The Role of the Legislative Counsel

Most Capitol observers know that the Legislative Counsel and her deputies serve as the attorneys for the California Legislature. But their role is much broader than that. This article briefly describes the numerous activities that must be undertaken by the Legislative Counsel.

Under Government Code Section 10207(a), the Legislative Counsel maintains the attorney-client relationship with each Member of the Legislature with respect to communications between the member and the Legislative Counsel, except as otherwise provided by the rules of the Legislature.

As a result, all materials arising out of this relationship including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by the Legislative Counsel, are not public records, except as otherwise provided by the rules of the Legislature or when released by the member for whom the material was prepared.

In addition, pursuant to Section 10207(b)(1), the Legislative Counsel maintains the attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel. Under Section 10207(b)(2), whenever the Legislative Counsel issues an opinion to the Governor analyzing the constitutionality, operation, or effect of a bill or other legislative measure that is then pending before the Legislature, or of any amendment made or proposed to be made to that bill or measure, the Legislative Counsel delivers two copies of the opinion to the first-named author of the bill or measure as promptly as feasible after delivery of the original opinion, and also delivers a copy to any other author of the bill or measure who requests a copy.

The Legislative Counsel must be in attendance for all regular and special sessions of the Legislature under Section 10230.

Per Section 10231, the Legislative Counsel prepares and assists in the preparation, amendment and consideration of legislative measures when requested or upon suggestion as provided. And Section 10232 requires the Legislative Counsel to advise any State agency as to the preparation of measures to be submitted to the Legislature.

In addition, upon request per Section 10232.5, the Legislative Counsel may provide legal services to the State Auditor.

As required by Section 10233, upon request, the Legislative Counsel shall aid and assist any member of the Legislature as to bills, resolutions and measures, drafting them into proper form, and furnishing to the member the fullest information upon all matters in the scope of the bureau.

In addition to serving as legal counsel to the Legislature, state law also requires services be provided to the Governor regarding legislation. These requirements are specified in Section 10235. Subdivision (a) provides that the Legislative Counsel shall give such consideration to and service concerning any bill in the Governor’s hands for rejection, approval, or other action, as the circumstances will permit and the Governor requests.

Pursuant to Subdivision (b), upon request, the Legislative Counsel may provide to the Governor an opinion, orally or in writing, upon any question of law. And the Legislative Counsel may provide additional legal services to the Governor concerning any matter as the circumstances permit and the Governor requests under Subdivision (c).

The Legislative Counsel also prepares or assists the Legislative Counsel shall prepare or assist in the preparation or amendment of legislative measures at the written suggestion of any judge of the Supreme Court, the courts of appeal, or of the superior courts of the state under Section 10237.

Under Section 10242, the Legislative Counsel must advise the Legislature from time to time as to legislation necessary to maintain the codes and legislation necessary to codify such statutes as are enacted from time to time subsequent to the enactment of the codes.

The Legislative Counsel must annually prepare, publish, and maintain an electronic list of all reports that state and local agencies are required or requested by law to prepare and file with the Governor or the Legislature, or both, in the future or within the preceding year. This is pursuant to Section 10242.5.

Section 10243 obligates the Legislative Counsel to cooperate with the proponents of an initiative measure in its preparation when requests by 25 or more electors and there is reasonable probability that the measure will be submitted to the voters of the State under the laws relating to the submission of initiatives.

The Legislative Counsel cannot appear in any action or proceeding in the courts of this state or of the United States without the prior approval of the Joint Rules Committee. This is pursuant to Section 10245.

Under Section 10248(a), the Legislative Counsel must, with the advice of the Assembly Committee on Rules and the Senate Committee on Rules, make all of the following information available to the public in electronic form:

(1) The legislative calendar, the schedule of legislative committee hearings, a list of matters pending on the floors of both houses of the Legislature, and a list of the committees of the Legislature and their members.

(2) The text of each bill introduced in each current legislative session, including each amended, enrolled, and chaptered form of each bill.

(3) The bill history of each bill introduced and amended in each current legislative session.

(4) The bill status of each bill introduced and amended in each current legislative session.

(5) All bill analyses prepared by legislative committees in connection with each bill in each current legislative session.

(6) All vote information concerning each bill in each current legislative session.

(7) Any veto message concerning a bill in each current legislative session.

(8) The California Codes.

(9) The California Constitution.

(10) All statutes enacted on or after January 1, 1993.

Section 10200 provides that there is in the State Government the Legislative Counsel Bureau. The bureau is in charge of a chief, who is a civil executive officer and who shall be known as the Legislative Counsel of California.

