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Rules for thee: How the California Legislature skirts its own laws

New California legislators stand to take the oath of office in the Senate chambers in the state Capitol on Dec. 5, 2022.
Martin do Nascimento
New California legislators stand to take the oath of office in the Senate chambers in the state Capitol on Dec. 5, 2022.

State legislators sometimes exempt themselves from the laws they pass, but this session, they could change course on an emblematic bill: To allow their own staffers to form a union.

California legislators pass hundreds of laws every year. But sometimes, they free themselves from following them.

On one emblematic issue, however, this may be the session when that changes: Lawmakers, who have pushed through major bills to support unions throughout California, may finally let their own staffers organize.

For at least the fifth time in the last 25 years, the effort came to an anticlimactic end last year as a legislative unionization bill passed the state Senate, but failed in an Assembly committee on the last day of the session.

This year, there are a lot of pieces in place that could help the new push. For one: the amount of turnover in what is now California’s most diverse Legislature ever.

The legislation was revived — and highlighted as Assembly Bill 1 on the first day of the current session Dec. 5 — by new Assemblymember Tina McKinnor, who leads the committee where it has died four out of the five times it has been proposed.

“What are we afraid of? Why are we afraid of our staff to have representation?” the Inglewood Democrat told CalMatters today. “We’ve asked the farmers to let the farmworkers unionize. We asked the hotel owners to let hotel workers unionize and the restaurant owners to let restaurant folks unionize. And we’re not letting our own folks in our building unionize. We can’t continue this.”

In addition, Assembly Speaker Anthony Rendon supports the idea of staff unionization. The incoming speaker, Assemblymember Robert Rivas, who is set to take the top leadership post on June 30, is one of 20 Assemblymembers and seven senators whose names were on the bill at introduction.

A wave of unionization in Democratic state legislatures across the country, plus among some congressional staff, could also help the cause. Oregon became the first state to allow legislative staff to unionize in 2021. Similar efforts were started in Massachusetts, New York and Washington state.

Then-Assemblymember Lorena Gonzalez Fletcher speaks at a rally in support of a worker rights bill on Aug. 28, 2019.
Anne Wernikoff
Then-Assemblymember Lorena Gonzalez Fletcher speaks at a rally in support of a worker rights bill on Aug. 28, 2019.

Lorena Gonzalez Fletcher — one of the most prominent union champions in the Legislature from 2013 until last year, when she resigned from the Assembly to become head of the California Labor Federation — says there’s no legitimate reason for legislative staff to be blocked from collective bargaining.

“It’s an argument that we hear always in unionizing efforts: Our place of work is special, it’s different, we have unique challenges,” she told CalMatters. “We have unions that are used to dealing with a variety of sticky situations. That’s something that can be worked out.”

At last count, there are more than 1,800 full-time staffers in the Assembly and Senate, including legislative directors, district coordinators, secretaries and aides.

Unionization isn’t the only area where the Legislature exempts itself. The state Senate and Assembly also set rules for other state agencies and businesses that they don’t require themselves to follow: minimum wage, whistleblower protections, public access and more.

Dan Schnur, a politics professor at UC Berkeley, USC and Pepperdine University, says there’s “no coherent argument” to be made on why legislators should not abide by the laws they pass for other Californians. He also argues that “rules for thee” damages civic engagement.

“This is exactly the type of double standard that makes voters across the ideological spectrum absolutely despise politics and politicians,” he said.

Legislative staffers unite

State employees other than legislative staff were granted the right to collective bargaining in the Ralph C. Dills Act, signed into law by then-Gov. Jerry Brown in 1977.

Of the 200,000-plus state workers, more than 80% are represented in one of 21 bargaining units; managers, supervisors and some others are excluded. Last week, for instance, the union representing more than 2,700 state scientists rejected a contract offer from the Newsom administration. The union, which has been without an agreement since July 2020, is seeking 43% raises.

Concerns about past staff unionization bills have included treating the Assembly and Senate as one joint employer though they operate independently, as well as potential timing conflicts between labor contracts and legislative terms.

Other lawmakers have also flagged concerns about outside interests such as unions having a say in the Legislature’s operations, where constituents’ voices are meant to be prioritized above all else.

