 
of Forestry and Fire Protection 122 

- -oOo- - 

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 



46 






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8 

9 

10 

11 

12 

13 

14 

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16 

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18 

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20 

21 

22 

23 

24 

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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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16 

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21 

22 

23 

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25 



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 



58 



1 

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7 

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12 

13 

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25 



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 



64 



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19 

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24 

25 



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 



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 



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 



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 



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 



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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 






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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 



136 



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. 



10 
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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 C0 2 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 



158 



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. 



159 



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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Yvonne Chan- Senate Confirmation, August 13, 2008 (Responses to Questior"^ 

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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Appointments 1 64 



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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Yvonne Chan- Senate Confirmation, August 13, 2008 (Responses to Questions) 

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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Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 

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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Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 

• 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, 9 th 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 8 th 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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Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 

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 21 st 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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Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 



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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Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 

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 



Page 9 of 14 

172 



Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 

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 

Page 10 of 14 



173 



Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 

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 

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Yvonne Chan - Senate Confirmation, August 13, 2008 (Responses to Questions) 

The Reading/Language Arts (R/LA) Framework and the criteria for adoption of K- 8 th 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 
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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 2 nd -5 th 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 



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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 



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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, 92 nd Cong, 1 st 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). 



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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 



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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 
in Bill Calloway & Greg Lay dba Williams Ready-Mix is followed. 



185 



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186 



187 



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 y je - 



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 w r ould 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, how r 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 



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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 o - - 
M. DOWDIN CALVILLO, Member, Public 


14 


GREG SCHMIDT, Executive Officer 




14 


E 


m p lo 
Q u 




15 


JANE LEONARD BROWN, Committee Assistant 


15 




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 

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 


22 






22 






W eight of issues in retaliation 


23 






23 








24 






24 






Basis for finding of retaliation.. 47 



25 



J 

01/21/2009 04:19:11' 



of 28 sheets 



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 


1009 04:19:11 PM Page 5 t 


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 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 



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 04:19:11 1 



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 



309 04:19:11 PM 



Page 5 to 8 of 104 



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 



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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 




16 



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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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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 



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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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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. 

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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. 

48 



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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 




62 




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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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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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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. 


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still-troubled department. 


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Please call the roll on those nominees. 


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It should be of great embarrassment to all of 


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MS. BROWN: Senator Cedillo. 


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us that we're under the jurisdiction of a federal 


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SENATOR CEDILLO: Aye. 


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receiver here. And that's not anybody's fault in 


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MS. BROWN: Cedillo aye. 


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particular. It's -- you know, I say all of us. And so 


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Dutton. 


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this is going to be a core piece of our work with the 


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SENATOR DUTTON: Aye. 


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Rules Committee to make sure we have in place people -- 


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MS. BROWN: Dutton aye. 


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not only with the Board of Parole Hearings, but 


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Oropeza. 


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throughout the entire department that are focused on 


22 


SENATOR OROPEZA: Aye. 


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reform and fixing these multitude of problems. 


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MS. BROWN: Oropeza aye. 


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So I'll take a motion. 


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Aanestad. 

SENATOR AANESTAD: Aye. 


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SENATOR OROPEZA: I'll move. 


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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 
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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 


CHAIRMAN STEINBERG: Senator Oropeza. 

1 Please call the roll. 

2 MS. BROWN: Senator Cedillo. 

3 SENATOR CEDILLO: Aye. 


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12 
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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. 


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MS. BROWN: Aanestad aye. 

1 Steinberg. 

2 CHAIRMAN STEINBERG: Aye. 


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21 
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--0O0-- 


3 MS. BROWN: Steinberg aye. 


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4 CHAIRMAN STEINBERG: All right. Cynthia 


24 




5 Dellums, member of the Commission on the Status of Women 


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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 


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 




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4 adjourned at 3:53 p.m.) 
5 




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7 --0O0-- 

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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 



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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. 



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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. 



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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 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. 



111 



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. 



112 



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. 



