Metropolitan News-Enterprise

 

Tuesday, June 21, 2011

 

Page 7

 

PERSPECTIVES (Column)

Political Pay-Offs Provide Politicos’ Pals With Plumb Positions

Brown Is Right in Advocating Death for Unemployment Insurance Appeals Board

 

By ROGER M. GRACE

 

Even Gov. Jerry Brown is capable of coming up with a sound idea, every now and then. His proposal to dismantle the California Unemployment Insurance Appeals Board is an excellent one…for reasons that have been voiced in reaction to it, and for reasons that haven’t been cited.

 “In another move to save taxpayer dollars,” a May 13 press release heralds, “Governor Edmund G. Brown, Jr. has proposed eliminating the Unemployment Insurance Appeals Board,” proceeding to explain:

“The Governor’s proposal, which will be included in the May Revise of the budget, calls for the Appeals Board to be eliminated by June 30, 2012 and will save up to $1.2 million in salary and travel costs.”

Three days later, Brown’s revised proposed budget was unveiled, accompanied by the announcement that it “eliminates 43 boards, commissions, task forces, offices and departments that represent an inefficient use of taxpayer dollars.” The savings would be an estimated $82.7 million.

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The Sacramento Bee, in a May 20 editorial, opines that $82.7 million is “not a ton of money” and the savings would be “mostly symbolic.” I could point out that $82.7 million in one dollar bills would weigh about 91 tons, but putting trivia aside, the fact that the sum is dwarfed by the deficit does not render it inappreciable. Anyway, the Bee continues:

“Still, Gov. Jerry Brown is on the right track in wanting to ax 43 state boards, commissions, task forces and offices. The proposal, part of his revised budget unveiled this week, is less about saving $82.7 million—loose change in relation to a $9.6 billion deficit—and more about furthering two key principles. One is to streamline the state bureaucracy. The other is to curtail patronage. Exhibit A of that outrageous practice is the Unemployment Insurance Appeals Board. Six of the seven members are ex-lawmakers, and they get paid $128,109 a year, more than they made in the Legislature. The board’s work can easily be done for far less by civil servants and administrative law judges.”

Those two goals are worthy ones.

A May 23 editorial in the Riverside Press Enterprise provides this reaction:

“Consider the Unemployment Insurance Appeals Board, one of the panels targeted for extinction by the governor’s budget. The board handles appeals in disputes over unemployment and disability benefit claims....Administrative law judges already hear unemployment insurance cases and appeals. There is no need for a separate appeals board, other than to provide termed-out politicians with a sinecure.”

The editorials point to a strong case for dumping the CUIAB. Certainly, review of administrative law judges’ decisions can be done more efficiently by other ALJs, and perpetuation of the spoils system should not be condoned.

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This view is expressed in a May 24 editorial in the Daily News of Los Angeles:

“There is no better example of government for the sake of government than the many state commissions that seem to exist for no other reason than to employ termed-out legislators and loyal political aides.”

The editorial goes on to say:

“Among the most notorious is the Unemployment Insurance Appeals Board, whose members make up to $128,000 a year for attending a couple of hearings a month.”

Other Los Angeles Newspaper Group newspapers—the Torrance Daily Breeze, Inland Valley Daily Bulletin, and the San Bernardino Sun—also assail the CUIAB as a “notorious” example and declare that the board members’ salaries are predicated on attendance at two meetings a month.

Notorious? Yes. But the job description is inaccurate.

An Associated Press dispatch of May 13 from Sacramento quotes board member Alberto Torrico—a former assemblyman who last year unsuccessfully courted the Democratic nomination for attorney general—as saying:

“Every article I read, we’re getting paid to attend one to two meetings a month, which is false. That’s a very small part of our job. We process 25-50 cases a day, every day, every week of the year.”

Theoretically, each member assiduously applies himself or herself to the task of resolving appeals from decisions of administrative law judges, faithfully and competently applying the law to the facts. At least, that’s the theory.

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Let me tell you about my own adventure with the CUIAB.

During the weekend that was marked by the fade-out of 2006 and emergence of 2007, I read a draft of a profile by a staff writer on Court of Appeal Presiding Justice Paul Arthur Turner. I made several corrections and wrote at the top: “STEVE: need something about the quality of his opinions.” I gave Steve (Cischke) the corrected sheets on Tuesday, Jan. 2, and staff writer Ken Ofgang and I gave him some suggestions as to persons he might contact for comment.

 

That evening, at about 6:30—shortly before the special section that would include the profile was to be set up on the press—I looked over the revised version. I didn’t see any comments about Turner’s opinions inserted. Steve explained that he talked with two members of Turner’s division, Richard Mosk and Orville Armstrong; Mosk was noncommittal; Armstrong said something along the lines of: “[Turner] writes good opinions, I write good opinions,” all the justices do, and it wasn’t really an issue.

(If accurately recited, Armstrong’s comment implies that Court of Appeal justices are fungible, the opinions of one indistinguishable from those of the others—which is nonsense.)

In light of what he had been told, the reporter ceased any efforts to obtain the comments he was directed to insert in the story—and didn’t alert me during the course of the day as to his unilateral decision to disregard the instruction. As I was trying to impress upon him the unacceptability of spurning a directive, he turned and walked away. I fired him for insubordination.

