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Legislative Weekly
October 24, 2002
Exit fee decision postponed
At its October 24 meeting, the California Public Utilities Commission put off a vote on a proposed decision (PD) and several alternate decisions in the direct access (DA) customer cost responsibility proceeding until its next meeting, on November 7.
The PD establishes “cost responsibility surcharges” with an overall cap of 2.7 cents per kilowatt hour (kWh) to cover both historic costs and prospective “going-forward” costs. In this proceeding, CMTA has argued for an overall cap of 2.0 cents per kWh in order to preserve the viability of direct access.
The postponement of the exit fee decision came as little surprise, given the Commission's track record of putting off controversial votes and the weighty issues being considered in the proceeding. The Commission is likely to take up the matter at either the next hearing, on November 7, or the meeting after that, because of a consensus on the Commission that the issues in this proceeding need to be resolved by year's end.
 Duque on his way out |
"Be a manager, go to jail" legislation signed by the Governor
 Koretz |
Cal-OSHA, enacted in 1973, was to assure safe and healthy working conditions. The Division of Occupational Safety and Health (Division) is specifically vested with enforcement authority over safety and health in employment and places of employment in California. AB 2837 will permit local district attorneys to usurp the Division's Bureau of Investigation's (Bureau) authority to investigate serious injuries or death, putting the state plan at risk of violating the authorization agreement with the federal Occupational Safety and Health Act Administration. Federal funding for the Division could be threatened.
Investigations
Under current law, the Bureau is responsible for preparing cases for prosecution and may communicate with the appropriate prosecuting authority at any time it deems appropriate. In cases where the Bureau is required to conduct an investigation in which there is a serious injury or death, this bill requires that the results of the investigation be referred in a timely manner to the appropriate prosecuting authority unless the Bureau determines that there is legally insufficient evidence of a violation of the law.
AB 2837 permits the county district attorney to request the Department of Industrial Relations (DIR) to develop a protocol for referral of cases that may involve criminal conduct to the appropriate prosecuting authority in lieu of or in cooperation with an investigation by the Bureau. The protocol shall provide for the voluntary acceptance of referrals by the prosecuting authority and if they accept the case, they would have sole authority to direct the investigation. The Bureau and the Division would be required to cooperate with the prosecuting authority's investigation. CMTA believes that such a protocol would violate the federal OSHA agreement and threaten federal funds for the program.
Injury or Death
Current law requires the Division to investigate an employment accident that is fatal or serious unless it determines an investigation is unnecessary. However, AB 2837 requires an investigation of an accident resulting in a fatality within 24 hours from the time the Division learns of the accident. Therefore the Division would have to investigate all fatalities within 24 hours of learning of the accident without regard to the circumstances of the accident, taking away the Division's ability to make decisions regarding the use of staff and setting inspection/investigative priorities.
New Criminal Penalties
In every case involving a serious injury or illness or death, an employer is required to report to the Division by telephone or telegraph. Under this bill, a violation of this provision would result in a civil penalty of not less than $5,000. Small employers (over 700,000) are especially vulnerable because very few know the reporting time for a serious injury or illness or death is "immediately". A $5,000 civil penalty for this reporting violation is unnecessarily punitive.
However, this civil penalty pales in comparison to the new criminal penalties in the bill for employers where a supervisor or manager knowingly fails to report a death to the Division; negligently violates any standard or order; repeatedly violates any standard or order; fails or refuses to comply, after notification and expirations of any abatement period with a standard or order: Imprisonment in county jail for a year and fines of $15,000, or $150,000 if a corporation. CMTA objected to this provision because instead of requiring the Division to provide assistance to employers and fixing problems, making them aware of their safety and health responsibilities, the bill creates more crimes and fines that make criminals of supervisory personnel. The Cal-OSHA Appeals Board currently has a huge backlog of cases as a result of AB 1127 (Steinberg, 1999) containing large increases in safety and health fines and criminal penalties. CMTA believes employers will also fight the huge fines and criminal penalties in AB 2837 and use the appeals process to seek justice and reduce exposure.