“People are comfortable trying to exploit our passions for public service. That’s why a union is absolutely needed.

But staff members say long hours and low pay can also be damaging to democracy.

“People are comfortable trying to exploit our passions for public service,” said Aubrey Rodriguez, a legislative director. “That’s why a union is absolutely needed.”

And McKinnor said that if there were a strike, managers and supervisors would still be on duty, and legislators would still be able to vote.

“We can write. We can read. We can do some of our own work,” she said. “Nothing will stop.”

Unionization isn’t the only labor law the Legislature exempts itself from. Lawmakers also aren’t required to pay minimum wage — though many choose to do so — or to pay overtime. And until 2018, legislative staff weren’t included under the Whistleblower Protection Act, which prohibits retaliation against state employees who report misconduct.

A foggy glass house

The Legislature wasn’t immune from the Me Too movement, which raised awareness into rampant sexual harassment and abuse in workplaces. In 2018, leaders released a decade’s worth of records that included 18 cases of alleged sexual harassment and that named four lawmakers then serving — but only after public pressure and the threat of court intervention.

Also in response, Senate and Assembly leaders created the Workplace Conduct Unit in 2019. Last December, the unit released its first report, which said that since February 2019, 91 cases were substantiated and 86 resulted in disciplinary action, including nine dismissals.

The goal was to clear up the “erroneous assumption that allegations are not being substantiated or that discipline has not been imposed,” according to an August 2022 letter from legislative leaders to fellow lawmakers and staff.

But beyond the high-level numbers, the letter didn’t provide a lot of detail. It did not include names or specify disciplinary actions, other than the terminations.

That’s concerning to Ruth Ferguson, a former legislative staff member who helped start the Stop Sexual Harassment in Politics coalition after her unsatisfactory experience with the Workplace Conduct Unit.

“It appears they haven’t kept that promise of reporting out high-level staffers or members who have been found to have done something inappropriate,” Ferguson told CalMatters. “It makes me wonder: Why hasn’t the public been given an explanation as to why?”

Newly elected legislators are sworn into office in the Senate chambers at the state Capitol on Dec. 5, 2022.
Martin do Nascimento
Newly elected legislators are sworn into office in the Senate chambers at the state Capitol on Dec. 5, 2022.

The Legislature is exempt from the Public Records Act that applies to other state agencies. Instead, it’s covered by the Legislative Open Records Act, which does not require the release of misconduct reports.

The anti-sexual harassment coalition will focus this year on trying again to pass a bill to amend the Legislative Open Records Act to require the release of those records, using language similar to a law passed in 2021 that applies to disclosing police misconduct.

“The justification [for those bills] was that there’s this lack of trust and transparency and that greater transparency would result in a fair and more just system,” Ferguson said. “I think similarly that’s really true in this case. For staffers in the legislature and the public, there’s no accountability mechanism.”

Public meetings are another area where the Legislature doesn’t have to be as transparent as other elected officials. The 1953 Ralph M. Brown Act and the 1967 Bagley-Keene Act require local governments and state agencies to conduct business at open meetings, with some exceptions for closed sessions requiring confidentiality, such as personnel issues.

The logic: “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

But that doesn’t apply to the Legislature. Under a 1973 law, legislators can gather privately in partisan caucuses. For example, Assembly Democrats met behind closed doors for six hours at the state Capitol last spring on the speakership fight, then hammered out the deal for Rivas to succeed Rendon as speaker in another six-hour private meeting in November at the Sacramento Convention Center.

“The most angry and resentful populists in both parties are driven by the accurate belief that most politicians think that they’re better than the rest of society,” Schnur said. “Every one of these double standards reinforces that belief.”

CalMatters is a nonprofit, nonpartisan media venture explaining California policies and politics. 

Sameea Kamal is a reporter at CalMatters covering the state Capitol and California politics. She joined CalMatters in June 2021 from the Los Angeles Times, where she was a News Desk editor. Sameea was one of three 2020 IRE Journalist of Color fellows, and previously worked for the Center for Public Integrity. She earned her bachelor’s degree from the University of California, Berkeley, and her master’s degree in journalism from Columbia Journalism School.