BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1659
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          Date of Hearing:   April 6, 2010

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                 Mary Hayashi, Chair
                  AB 1659 (Huber) - As Introduced:  January 19, 2010
           
          SUBJECT  :   State government: agency repeals.

           SUMMARY  :   Recasts provisions of existing law governing the  
          periodic review (known as "Sunset Review") of boards, bureaus  
          and commissions under the Department of Consumer Affairs (DCA).   
          Specifically,  this bill  :

          1)Establishes a new Joint Sunset Review Committee (JSRC), as  
            specified.

          2)Requires each agency scheduled for repeal, on or before  
            December 1 prior to the year it is set to be repealed, to  
            submit to JSRC a complete agency report covering the entire  
            period since it was last reviewed, to include, but not be  
            limited to:

            a)   The purpose and necessity of the agency;

        b)   A description of the agency budget, priorities, and job  
               descriptions of employees of the agency;

            c)   All programs and projects under the direction of the  
                   agency;

        d)   Measures of the success or failures of the agency and  
               justifications for the metrics used to evaluate successes  
               and failures; and,

        e)   Any recommendations of the agency for changes or  
               reorganization in order to better fulfill its purpose.

          3)Requires JSRC to take public testimony and evaluate the agency  
            prior to the date the agency is scheduled to be repealed.

          4)Requires the elimination of any agency unless the Legislature  
            enacts a law, based upon a recommendation endorsed by a vote  
            of the majority of the members of the committee, to extend,  
            consolidate, or reorganize the agency.









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          5)Prohibits an agency from extending in perpetuity unless  
            specifically exempted from the provisions of this bill.

          6)Allows JSRC to recommend that the Legislature extend the  
            statutory sunset date for no more than one year to allow JSRC  
            more time to evaluate the agency.

          7)Specifies that JSRC shall be comprised of nine member of the  
            Legislature as follows:

        a)   Three Senators appointed by the President pro Tempore of the  
               Senate, not more than two of whom shall be members of the  
               same political party;

        b)   Three Assembly Members appointed by the Speaker of the  
               Assembly, not more than two of whom shall be members of the  
               same political party; and,

        c)   Three members of the Legislature, appointed by the Governor  
               with the advice and consent of the Senate, not more than  
               two of whom shall be members of the same political party.

          8)Requires JSRC to meet no later than 30 days after the first  
            day of the regular session to choose a chairperson and to  
            establish the schedule for agency review provided for in the  
            statutes governing the agencies.

          9)Defines "agency" to mean any agency, authority, board, bureau,  
            commission, conservancy, council, department, division, or  
            office of state government, however denominated, excluding an  
            agency that is constitutionally created or an agency related  
            to postsecondary education.

          10)States legislative intent.

           EXISTING LAW  :

          1)Establishes the Joint Committee on Boards, Commissions and  
            Consumer Protection (Joint Committee) to hold public hearings  
            at specified times and to evaluate whether a board or  
            regulatory program has demonstrated a need for its continued  
            existence.

          2)States legislative intent that all existing and proposed state  
            boards be subject to review every four years to evaluate and  








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            determine whether each has demonstrated a public need for its  
            continued existence, as specified.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of this bill  .  According to the author's office,  
          "Legislators create new boards, commissions, agencies and  
          departments to solve a problem and then does not maintain  
          oversight of the newly created bureaucracy to ensure it actually  
          solved the problem it was created to solve or determine whether  
          the problem is worse.  This systemic problem can be fixed by  
          conducting comprehensive, regular reviews of state government to  
          ensure taxpayer dollars are being used wisely.

          "As introduced, this bill would require that an agency be  
          automatically eliminated unless the Legislature votes to extend  
          consolidate, or reorganize the agency based on the  
          recommendation of the Joint Sunset Review committee.  Prior to  
          the committee's recommendation, each agency scheduled for sunset  
          would be required to submit a report to the committee.  Then the  
          committee would take public testimony and evaluate the agency  
          prior to the date the agency is scheduled to be sunset.

          "AB 1659 provides a bipartisan, common sense approach for the  
          Legislature to maintain oversight and review of the state's  
          bureaucracy and its performance."

