EFFECTIVE LEGISLATIVE OVERSIGHT: THE CURE FOR "THICKET GOVERNMENT"

By Ken Cooley

Oversight activity in the California State Senate gives committees a means to touch Californians, by exerecising an inherent Constitutional power, and holding agencies & others accountable to the laws already in place. More accountable California governance, fiscally AND programatically, is the result.

It's how governmental "thickets" get pruned!

REDISCOVERING THE CALIFORNIA STATE SENATE'S CONSTITUTIONAL OVERSIGHT POWER

By Rancho Cordova Mayor Ken Cooley

Summary: The public wants government to be accountable, not only from a tax-efficiency standpoint, but also from the standpoint of what programs are in place and how they operate. Too many Californians encounter government as a thicket that is too dense to even enter. The Constitutional tool to cut down on such "Thicket Government" is the Legislature's power of oversight. I wrote the following paper as a roadmap to how the Standing Committees of the California Senate can become more effective in public oversight efforts.

Introduction

In our system of checks and balances, the Legislature's power to enact policy includes the power to safeguard the well-being of Californians by monitoring compliance with previously adopted laws. In this way, a Session's legacy is made not just by the enactment of new laws but also by its efficacy in holding the Executive Branch accountable for how it administers current law, including its attentiveness to ensuring that all others subject to current law meet its dictates.

Such oversight efforts play the vital role of upholding the rule of law as the foundation for California society and commerce. In a unique way, oversight inquiries enable Members of the Senate to fulfill the body's pledge, emblazoned in Latin above the Senate Dais "Senatoris est civitatis libertatem tueri", translated as "It is the duty of the Senate to protect the liberty of its citizens".

Oversight efforts help ensure that the accumulated body of California law, of which the Executive Branch is bound to be both steward and servant, remains apt to its intended purpose and administered fairly and in accord with its intent, to the benefit of California.

Oversight's key premise is that it can be far more impactful than merely passing new laws. In particular, through focused inquiry and follow-up, an agency's priorities can, in time, be realigned to be more accommodating to the Legislature's view of intended priorities.

Finally, oversight lets a creative Chair, their Vice Chair, and thir committee colleagues open their committee's entire jurisdiction to inquiries not tied the timing, process, and germaneness limits of the bill cycle.

Overview

In a nutshell, policy committee oversight efforts are fact-based examinations of the conduct and work of an entity or system of entities with a view to determining facts about the current activities and operations of the organization. The committee focus will be on those areas of state government administration or program responsibility within the committee's subject matter jurisdiction.

Given this jurisdictional focus, an option Committees may wish to consider is to convene information hearings early in the session where they can receive a baseline overview of state agency units subject to the panel's policy oversight. Such a hearing can inform the committee of each unit's organization, programs, available resources, administrative priorities, challenges and recent accomplishments. Beyond the information value of such a hearing, it begins to establish the concept that the Executive Branch's duty of program administration carries with it the prospect of periodic briefings and updates to the appropriate legislative policy committee with jurisdiction over the subject matter of current programs. Then, as more law or program-specific oversight hearings are conducted, the principle has been established that the relevant agencies should expect to be present and a part of the Senate's review process.

Within this co-equal branch of government oversight framework, a subject is researched and examined and the resulting facts are used to evaluate whether, for the effort and resources being expended, appropriate results are being obtained, and if changes or improvements can be made to achieve better, more needed, or different high-value outcomes.

As important as oversight is, our system of governance relies upon the power of enacting new laws as an important check and safeguard within government and for the public. The emphasis upon oversight cannot be allowed to eclipse the recognition of the value and propriety of sound, well-crafted, timely change and evolution in California law. Times do change. Markets evolve. New behaviors emerge and technological advances reframe our understanding of the tools and resources available to address particular problems. For this reason, a fit topic for oversight will frequently be how an emergent issue fits with an existing facet of state government and how a "hole" in the law, or a straight-jacket imposed by current law, must give way to a new solution.

The ultimate purpose of oversight is enhanced governance that is responsive to the need of Californians. Given this fact, California's State Senate recognizes that under the leadership of our Committee Chairs and Vice Chairs, and our professional subject matter staff, inquiries which are structured to enhance our understanding of the challenges facing contemporary governance, so as to permit the fashioning of innovations that are responsive to those challenges, are fit topics for oversight whether the focus is on a current law, or a new one.

