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Elaine M. Howle, California State Auditor Bureau of State Audits 555 Capitol Mall, Suite 300 Sacramento, California 95814 Attn: Donna Neville Legal Division RE: Citizens Redistricting Commission – Regulations for Final Phase of Selection Process Dear Ms. Howle: The State Auditor has requested comments regarding the process by which the final six members of the Citizens Redistricting Commission will be selected. We, the undersigned, thank you for this opportunity to provide our input. We have compiled a list of recommendations that we hope will be helpful to you in developing regulations to guide this final stage of the selection process. At the outset, we commend the State Auditor for undertaking this additional rulemaking process. Because the Voters FIRST Act is silent regarding the procedures that the first eight appointees to the commission are to follow in selecting the remaining six commission members, we believe it is important for your office to promulgate regulations spelling out the specifics of how this aspect of the selection process will be carried out. In the absence of such regulations, it seems inconceivable that the first eight appointees will be able to carry out their primary task of collecting and processing information about the remaining applicants and deliberating and voting on the remaining six slots, and at the same time make the requisite preliminary decisions about their operating procedures. We note here that the Voters FIRST Act provides the first eight appointees with as little as 41 days (extending from no later than November 21 to no later than December 31) to appoint the remaining six commissioners, a period that occurs during the holiday season. Accordingly, we recommend that the State Auditor promulgate regulations addressing the following items: 1. The State Auditor should remind the eight appointees of the task before them, specifically, their obligation under the Voters FIRST Act to ensure that the commission reflects the full diversity of California. The State Auditor should provide the eight appointees with the following instructions: • that they are required by section 8252(g) of the Government Code to choose the remaining six commissioners to ensure that the commission reflects the diversity of California, as well as to choose the remaining six commissioners based on relevant analytical skills and the ability to be impartial;
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that they should not use formulas or ratios in making their choices to ensure that the commission reflects California’s diversity; that they should use the definitions of “ability to be impartial,” “diversity,” and “relevant analytical skills” set forth in § 60800, § 60815, and § 60827 of the regulations; that they should be mindful that, as defined in § 60815, the term “diversity” refers to the characteristics of California’s population as a whole, rather than the characteristics of California’s registered voters; and that they should seek to achieve representation from a range of racial and ethnic minority groups, that representation on the commission from one racial or ethnic minority group alone does not reasonably reflect the state’s racial diversity, and that the appointment of merely one individual from a particular racial or ethnic minority group may not reasonably reflect the state’s racial diversity with respect to that racial or ethnic minority group..
The eight appointees should hold their deliberations regarding the final six appointees in public. We also request that these meetings, like the meetings of the Applicant Review Panel, be publicly broadcast. The eight appointees should follow meeting rules governing that of an official body. We recommend that the appointees follow Robert’s Rules of Order. We also think the regulations should strongly encourage the appointees to attend at least the first meeting in person, and to begin by selecting a temporary chair. We would like the regulations to reflect that five of the eight appointees, regardless of party affiliation, constitute a quorum. The eight appointees should have access to the remaining applicants’ applications and interviews. We think the regulations should encourage the eight appointees to conduct interviews themselves if they think it is necessary, and if such interviews take place, they should be conducted in public. The State Auditor should make arrangements for the eight appointees’ first meeting. The State Auditor should: • determine a location where the eight appointees will conduct their deliberations; • appoint a convenor to facilitate the first meeting of the eight appointees, at least to serve until the appointees select a temporary chair (see #3 above); and • take the responsibility to ensure that the meetings of the eight appointees are publicly broadcast (see #2 above). The applicants should be reimbursed for travel and meeting-related expenses they incur during the final stage of the selection process. The State Auditor should provide guidance to the eight appointees on the methods by which they could select the final six commissioners, and should specify the possible advantages and disadvantages of each method in achieving consensus and meeting the requirements of Government Code Section 8252(g). This guidance
should address different alternative methods for nominating and voting on the candidates for the final six positions, including consideration of each candidate individually and consideration of slates of candidates. For each of the foregoing methods, the guidance should address the different methods of nominating the candidates to be voted on, including the different manners in which slates can be developed and proposed. 8. If requested by the eight appointees, the Applicant Review Panel and its staff should provide the eight appointees with information and guidance regarding the selection process and the applicant pool. The Panel and its staff could, for example, provide the eight appointees with demographic analyses and demographic breakdowns of the applicant pool. The information provided to the eight appointees and the communications between the eight appointees and the Applicant Review Panel and its staff should be made public. The regulations governing public comment during the Applicant Review Panel’s selection of the first eight appointees should be extended to apply to the eight appointees’ selection of the final six appointees. The eight appointees should be compensated for their work in selecting the final six commissioners, at the rate of $300 per day. The State Auditor should determine what type of work they will be compensated for, based on common practice of state commissions. The State Auditor should provide the eight appointees with administrative, technical, and clerical support in the same way that it must provide support to the Applicant Review Panel under § 60835. We have suggested some language below that adapts § 60835 for this phase of the process. Proposed Language: (a) The State Auditor should provide the eight appointees with administrative, technical, and clerical support as needed by the eight appointees to carry out their responsibilities under the Act. This support shall include, but not be limited to, the provision of office equipment, facilities, and staff sufficient to perform the following tasks: (1) Process applications. (2) Collect information concerning applicants. (3) Schedule meetings. (4) Maintain files. (5) Make travel arrangements. (6) Communicate with the public regarding decisions. (b) The State Auditor should provide the eight appointees with legal counsel. To the extent permitted by law, all work performed by the State Auditor’s legal counsel and all communications between the State Auditor’s legal counsel and the panel shall be confidential and protected from disclosure by any applicable privileges.