           Background  .  This bill is consistent with provisions of existing  
          law governing the sunset review process for boards and bureaus  
          under DCA.  Because the bill does not establish new sunset dates  
          for any state agencies, this bill is limited to the boards and  
          bureaus under DCA already scheduled for sunset review pursuant  
          to existing law.

          In 1994, the Legislature established the Joint Committee and a  
          process for routinely reviewing the performance of the  
          semiautonomous boards.  The Joint Committee begins its review  
          process by sending a board a questionnaire and a request for  
          information covering every aspect of the board's operation for a  
          specified period.  Although Joint Committee staff and the board  
          meet to discuss the information and to seek input from consumer  
          groups, all the information supplied to the Joint Committee  
          comes from the board itself.  The basic issue for the Joint  








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          Committee to consider during its deliberations is whether the  
          board should continue to regulate the profession in question or  
          be terminated.  The Joint Committee gives the board an  
          opportunity to respond to its recommendations before presenting  
          them to the Legislature.  As a result of its review, the Joint  
          Committee might recommend that the Legislature terminate, or  
          "sunset," a board.  The 1994 law provides only for the  
          elimination of a board, not for the actual deregulation of the  
          profession.  Upon a board's sunset, the board then becomes a  
          bureau under DCA.  The Joint Committee has not been staffed, nor  
          has conducted any hearings in the past few years.
           
          This bill establishes a similar process to the Joint Committee  
          for evaluating the efficiency of state government except for the  
          following key provisions:

          1)The makeup of the JSRC includes an additional three members  
            which are appointed to the Committee by the Governor.

          The California Constitution clearly delineates the government's  
          separation of powers in Article III, Section 3:  "The powers of  
          state government are legislative, executive, and judicial.   
          Persons charged with the exercise of one power may not exercise  
          either of the others?."  The legislative branch has the  
          authority to make laws; the executive branch, to administer  
          laws; and the judicial branch, to interpret laws and ensure that  
          they are applied justly and equitably.   As part of the system  
          of checks and balances, the Legislature has statutory influence  
          over the funding, organization, and procedures used by  
          administrative agencies of the executive branch.  To allow the  
          Governor direct influence in the Legislature's oversight of the  
          executive branch through these appointments is in direct  
          contravention of the principles of California government.  

          2)This bill requires the elimination of any agency unless the  
            Legislature enacts a law, based upon a recommendation endorsed  
            by a vote of the majority of the members of JSRC to extend,  
            consolidate, or reorganize the agency.  Further, the  
            Legislature may not extend the statutory sunset date for more  
            than one year.  

          These provisions substantially restrict the Legislature's  
          powers.  This bill would restrict the actions of both houses of  
          the Legislature to the recommendations of the JSRC, and abrogate  
          the Legislature's discretion in setting sunset dates.  This is  








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          not consistent with existing legislative rules and procedures.   
          Joint Rule 36 states that committees may be created "to  
          ascertain facts and to make recommendations as to any subject  
          within the scope of legislative regulation or control."  The  
          whole legislature is not bound by the decisions of a  
          subcommittee.  It is also the general rule that one legislative  
          body cannot limit or restrict its own power or that of  
          subsequent legislatures and that the act of one Legislature does  
          not bind its successors.  Further, one Legislature cannot enact  
          irrepealable legislation or limit or restrict its own power or  
          the power of successors as to the repeal of statutes.  [In re  
          Collie, 38 Cal.2d 396(1952)]

           Proposed amendments  .  In order to address the above concerns,  
          the Author has agreed to amend this bill as follows:

          1)Delete the provision permitting the Governor to appoint  
            members to the JSRC, and instead increase the membership of  
            the JSRC to 10, five appointed by the President pro Tem of the  
            Senate, and five appointed by the Speaker of the Assembly.  No  
            more than three members from each house may be of the same  
            political party.

          2)Delete the restrictions limiting the Legislature's ability to  
            only take action to those recommended by the JSRC.
           
          Related legislation currently pending before the Committee  .  AB  
          2130 (Huber), the companion measure to this bill, and currently  
          pending before the Committee, repeals the Joint Committee and  
          instead makes specified DCA boards subject to review by JSRC  
          under this bill.  AB 2130 is double-jointed to this bill.  
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file.

           Opposition 
           
          Sierra Club California
           
          Analysis Prepared by  :    Rebecca May / B. & P. / (916) 319-3301