BILL ANALYSIS                                                                                                                                                                                                    Ó






                 Senate Committee on Labor and Industrial Relations
                                 Ted W. Lieu, Chair

          Date of Hearing: March 13, 2013              2013-2014 Regular  
          Session                              
          Consultant: Alma Perez                       Fiscal:yes
                                                       Urgency: no
          
                                    Bill No: SB 7
                           Author: Steinberg and Cannella
                      As Introduced/Amended: February 19, 2013
          

                                       SUBJECT
          
                            Public works: charter cities 


                                      KEY ISSUE

          Should the Legislature prohibit a charter city from  
          receiving/using state funds for a construction project if the  
          city has a provision or ordinance authorizing a contractor to  
          not comply with prevailing wage requirements on any public works  
          contract?  


                                      ANALYSIS
          
           Existing law  defines the term "public works" to include, among  
          other things, construction, alteration, demolition, installation  
          or repair work done under contract and paid for in whole or in  
          part out of public funds. 

           Existing law  also defines "public works" as street, sewer, or  
          other improvement work done under the direction and supervision  
          or by the authority of any officer or public body of the state,  
          or of any political subdivision or district thereof, whether the  
          political subdivision or district operates under a freeholder's  
          charter or not.  [Labor Code §1720(a)(3)]

           Under existing law  , "paid for in whole or in part out of public  
          funds" means, among other things, the following:
             1.   The payment of money or the equivalent of money by the  
               state or political subdivision directly to or on behalf of  
               the public works contractor, subcontractor, or developer.









             2.   The performance of construction work by the state or  
               political subdivision in execution of the project.
             3.   Fees, costs, rents, insurance or bond premiums, loans,  
               interest rates, or other obligations that would normally be  
               required in the execution of the contract, that are paid,  
               reduced, charged at less than fair market value, waived, or  
               forgiven by the state or political subdivision.
             4.   Money loaned by the state or political subdivision that  
               is to be repaid on a contingent basis. 
           
          Existing law  requires all employees who work on public works  
          projects costing $1,000 or more to be paid the general  
          prevailing rate of per diem wages and the general prevailing  
          rate for holiday and overtime work for the specific location  
          where the public work is to be performed (Labor Code §1771) This  
          requirement is applicable to work performed under contract and  
          it does not apply to work carried out by a public agency with  
          its own forces.  Existing law provides certain exemptions to the  
          payment of prevailing wage that includes, among others, private  
          residential projects. The Director of the Department of  
          Industrial Relations (DIR) is tasked with the responsibility of  
          determining the general prevailing rate of per diem wages in  
          accordance with specified standards.  (Labor Code §1773)  
           
          The California Constitution  grants cities the ability to become  
          charter cities. A county or city may adopt a charter by majority  
          vote of its electors voting on the question.  Under existing  
          law, a charter city may make and enforce all ordinances and  
          regulations in respect to "municipal affairs," subject only to  
          restrictions and limitations provided in their charters and in  
          respect to other matters they are subject to general laws.  [CA  
          Const. art. XI §3 & 5] 
           

          This Bill  would prohibit a charter city from receiving or using  
          state funding or financial assistance for a construction project  
          - if the city has a charter provision or ordinance that  
          authorizes a contractor to not comply with prevailing wage  
          requirements on any public works contract.  

          Specifically, this bill would:

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             §    Provide that a charter city includes any agency of a  
               charter city and any entity controlled by a charter city  
               whose contracts would be subject to this article.

             §    Specify that it does not apply to contracts awarded  
               prior to January 1, 2014.

             §    Prohibit receipt or use of state funds for a  
               construction project if the city has awarded,  within the  
               current or prior two years,  a contract without requiring  
               compliance of all prevailing wage requirements.

             §    Specify that this prohibition does not apply [and state  
               funds may be used] if a charter city:
                  o         Has a provision or local ordinance that  
                    requires the payment of prevailing wage.

                  o         Has adopted a local prevailing wage ordinance  
                    that includes requirements that are equal to or  
                    greater than the state's existing prevailing wage  
                    provisions and that do not authorize a contractor to  
                    not comply with such. 

