BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 349
                                                                  Page  1

          Date of Hearing:  April 29, 2009

                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
                             Anna Marie Caballero, Chair
                     AB 349 (Silva) - As Amended:  April 13, 2009
           
          SUBJECT  :  State mandates.

           SUMMARY  :  Requires the Director of Finance (DOF) to provide to  
          the Legislature all proposed statutory changes necessary to  
          repeal reimbursable state mandates that have been suspended for  
          three consecutive years in the Governor's Budget.  Specifically,  
           this bill  :

          1)Defines "suspended reimbursable state mandate" to mean a  
            statute or executive order that meets both of the following  
            criteria:

             a)   Has been determined by the Legislature, the Commission  
               on State Mandates (Commission), or any court to mandate a  
               new program or higher level of service requiring the  
               reimbursement of local agencies, including school  
               districts; and,

             b)   Has been specifically identified as being a statute or  
               executive order for which reimbursement is not provided for  
               that fiscal year in the Governor's Budget.

          2)Requires, on or after January 1, 2012, DOF to provide to the  
            Legislature all proposed statutory changes necessary to repeal  
            reimbursable state mandates that have been suspended for three  
            consecutive years in the Governor's Budget.   

           EXISTING LAW  :   

          1)Requires, under the California Constitution, the state provide  
            a subvention of funds whenever it mandates local government to  
            undertake a new program or higher level of service.

          2)Allows local governments to apply to the Commission for  
            reimbursement of state-mandated local costs.

          3)Requires the Governor at each regular session of the  
            Legislature to submit a budget for the ensuing fiscal year.









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          4)Requires DOF to provide to the Legislature, on or before  
            February 1 of each year, all proposed statutory changes that  
            are necessary to implement the Governor's Budget.

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

          1)Section 6 of Article XIII B of the California Constitution  
            requires the state to reimburse local agencies and school  
            districts for increased costs if the Legislature passes a law  
            or the Administration issues an executive order or adopts  
            regulations.  Government Code Sections 


          17500 et seq., specify the process to determine whether or not a  
            reimbursable state mandate is created.  

          2)The Commission serves as a quasi-judicial agency in making the  
            determination.  Local agency or school district claimants  
            initiate all mandate determinations by filing "test claims"  
            alleging that a new statute, executive order, or regulation  
            imposes a new program or higher level of service upon them,  
            which entitles the claimant to state reimbursement.  Once the  
            Commission hears a test claim and determines the governmental  
            action constituted a reimbursable state mandate, it then  
            determines the amount to be subvened for the program.   
            Following the mandate determination, local agencies and school  
            districts may file reimbursement claims with the State  
            Controller to be reimbursed for the state-mandated programs.   
            The State Controller pays and audits claims, and may reduce  
            reimbursement claims that are determined to be excessive or  
            unreasonable.  Appeals may be filed asserting incorrect  
            reductions.  

          3)The author states there are currently over two dozen  
            reimbursable state mandates that have been suspended for at  
            least three years, 10 of which have been suspended for at  
            least 18 years.  The author believes that repealing suspended  
            mandates would make the law more clear.  Local governments  
            would still have the option of funding any repealed mandate  
            just as they have the option now of funding suspended  
            mandates.

          4)Article XIII B of the California Constitution is not  








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            self-executing and requires an appropriation in the annual  
            Budget Act to provide reimbursement for state mandates.  In  
            Mandel v. Myers (1981)(29 Cal.3d 531), the Supreme Court  
            stated that, "the separation of powers doctrine has generally  
            been viewed as prohibiting a court from directly ordering the  
            Legislature to enact a specific appropriation," (Id., at 540).  
             Thus, courts are powerless to compel appropriations when the  
            Legislature is not constitutionally required to do so.   
            Furthermore, in City of Sacramento v. State Legislature (1986)  
            (187 Cal. App. 3d 393), the Court of Appeal found that "the  
            legislative power to enact laws, including appropriations, is  
            committed exclusively to the legislative department by the  
            Constitution," (Id., at 398).  While Article XIII B of the  
            California Constitution requires the state to provide a  
            subvention of funds whenever it mandates a local government  
            undertake a new program or higher level of service, it does  
            not require the Legislature to appropriate the necessary funds  
            in the annual Budget Act.

          5)However, under Article XIII B of the California Constitution,  
            the Legislature can choose to suspend a state mandate, which  
            means there is no appropriation provided for in the annual  
            Budget Act and subsequently there is no requirement for the  
            local agency to comply with the state mandate.  The  
            Legislature cannot choose to suspend a state mandate relating  
            to schools, community colleges, or local government employee  
            rights.

          6)The Committee may wish to consider whether requiring DOF to  
            propose statutory language is a viable option for erasing  
            suspended reimbursable mandates from the books.  DOF cannot  
            introduce legislation, making this statutory requirement  
            dependent on the Legislature introducing those proposed  
            statutory changes in a bill.  Furthermore, any bill containing  
            DOF's proposed statutory changes also would need to be passed  
            by the Legislature.  Thus, the goal of AB 349 to remove  
            suspended reimbursable mandates from the codes is entirely  
            dependent on a third party to introduce and approve conforming  
            legislation.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          CA Peace Officers' Association








                                                                  AB 349
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          CA Police Chiefs Association
          CA State Association of Counties

           Opposition 
           
          None on file
           
          Analysis Prepared by  :    Jennifer R. Klein / L. GOV. / (916)  
          319-3958