Bill Would Regulate Hiring by Governor

There are more than 3,000 bills and resolutions before the Legislature, many of them targeting California’s most pressing issues: the $38.2-billion budget shortfall, the lack of access to medical care, the performance of public schools.

The ambitions of Senate Bill 589 are more parochial. In two paragraphs, it seeks to close what lawmakers see as a loophole that allows Gov. Gray Davis to shield some appointees from Senate confirmation hearings -- and possible rejection.

The bill, which would limit a governor’s interim and acting appointments to six months of service, passed the Senate without debate and awaits Assembly action.

“It’s about good government and accountability,” said Sen. Gloria Romero (D-Los Angeles), one of the bill’s five Democratic and Republican coauthors.

On another level, this obscure bill is about how things work at the Capitol, how power is exercised and perceived transgressions punished -- especially if you’re an unpopular governor with few friends, political analysts said.

“Legislatures normally slap a governor when they know they can get away with it,” said Dan Schnur, communications director for former Republican Gov. Pete Wilson. “The gauge on the Davis political capital meter is on empty. The Legislature knows it, so they’re taking advantage of it.”

Davis, now in his second term, has had especially prickly relations with the Legislature. The 60-year-old Democrat has failed to consult lawmakers and has left them to take the lead -- and political heat -- on controversial issues, many legislators complain.

Despite the friction, the Senate has blocked only a few Davis appointees, including Bruce Thiesen, the governor’s choice to lead the Department of Veterans Affairs, and former Republican Sen. James W. Nielsen, chosen to head the Board of Prison Terms.

Senate President Pro Tem John Burton (D-San Francisco) said at the time that he opposed Thiesen because the appointee had failed to fix problems in the troubled department. His opposition to Nielsen arose from a federal judge’s finding that Nielsen and the board had violated the rights of disabled prisoners, he said.

Lately, in a Legislature dominated by liberal Democrats and conservative Republicans, ill will toward the centrist Davis has boiled over during the debate on California’s budget crisis. At the same time, the governor’s political vulnerability has grown as his approval ratings have sunk to 24% and a recall campaign led by conservative Republicans has taken root.

Confirmation hearings have traditionally provided an outlet for aggrieved legislators to strike back at a governor by grilling, or even rejecting, his choice. But Davis has occasionally short-circuited senators by his use of interim and acting appointments.

By the administration’s count, Davis has appointed about a dozen interim chiefs of agencies and departments, including two Veterans Affairs secretaries and three directors of the General Services Administration. He also has named 15 acting heads of boards, agencies and departments, said Davis Press Secretary Steven Maviglio.

Only one acting chief currently occupies a Cabinet-level position: Herb Schultz was named acting head of the Labor and Workforce Development Agency recently, filling in for the interim secretary, Steve Smith, who announced he was taking a leave to help fight the campaign to recall Davis from office.

The administration distinguishes between interim appointees, who are chosen by the governor or Chief of Staff Lynn Schenk, and acting appointees, who are typically selected by the outgoing secretary or director, said Maviglio.

Senate Rules Committee members and staffers said they don’t have a precise count of the administration’s acting and interim appointees or those of previous administrations for a simple reason: A governor isn’t required to give the Senate the names of interim or acting appointees.

In the case of Davis, “the media and legislators are so suspicious of him now that, every time he breathes, they look for some political motivation,” said Sherry Bebitch Jeffe, senior scholar at USC’s School of Policy, Planning and Development and a former Capitol aide. “There is a lack of trust that permeates every move this governor makes.”

Supporters of SB 589 say their bill is driven by a desire to prevent Davis and future governors from undermining the Senate’s constitutional role in confirming about 750 of the 3,700 executive branch appointments to agencies, departments, boards and commissions. All the members of the Senate Rules Committee -- three Democrats and two Republicans -- are coauthors.

Existing law gives a governor 60 days to send to the Senate the name of a new appointee that requires confirmation. The Senate has 365 days from the effective date of service to confirm a new appointee. But the law is silent on acting or interim appointees, allowing indefinite tenure without Senate confirmation.

“It’s a way administrations, going back many years, have gotten around the confirmation process,” said Burton, a frequent Davis critic and one of the bill’s co-sponsors.

In addition to limiting the tenure of acting or interim appointees to six months, SB 589 would prevent a governor from replacing one acting or interim director with another, as Davis has done at the Department of General Services.

Romero accuses Davis of using his power of appointments as “a temporary employment agency,” but administration officials contend there are good reasons for making interim and acting appointments.

In some cases it fills an essential position while the governor’s preferred choice completes existing commitments. Other times it gives the governor a chance to determine the suitability of an appointee, said Michael Yamaki, the governor’s appointments secretary.

Davis hasn’t taken a position on SB 589, but administration officials dispute suggestions that he is trying to dodge Senate scrutiny.

“Nothing that we’re doing that I’m aware of is done to circumvent that process,” Yamaki said, adding that if the administration has made acting or interim appointments, “it was to keep the trains running.”

Some administration officials see SB 589 as payback for past disagreements. Several officials said the bill stemmed from Burton’s displeasure with Steve Smith, the governor’s labor chief, over negotiations to increase benefits for workers injured on the job.

Smith was confirmed as director of the Department of Industrial Relations in January 1999. But Smith and Burton disagreed in 2000 and 2001 over proposals to increase workers’ compensation benefits.

Last summer, Davis created the Labor and Workforce Development Agency and named Smith to head it -- on an interim basis -- after Burton had told a number of labor leaders that he wasn’t interested in confirming Smith, administration officials said. Nearly a year later, the governor still hasn’t made Smith’s appointment permanent, thereby avoiding a Senate hearing.

“We’re working on it, and we’ll send it up at the appropriate time,” said Maviglio, who acknowledged that the governor considers the political climate before sending a nomination for Senate confirmation.

Smith, however, said his interim appointment is the result of economic concerns, not politics. He recommended that Davis fill senior management positions at the new labor agency on an interim basis with officials already on the payroll, “in order to get it up and running with a minimum of economic impact on the state,” Smith said.

For his part, Burton said there isn’t a link between his differences with Smith and SB 589. He and other senators also said the governor’s flagging popularity isn’t a consideration.

“Any governor should have the right to assemble a team that he or she is comfortable with, and that includes governors that are 24% in the public opinion polls,” said Sen. Ross Johnson (R-Irvine). “But the process is there in the law for confirmation by the Senate, and I think we need to have the governor exercise his right in a timely fashion.”

Political veterans such as Jeffe, though, say the timing of SB 589 isn’t a coincidence.

“This is a very wounded governor, so any politician is going to go after him,” she said. “He has not cultivated friends in Sacramento. It is, in a sense, payback time.”