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Emergency Rules Called Overused

Democrats say governor is using the tactic to rush through changes in regulations without scrutiny. It's a 'power grab,' a lawmaker says.

March 31, 2005|Robert Salladay | Times Staff Writer

SACRAMENTO — Since taking office, Gov. Arnold Schwarzenegger has declared dozens of public emergencies that allowed him to change state regulations, angering Democratic lawmakers and a California judge who say the governor has overstepped his authority on several important laws.

This month, the Schwarzenegger administration used its emergency authority to allow the state to immediately take the assets of Medi-Cal recipients after they die as repayment for services rendered. Advocates for the elderly were incensed by the move. Last November, Schwarzenegger issued an emergency order reducing the number of nurses required in hospitals. A Sacramento Superior Court judge overturned the order this month, saying the governor's declaration of an "emergency is arbitrary and capricious and entirely lacking in evidentiary support." Schwarzenegger has appealed the decision.

The administration also has reduced the number of nursing beds available for sick residents of veterans' homes. It imposed a $10 fee on businesses that hire down-on-their-luck employees in urban areas. And it altered the limits on catching rockfish and lingcod -- all on an emergency basis.

The Legislature makes California laws, but a governor's administration has great leeway to interpret many of them through regulations. That includes the power to declare emergencies and rush regulations with less scrutiny than through the regular route, which can take months and requires 45 days of public comment.

Lawmakers acknowledge that former Gov. Gray Davis frequently used emergency orders to change regulations without much complaint from them. In 2003, Davis banned the importation of oysters from the Gulf of Mexico, citing deaths from a naturally occurring bacteria. The governor of Louisiana chided him for banning its oysters without "documentation or consultation."

But California lawmakers said Republican Schwarzenegger, unlike Democrat Davis, has made much more sweeping and significant changes to the law without public scrutiny.

"Coming from an administration that wanted the sun to shine on government, it's really making policy in the dark," said Assembly Speaker Fabian Nunez (D-Los Angeles). "The governor ought to use the rulemaking process strictly for emergencies."

Schwarzenegger himself issued an executive order in 2003, soon after taking office, saying that regulations made without public notice and comment are "contrary to law and public policy because it subverts open government." That order froze most pending state regulations for 180 days so they could be reviewed; none was found to be onerous.

The Legislature is preparing to hold hearings on Schwarzenegger's emergency regulations on recovering assets from the estates of Medi-Cal patients. Assemblywoman Wilma Chan (D-Alameda), chairwoman of the Health Committee, said she will hold a hearing, probably next week, on why Schwarzenegger pushed the changes through so quickly.

"A lot of these things are basically power grabs," Chan said. "I don't see how this fits into the definition of emergency."

The administration said its departments use emergency regulations judiciously and only if there is a real problem, if the law demands it or if a deadline is looming. Terry Tamminen, the governor's Cabinet secretary, said every regulation is carefully reviewed before being issued. The Medi-Cal regulations, for example, have been in the works for two years.

"Not to be corny about it, but as the people's governor, he wants to make sure the people are heard," Tamminen said. "And we take very seriously comments we get."

Since Schwarzenegger became governor, agencies and departments under his control have declared 79 regulatory emergencies. An additional 26 emergencies were extensions of emergency declarations issued by the Davis administration.

An emergency regulation becomes a fait accompli in as little as 10 days, bypassing the public comment period required for ordinary regulations. The emergency rules stay in force for four to six months, but many are renewed. Non-emergency regulations can take months to finalize, after a more detailed review.

"The fact is, in rulemaking, 200 heads are better than one," said William Gausewitz, director of the Office of Administrative Law, which reviews the state's emergency regulations. "Regardless of how good you are, you can't foresee all of the possible implications of any rules you might propose."

In some cases, emergency regulations are required by the Legislature, and the administration has no choice but to rush. The Health and Human Services Agency, for example, issued 25 emergency regulations in the last 16 months; 20 of them were required by law to be written as emergencies.

"However," Gausewitz said, "there are instances where rulemaking agencies have used emergency regs where the nature of the emergency was in question."

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