This Bill Contains Several Unique ‘Notwithstanding’ Clauses

The phrase, “notwithstanding any other law,” is used in numerous statutes in California. The purpose of this phrase is to place a specific provision of law above all others that may conflict with the new provision of law. The general definition of “notwithstanding” is “in spite of the fact that….”

Basically, the phrase is used to say, “in spite of any other laws that may be contrary or written elsewhere, this new section of law takes precedence over those.” In other words, the phrase “notwithstanding any other law, etc.” is legal language that states what follows this introductory clause supersedes any other law(s) that might contradict it.

A bill pending before Governor Newsom has more “notwithstanding” clauses than I have seen in a single bill in recent years. The bill includes the following provisions:

SEC. 2.  Section 89521 is added to the Education Code, to read:

89521. Notwithstanding any other law:

(a) The California State University shall implement a merit nine-step salary system for all represented California State University nonfaculty staff employees that runs for 15 years, consistent with the findings of the study described in subdivision (f).

(b) Under the merit nine-step salary system established pursuant to this section, each represented California State University nonfaculty staff employee shall be placed in the step based on their existing years of employment as a represented California State University nonfaculty staff employee.

(c) Language that effectuates this section shall automatically be incorporated into any pertinent memorandum of understanding or collective bargaining agreement entered into, or renewed, by the California State University on or after January 1, 2023.

(d) Any costs associated with the implementation of this section that are incurred by the California State University shall be paid for using existing resources of the California State University.

(e) It is the intent of the Legislature that each represented California State University nonfaculty staff employee reach market median for that campus by year five in the merit nine-step salary system.

(f) It is the intent of the Legislature that the California State University take action to implement the salary step system consistent with the findings of the salary study authorized and completed for represented California State University nonfaculty staff employees that was developed pursuant to subprovision (k) of Provision 2.5 of Schedule (1) of Item 6610-001-0001 of Section 2.00 of the Budget Act of 2021 (Chapters 69 and 240 of the Statutes of 2021).

(g) It is the intent of the Legislature that the California State University work with the authorized employee representatives of each bargaining unit to implement this section.

These seven provisions are also unique because they have additional impacts, such as requiring its provisions to “automatically” be included in any MOUs or CBAs, and for the costs associated with its implementation to be covered without any budget augmentation.

In addition, these provisions include three statements of legislative intent, which are usually not associated with “notwithstanding” clauses. In most instances, legislative intent statements are not codified (i.e., not placed in the Codes as a statute, but instead be uncodified language).

Moreover, a “notwithstanding” clause is used to ensure any statutory conflicts give way to the statement following the notwithstanding clause. Legislative intent statements do not necessarily conflict with other legislative intent statements.

Finally, two of the legislative intent statements could actually be written as statutory requirements and so a question is raised why these provisions are expressed as “intent” statements, rather than be codified, affirmative requirements for the university system to comply with.