Section 10201 requires the Legislative Counsel to be selected by concurrent resolution at the beginning of each regular session and must serve until his or her successor is selected and qualified.

Section 10202 states that, if a vacancy occurs while the Legislature is not in session, a committee consisting of the Speaker of the Assembly, the Speaker pro Tempore of the Assembly, the President pro Tempore of the Senate and the chairperson of the Appropriations Committee of the Senate shall select the Legislative Counsel to serve until the Legislature in session makes a selection for the office.

Section 10203 requires the Legislative Counsel to be chosen without reference to party affiliations and solely on the ground of fitness to perform the duties of his or her office.

Section 10205 allows the Legislative Counsel to employ and fix the compensation, in accordance with law, of the professional assistants and clerical and other employees as he or she deems necessary for the effective conduct of the work under his or her charge. Employees are supposed to receive the same employee benefits provided to employees of either house of the Legislature. Employees observe the same holidays that are observed by the Legislature.

Section 10205.1 authorizes the Legislative Counsel Bureau to assign persons to classifications and ranges, conduct examinations, and make appointments as specified by this section.

Section 10206 requires the permanent office of the Legislative Counsel to be in the State Capitol in Sacramento, where he or she is provided with suitable and sufficient offices convenient to the chambers of the Senate and Assembly.

Section 10207 requires the Legislative Counsel to maintain the attorney-client relationship with each Member of the Legislature with respect to communications between the member and the Legislative Counsel, except as otherwise provided by the rules of the Legislature.

In addition, all materials arising out of this relationship, including, but not limited to, proposed bills and amendments, analyses, opinions, and memoranda prepared by the Legislative Counsel, are not public records, except as otherwise provided by the rules of the Legislature or when released by the Member for whom the material was prepared.

Moreover, the Legislative Counsel maintains the attorney-client relationship with the Governor with respect to communications between the Governor and the Legislative Counsel. All materials arising out of this relationship, including, but not limited to, legal services concerning any bill in the Governor’s hands for rejection, approval, or other action, legal services concerning any legal opinion provided to the Governor, and legal services concerning any matter as the circumstances permit and the Governor requests, prepared by the Legislative Counsel, are not public records, except when released by the Governor.

Finally, whenever the Legislative Counsel issues an opinion to the Governor analyzing the constitutionality, operation, or effect of a bill or other legislative measure that is then pending before the Legislature, or of any amendment made or proposed to be made to that bill or measure, the Legislative Counsel is required to deliver two copies of the opinion to the first-named author of the bill or measure as promptly as feasible after delivery of the original opinion, and also deliver a copy to any other author of the bill or measure who requests a copy.

Section 10208 specifies that neither the Legislative Counsel nor any other employee of the bureau is allowed to reveal to any person outside of the contents or nature of any matter which has not become a public record, except with the consent of the person bringing the matter before the bureau.

Section 10209 requires the material, including books and other publications, of the State Library to be made available to the bureau. The University of California, all State agencies and other official State organizations, and all persons connected are required to give the Legislative Counsel ready access to their records and full information and reasonable assistance in any matters of research requiring recourse to them or to data within their knowledge or control.

Section 10210 prohibits the Legislative Counsel or any employee of the bureau to oppose or urge legislation. Section 10211 allows the Legislative Counsel, or any deputy legislative counsel, to administer and certify oaths.

Section 10230 requires the Legislative Counsel to be in attendance upon all regular and special sessions of the Legislature. Section 10231 requires the Legislative Counsel to prepare and assist in the preparation, amendment and consideration of legislative measures when requested or upon suggestion as herein provided.

Section 10231.5 states that, whenever a bill would require a state agency to submit a report on any subject to either house of the Legislature generally, a committee or office of either house of the Legislature, or the Legislative Counsel Bureau is required to include a provision that repeals the reporting requirement, or makes the requirement inoperative, no later than a date four years following the date upon which the bill becomes operative.

Section 10232 requires the Legislative Counsel, upon request, to advise any State agency as to the preparation of measures to be submitted to the Legislature. Section 10232.5 allows the Legislative Counsel, upon request, to provide legal services to the State Auditor.

Section 10233 states that, upon request, the Legislative Counsel is required to aid and assist any member of the Legislature as to bills, resolutions and measures, drafting them into proper form, and furnishing to the member the fullest information upon all matters in the scope of the bureau.

Section 10234 requires the Legislative Counsel to give consideration to and service concerning any measure before the Legislature as circumstances will permit, and which is in any way requested by the Governor, the Senate or Assembly, or any committee of the Legislature having the measure before it for consideration.

