Briefing Report: Sun Set To Rise On Sunset Review

Thursday, February 10, 2011

Introduction

Boards and commissions conduct a variety of tasks in California's state government. Some simply provide advice to departments, programs or even other boards or commissions. Some enact regulations and establish policy. Others are responsible for licensing and disciplining professionals such as physicians, contractors, or guide dog trainers. Republicans have expressed a strong desire over the years to ensure that California's boards, commissions, and agencies are held highly accountable to the public. In the past, this task has been accomplished through the sunset review process, which five years ago quietly faded, as if itself a sunset.

Luckily for Californians, 2011 has brought with it the dawn of a new day for sunset review in California. This briefing report is intended to provide an overview of the sunset review process, and to give insight into what is expected to occur in the coming year as the Legislature once again begins performing this important oversight function.

History of Sunset Review in California

In 1989, the Little Hoover Commission issued a report, entitled Boards and Commissions: California's Hidden Government, which found that, "California's multi-level, complex governmental structure today includes more than 400 boards, commissions, authorities, associations, councils and committees.  These plural bodies operate to a large degree autonomously and outside of the normal checks and balances of representative government."  The Commission concluded "the state's boards, commissions and similar bodies are proliferating without adequate evaluation of need, effectiveness and efficiency."

In response to the Little Hoover Commission's findings, the Legislature established the Joint Legislative Sunset Review Committee in 1994 whose duties included routinely reviewing the performance of the various regulatory boards.  This process, known as "sunset review," was developed to address six fundamental problems that the Legislature felt needed correcting:

  • Clarifying Licensing Laws and Regulations: There were licensing laws and regulations which clearly benefited the profession but not the consumer or the professional candidate who wanted to enter into the profession. In effect, the licensed group, through the board and its licensing program, had set up artificial barriers of entry into the profession that enabled it to control the availability and cost of services and to restrict competition.

  • Implementing Disciplinary Action: Research found there were little to no disciplinary actions being taken against licensees.

  • Representation: Committees of the boards, made up of volunteer professionals, would make decisions usually according to staff or the executive officers concerning investigations or disciplinary actions to be taken against licensees.

  • Lack of Follow-through of Mission Statements: Boards were not carrying out their statutory responsibility for particular programs.

  • Inefficiencies: Boards were not operating their licensing, examination and enforcement programs in an effective and efficient manner. They were not responding to consumer complaints, or resolving complaints in a timely fashion. Program spending was not prioritized and some programs were too costly or completely unnecessary.

  • Unethical Standards: Boards lacked definitions of professional standards or what amounted to incompetent, negligent or unprofessional conduct.

Prior to sunset review, only three agencies were ever eliminated by the Legislature - they included the Board of Fabric Care (licensing dry cleaners), the Auctioneer Commission and the Board of Polygraph Examiners. According to records from the Joint Legislative Sunset Review Committee, f rom 1995 to 2005, the Joint Committee reviewed all boards and programs under the Department of Consumer Affairs and then re-reviewed them again to ensure that suggested changes and recommendations of the Joint Committee were implemented. The Joint Committee also reviewed proposals to create new boards or licensure categories and generally found that there was no need for creating a new agency for purposes of licensure or to regulate a particular profession.

According to the Senate Business, Professions & Economic Development Committee, by some estimates there are about 1,000 boards, commissions, and other entities that make up California's government structure.  While some of the statutes creating these organizations contain "sunset" provisions terminating their operation after a set amount of time, even in these cases the Legislature often extends their existence without any formal review of past operations or future needs, purpose or direction. This is in large part due to the fact that a meaningful sunset review process has not occurred in California since 2006, the last time that members were appointed to sit on the Joint Legislative Sunset Review Committee.

Sunrise of Sunset Review

In 2010, the Legislature announced efforts to re-invigorate the Sunset Review process to evaluate the effectiveness of boards and commissions.

In response, the Legislature passed and the Governor signed AB 1659 and AB 2130 (Chapters 666 and 670, Statutes of 2010) to revamp the sunset review process by abolishing the existing provisions and establishing the new Joint Sunset Review Committee to review all "eligible agencies." Eligible agencies are defined as, "any agency, authority, board, bureau, commission, conservancy, council, department, division, or office of state government, however denominated, excluding an agency that is constitutionally created or an agency related to postsecondary education, for which a date for repeal has been established by statute on or after January 1, 2011."