Bilingual Investigations
AB 2837 would establish a Worker Safety Bilingual Investigative Support, Enforcement, and Training Account. It would authorize DIR to receive and accept contribution of funds from an individual or private organization, including the proceeds from a judgment in a state or federal court if the contribution is made to carry out the purposes of this part. The potential demand on this account to fund bilingual investigation support, enforcement and training is unknown, but could be enormous. CMTA opposed this provision because it would put DIR under pressure to obtain the needed funds by coercing contributions by threatening employers with maximum enforcement of safety and health rules and maximum fines and penalties. In addition, CMTA is concerned that it may encourage DIR and employers to make deals that would provide greater contributions to the department and a relaxed enforcement of the safety and health rules for employers. DIR is statutorily required to provide sufficient interpreters so that all workers can be heard and receive fair treatment, so the state should be obligated to fund it. In CMTA's opinion, an enforcement agency should not be able to benefit monetarily for carrying out their responsibilities under the law.
CMTA board votes to oppose prop 50
The CMTA Board of Directors considered a number of ballot measures during its recent fall meeting. None received more attention than Proposition 50 (Water Quality, Supply and Safe Drinking Water Projects; Coastal Wetlands Purchase and Protection; Bonds), sponsored by The Nature Conservancy and the Los Angeles Metropolitan Water District. A number of concerns surfaced during the Board's discussion of Proposition 50, including the following:
- An overwhelming percentage (about 45%) of the $3.4 billion dollar measure is dedicated to land acquisition;
- Much of the balance is dedicated to environmental quality improvement projects unrelated to water supply;
- The measure lacks balance by virtue of funding select Cal-FED and regional projects that reflect the priorities of the sponsors, rather than the needs of the state;
- Roughly one quarter of the project funding is tied to the requirement than any environmental impacts must be “fully mitigated”. This standard represents a "sea" change from existing California environmental quality law, which generally requires mitigation of significant impacts;
- The regulated community was shut out of the drafting process and consequently our interests are not reflected in the measure, except in limited instances where they coincide with those of the sponsors; and
- In the wake of Proposition 50, the state's mounting bond indebtedness in general, and voter water bond fatigue in particular, it does not bode well for a more balanced, water supply oriented measure in 2004.
Secretary of State's arguments for and against prop 50.
CMTA Positions on other ballot propositions
On October 18 the CMTA Board of Directors adopted positions on statewide ballot measures appearing on the November 5 election ballot:
CMTA supports Prop 46 (Housing and Emergency Shelter Act), Prop 47 (Education Facilities Bonds) and Prop 48 (Court Consolidation).
CMTA opposes Prop 51 (Transportation, Allocation of Sales and Use Tax).
No position was taken on Prop 49 (After-School Programs) and Prop 52 (Election Day Voter Registration).
CMTA promotes manufacturing at poverty hearing
CMTA testified at the Senate Select Committee on the Status of Ending Poverty on October 22, emphasizing the value of a manufacturing job as one way to move up and out of poverty. Lower education requirements, on-the-job training and promotion in the ranks distinguishes manufacturing from other types of employment, offering new immigrants and other California citizens a chance to improve their financial situation. The average manufacturing job pays $25,000 more than the average service sector job, according to the Milken report “Manufacturing Matters.”
Other parties at the hearing agreed that the stagnant manufacturing climate does not help the state employ what has been and will continue to be an influx of poor yet energetic immigrants. The reasons cited for underemployment in good paying jobs such as manufacturing include - lack of vocational education opportunities, tax disincentives for local governments to site manufacturing plants, and the high costs of doing business in California.
Legislators Ross Johnson (R-Irvine), Gloria Romero (D-Los Angeles), Steve Peace (D-El Cajon) and Chair of the committee Richard Alarcon (D-Sylmar) actively questioned all parties on their assumptions and biases with regard to the definition of poverty, the appropriate role of government, individual responsibility and root causes. Solutions offered included raising the minimum wage, lowering the cost of housing, and addressing the availability and price of health care.
The committee has embarked on a two year mission to create a master plan for eliminating poverty in California. Senator Alarcon plans to hold up to 20 hearings around the state on the complex multidimensional aspects of this problem.
CMTA was pleased to be invited to share our perspective on the issue.
Manufacturing talking point
Twenty four percent of Californians lived were considered poor in 2000 ($26,347 for a family of four), second only to Washington DC*. An average manufacturing wage pays $25,000 more than a service wage, often providing the necessary resources for an under-skilled and under-educated poor family. *According to the Public Policy Institute of California
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