Section 10235 requires the Legislative Counsel to give consideration to and service concerning any bill in the Governor’s hands for rejection, approval, or other action, as the circumstances will permit and the Governor requests.

In addition, upon request, the Legislative Counsel may provide to the Governor an opinion, orally or in writing, upon any question of law. And, the Legislative Counsel may provide additional legal services to the Governor concerning any matter as the circumstances permit and the Governor requests.

Section 10236 requires, upon request, the Legislative Counsel to advise as to its work with any legislative committee appointed to carry on investigations.

Section 10237 requires the Legislative Counsel to prepare or assist in the preparation or amendment of legislative measures at the written suggestion of any judge of the Supreme Court, the courts of appeal, or of the superior courts of the state.

Section 10238 requires every suggestion of a judge to set forth the substance of the provisions desired or which may be needed with the reasons therefor.

Section 10239 requires a suggestion by a judge of the Supreme Court to be filed with the clerk of that court. A suggestion by a judge of a court of appeal must be filed with the clerk of that court. A suggestion by a judge of a superior court must be filed with the clerk of the court of appeal of the district within which the superior court is located.

Section 10240 state that, when a suggestion is so filed with the clerk, he or she is required to make and send to the permanent office of the Legislative Counsel a certified copy of the suggestion. All suggestions received at the permanent office must be permanently filed and recorded and copies furnished to the Legislative Counsel.

Section 10241 requires the Legislative Counsel to prepare a measure in accordance with the suggestion of a judge, and transmit it to the chairperson of the judiciary committee of each house at the next session of the Legislature.

Section 10242 requires the Legislative Counsel to advise the Legislature from time to time as to legislation necessary to maintain the codes and legislation necessary to codify such statutes as are enacted from time to time subsequent to the enactment of the codes. These recommendations are required to include a restatement without substantive change as will best serve clearly and correctly to express the existing provisions of the law.

Section 10242.5 requires the Legislative Counsel to annually prepare, publish, and maintain an electronic list of all reports that state and local agencies are required or requested by law to prepare and file with the Governor or the Legislature, or both, in the future or within the preceding year.

Section 10243 requires the Legislative Counsel to cooperate with the proponents of an initiative measure in its preparation when requested in writing so to do by 25 or more electors proposing the measure and, in the judgment of the Legislative Counsel, there is reasonable probability that the measure will be submitted to the voters of the State under the laws relating to the submission of initiatives.

Section 10244 authorizes the Legislative Counsel to contract, at not less than cost and subject to regulations approved by the Director of General Services, with any county or city for the codification, compilation, or indexing of any or all of its ordinances or resolutions. All money received by the Legislative Counsel pursuant to these contracts must be paid into the State Treasury to the credit and in augmentation of the current appropriation for the support of the Legislative Counsel Bureau.

Section 10245 allows the Legislative Counsel to cooperate with any educational institution of the State in any manner approved by the Legislative Counsel and the educational institution.

Section 10246 prohibits the Legislative Counsel from appearing in any action or proceeding in the courts of this state or of the United States without the prior approval of the Joint Rules Committee. If the existence of the committee terminates, the approval may be given in writing by the Speaker of the Assembly and the President pro Tempore of the Senate.

Section 10247 requires the Legislature, when a bill is introduced or amended, to determine whether the bill appropriates funds that apply toward the minimum funding for school districts and community college districts. The Legislative Counsel makes this determination known in the Legislative Counsel’s Digest of the bill and describes it in the Digest the basis for this determination.

Section 10248 requires the Legislative Counsel to make, with the advice of the Assembly Committee on Rules and the Senate Committee on Rules, all of the following information available to the public in electronic form:

Legislative calendar

Schedule of committee hearings

List of matters pending on both Floors.

Listing of committee members

Text of each introduced bill, as well as amended, enrolled, and chaptered bills

Bill history

Bill status

Bill analyses 

Audiovisual recordings of legislative proceedings

Vote information

Veto messages

The California Codes.

The California Constitution.

All statutes enacted on or after January 1, 1993.

A link to the list of state and local agency reports required.

Section 10248.5 specifies that the information that the Legislative Counsel makes available to the public is within the public domain and the State of California does not retain any copyright or other proprietary interest in that information.

Section 10249 requires the Legislature Counsel to establish a unit within the Legislative Counsel Bureau to provide advice and investigation services to the Legislature related to workplace misconduct. The Workplace Conduct Unit (WCU) must accept and investigate reports and complaints of workplace misconduct, as authorized by the Legislature.

The Legislative Counsel must retain by contract a rotating panel of experts to review investigations undertaken by the unit and make recommendations to the Legislature regarding matters under investigation.