In summary
A state senator says a legal team, similar to what the Legislature has, could help state agencies avoid flawed regulations and make compliance and enforcement easier.
California’s Legislature has a team of attorneys who help draft bills. State agencies need the same to avoid flawed regulations, says Sen. Roger Niello.
Niello introduced Senate Bill 1104 — based on an idea from veteran lobbyist Chris Micheli — that would establish an Office of Regulatory Counsel in the governor’s office to draft regulations until 2035.
Currently, the 600 or so regulations proposed each year are typically drafted by staff, and go through public hearings. The Office of Administrative Law reviews them to make sure they comply with some basic standards, such as whether the agency making the rule has the authority to do so. And the office will look at whether the language is clear, but that usually happens at the tail-end of the process.
If state agencies have a central group similar to the Legislature’s Office of Legislative Counsel, it would give regulations a better shot at moving through the approval process, Niello said.
And while the Roseville Republican doesn’t believe California needs more regulations, he said he sees it as inevitable that the Democratic supermajority will pass bills that create more.
“The number one reason for the [Office of Administrative Law] rejecting regulations is based on the lack of clarity,” he said at a Senate Governmental Organization committee hearing Tuesday. “This is largely because most of the staff of state agencies are not trained specifically in drafting regulations.”
No administration representative spoke against the bill at the hearing.
While there are a few entities that review regulations after the fact, only the larger agencies have attorneys on staff to do this work, Micheli said. Creating a legal counsel’s office would level the playing field, and ensure regulations across different agencies are clear and consistent.
Better regulations — ones with fewer errors and chances for misinterpretation — would make them easier for the public to comply with and for the state to enforce, Niello said.
That’s why the California Association of Winegrape Growers supports the idea.
“One of my most frustrating experiences is when a regulation is proposed and the agency says it does XYZ. And then we sit down with lawyers and we get the lawyers with them and they say, no, it actually does ABC because of these other provisions of law that it conflicts with and how it all fits together,” Michael Miller, the association’s director of government relations said at Tuesday’s hearing. “We believe that if you have this office created by this bill, that those kinds of legal issues can be resolved.”
“We see this as the good governance bill of 2024,” said Chris Walker, executive vice president of the California Association of Sheet Metal Air Conditioning Contractors.
But given the multibillion-dollar budget deficit, creating a new office is a tall order this session.
Niello, who is vice chairperson of the Senate budget committee, said he’s sensitive to budget concerns, but doesn’t see the new office as adding too many costs.
“Since there are people in individual offices, agencies that currently are drafting regulations without much cross communication … we could pretty easily supplant that workforce with the workforce. In fact, they could be the same people, but further trained specifically in drafting regulations.”
Still, not everyone wants to hand regulation drafting over to attorneys.
As one commenter wrote, in response to Micheli’s blog post: “I firmly believe the public would NOT benefit from this proposal. Many regulations are technical in nature, and it is more critical to have someone who understands the intricacies of the regulations than it is to have someone who understands law.”
The bill passed through the committee 14-0 and heads to the appropriations committee.