It is anticipated that the new Joint Committee, Chaired by Assembly Member Huber, will focus on reviewing agencies in the state and the policy Committees (i.e., the Business and Professions Committees in the Senate and Assembly) will review boards and bureaus that fall under the Department of Consumer Affairs (DCA). The same evaluative and review process performed by the former Joint Committee will be continued jointly by these committees as part of their oversight function.

The Legislature will begin the sunset review process by sending each board a questionnaire and a request for information covering every aspect of the board's operation for a specified period.  Legislative staff and the boards will then meet to discuss the information and to seek input from consumer groups.  The basic issue for the Legislature to consider during its deliberations is whether the board should continue to regulate the profession in question or be terminated. It is important to note that even if a board is allowed to sunset, the profession will still be overseen under the Department of Consumer Affairs. This is because the sunset review process is in part built on an assumption in law that if a board is operating poorly and the board should be allowed to sunset, the board will begin running more efficiently and effectively if the board becomes a bureau under DCA. The main difference between a board and a bureau is that under a bureau, a bureau chief is in charge and reports to the director of DCA.  In bureaus, many decisions are made through a closed-door administrative management structure that ultimately stops at the Governor.  Under a board governance structure, board members are appointed and hold hearings in public.  The board members appoint an executive officer who manages the operations of the board and reports to the board members in public.

What's In the Works?

The Senate Business, Professions & Economic Development Committee plans to hold three committee hearings for purposes of conducting sunset review of boards under the Department of Consumer Affairs in late-February and March. Below is the timeline for DCA boards and bureaus that will be up for sunset review in the coming years.

DCA Boards and Bureaus Sunset Dates for Review

2010/2011

Accountancy Board - Hearing: March 21, 2011
Architects Board and Landscape Architects Technical Committee - Hearing: March 21, 2011
Athletic Commission - Hearing: March 14, 2011
Contractors State License Board - Hearing: March 21, 2011
Dental Board - Hearing: March 14, 2011
Engineers, Land Surveyors and Geologists - Hearing: March 21, 2011
Registered Nursing Board - Hearing: March 14, 2011
Vocational Nursing and Psychiatric Technicians Board - Hearing: March 14, 2011
Professional Fiduciaries Bureau - Hearing March 21, 2011

2011/2012

Acupuncture Board
Behavioral Sciences Board
Chiropractic Board
Common Interest Development Managers
Court Reporters Board
Guide Dogs for the Blind
Pharmacy Board
Physical Therapy Board
Physician Assistant Committee
Podiatric Medicine Board
Psychology Board

2012/2013

Barbering and Cosmetology Board
Interior Design Organization
Medical Board of California
Occupational Therapy Board
Optometry Board
Osteopathic Medical Board
Naturopathic Medicine Committee
Respiratory Care Board
Speech-Language Pathology, Audiology, Hearing Aid Dispensers Board
Veterinary Medical Board

2013/2014

Automotive Repair, Bureau of
Cemetery and Funeral Bureau
Electronic, Appliance Repair, Home Furnishings and Thermal Insulation Bureau
Private Postsecondary Education Bureau
Dental Hygiene Committee
Massage Therapist Organization
Security and Investigative Services Bureau
Structural Pest Control Board
Tax Preparer Education Council

With regard to the new Joint Sunset Review Committee established last year, members of both the Senate and Assembly have been recently appointed to sit on the committee. It is unclear at this point when the committee will begin meeting to review additional state agencies.

Conclusion

Sunset review helps mitigate two ongoing challenges - how to ensure that the boards are really protecting the public and not the regulated profession, and how to make sure that the department is doing all it can to protect consumers in its broader mission. For these reasons, it is important that boards be required to scrutinize themselves under the cloud of possible elimination.

The citizens who pay for boards and commissions through taxes and fees deserve to have the efficiency and cost effectiveness of those boards and commissions tested regularly for legitimacy, accountability, customer service, innovation and resourcefulness. As such, it is important that the Legislature take steps to make certain that the sun is never again allowed set on this important enforcement mechanism in California.

 

For more information on this report or other Business, Professions & Economic Development issues , contact Amber Alexander, Senate Republican Office of Policy at 916/651-1501.