The State Auditor should provide the eight appointees with training prior to the selection process in a manner that is similar to the training provided to the Applicant Review Panel in § 60832. We have suggested some language below that adapts § 60832 for this phase of the process. Proposed Language: Prior to any of the eight appointees performing his or her duties, the State Auditor shall provide the appointee with training in preparation for the performance of those duties. The training shall include, but not necessarily be limited to, all of the following subjects: (a) The requirements for conducting a public meeting, including, but not limited to, the requirements imposed by the Bagley-Keene Open Meeting Act (commencing with section 11120 of the Government Code). (b) The duties of the eight appointees as described in the Voters FIRST Act and the regulations implementing its provisions. (c) California’s diverse demographics and geography. (d) The responsibilities of the commission as set forth in the Voters FIRST Act, the United States Constitution and the Voting Rights Act of 1965 (commencing with section 1971 of title 42 of the United States Code). (e) The process for performing redistricting, including, but not limited to, the use of computer software to draw district lines.
The State Auditor should clarify the prohibition on a commissioner’s participation in certain civic activities after serving on the commission. The Voters FIRST Act added Article XXI, Section 6 to California’s Constitution, which provides: A commission member shall be ineligible for a period of 10 years beginning from the date of appointment to hold elective public office at the federal, state, county, or city level in this State. A member of the commission shall be ineligible for a period of five years beginning from the date of appointment to hold appointive federal, state, or local public office, to serve as paid staff for the Legislature or any individual legislator or to register as a federal, state, or local lobbyist in this State. The Act does not specify which entity will be responsible for interpreting and enforcing the foregoing restrictions. Thus, while it does not clearly provide the State Auditor with the authority to do so, neither does it prohibit such action. We believe that there are several reasons that the State Auditor should promulgate regulations interpreting the scope of the prohibitions of Article XXI, Section 6 in this rulemaking. First, based on our discussions with potential applicants for the commission, we have learned that many applicants are thinking seriously about the impact of these prohibitions on their civic activities after being appointed to the commission, and it is very possible that the commissioners will want to focus on clarifying these restrictions as soon as the commission is seated. As a result, the commissioners could spend valuable time discussing and determining the scope of the prohibitions that could otherwise be spent on the important tasks involved in their redistricting duties. The State Auditor could forestall this process by promulgating regulations in this rulemaking.