             §    Exclude contracts for projects costing $25,000 or less  
               when the project is for construction work, or projects of  
               $15,000 or less when the project is for alteration,  
               demolition, repair, or maintenance work.  

             §    Define what is included under "state funding and  
               financial assistance", and would exempt from its  
               definition, tax revenues that charter cities are entitled  
               to receive without conditions under the Constitution.

             §    Require the Director of the Department of Industrial  
               Relations to maintain a list of charter cities that may  
               receive and use state funding for their construction  
               projects. 

             §    Lastly, this bill includes several related legislative  
               findings and declarations. 


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                                      COMMENTS

          
          1.  A Brief History of State and Federal Prevailing Wage Law:

            State prevailing wage laws vary from state to state, but do  
            share a common history that predates federal prevailing wage  
            law. Many of these state laws were enacted as part of  
            Progressive Era reform efforts to improve working conditions  
            at the end of the 19th and the beginning of the 20th  
            centuries.  Between 1891 and 1923, seven states adopted  
            prevailing wage laws that required payment of specified hourly  
            wages on government construction projects, the State of Kansas  
            being the first in 1891. 

            Eighteen additional states (including California in 1931) and  
            the federal government adopted prevailing wage laws during the  
            Great Depression of the 1930s amidst concern that acceptance  
            of the low bid, a common requirement of government contracting  
            for public projects, would reduce local wages and disrupt the  
            local economies.  This was particularly in the depths of the  
            Great Depression, where, for some local economies, the  
            government had become the primary purchaser of construction  
            products and a significant employer.

                In general, the proponents of prevailing wage legislation  
            wanted to prevent the government from using its purchasing  
            power to undermine the wages of its citizens.  It was believed  
            that the government should set an example, by paying the wages  
            prevailing in a locality for each occupation hired by  
            government contractors to build public projects.  Even today,  
            prevailing wage laws are generally meant to ensure that wages  
            commonly paid to construction workers in a particular region  
            will determine the minimum wage paid to the same type of  
            workers employed on publicly funded construction projects. 

          2.  Brief Background on Charter Cities:

            The California Constitution gives cities the power to become  
            charter cities. For a charter city, the charter adopted  
            constitutes state law and has the force of legislative  
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            enactment.  Changes to a charter can originate in three ways:  
            a charter commission; the governing body of the city; or by  
            petition of the voters. A charter is adopted only with a  
            majority vote of the city's voters. The California  
            Constitution authorizes a charter city to exercise plenary  
            authority over "municipal affairs," while a general law city  
            is subject to the general laws passed by the Legislature.  

            Whether a given activity is a municipal affair over which a  
            city has sovereignty, or a statewide concern, over which the  
            legislature has authority, is a determination that has been  
            the legal question of many cases before the court.  The  
            California Constitution does not define "municipal affair" and  
            thus, the determination of whether an activity is a municipal  
            affair or statewide concern is done on a case-by-case basis.   
            The Constitution does, however, set out a list of four core  
            categories that are presumed to be municipal affairs.  Article  
            XI, Section 5(b) of the California Constitution states:

               (b) It shall be competent in all city charters to provide,  
               in addition to those provisions allowable by this  
               Constitution, and by the laws of the State for: (1) the  
               constitution, regulation, and government of the city police  
               force (2) subgovernment in all or part of a city (3)  
               conduct of city elections and (4) plenary authority is  
               hereby granted, subject only to the restrictions of this  
               article, to provide therein or by amendment thereto, the  
               manner in which, the method by which, the times at which,  
               and the terms for which the several municipal officers and  
               employees whose compensation is paid by the city shall be  
               elected or appointed, and for their removal, and for their  
               compensation, and for the number of deputies, clerks and  
               other employees that each shall have, and for the  
               compensation, method of appointment, qualifications, tenure  
               of office and removal of such deputies, clerks and other  
               employees. [CA Const. art. XI §5(b)]