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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 



122 



• 



• 



Senate Rules Committee December 29, 2008 

Martin N. Hoshino 
Page 3 of 23 

• 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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Senate Rules Committee December 29. 2008 

Martin N. Hoshino 
Pase 4 of 23 



*^ 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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Senate Rules Committee December 29, 2008 

Martin N. Hoshino 
Page 5 of 23 

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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Senate Rules Committee December 29, 2008 

Martin N. Hoshino 
Page 6 of 23 

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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Senate Rules Committee December 29, 2008 

Martin N. Hoshino 
Page 7 of 23 



*& 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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Senate Rules Committee December 29, 2008 

Martin N. Hoshino 
Page 8 of 23 

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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Martin N. Hoshino 
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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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Martin N. Hoshino 
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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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Martin N. Hoshino 
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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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Martin N. Hoshino 
Page 14 of 23 



*;r v 



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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Martin N. Hoshino 
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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. 



140 



Senate Rules Committee December 29, 2008 

Martin N. Hoshino 
Page 21 of 23 

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 



141 



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 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 



142 



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 



143 



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 Fi 3 ueroa 

_, ,„*!, , *„„,- 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 





2001-02 


$ 640,000 





2002-03 


$2,116,000 


$ 1,116,000 


2003-04 


$ 779,000 





2004-05 


$ 1,141,000 


$ 141,000 


2005-06 


$ 965,000 





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 6 th . 



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 6 th . 



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) 445-0596 1 ^ 



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 

f jAN 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 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 



166 



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. 



167 



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 5 th . 



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. 



170 



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 

JAN 6 2QQ9 l 
Appointments -| 75 



01/05/2009 12:20 7079448108 YOUNTVILLE AC OFFICE PAGE 03 



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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01/05/2009 12:20 7079448108 YOJNTVILLL AC GFFICE KAbt m 



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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01/05/2009 12:20 7079448108 YUUNIVlLLt AU Uhhiut r«tit_ uo 



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 



179 



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. 



180 



81/05/2009 12:20 7079448108 

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. 



181 



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 38 th 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 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 f or 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 

-4- 



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? 



5- 



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 1 st 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 2 nd 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 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 5 th 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 



603-R 

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HEARING 

SENATE RULES COMMITTEE 

STATE OF CALIFORNIA 




STATE CAPITOL 

ROOM 113 

SACRAMENTO, CALIFORNIA 

WEDNESDAY, JANUARY 28, 2009 

1:38 P.M. 



MAY l g 2009 
PUB <-'C LIBRARY 



604-R 



SENATE RULES COMMITTEE 
STATE OF CALIFORNIA 
- -OOO- - 



HEARING 

STATE CAPITOL 

ROOM 113 

SACRAMENTO, CALIFORNIA 

- -0O0- - 

WEDNESDAY, JANUARY 28, 2 009 
1:38 P.M. 
- -oOo- - 



Reported By: INA C. LeBLANC 

Certified Shorthand Reporter 
CSR No. 6713 



SENATE RULES CCKMITTEE 

STATE OF CALIFORNIA 

- - 0O0- - 



STATE CAPITOL 

ROOM 113 

SACRAMENTO. CALIFORNIA 

- -0O0- - 

WEDNESDAY. JANUARY 28. 2009 
1:38 P.M. 
--O0O- - 



Reported 3y : INA C. LeBLANC 

Certified Shorthand Reporter 
CSR No. ST13 



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 



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 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 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 



3 of 12 sheets 



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 



Page 8 to 11 of 41 



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 



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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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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. 

(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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01/30/2009 11:41:48 AM 



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 

35 



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10 of 12 sheets 



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. 

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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.) 



-oOo- 



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-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 3^^ dav of JtUxLLJUrlj 2009. 



INA C. LeBLANC 
CSR No. 6713 



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STATE OF CALIFORNIA - State and Consumer Services Agency ARNOLD SCHWARZEN EGGER, Governor 

DEPARTMENT OF FAIR EMPLOYMENT & HOUSING California 

S^ S« 8 7^™™^?' ?aJ 6 J 7 TJ™ FaiT Em ployment & Housing Act 

(916)478-7251 TTY (800) 700-2320 Fax (916) 478-7329 Senate RuleS Committee ' 



January 7, 2008 JAN 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 50 th 
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 50 th 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 50 th 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 50 th 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 50 th 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 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 workers 1 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, 5 th 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 



604-R 

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