Oversight efforts must necessarily focus heavily on fact-finding and, to this end, should be structured to provide a forum where all relevant facets of the issue, new or old, can be explored.

For the proper exercise of this Constitutional power effective oversight is built on a foundation of thorough research. Typically, the extensive background research will be conducted surrounding the entity and subject of the inquiry, relevant data will requested and analyzed upon receipt, and prospective witnesses will be interviewed beforehand by staff of the Chair. Only after this work has been done will a hearing be structured where invited witnesses will be asked to share their views on the specific questions the committee needs to explore in greater depth. The format of such hearings can range from formal testimony received sequentially, panel testimony where witnesses are grouped by subject and perhaps perspective, or open and unstructured sessions where attending Members and witnesses, who may have dissimilar and even sharply diverging viewpoints, engage in a wide-ranging give and take type conversation so that issues are discussed and debated "live" to facilitate understanding, follow-up inquiry, and clarity of conclusions.

As a matter of good practice, Chairs' will generally be able to manage hearings to more focused and productive outcomes if the substance of each witness's anticipated testimony is requested and received in writing in advance. This will allow the Chair to summarize the key points of their submitted testimony, receive their concurrence regarding that summary, then focus additional questions (and the time available to the committee) on key inquiries.

The key to such hearings is the concentration and focus in the advance research as this will start to sharpen impressions of what key topics need to be examined and what possible range of outcomes or actions may be desirable.

If a subject matter is particularly complex, it may make sense to consider establishment of technical or expert advisory bodies to collaborate with the committee and staff in the preparation and follow through with the subject matter.

This approach was used in the 1970's and 1980's when the California Legislature was broadly acknowledged as the best in the nation.

Any technical or other experts solicited should be identified on the basis of their strong professional credentials relevant to the subject being examined. While in most cases committees will not wish to seek approval to compel witnesses to attend and testify, if the circumstances warrant such a step, the process and constraints governing such a step by legislative committees, including the requirement of Rules Committee permission, are to be found in Government Code Sections 9400-9414. In such efforts, the Office of the Legislative Counsel Bureau can provide material assistance.

While oversight efforts necessarily focus on reviewing the current outcomes, how they may be improved, potential methods and tactics for achieving improved outcomes and recommendations if appropriate, oversight studies should also seek to identify appropriate metrics for monitoring and evaluating performance of the subject activity on an ongoing basis.

General Considerations for Committee Chairs and Staff

It is expected that each Senate Committee, under the guidance of its Chair, will in the normal conduct of its work develop its own approach and style of oversight. Oversight is an area where the unique strengths of the Chair, Vice Chair, Committee Members and Senate Staff can work together to produce focused and productive inquiries that are highly original and yield a positive return for California.

Accordingly, it is expected that any overview of oversight procedures and tools can at most serve as a menu of possible ideas to be copied, rejected, improved upon or surpassed according to the will and creative insights of the Members and staff of the Senate.

In the effort to spur just such creativity in the important public work of convening productive oversight hearings, the following considerations are offered:

1. Oversight Highlights the Co-Equal status of the Legislature and its Duty to Protect Californians, including the State's Taxpayers + Oversight permits committee's to highlight the constitutional role of the Legislature to set policy and ensure that the public's ends are being properly and well-served by the law's administration.

2. Oversight Can Examine if Current Statutory Authority is Being Fully Utilized to Address Emergent Problems + An assertive Chair andVice Chair and their staff can identify issues that captivate the public's interest, examine how existing statutory or regulatory tools might be employed to meet that challenge, and then convene a hearing to determine what the appropriate regulator or other party is doing to use the tools presently available on the public's behalf.

3. Choose the Top Issues in the Committee Jurisdiction and Focus on a Thorough Work-up + To obtain the greatest impact in the oversight process, it is best to identify issues that have developed high visibility, commit staff and institutional resources to a thorough work-up on the topic, and then plan a schedule to allow at least one in-depth hearing and repeated follow-ups to make sure key parties (whether executive branch or private sector) engage in promised follow-through.

4. Consider reviewing past enactments which were seen as notable when enacted to ID possible laws to conduct oversight on + Numerous summaries of past enactments exist both in-house and in outside sources. An excellent summation of major enactments is compiled each winter by the staff of the University of Pacific's McGeorge law School and published in the "McGeorge Law Review".

