Wednesday, June 22, 2011
Page 7
PERSPECTIVES (Column)
Are the Six Ex-Legislators Appointed to the CUIAB Fit for Their Posts?
By ROGER M. GRACE
The major complaint voiced about the California Unemployment Insurance Appeals Board is that it has become a rest home for termed-out ex-legislators. Six of the seven members of the board came to it fresh out of the state Senate or Assembly.
Editorials in various newspapers have called for dismantling the CUIAB, and Gov. Jerry Brown last month proposed such action in connection with the budget. The proposal strikes me as sound.
In the course of looking into whether the six politicos who are beneficiaries of spoils-system appointments deserve their rewards, I talked with one of them—Alberto Torrico, a candidate last year for the Democratic nomination for attorney general. He made a slip-of-the-tongue admission, which I’ll get to in a moment.
Current board members who were appointed by then-Gov. Arnold Schwarzenegger were George Plescia, a former Assembly Republican leader; Roy Ashburn, an ex-Republican state senator; Bonnie Garcia, an erstwhile member of the Assembly; and Dennis Hollingsworth, who had served as state Senate Republican leader. None is an attorney—hence, none is apt to be competent to determine legal issues raised by appellants.
Had these four appointees of the man oft-dubbed the “Great Fornicator” been the crème de la crème of the state Legislature? It can be said that one—Hollingsworth—was uncontroversial and able as a legislator. However, his background in agriculture is not apt to assist him in his present role.
Here is a run-down on the other three:
·To show you what sort of a go-getter Plescia is: in September, 2008, 118 of the 120 state lawmakers were in Sacramento to finalize the budget. Absent were Assembly member Nell Soto, who was in ill health (and died the following February), and Plescia, who was vacationing abroad.
Some viewed him as inept as Assembly minority leader. In 2006, an audio recording of a private meeting Schwarzenegger had with inner circle members was foolishly posted on the Internet by the Governor’s Office with the notion that it was safely tucked in a private sector of a public website. (Perhaps Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski was technical advisor to the webmaster.) The audio file was obtained by the Los Angeles Times, which reported on Sept. 8 of that year:
“On the recording, Schwarzenegger’s Democratic chief of staff, Susan Kennedy, says Assembly Republican leader George Plescia of San Diego resembles a startled deer. That draws a chuckle from the Republican governor….”
Plescia was soon dumped as party leader in the lower house.
·Ashburn epitomizes hypocrisy. He opposed gay rights legislation. Then he was arrested for drunk driving after leaving a gay bar with a male companion in his car. He told the press that, yes, he was gay, but had opposed gay rights legislation because he thought his constituents wanted him to do so. He then changed his stances.
·Garcia, a political intimate of Schwarzenegger, had been on the former actor’s transition team when he took over from voter-ejected Gov. Gray Davis in 2003.
She appeared before a high school class on Oct. 10, 2006, during her campaign for reelection to the Assembly. Displaying abominable judgment, she admiringly described Schwarzenegger’s physique and said of the married state chief executive: “I wouldn’t kick him out of my bed.”
The Oct. 16 edition of the Riverside Press-Enterprise observes:
“Garcia’s risqué brand of humor is well-known in Sacramento, where she often uses colorful language on the Assembly floor and jokingly talked about whether her breasts were real during a dinner with a group of legislators.”
In a statement in which she said she was sorry if her remark offended anyone, the article says, Garcia proceeded to blame the campaign of her Democratic opponent “and the California School Employees Association, the union that represents two teacher aides who reported Garcia’s remarks to their principal, for using the school visit to orchestrate ‘a mudslinging opportunity.’ ”
The account adds:
“She also criticized the media and said the only reason the story came to light at all was ‘because I am a woman.’ ”
I suspect that if a male legislator had made the remark, it would have drawn even more press coverage.
