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Archive for 2010



Why Didn’t eMeg Sign Nicky’s Work Documents?

Tuesday, October 5th, 2010

Amid the still unanswered questions about Meg Whitman and l’affaire Nicky is why neither eMeg nor her husband, Griff Harsh, ever signed the employment eligibility document for their former housekeeper, as required by law.

Much attention has focused since the story broke on why Whitman-Harsh failed to pursue questions about the immigration status of their former maid, Nicky Diaz, after receiving a 2003 letter from the Social Security Administration noting a discrepancy with her social security number.

However, their handling of the legal form they were required to complete at the time they first hired Diaz, three years earlier, suggests even greater negligence in their exercise of due diligence, or lack of same, in employing her.

Under the terms of the Immigration Reform and Control Act of 1986, employers are required to complete and retain an I-9, formally known as an Employment Eligibility Verification Form, in order to “verify the identity and employment authorization of each person” they hire, according to the Department of Homeland Security’s U.S. Citizenship and Immigration Services bureau.

Part one of the form is to be filled out by the employee, and includes her name and address, plus signature attesting to her citizenship or legal immigration status.

Part two is to be filled out by the employer, who is required to record the title, number, issuing authority and expiration date of several identification documents provided by the employee, after personally examining them to establish to their satisfaction that the person is eligible to work in the U.S.

The employer also is required to record the date the employee began work and to sign, under penalty of perjury, a statement “that the above-listed documents appear to be genuine…and that, to the best of my knowledge the employee is authorized to work in the United States.”

When the Whitman campaign last week released a photocopy of the I-9 form for Diaz, the employee section was completely filled out – including Diaz’s signature falsely attesting to her legal eligibility to work. However, the employer section was not: details of the driver’s license presented by Diaz were recorded (in whose handwriting is unclear) but those of the Social Security card she was using were not. Also missing was the start date for her employment and a signature attesting that either Ms Whitman or Dr. Harsh, a neurosurgeon, had examined the documents and believed them to be in order.

Gregory Siskind, founder of Siskind-Susser, one of the largest immigration law firms in the country, examined the documents at the request of Talking Points Memo:

Looking at this, it is very unusual to see the documents that nothing is signed, there’s no dating on it — so there’s no indication that anyone actually looked at the documents,. That’s what the whole point is of the certification, that an employer is supposed to say I looked at these documents, they appear to be genuine.

Siskind elaborated on the matter on his Immigration Law and Policy blog.

Because the form is not signed or dated by the employer, it is far from clear that the employer even examined the documents presented. Keep in mind that Abercrombie & Fitch got a $1 million fine this week for violations of just this sort.

Incidentally, even if Whitman’s nanny agency handled the I-9, that doesn’t let her off the hook for violations in completing the form. The nanny agency was not the employer – just the agent and so Whitman and her husband are still liable for employer violations.

There appear to be paperwork violations. There could also be liability for “knowingly” employing someone illegally if the facts show that despite the presentation of a bogus social security card, the employer had independent knowledge or “constructive” knowledge that a worker was out of status. Certainly the fact that the I-9 was never signed by the employer means that the defense of saying that you looked at the documents presented and they appeared valid is not going to be readily available.

At her press conference last week, eMeg was asked why she hadn’t signed the Diaz documents. She replied, a) “I don’t know whether we signed them or not” and b) that she didn’t know “whether we were required to or not.”

You have questions, Calbuzz has answers: a) They didn’t and b) They were.

Memories of Glo-ri-a: Calbuzz first met celeb lawyer Gloria Allred during another governor’s race twenty years ago, when she was supporting Dianne Feinstein against Pete Wilson and threw a big fundraiser for Difi at her penthouse condo in Pacific Palisades.

Conscientious to a fault in our reporting, then as now, we showed up a little early, in search of some color to weave into what otherwise was shaping up as a thoroughly dozy yarn. When we introduced ourselves, Allred was friendly and gracious, if a little harried by the bustling preparations.

We asked her how many guests were coming, and she gave this memorable response: “I’ve got 250 people and 25 celebrities,” she said.

It’s an easy stipulation that Allred ranks high among the 90th percentiles of all time obnoxious people and shameless media hounds but, just to play devil’s advocate for a minute, it’s also true that, as a class,  aggressively intense and successful lawyers generally aren’t remembered for their sweetness and self-effacing personalities.

As anyone who’s been through bitter, expensive and/or prolonged litigation understands quite clearly – and we expect that many of her contemptuous  media critics have not had that life-altering experience – an attorney’s entire job is to be a major asshole, the bigger the better if she’s representing you. So tsk-tsking the shamelessness of Allred’s high-profile legal performance art is like criticizing lemons for being sour.

In that regard, we recommend the profile by our old friend Howard Mintz, who offers a fairer and fuller portrait of Allred from the seasoned perspective of a long-time legal eagle reporter.

The 69-year-old Allred’s tactics may make legal purists cringe, and she’s been called every name in the book — from “disgusting” by the wife of actor Rob Lowe, whom she sued on behalf of a former nanny claiming sexual harassment, to “shrill feminist attorney” in a depiction on “The Simpsons.”