The Employment Development Department determined that he had not been fired for misconduct and was entitled to benefits. I disagreed, and a hearing was held before an ALJ, one Merced Martin who, like all the CUIAB’s ALJs, is a member of the State Bar. He found in favor of the claimant, relying on a single case: Amador v. California Unemployment Insurance Appeals Board (1984) 35 Cal. 3d 671. Martin cited it for the proposition that “[a]n employee who fails or refuses to comply with a reasonable rule or direction, and establishes good cause for doing so, has at most made a good faith error in judgment, not amounting to misconduct.”

That’s not what the case says. The issue presented there is stated in the first sentence, at 675, as follows:

“Is a worker disqualified from collecting unemployment insurance benefits when she has been discharged for willfully refusing to perform work which she reasonably and in good faith believed would jeopardize the health of others?”

In Amador, a histotechnician refused to perform work she believed she was not sufficiently trained to do and which she believed should be done, for sake of correct diagnosis of the patient, by doctors or others with specialized training. Steve was told to get certain quotations. Doing so would hardly have jeopardized anyone’s health.

The court in Amador says at 679:

“If a claimant’s reasons for refusing work constitute ‘good cause’ sufficient to justify resignation, it follows that they should also justify the less drastic step of refusing a work assignment.”

Steve did not contend, nor could he plausibly do so, that the instruction to gather comments on the quality of Turner’s opinions was so onerous as to justify a resignation by him.

We appealed to the CUIAB, discussing Amador at length. An opinion was issued June 1, 2007. It said: “[W]e adopt the [ALJ’s] issue statement, statement of facts and reasons for decision as our own.” There was no discussion of Amador or the other points raised in the appeal—merely some boilerplate language and a rubber stamping of the ALJ’s decision. It was “issued” by board members Jack D. Cox and Fred Aguiar (neither being designated the author). Those two did not burn the midnight oil working on the decision…if, in fact, they did any work on it, at all.

Alberto Roldan, the CUIAB’s chief administrative law judge and chief executive officer, tells me that there are about 25 ALJs who are “board authors” of the opinions—which are, of course, subject to approval of the two board members assigned to each case. Either Cox and Aguiar did not bother to read the anonymous ALJ’s decision or were grossly derelict in failing to direct that a proper opinion be drafted.

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The sort of neglectfulness evinced by the opinion—which is seen only by the parties, the “board author,” and perhaps by the board members whose names appear on it—obviously would not be demonstrated in one of the CUIAB’s published (and citable) “precedent” decisions. As you’ve no doubt gleaned, the written ruling in our case, skirting as it did the legal issue presented, was not denominated a precedent decision.

As to opinions that do reside on that exalted plateau, there is, of course, an expectation that there be discussions of the facts and the relevant law, as well as a reasoned application of the law to the facts.

(Actually, that should also be expected in the unpublished ones. Government Code §11425.50, made applicable in 1995 to the CUIAB by an amendment to Unemployment Insurance Code §409, says: “The decision shall be in writing and shall include a statement of the factual and legal basis for the decision.”)

Most of the CUIAB’s precedent decisions relate to unemployment benefits. There have been 389 precedent benefit decisions since the first one, filed Dec. 15, 1967. That’s an average of 8.6 decisions per year over the past 43.5 years. So, how many do you suppose there have been so far this year?

The answer is: none.

Well, what about the entirety of 2010? None.

2009? The same.

There has not been one single precedent benefit decision since Oct. 14, 2008—and the latest one before that came on Nov. 14, 2006.

Do you spot a trend?

The last precedent tax decision (there have been 52) was rendered on May 8, 2007, and the one before that was filed on Oct. 18, 2005. As to other types of decisions, the latest published one surfaced on Dec. 17, 1998.

Roldan says the CUIAB is presently working on one decision for sure, maybe two.

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Returning to our CUIAB appeal, the supposed review by Cox and Aguiar was a sham. Cox was a longtime Teamsters leader, placed on the board by Gov. Gray Davis, a Democrat who enjoyed labor support and needed to reward it. Gov. Arnold Schwarzenegger, a Republican (at least by party registration), had appointed his cabinet secretary, Aguiar, a career politician (including service as Assembly speaker pro tem) and GOP loyalist. Neither Cox nor Aguiar is a member of the State Bar. By statute, only two of the seven board members need be a lawyer—notwithstanding that an appeal might challenge (as ours did) an ALJ’s legal interpretations.

Seeking a writ in the Superior Court, we engaged in a small amount of discovery. I asked for admissions that neither Cox (who was by then off the board) nor Aguiar (then a sitting member) had ever read Amador, had accessed the case electronically in connection with our appeal, had done any legal research in connection with our appeal, or had personally read our five-page appeal. The answer to each request was that “[t]he information known or readily obtainable is insufficient to enable the Respondent to admit the matter, and on that basis Respondent denies….” In explaining the answers, in response to a form interrogatory, the CUIAB said it was “no longer in contact” with Cox and Aguiar just didn’t remember.

(The memory-strapped Aguiar, forever in one government job or another, is now a member of the California Mid-State Fair Board of Directors.)

Plainly, Cox and Aguiar had been awarded sinecures. They had no burdens, the fulfillment of which was readily discernible, other than authorizing use of their names on opinions and attending a meeting in Sacramento—with travel costs provided—once or twice a month.

Participation in those meetings is brief, hardly exhausting. The meeting of April 12 is the last one for which there are minutes posted on the Internet. The minutes reflect a series of reports; no discussion, no votes—nothing that could not have been accomplished by e-mail. Same for March 22.

I’ll offer comments tomorrow on the caliber of the appointments to the board of the six ex-lawmakers.

 

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