From the Contra Costa Times edition of Oct. 22, 2006:
“And there was that awkward moment in 2003 when she introduced legislation about breast cancer. Garcia later learned she didn’t have breast cancer but at the time she feared she might. Talking about that fear, she told her colleagues on the floor that she wanted to keep her breasts because, ‘I happened to think I have a pretty nice set.’ ”
Schwarzenegger had previously termed Garcia (during that taped Sept. 6, 2006 session) “very hot”—but was apparently referring to her fiery temperament.
A person of Garcia’s ilk—lacking in judgment and unable to admit an error without immediately proceeding to eradicate the acknowledgement by turning on those who were critical of it—surely is not what we need on a major quasi-judicial state board.
Schwarzenegger—decidedly the worst Republican governor of California since Henry Gage (1899-1903)—made these appointments based purely on patronage. While this reflects ill on the ex-“gubernator,” it also points to the flaw in a system that permits, if not beckons, cronyism.
The other three CUIAB members are attorneys. A statute only requires that two of the members of the board be licensed to practice, though there can be more than that.
The latest attorney to come aboard is Robert S. Dresser, placed on the CUIAB by Brown…who, back when he was the state’s 34th governor, made a slew of appointments, especially to judicial posts, that were outrages. Even Schwarzenegger would look good if compared to “Governor Moonbeam” of the late 1970s and early 1980s.
Yet, Dresser—whose Feb. 18 appointment remains subject to Senate confirmation—appears to be a merit selection. Rather than being a career politician, he’s a career government lawyer, his last post being enforcement counsel for the Contractors State License Board. He was an ALJ in the appellate unit of the CUIAB from 1992-2001 and from 2002-07, Dresser was general counsel to the state’s Labor and Workforce Development Agency which oversees the CUIAB.
Was he a Brown campaign contributor? He was—but hardly a major one. Dresser donated $100 on Nov. 2, 2010.
The other attorneys on the board, both politicians, do not appear to be merit appointees.
·The designee of the Senate Rules Committee is Denise Moreno Ducheny. A Jan. 9, 2010 editorial in the Fresno Bee remarks:
“Ducheny, you’ll recall, took a junket to India when Gov. Arnold Schwarzenegger called an emergency session more than a year ago on the state budget mess.”
An editorial on Feb. 12, 2009, in the San Bernardino Sun scoffs at Ducheny’s explanation that her trip was educational, saying: “It included a day trip to the Taj Majal and stays in four-star hotels. A spokesman said the purpose of the trip was to share ways California legislators tackle governmental problems. (What would that be? ‘When the going gets tough, we leave the country’?)”
A Feb. 11, 2009, column by Dan Bernstein in the Riverside Press-Enterprise comments that Ducheny “took hubby along on an official November trip to India (Taj Mahal tour included!) as well as to meetings in Maui and Monterrey, Mexico,” adding: “In three months, Denise dinked donors for $41K in donor-paid expenses.”
Ducheny’s obligation to be in Sacramento, attending to the budget crisis, was particularly acute given that she was chair of the Senate Budget Committee.
·Now we get to Torrico. He was the Democratic Assembly leader, and last year, he came in third in the battle for his party’s nomination for attorney general. He was appointed to the board by Assembly Speaker John Perez.
Torrico strikes me as a delightful fellow. I chatted with him last week by phone, reaching him at his Sacramento law office.
“I’m building the practice,” Torrico says, noting that he was in the Legislature for six years and “couldn’t have a law practice” then because of the time he spent commuting, nearly daily (between his home in Fremont and office in Sacramento).
Knowing that he would be getting the appointment to the board, he says, he moved his family to Sacramento. (That doesn’t quite make sense. When he was in the Assembly, he did need to work in Sacramento; on the CUIAB, he only needs to show up in the office once or twice a month for a board meeting, and can otherwise work from home. Oh, well.)
In yesterday’s column, I quoted him as having told the Associated Press last month that board members “process 25-50 cases a day, every day, every week of the year.” He tells me he “works several hours a day” on CUIAB cases.
(As noted yesterday, the board members do not write any decisions; they look over ones drafted by ALJs.)
There are a couple things wrong here.