          3.  Court Decisions on Charter Cities and Prevailing Wage:

            Determining whether the payment of prevailing wages is a  
            municipal affair subject to charter sovereignty versus an  
            issue of statewide concern, has been the subject of court  
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            cases for many decades. Historically, charter cities have been  
            found to not be bound by state prevailing wage requirements as  
            long as the project is a "municipal affair," and not funded by  
            state or federal grants requiring the payment of prevailing  
            wage.  Such was the case in Vial v. City of San Diego [122  
            Cal. App. 3d 346, 348 (1981)], in which Donald Vial (Director  
            of the Department of Industrial Relations) and Labor  
            Commissioner James L. Quillin petitioned for a writ of mandate  
            to compel the City of San Diego to comply with the state  
            prevailing wage laws. The superior court denied the petition  
            and the department appeals. 

            In a more recent case, State Building & Construction Trades  
            Council of California v. City of Vista, 173 Cal. App. 4th 567,  
            93 Cal. Rptr. 3d 95, 2009 Cal. App. LEXIS 627 (Cal. App. 4th  
            Dist., 2009), the issue was again at question.  The case  
            involved two contracts to design and build fire stations with  
            local public funds. The State Building & Construction Trades  
            Council contends that the subject matter of the state's  
            prevailing wage law is a "statewide concern" over which the  
            state has primary legislative authority requiring the payment  
            of prevailing wages.  The City responded that the matter was a  
            municipal affair and therefore governed by its local  
            ordinances. The court agreed with the city. 

            In a 5-2 decision, the California Supreme Court affirmed the  
            right of charter cities to opt-out of the state's prevailing  
            wage law pursuant to California's Constitution and stated,  
            "Here, we reaffirm our view - first expressed 80 years ago  
            [see City of Pasadena v. Charleville (1932) 215 Cal. 384, 389  
            (Charleville)] - that the wage levels of contract workers  
            constructing locally funded public works are a municipal  
            affair (that is, exempt from state regulation), and that these  
            wage levels are not a statewide concern (that is, subject to  
            state legislative control)."  However, the court went further  
            in questioning the existence of an "actual conflict" between  
            state law and charter city law and stated the following:

               "This court's 1991 decision in California Fed. Savings,  
               supra, 54 Cal.3d at pages 16-17, emphasized the importance  
               of determining, as a matter of statutory construction, that  
               state law actually conflicts with local law before  
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               proceeding to the difficult state constitutional question  
               of which law governs a particular matter." 

            According to the court, in this case, no party was contending  
            that California' prevailing wage law exempts charter cities  
            from its scope.  They state that indeed, the prevailing wage  
            law makes express reference to charter cities, defining  
            "public works" to include "street, sewer, or other improvement  
            work . . . of any political subdivision or district [of the  
            state], whether the political subdivision or district operates  
            under a freeholder's charter or not." ([Labor Code,  
            §1720(a)(3)]; and §1720(a)(1) [applying the law to any  
            construction work "done under contract and paid for . . . out  
            of public funds"].) According to the court, because the  
            state's prevailing wage law does not exempt charter cities,  
            and because Vista's ordinance prohibits compliance with that  
            law, they concluded that an actual conflict exists between  
            state law and Vista's ordinance.

          4.  Need for this bill?

            As of July 1, 2011, there were 482 incorporated cities in  
            California. Of California's 482 cities, 121 of them are  
            charter cities. 

            Although California's prevailing wage law has been in the  
            books since 1931, the question of whether something is a  
            municipal affair versus one of statewide concern continues to  
            spark much heated discussion. The many cases that have been  
            before the courts on this issue are a clear indication of the  
            need for clarity on what are matters of statewide concern -  
            warranting the payment of prevailing wage. 