5. Staffing + A key challenge to institutionalizing effective oversight is finding ways to adjust workload so staff on the oversight project can focus on the task at hand.

a) Can workloads be adjusted so one or more persons can focus on oversight hearing research and preparation? To the extent some key staff can be freed up from the usual duty of bill management and analyses to focus primarily on oversight, the productivity for the committee as a whole will be materially enhanced.

b) Are their existing research resources that can be tapped? i) Senate Office of Research, Legislative Counsel, Legislative Analyst, University of California, CSUS, Public Policy Institute of California, RAND Institute, etc. ii) Can specialized talent be borrowed (CPA, Legal, Law School Interns)

c) Will an agency of interest loan a staff member so that the fact-finding process is "fair" as pertains to its area of jurisdiction.

6. Subject matter + Once a subject matter for a hearing is identified, the immediate task is to begin researching it by identifying subject matter experts, sources of background information, and beginning to assemble documents and other resources so that a "record" is assembled which lays the foundation for the hearing.

7. Production of Materials + If the research phase points to a need to request significant written materials, documentation, or records, these written requests likely need 4 to 8 weeks to produce results.

8. Calendaring + The calendar is used to keep a proposed oversight hearing on track and meeting the priorities of the Chair.

a) Tentative Plan Memorandum + It is suggested that within 2 weeks of the assignment of oversight hearing responsibilities, the consultant should provide their Chair a "Tentative Plan Memorandum" that addresses:

i) Purpose Statement + Describing the central focus of the inquiry, and areas of possible outcome, both related to the subject matter jurisdiction of the committee. ii) Preliminary Workplan and Calendar + The Who, What, When, Where and How of the process that will lead to the hearing, including what specific specialized sources of assistance the committee may wish to solicit and what key research needs to be completed. iii) Projected Outcome + What is the expected outcome of the effort and how will that further the committee's responsibilities and, if appropriate, how is it expected to help institutionalize the committee's priorities within the staff and management of the entity being examined. This policy perspective should be the primary focus of all such efforts and all needed efforts should be undertaken to sharpen and maintain this sharp emphasis. The outcome should highlight the key issues which have been identified and how the hearing might impact those issues so as to produce a different or better result for those Californians with a stake in the subject matter.

9. Research Process Overview + Research proceeds both informally and formally. Initially, the researcher begins talking to a broad array of interested parties or expert resources to begin identifying what data and information is available, who has useful insights into the matter at hand and what seem to be key issues. Once a preliminary view of key issues is developed, the record can be developed and gaps filled to lay a foundation for a more methodical interview of key personnel and/or witnesses in the preparatory stage of the hearing process.

10. The Power of Investigation + The investigatory process will proceed primarily in reliance on voluntary statements and testimony in response to 1) the perceived power of the committee and 2) the inevitable potential for adverse publicity if a party is unwilling to cooperate. Ultimately, Government Code 9400-9414 establishes a framework for the more formal subpoenaing of witnesses. (NOTE: While it serves as an available tool in the Chair's oversight toolkit, if subpoenaed a witness may request reimbursement for their travel expense which is an important practical issue to bear in mind.)

11. The "Summary of the Hearing" Tool + Based on the preliminary research, Staff (and borrowed staff resources) will prepare a "Summary of the Hearing" document which should cover:

a) Background on the Matter or Problem + b) Results of the Preliminary Investigation + c) Tentative Conclusions + d) Suggested Witnesses along with the key subjects and suggested questions for each + e) Advanced Written Testimony IS THE KEY to making hearing time productive + To facilitate the ability of the Chair to make the time which is available for oversight purposes as productive as possible, prospective witnesses should be asked to provide their testimony in writing a specified time in advance. (Recommendation is 14 days)

12. Committee Hearing

a) Open with statement by the Chair (and other members in the Chair's discretion) which summarizes apparent findings of the preliminary investigation and what the committee is seeking to learn in the following testimony. b) Testimony

i) Panel Testimony + If witness "panels" are to be used, limiting the number to 2 or 3 keeps them from getting unwieldy and difficult to direct in an orderly and productive way. ii) Civil "Give and Take" Formats + Some subjects may be of the kind that a Chair believes a moderated but free-flowing discussion among parties with differing perspectives can shed light on the subject. In that case, ground rules which require civility by all parties and which require cooperation with the Chair can be established.

13. Maintain Regular Planning and Preparation Updates +Maintain the discipline of a weekly or bi-weekly update to the Chair so that she or he can keep tabs on the hearing development, identify areas of personal interest they want to delve into, and ensure that progress towards the hearing is on pace.