►Productivity and Objectivity: Unemployment Insurance Code §401 says, in part: “Each member of the board shall devote his full time to the performance of his duties.” That’s full time, not merely “several hours a day.” The pay for board members is $128,109 a year (except the chair, who receives $132,179 per annum).
Maintaining a law practice would seem inconsistent with that section.
Attorney General Kamala Harris might well probe whether the code section is being observed by board members.
Torrico says he’s currently practicing labor law. I realize that there are deputy district attorneys who get on the bench and show no bias against the defense—actually, sometimes being perceived as tough on the prosecution. However, here is a present advocate for employees’ causes passing on appeals by employers. This does not strike me as appropriate casting.
►Campaign Honesty: Then we come to Torrico’s statement that he was foreclosed from practicing law while in the Assembly. That’s revealing. His ballot designation last year, when he was in the Assembly, was “Workers’ Rights Attorney.”
Elections Code §13107, oft cited here, restricts a ballot designation to “either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.”
I’ve found that on the “Ballot Designation Worksheet” he filed with the Secretary of State’s Office on March 22, 2010, Torrico explains why he believed he was entitled to the designation:
“I practice law in the area of workers rights and labor. This is my principle [sic] occupation and workers rights and labor and employment law represents a substantial part of my practice.”
He lists his job title as “Associate,” dates in position as “Feb. 1, 2010 – Present” and the employer as “Mastagni, Holstedt, Amick, Miller & Johnsen.” That’s a Sacramento law firm that handles, according to its website, “a wide range of civil law matters, including labor and employment law....”
An April 5, 2010 editorial in the Sacramento Bee and in the Fresno Bee declares: “Alberto Torrico, a Democrat running for attorney general, calls himself ‘workers’ rights attorney,’ apparently thinking that title will appeal to Democratic primary voters. [¶] He was a labor lawyer before winning his assembly seat and in February joined a labor law firm. But he should own up to the fact that he is a member of the state Assembly.”
Indeed, his principal occupation was that of a member of the Assembly and that’s what should have been listed on the ballot. In light of Torrico’s slip of the tongue, it appears that acting as a lawmaker was his only occupation, and that employment by the law firm was only token, a ruse, a means of conjuring an illusion of entitlement to the ballot designation he wanted.
Well, his name did appear on at least one pleading.
The County of Sacramento was releasing jail inmates pursuant to an early-release statute. The Mastagni firm on Feb. 16, 2010 filed a complaint in Superior Court on behalf of the Sacramento County Deputy Sheriffs’ Association to challenge the practice. A widely circulated press release put out by the association says:
“In a declaration filed with the lawsuit, California Assembly Majority Leader Alberto Torrico, who has come out against the county’s interpretation of the new law, states ‘we were crafting legislation in response to a court order that was only applicable to inmates in state prisons, not county facilities. At no time, was there any discussion that the provisions would apply to county inmates.’ ”
Such a declaration was, in fact, attached to the complaint. And the complaint reflects that David P. Mastagni, head honcho at the firm, and Torrico, were lawyers for the plaintiff. However, there is no indication in the press release that Torrico was a member of the law firm representing the plaintiff; it only identifies him as “California Assembly Majority Leader.”
It would seem that the prestige of Torrico’s governmental office was being used to promote the cause of the law firm’s client. Is this a violation of the State Bar Rules of Professional Conduct? Beverly Hills attorney Diane Karpman, who specializes in ethics law, tells me this is in a “very gray” area of the rules.
There would not seem to be any grayness to Torrico representing that being a “workers rights attorney” was his “principle” [sic] occupation when, by his own statement, he had no time to be practicing law.
I wasn’t able to reach Torrico to obtain clarifications.
Each of six ex-politicos appointed to the board is other than an asset to it.
Does the fact that unwise appointments have been made to the CUIAB justify abolishing the board?
It does when the system is so designed as to encourage political patronage and featherbedding.
I’ll discuss an alternative approach tomorrow, as well as the irresponsibility of a Court of Appeal justice.
Copyright 2011, Metropolitan News Company