Sacramento Report: The Week in AB 5 Fights - Voice of San Diego

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Sacramento Report: The Week in AB 5 Fights

Assemblywoman Lorena Gonzalez attends an August press conference at Waterfront Park with supporters of AB 5. / Photo by Megan Wood

On Monday morning, Voice of San Diego unveiled its Voice of the Year list, which included Assemblywoman Lorena Gonzalez for kick-starting a massive, contentious debate about what it means to be an employee in the gig economy.

I’m gonna go ahead and call that one a prescient choice, because the debate grew so loud this week, polite journalists might describe it as a cacophony and accurate ones might characterize it as a shitstorm:

On Monday, SB Nation, which has long drawn criticism for exploiting underpaid freelancers, announced it would be cutting ties with its California-based freelancers and would instead hire a much smaller number of part-time and full-time employees. The state Senate Republican Caucus blasted out an article in which one San Diego-based SB Nation blogger who wrote, “I am heartbroken that the state I love so much has forced a company I love working for to cut formal ties with people who are doing amazing work — and who are able to help themselves and their families with the extra income that a passion project or side hustle can sometimes provide.” (The blog post, however, gets some factual details about the law wrong, including the claim that it requires employers to convert contractors into full-time employees, which it does not. They can be part time with flexible hours.)

On Tuesday, two groups of freelance journalists – the American Society of Journalists and Authors, and the National Press Photographers Association – joined forces with the conservative Pacific Legal Foundation to file suit against AB 5 in federal court. It’s the second such suit filed recently; the California Trucking Association filed its own federal lawsuit last month challenging the law and the underlying Supreme Court decision on which it’s based.

The journalists’ suit argues that AB 5 violates the Constitution’s First and 14th Amendments by singling out “writers, editors, still photographers, and visual journalists by drawing unconstitutional content-based distinctions about who can freelance—limiting certain speakers to 35 submissions per client, per year, and precluding some freelancers from making video recordings.”

The truckers’ suit, meanwhile, makes a different claim about the law’s legality. It argues the law violates the supremacy clause and the commerce clause of the Constitution, and that it’s pre-empted by the Federal Aviation Administration Authorization Act.

On Wednesday, Republican Assemblyman Kevin Kiley said he plans to introduce a constitutional amendment that would nullify AB 5. It’s not clear how his measure would deal with the Dynamex decision the law is based on. Constitutional amendments must clear a very high bar to pass, and Democrats hold supermajorities in both houses of the state Legislature.

But “expect there to be attempts come the new year to chip away at the bill and for industries to lobby for additional exemptions to AB 5,” wrote the Sacramento Bee. “Kiley’s might be the first formally introduced, but it won’t be the last.”

Also Wednesday, Uber drivers filed a class action lawsuit seeking back pay and benefits they say they were entitled to since the Dynamex ruling.

On Thursday, Gonzalez floated a potential fix for freelance journalists on Twitter: The law already includes an exemption for businesses contracting with other businesses; therefore it might be possible to classify freelancers as businesses.

A San Diegan Rules the Coast(al Commission)

Chula Vista Councilmember Steve Padilla / Photo by Adriana Heldiz

Chula Vista City Councilman Steve Padilla became the chairman of the California Coastal Commission this week, putting him in charge of the board of an agency that a UCLA professor called “the most powerful land use authority in the United States,” in a 2008 New York Times article.

Padilla is the commission’s first San Diego-area chair in years, and the first LGBTQ chair in its history.

We got him on the phone for a chat about his new role at an agency responsible for overseeing the state’s Coastal Act, which gives it the final land use say throughout the California’s 1,100-mile coastline.

To what extent is the Coastal Commission a staff-driven or board-driven organization? Who is driving the agency’s business?

It’s much less so a staff-driven agency than in years past. It had a reputation of being entirely staff driven, but there’s been a lot of evolution in recent years. The commission in recent years is definitely driving the policy agenda, the operational agenda and making changes. … The commission of today is very different than 20 years ago. It’s a much more appropriate balance. Staff has huge power and that’s what we pay them for, but the commission itself is much more in the driver’s seat. The controversial firing of the executive director, Charles Lester, that left a lot of scars. And the commission of today came through that and is more cohesive and functional rather than dysfunctional. Staff has grown, and we’re evolving and changing into more functional entity.

What are some examples of the commissioners driving the policy agenda?

Revisiting the issue of access – Hollister Ranch, where a controversial settlement was thrown out that was initiated by prior commissions. There’s a bigger willingness to take on issues. For years, the commission has been understaffed and under-budgeted, and the commission hasn’t gotten in the laps of the Legislature to say it isn’t sustainable. Past commissions hadn’t done that. We’re taking bigger risks to protect local access. We’re driving local jurisdictions to prepare for climate change. … There’s a tension between dealing with sea-level rise and property rights. People ask, ‘Why can’t I build a sea level wall?’ The answer is, because the more we armor the beach, the sooner the beaches erode. Can you imagine what would happen if all our sandy beaches erode? What would that do to our economy?

This commission has taken a much more hard-line stance on not approving the types of armoring they would have approved before, except in extreme circumstances. That causes problems. Look at it here in San Diego, where the weakening of cliffs on beaches caused a family to be killed because we aren’t adequately preparing for what nature and mankind are doing. This commission is really pushing and demanding – they were in Sacramento recently saying we need hearings up and down the state on sea -level rise. Just think of the public infrastructure implications statewide. Humboldt Bay is the most vulnerable bay in the state, they’re going to have to lift a freeway up and let water go under it.

It’s hugely controversial and scary and the Coastal Commission is playing a big role in saying, “We’ve got to get a grip on this.” It makes us controversial but influential as well.

Is the coastal rail corridor in Del Mar an example of a tough decision on the horizon?

We will end up being involved, and already are with a comment letter in which we communicated concerns to NCTD about that rail line. It’s nuts. There’s some talk about we have to armor it, or dig a trench in place, both because it’s easier and less costly. But that’s obviously avoiding the reality that you need at some point to know when to pull back from nature. That’s more expensive and politically fraught. That’s going to be one that’s really difficult. But that’s where the commission may be forced to just say “no” to powerful interests and say, “You have to adapt and not just armor the coast, because you’re actually accelerating the loss of the coast.” If you can retreat where it’s appropriate, you have to do it. We get pushback on that. That’s not an easy thing to do. That’s a perfect example.

Golden State News

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