Oversight Preparation Checklist

1. BASELINE AGENCY OVERVIEW HEARING DESIRED? + To establish a framework and process for planned oversight endeavors, does the Committee Chairs wish to convene an early information hearing to allow the full committee to get a baseline overview of state agency units subject to the panel's policy oversight? As described above, such a hearing cover each unit's organization, programs, available resources, administrative priorities, challenges and recent accomplishments.

2. PROVIDE RESOURCES THAT ENABLE INFORMED, TIMELY QUESTIONS BY COMMITTEE MEMBERS IN THEIR POLICY-OVERSEER ROLE + For purposes of such a hearing, conversations with stakeholders, client groups, LAO, budget committee staff, online review of recent related news stories and conversations with and any and all others with an interest in the subject matter can help focus questions by the Chair and other committee members in the hearing.

3. IS FOCUS SHARP + Has a specific public policy issue been identified?

4. IS EXPECTED PRODUCT CLEAR + Is a specific public policy result anticipated? (Legislation, action on pending bills, etc.)

5. HAS HEARING PLAN BEEN PREPARED + Has the Chairman, Chief Committee Advisor, and Committee Secretary received a Tentative Plan Memorandum?

6. EARLY MEDIA PREPARATIONS + If media interest can or may be expected have content and dates for press kits or releases been set? Have press matters been discussed with staff press experts to ensure that the most likely and probable quesions to shed light on the subject can be readily answered and documented?

7. RESOURCE PANELS + Are their subject matter experts who can be tapped as Technical or Advisory panel members to support the hearing and raise its visibility?

8. DO OPPOSING VIEWS EXIST + Does the subject lend itself to witnesses with contrasting views and is the hearing being designed to take advantage of such a circumstance?

9. ARE PROGRESS BRIEFINGS SCHEDULED FOR CHAIR + Have you fixed a schedule for progressive briefing of the Chairman?

10. ARE MEMBER BRIEFINGS PLANNED + Has the desirability of pre-briefing of committee members been discussed with the chair and if so, what materials are to be included and when are they to be made available.

11. ARE INFORMATION REQUESTS MAILED EARLY + If the committee determines to make detailed information requests, it is advisable they be prepared and sent 6-8 weeks prior to the hearing. Advance mailing is important to allow for recipient preparation and staff review and also to permit preparation and service of documentary subpoenas, if necessary.

12. HAVE OTHER INFORMATION SOURCES BEEN TAPPED + Has consideration been given to whether a) automated legal research (LEXIS), b) computerized newspaper database searches, or c) resort to the Legislative Analyst, Auditor General, Assembly Office of Research or State or Federal regulatory agencies could assist?

13. WITNESS INTERVIEWS + Have your witnesses been pre-interviewed and statements obtained?

14. DO PLANS ALLOW FOR 14 DAYS TESTIMONY SUBMISSION + Have all witnesses been invited in sufficient time to reasonably be asked to provide written testimony 2 weeks prior to the hearing?

15. HOW WILL SHARP FOCUS BE KEPT + Have you considered how to keep the hearing focused on one primary topic?

16. HEARING MATERIALS + Will materials for the hearing include:

• Background on the issue
• Results of Initial Investigation
• Tentative Conclusions
• Questions for Members

18. WITNESS PANELS + Are witness panels restricted to 3 persons at most?

19. SUBPOENAS AND THE BUDGET + If subpoenas for people will be used has Rules been requested to grant approval? What is the estimated travel budget impact of such witnesses? Is the Office of Travel being used?

20. WILL LEGISLATIVE COUNSEL AND THE GOVERNMENT CODE WITNESS RULES BE USED TO SWEAR WITNESSES + Government Code Sections 9401 establish special rules governing the testimony of witnesses at Legislative hearings. If witnesses will be sworn, these sections control and Legislative Counsel must be consulted during hearing preparation.

21. HEARING TIMES + Has adequate time been scheduled for the hearing? Two shorter hearings are better than 1 hearing which is rushed on substantive issues.

22. GETTING TO THE HEART OF THE MATTER + Have all hearing time-savers been planned for or purposefully not included? (E.g. written testimony summarized by chair and not reiterated by witness, use of staff questioning at outset, use of point/counterpoint opposing viewpoints format rather than single witness dialogues.)

23. HEARING ROOM AND TAPING + Have requirements for these been discussed with the committee secretary?