            This bill, however, does not focus on the issue of clarity for  
            what is or isn't a "municipal affair," since that is a matter  
            that would require amending the California Constitution, but  
            it does focus on providing clarity on how state funds can be  
            used by charter cities. This bill would prohibit a charter  
            city from receiving or using state funding for a construction  
            project if the city has a charter provision or ordinance that  
            authorizes a contractor not to comply with prevailing wage  
            requirements on any public works contract. 
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            Current law has similar limitation on the use of state funds  
            under Public Contract Code §2502 and 2503. Under these  
            existing conditions, if a charter provision, initiative, or  
            ordinance prohibits, limits, or constrains the governing  
            board's authority or discretion to adopt a project labor  
            agreement, as specified, or prohibits the governing board from  
            considering whether to allocate funds to a city-funded project  
            covered by such an agreement, then the state funding or  
            financial assistance shall not be used to support any  
            construction projects awarded by the city.  


          5.  Proponent Arguments  :
            
            According to proponents of the measure, the prevailing wage  
            law is critical to the delivery of a quality construction  
            product because it encourages contractors to perform the work  
            with an efficient, skilled and streamlined workforce,  
            ultimately creating long-term cost-savings to the taxpayers.   
            Proponents argue that this legislation is designed to provide  
            incentives to charter cities to follow the prevailing wage law  
            on municipal projects and thereby deter the underground  
            economy and low-road construction models driven by  
            unscrupulous contractors.  

            Proponents argue that a long list of academic studies and  
            public policy research has confirmed that the prevailing wage  
            continues to be a useful and effective driver for local  
            economic growth. They argue that in charter cities with  
            prevailing wage exemptions, new developments have failed to  
            generate quality jobs and, in fact, these cities have not seen  
            the cost savings promised by prevailing wage exemptions and  
            instead have had their construction costs go up due to  
            substandard construction performed by under-qualified  
            contractors.  Further, proponents argue that removing  
            prevailing wage protections pushes workers into requiring more  
            subsidies in healthcare, housing and other social services.  

            According to proponents, this bill does not change the outcome  
            of State Building and Construction Trades Council v. City of  
            Vista; instead it helps protect other local governments,  
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            including all general law cities and the majority of charter  
            cities, from the practices of a minority group of charter  
            cities that wish to reward their allies with prevailing wage  
            exemptions that consequently pass on the costs of healthcare  
            and apprenticeship training to the surrounding cities. They  
            argue that cities that follow the prevailing wage law are  
            furthering a policy that benefits the State, not just their  
            own residents, so they are more deserving of state funds for  
            their construction projects.

            Proponents argue that this bill would not require charter  
            cities to follow the prevailing wage law and, therefore does  
            not prevent charter cities from having their own policies. As  
            such, there is no conflict between this bill and the  
            constitutional authority of charter cities.  Instead, they  
            argue, this bill will reward the majority of cities that  
            currently follow the state prevailing wage law. 

          6.  Opponent Arguments  :

            According to opponents of the measure, their opposition rests  
            on the fundamental principle of local control and the  
            constitutional limits on state authority over charter cities,  
            as recently upheld by the California Supreme Court in the  
            Vista decision. They argue that in Vista, the Court firmly  
            protected the right of charter cities to determine whether  
            they should pay prevailing wages when contracting for public  
            works projects paid for with local funds. 

            Opponents argue that this measure conflicts with Vista by  
            attempting, via the Legislature, to leverage a different  
            outcome than the Court's ruling by withholding vital state  
            construction funds - derived from all of the state's taxpayers  
            - from charter cities that fail to adopt prevailing wage  
            requirements for projects built with local funds.  According  
            to opponents, while prevailing wage is the issue raised in  
            this bill, the threat posed by the measure to local charter  
            authority is much broader. They argue that if this framework  
            is authorized, there will be no end to efforts to leverage  
            compliance with other state edicts, while ignoring the  
            constitutional legitimacy of the doctrine of municipal  
            affairs. 
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            Some cities writing in opposition argue that they already  
            require the payment of prevailing wages for city funded  
            projects, but fear that this legislative tactic could be used  
            in the future to erode other local flexibility that is  
            important to their communities. Additionally, opponents argue  
            that by saddling local taxpayers with higher costs, the state  
            will guarantee less construction will take place on locally  
            funded projects. Overall, opponents argue that whether a  
            charter city pays prevailing wage with local funds is up to  
            each city and not the Legislature. 

