BILL ANALYSIS
SB 740
Page 1
Date of Hearing: June 27, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 740 (Romero) - As Amended: June 21, 2006
SENATE VOTE : 21-11
SUBJECT : public agencies: Video news releases
KEY ISSUE : SHould it be unlawful for governmental agencies and
officials to use public resources to create "video news
releases" that advocate a particular position in a rule-making
proceeding?
SYNOPSIS
This bill is a response to the alleged use of so-called "video
news releases" (VNRs), created at taxpayer expense, to advocate
in support of proposed administrative rule changes. Two VNRs in
particular created a great deal of controversy. One VNR
reportedly promoted rule changes regarding employee meal and
rest breaks, and the other concerned an administration decision
to delay implementation of required nurse-to-patient staffing
ratios in hospitals. The controversy eventually led to a
lawsuit brought by the California Nurses Association and the
California Federation of Labor, among others. That lawsuit
resulted in a Sacramento Superior Court order to remove the VNRs
from agency websites and to cease the use of public funds to
produce and disseminate VNRs that advocate a particular
position. This bill is consistent with the court's decision; it
would prohibit the use of public funds to produce and
disseminate VNRs that advocate a particular position in relation
to a proposed administrative rule change.
SUMMARY : Makes it unlawful for a state or local officer,
including a state or local appointee, employee, or consultant,
to use public resources for the creation of a "video news
release" that advocates a position in a rulemaking proceeding in
which that officer is exercising quasi-legislative authority to
implement policies he or she will implement through regulations
adopted in that rulemaking proceeding.
EXISTING LAW :
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1)Makes it unlawful for any elected state or local officer,
including any state or local appointee, employee, or
consultant, to use or permit others to use public resources
for a campaign activity, or personal or other purposes which
are not authorized by law. (Government Code section 8314
(a).)
2)Permits the use of public resources to provide information to
the public about the possible effects of a bond or ballot
measure on state activities and operations, so long as the
informational activities are otherwise authorized by law and
the information provided is a fair and impartial presentation
of relevant facts and helps the electorate to reach an
informed judgment. (Government Code section 8314(d); see also
Attorney General Opinion 04-211 (April 7, 2005).)
3)Provides that a person who intentionally violates the
foregoing provisions shall be liable for civil penalties
assessed and recovered in a civil action brought by the
Attorney General or other specified public prosecutor.
(Government Code section 8314 (c)(1).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : According to the author, this bill is a response to
instances in which Schwarzenegger administration officials used
public funds to produce so-called "video news releases" to
advocate positions on matters subject to administrative
rulemaking. The author writes:
Two VNRs were particularly controversial. One VNR
concerned regulations on employees' meal and rest
periods proposed by the Division of Labor Standards
Enforcement (DLSE) and was produced by the Labor and
Workforce Development Agency. The other VNR concerned
emergency regulations adopted by the Department of
Health Services on nurse-to-patient ratios in medical
and surgical units of acute care hospitals.
In response to the VNRs, the California Labor
Federation and the California Nurses Association filed
a lawsuit seeking an order prohibiting the Labor and
Health Services agencies from distributing VNRs
regarding the meal and rest break and nurse-to-patient
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staffing ratios and related materials. The lawsuit
also sought to prohibit the Agencies from releasing
any additional VNRs containing "propaganda" in support
of any future regulatory action.
In December 2005, Judge Connelly of the Sacramento
Superior Court ordered the Agencies to (1) remove the
meal and rest periods VNR from the website of the
Department of Industrial Relations and cease any
further transmission or distribution of the VNR and
(2) refrain from producing and distributing VNRs that
use comments by members of the public to support and
advocate for adoption of proposed or emergency
regulations, or that otherwise violate the basic
minimum procedural requirements of the APA prior to or
during the public comment period and public hearings
in APA rulemaking proceedings for the regulations.
According to the sponsor, this bill will clarify existing law
consistently with Judge Connelly's opinion, alluded to above, in
California Labor Federation, AFL-CIO et. al. v. California Labor
Workforce Development Agency et. al. (Sacramento County Superior
Court No. 05CS00330). In that case, counsel for the
administration argued that video news releases were no different
than press releases, which "have been routinely used for years
as communication tools to disseminate information."
Administration counsel claimed that there was no authority in
support of the position that an administrative agency may only
distribute neutral, nonpartisan information. (Respondents'
Memorandum of Points and Authorities in Opposition to Petition
for Writ of Mandate," pp. 2-12.) Judge Connelly rejected this
position, ordering the agencies to cease using public resources
to produce and distribute VNR's that advocate partisan
positions. Consistent with Judge Connelly's ruling, the sponsor
contends that this bill would "disabuse agency officers and
their staff of the notion that the use of public funds to create
video news releases that impart partisan information and that
advocate for a particular position during rulemaking is
appropriate and legal."
Judge Connelly's Ruling and the Administrative Procedures Act.
Judge Connelly concluded that the administration had "improperly
expended public funds," and ordered the administration to cease
distribution of the VNRs because they violated the public notice
provisions of the Administrative Procedures Act (APA). In order
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to facilitate public participation in the administrative
rule-making process, the notice provisions of the APA require a
ruling-making agency to give notice of any proposed rule change
or adoption so that interested persons may present statements,
arguments, and comments within a designated public comment
period. (Government Code sections 11346.4, 11346.5, and
11346.8; see also Calif. Optometric Assn. v. Lackner (1976) 60
Cal. App. 3d 500, 505-506.)
While this bill enacts a new statutory provision relating to the
proper use of public resources, rather than the APA approach
followed by Judge Connelly, the conclusion is the same: it is
improper for an administrative agency to use public resources to
produce a VNR that advocates a particular position in relation
to an administrative rulemaking proceeding.
This Bill Does Not Change Existing Law On The Use Of Public
Resources Regarding Bond Issues And Other Matters. Existing law
permits the use of public resources for providing information to
the public about the possible effects of any bond issue or other
ballot measure on state activities, operations, or policies in
specified circumstances. This bill expressly states that it
does not prohibit the use of public resources for video news
releases if they are produced in conformity with that provision.
Why Does the Bill Apply Only to VNRs ? An administration
spokesperson reportedly noted in regard to the controversy that
gave rise to this bill that a VNR is merely a high-tech version
of a written press release. Although the spokesperson argued
that VNR's should not be held to any greater scrutiny than press
releases, the converse would seem to be equally true: If it is
improper to disseminate a VNR that advocates a particular
position in a rulemaking proceeding, should it not also be
improper to issue a press release that does the same? One could
argue that the VNR is more objectionable because it gives the
appearance of an "objective" news report - and indeed at least a
portion of one of the VNRs apparently appeared on a local news
broadcast. (See Gov's Fake News Video Ruled Illegal, Los
Angeles Times, December 2, 2005.) Nonetheless, if a press
release promotes a particular position on a proposed rule change
prior to or during the designated period of public comment, it
would potentially pervert the purpose of the APA provisions no
less than a VNR would.
Possible Amendment : In light of the above, the Committee may
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wish to consider whether or not the bill should apply to press
releases as well as VNRs.
REGISTERED SUPPORT / OPPOSITION :
Support
California Nurses Association
AFSCME
California Labor Federation, AFL-CIO
Opposition
None on File.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334