But, as Whitman has discovered, Allred is a formidable foe. And despite the fact that her cases often make her clients instant celebrities of their own and force her targets to write fat checks to settle, she does tend to represent the underdog, such as the aggrieved mistress, the harassed woman in the workplace or, in this week’s case, an illegal immigrant housekeeper named Nicandra Diaz Santillan.

“You may love her, you may hate her, but she gets your attention,” said Laurie Levenson, a Loyola University law professor. “She stirs the pot.”

Tin foil hat brigade: Bill Whalen usually offers a smart and level-headed center-right perspective on California politics, so we were chagrined to see him join the ranks of the Col. Mustard with a candlestick in the conservatory conspiracy theorists (General Jerry with a machete  in the kitchen?) in search of some nefarious plot behind the Nicky revelations.

Here’s a clue fellas: If you’re looking for the real culprit, we suggest you start by taking a good hard look at this Meg Whitman person. Mum’s the word.

Polling outfall from Maidgate: Rasmussen, whom we don’t put much stock in because they use robo calls (and their party distribution, at 40%D and 36%R, is 3-to-5 points too Republican), now has the race at 49-44% for Brown. But we’re aware of two private polls, with more realistic D-to-R spreads of 7 and 8 points, that have  Brown ahead by 9 and 10 points. Worse, for eMeg — and we can only testify that this is what a couple of big-time clients believe to be true — these polls found the spread among Latinos to be 64-23% for Brown in one survey and 67-16% in the other. If that’s true, as Meg likes to say, among Latinos, she’s now down to paid staffers and blood relatives (having already lost extended family).

Why Prop 26 is the Polluters Protection Act of 2010

Monday, October 4th, 2010

By Jean Ross
Special to Calbuzz

One of the least publicized measures appearing on the Nov. 2 ballot is one of the most mind-numbing but nevertheless one of the most important issues voters will decide.

Proposition 26 makes two major changes to the state’s constitution. First, it ­redefines some types of “fees” as “taxes,” thereby requiring two-thirds, rather than a majority, vote of the Legislature to increase or enact a fee at the state level. And it requires a vote of the people, rather than an action of a governing body, at the local level.

The debate over what’s a tax and what’s a fee is one of those “only in California” issues that dates back to Proposition 13 and its limitations on the Legislature’s ability to raise a tax and its subsequent requirement that local governments seek voter approval in order to impose or raise a tax.

Opponents of Proposition 26 have christened it the “Polluter Protection Act,” since the fees at issue are primarily those that regulate, mitigate and otherwise respond to environmental, health, and other social impacts of products and services. In other words, businesses seeking to avoid financial responsibility for the “externalities” of the products that they sell. Proposition 26 would not, in contrast, apply to fees paid by “ordinary Californians” such as community college and state park entry fees.

Proposition 26 is aimed at overturning a unanimous 1997 California Supreme Court decision in  Sinclair Paint Company v. Board of Equalization. The Sinclair decision upheld the constitutionality of a fee imposed on paint producers to defray the cost of services for children at risk of poisoning from lead-based paint.

The court found that such fees were regulatory fees – not taxes — and could be imposed by a majority vote. Sinclair built on the logic of a prior appellate court ruling that ruled that, “A reasonable way to achieve Proposition 13’s goal of tax relief is to shift the costs of controlling stationary sources of pollution from the tax-paying public to the pollution-causing industries themselves.”

Conversely, if the state can’t impose the fees on “pollution-causing industries” to recoup the cost of environmental monitoring and remediation, those costs will be shifted to taxpayers as a whole. Or, in an era where budget crises have become the status quo, programs that enforce environmental, food safety and other laws will be scaled back, if not eliminated. Which may be the true goal of the backers of Proposition 26.

If all of this wasn’t enough, Proposition 26 would also impose a two-thirds vote requirement for approval of “Any change in state statute which results in any taxpayer paying a higher tax.”

This is a subtle but important change from the state’s existing two-thirds requirement for any “changes in state taxes enacted for the purpose of increasing revenues.” It means that a bill that closed an obscure and ineffective corporate tax loophole, while lowering taxes for, say, all personal income taxpayers, would require a two-thirds vote.

More troubling, the language is sufficiently vague as to potentially allow a handful of lawmakers to block any bill, not just a tax bill that required anyone to pay a higher tax. How might this work? Think about future increases in the state’s minimum wage that increased the tax bill for low-wage workers or, at the higher end of the income distribution, an increase in Medi-Cal payments to physicians that also translate into higher incomes and income tax liability. Or seismic safety laws that require the purchase of sales-taxable building materials. You get the picture.

Because the “any taxpayer who pays a higher tax” provision is retroactive to January 1, 2010, Proposition 26 would also blow a $1 billion bigger hole in this and future years’ budgets by repealing a carefully crafted, revenue neutral “fuel tax swap” approved by the legislature earlier this year that was designed to give the state greater flexibility to use existing tax dollars to help close the budget gap absent subsequent two-thirds approval by the legislature.

The bottom line: Proposition 26 would take away one of the few remaining budget-balancing  tools from state and local governments, allow polluters and their allies to shift the cost of monitoring and remediating environmental and other hazards to the general public, make it even tougher to get rid of special interest tax breaks, and open the door to even more supermajority gridlock.

Voters got it right in 2000 when they defeated a similar measure 48-52%. Californians should tell the backers of Proposition 26 that the second time around isn’t a charm.

Jean Ross is the executive director of the California Budget Project