          7.  Prior Legislation  :

            SB 829 (Rubio) of 2012:  Chaptered 
            SB 829 would provide that if a charter provision, initiative,  
            or ordinance of a charter city prohibits, limits, or  
            constrains in any way the governing board's authority or  
            discretion to adopt, require, or utilize a project labor  
            agreement (PLA) that includes specified taxpayer protection  
            provisions for some or all of the construction projects to be  
            awarded by the city, state funding or financial assistance may  
            not be used to support  any construction projects  awarded by  
            the city, as specified.

            SB 922 (Steinberg) of 2011:  Chaptered 
            SB 922 would authorize a public entity to use, enter into, or  
            require contractors to enter into, a PLA for a construction  
            project, if the agreement includes specified taxpayer  
            protection provisions. This bill would also provide that if a  
            charter provision, initiative, or ordinance prohibits the  
            governing board's consideration of a PLA for a project to be  
            awarded by the city, or prohibits consideration whether to  
            allocate funds to a city-funded project covered by such an  
            agreement, then state funding or financial assistance may not  
            be used to support that project, as specified.



                                       SUPPORT
          
          State Building and Construction Trades Council of California,  
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          AFL-CIO (Sponsor)
          Bricklayers and Allied Craftworkers, AFL-CIO
          California Chapters of the National Contractors Association
          California Labor Federation
          California Legislative Conference of the Plumbing, Heating and  
          Piping Industry
          California Sheet Metal and Air Conditioning Contractors National  
          Association
          California State Council of Laborers
          Carpet Linoleum & Soft Tile Workers Local Union No. 12
          Cement Masons Local Union No. 500
          Contra Costa Building and Construction Trades Council
          District Council 16 Local Union 294
          Fresno, Madera, Kings and Tulare Counties Building &  
          Construction Trades Council, AFL-CIO
          Glaziers, Architectural Metal and Glass Workers Union, Local  
          718, of San Francisco
          Imperial County Building Trades and 16 Affiliate Unions
          International Brotherhood Electrical Workers
          International Brotherhood of Electrical Workers Local Union 234
          International Brotherhood of Electrical Workers Local Union No.  
          340
          International Union of Painters and Allied Trades Local Union  
          376
          Kern, Inyo and Mono Counties Building and Constructions Trades  
          Council
          Los Angeles/Orange Counties Building and Construction Trades  
          Council
          Northern California Carpenters Regional Council
          Painters & Allied Trades District Council 36
          Painters & Allied Trades Local # 3
          Painters & Drywall Finishers Local 741 District Council 16
          Painters & Drywall Finishers Local Union 913
          Painters and Drywall Finishers Local 83
          Plaster Tenders of Southern California Local Union 1414
          Plumbers & Steamfitters Local Union # 230
          Plumbers, Steamfitters and Refrigeration Fitters Local Union #  
          467
          San Diego County Building & Construction Trades Council, AFL-CIO
          San Mateo County Building & Construction Trades Council
          Santa Clara & San Benito Counties Building & Construction Trades  
          Council
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          Sheet Metal, Air, Rail, Transportation Workers Local Union 105
          United Association of Journeymen and Apprentices of the Plumbing  
          and Pipe Fitting Industry Underground Utility/Landscape Local  
          355
          United Association of Journeymen and Apprentices of the Plumbing  
          and Pipe Fitting Industry of the United States Local Union 114
          Ventura County Plumbers and Pipefitters local # 484
          
                                     OPPOSITION
          
          Air Conditioning Trade Association
          Associated Builders and Contractors of California 
          League of California Cities
          Plumbing-Heating-Cooling Contractors Association of California
          The City of Arcadia
          The City of Cerritos
          The City of Folsom
          The City of Glendora
          The City of Grass Valley 
          The City of Indian Wells
          The City of Norco
          The City of Petaluma
          The City of Pico Rivera
          The City of Roseville
          The City of Selma
          The City of Shafter
          The City of Solvang
          The City of Torrance
          The City of Wasco
          Western Electrical Contractors Association
          Western Electrical Contractors Association











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