Office of Administrative Law To Determine Whether CalPERS’ Policy is an Underground Regulation

by Allen Matkins

In August, I submitted a petition to the Office of Administrative Law alleging that the California Public Employees Retirement System had “issued, used enforced, or attempted to enforce an underground regulation”.  Specifically, I challenged CalPERS’ Statement of Investment Policy for External Investment Resource Conflict of Interest.  In CalPERS’ argot, an “external investment resource” is someone who provides CalPERS with technical expertise and advice in specialized areas.  The purpose of CalPERS is to identify “actual, perceived or potential conflicts of interest”.

However laudable this purpose may be, CalPERS can not adopt a standard of general application without complying with the rule making provisions of the California Administrative Procedure Act, Govt. Code § 11340 et seq.  These procedures ensure that the public has an opportunity to participate in the adoption of regulations.  When an agency ignores these requirements, the rule is referred to as an “underground regulation” and may not be enforced.  Cal. Govt. Code § 11340.5(a).

The OAL will publish the petition in the California Notice Register this Friday (Nov. 2, 2012) and the deadline for public comment will expire on December 3, 2012.

For background on the purpose of the Notice Register, see “What is, What Will Be & What’s Past – The CCR, Z-Register and Register“.

Happy Nevada Day!

On today’s date in 1864, Nevada was admitted as this country’s 36th state.  I know this, not because I was present at the birth, but because I grew up in Nevada.  The commemoration was a big deal in Nevada (perhaps because it involved a day off from school).  We celebrated Nevada Day on October 31, but the legislature has since moved the observance to the last Friday of October.  Thus, the holiday actually occurred last Friday. 

I hold, however, to the traditional calendar and on this holiday, I’m reminded of one of Nevada’s great writers – Walter Van Tilburg Clark.  He is perhaps best known as the author of The Ox-Bow Incident, which was made into a movie in 1943 starring Henry Fonda.  Although nominated for a Best Picture Academy Award, the film lost out to Casablanca.  However, one of my favorites penned by Val Tilburg Clark was his poem, “The Sweet Promised Land of Nevada” in which he tells the story Nevada’s creation.  It seems that the Lord waited until the last day to start work on Nevada.  He began by scooping out the riverbeds and piling up the mountains.  However, the job wasn’t done by the seventh day of rest and Nevada was left unfinished.  That’s why its rivers “forever run dry” and the mountains are “piled up too high” and they ”trouble the sky”.  The poem ends with the lines:

So this is the land for my Children and Me
The sweet promised land of Nevada. O-0-0-0h – The sweet
     promised land of Nevada.

 Walter Van Tilburg Clark, City of Trembling Leaves (1945).


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Allen Matkins

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