In addition, as commission applicants proceed through the remaining stages of the application selection process, it is important that they have a clear understanding as early as possible regarding the limitations on their civic activities after appointment to the commission. This will enable applicants to make better-informed decisions about whether to pursue their applications. If interpretation of the limitations on commission service is delayed until immediately before or after the commissioners are finally selected, the commissioners who are seated may then learn that they must choose between their commission service or engaging in prohibited civic activities, and may decide to withdraw from consideration or resign from the commission. At that point, it would be burdensome and time-consuming to replace individuals who choose to withdraw or resign. In addition, through its management of the selection process for the commission applicant pool and its promulgation of related regulations, we believe the State Auditor has developed significant expertise in understanding the Act’s conflict of interest provisions, the intent of its prohibitions on activities that would impair commissioners’ ability to be impartial, the different types of civic activities that could be covered by the Act’s provisions, and the legal issues that affect the constitutionality of the Act’s provisions. In fact, the State Auditor addressed such issues in detail in Memorandum #2, one of the memoranda accompanying the initial proposal of the regulations governing the selection of the commissioners. We believe this expertise would be valuable in the interpretation of the prohibitions on the future civic activities of commissioners. Finally, we believe the State Auditor is well-positioned to solicit and incorporate public comment on the interpretation of the Act’s prohibitions on the future civic activities of commissioners. The State Auditor broadly disseminated its proposal on the regulations for the selection of the commission applicant pool, provided meaningful opportunities for stakeholders and the public to provide comment on its proposal, and considered these comments when promulgating its final regulations. If the State Auditor includes regulations interpreting the prohibitions on future civic activities in the rulemaking on the final stage of the selection process, it will provide a timely opportunity to effectively incorporate public comment into those regulations. We would also like to recommend that some aspects of the prohibitions on future activities be clarified. As a general matter, we believe that the State Auditor’s approach in narrowly construing the conflict of interests that could disqualify potential applicants from commission service under Section 8252(a) of the Government Code should be applied to the interpretation of the scope of the restrictions on future activities. In Memorandum #2, the State Auditor notes that under California law, any restriction on the right to serve in public office is subject to strict scrutiny review by the courts and must be justified by a compelling state interest and be narrowly tailored to avoid being overbroad. Insofar as many of the Act’s prohibitions on future civic activities would compel commission applicants to choose between service on the commission or service in many public offices during the five- or ten-year period after appointment, we believe such
prohibitions should be considered as restrictions on the right to serve in public office. Thus, we urge the State Auditor to narrowly construe the Act’s prohibitions on future civic activities and apply them only where justified by a compelling state interest. We recommend that the State Auditor consider the factors set forth in Memorandum #2, such as the place in which the civic activities occur, and the extent to which the activities compromise the commissioners’ ability to make decisions unaffected by the interests of the state’s partisan political leadership or create the appearance of such compromise. For example, we recommend that the State Auditor narrowly construe the ten-year ban on service in elective office. It is not clear whether the ten-year ban on service in elective office at the “federal, state, county, or city” level applies to elected positions on the governing bodies of other political subdivisions with boundaries that may not necessarily coincide with those of such jurisdictions, or that do not have authority to make policies that affect all of the residents of such jurisdictions. In California, there are several elected positions on education and school boards with boundaries that may not necessarily coincide with city or county lines. These include elementary, middle school, and high school districts, unified K-12 school districts, and community college districts. In addition, there are elected positions on “special district” boards in California which address such matters as water and other utility issues, fire protection, flood control, and health care. As is the case with education and school boards, the boundaries of these districts may not necessarily coincide with city or county lines, and they are not considered city or county political subdivisions. California’s elected offices also include positions on local neighborhood councils which generally only address matters affecting individuals who live or work in the boundaries of their respective neighborhoods. In adopting regulations spelling out the scope of the ten-year ban, the State Auditor should explicitly state that the ten-year ban does not apply to elected K-12 school board, community college trustee, special district, or neighborhood council seats. As explained above, these positions are not clearly covered by the language of the Act, which specifies “federal, state, county, or city” level positions. We also note that the drafters of the Act have in other cases used broader language when intending to cover a wide range of public offices – for example, Section 8252(a)(2)(A)(vi) of the Government Code disqualifies potential applicants for certain contributions made to any “congressional, state, or local candidate for elective office.” Had the drafters of the Act intended that the ten-year ban apply to elected positions other than those clearly specified, they could have drafted the language accordingly. We also recommend that the State Auditor narrowly construe the five-year ban on service in appointive office. In particular, the five-year ban on appointed positions should not apply to appointed positions on local public bodies which are purely advisory in nature, such as Parks and Recreation Commissions, or Cultural Heritage Commissions. Also, the five-year ban should not apply to federal judgeships. The State Auditor’s proposed rulemaking should incorporate the same concept of “appointed to federal or state office” used in § 60804 of the regulations. In other words, the five-year ban on
appointed positions should apply only to positions appointed by a specific set of actors (for example, the Governor, state legislators, and Board of Equalization members). We note that the positions set forth in this letter are not meant to be an exhaustive list of all of the positions that should be excluded from the Act’s restrictions on future activities. We provide them merely as examples, to illustrate the approach we believe the State Auditor should take when narrowing the scope of the Act’s restrictions. Thank you for the opportunity to submit our comments. We encourage you to contact us if you have any questions. Sincerely, Titi Liu Executive Director Asian Law Caucus James P. Mayer Executive Director California Forward Stewart Kwoh President and Executive Director Asian Pacific American Legal Center Alice A. Huffman President California State National Association for the Advancement of Colored People (NAACP) Janis R. Hirohama President League of Women Voters of California Arturo Vargas Executive Director National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund
Robert M. Stern President Center for Governmental Studies Nancy Ramirez Western Regional Counsel Mexican American Legal Defense and
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