003-2006_ Senate Committee Approves Controversial Appointment by Gov.htm

CDCAN
CALIFORNIA DISABILITY COMMUNITY ACTION NETWORK
DISABILITY RIGHTS NEWS REPORT
#003-2006 January 5, 2006 Wednesday
Connecting people with disabilities & seniors to rights and unified action
1225 8th Street Suite 480 - Sacramento, CA 95814 916/446-0013 Fax: 916/446-0026
Marty Omoto - director email: martyomoto@rcip.com    website: www.cdcan.us

DISABILITY RIGHTS OF ACCESS
* SENATE PANEL APPROVES GOV'S APPOINTMENT TO KEY COMMISSION
* DISABILITY ADVOCATES URGED REJECTION OF STEPHEN JENSEN
* "PATTERN & PRACTICE" OF NONCOMPLIANCE" OF ACCESS RIGHTS CITED
* ATTORNEY GENERAL LAWSUIT AGAINST MARIN COUNTY RAISED

SACRAMENTO - After almost an hour of sometimes heated testimony by disability rights advocates in opposition, the Senate Rules Committee voted 5-0 on Wednesday afternoon (January 4) to approve Gov. Arnold Schwarzenegger's controversial appointment of Stephen Jensen, the former Marin County chief building official to a little known state commission that has broad authority to oversee and approve regulations that have sweeping impact on the rights of access for children and adults with disabilities to public buildings, facilities, and housing. The Governor announced the appointment of Jensen nearly a year ago last January 19, along with another appointment to the commission. Both appointments however requires approval (or confirmation) by the Senate in order to remain on as a commissioner.

Marin County was the subject of two lawsuits by the California Attorney General in 1994 and 2003 for widespread violations of enforcement and compliance of state disability access laws. Disability advocates at the hearing said that Jensen now the chief building official for the City of Napa, as the chief building official for Marin County for 15 years, covering the time of lawsuits, failed to enforce critical disability rights and should not be on a state commission that regulates those rights.

Jensen, age 55 and a registered Republican from Santa Rosa, along with one disability rights advocate who supported his confirmation, said that while certain decisions he made might be wrong, it was based on the best information or knowledge available and were not deliberate actions to violate state access laws. In addition he claimed that he was not the official responsible for many of the locations cited in the lawsuit - a point that disability advocates opposing his appointment disputed.

State laws and regulations regarding access to public buildings and facilities went into effect over 35 years ago in 1970. State laws and regulations regarding access issues and private property went into effect a year later. The Americans with Disabilities Act (ADA), enacted in 1990, covers federal laws and regulations governing access.

Second Appointment Approved WIthout Opposition or Comment
Appointments to the California Building Standards Commission are made by the Governor but require approval of both the Senate Rules Committee and the full Senate. In certain types of appointments, the candidate is sometimes not required to appear personally If the appointment is not controversial.

That was the case regarding Richard Sawhill, 52 of Fontana, who was the other appointment made at the same time last year January 19 to the same commission. The Senate Rules Committee approved his appointment without testimony or any opposition by a vote of 5-0 .Sawhill is currently executive vice president of the Air Conditioning, Refrigeration, and Mechanical Contractors Association of Southern California. Previously, he served as director of human resources for the Hussmann Corporation.

Building Standards Commission Importance To Issues Impacting People With Disabilities
* California Building Standards Commission is an independent commission within the State and Consumer Services Agency.
* Commission members are appointed by the Governor and confirmed by the State Senate.
* The California Building Standards Commission is responsible for administering California's building standards including changes or additions made to the part of the California regulations - California Code of Regulations, Title 24 - that impact access to both public and private buildings and housing. Unless exempted by law, all building in California are required to comply with the standards in those regulations.
* A separate state agency that deals with the same issues and works closely with the commission is the Division of the State Architect, under the Department of General Services. The State Architect deals with developing and maintaining accessibility standards and codes required in public and private buildings throughout California, including proposing state regulations to the Building Standards Commission for making buildings, structures, sidewalks, curbs, and related facilities accessible to persons with disabilities.
* Both the California Building Standards Commission and the State Architect have tremendous impact on the lives of children and adults with developmental and other disabilities and their families and their rights of access to public buildings and housing.

Current Membership of the California Building Standards Commission
The current membership, all appointed by the Governor with confirmation (or approval) by the State Senate are [note, the positions are categories, meaning "licensed contractor", etc were listed by the Commission):
* Chair: Fred Aguiar - Secretary of the State and Consumer Services Agency (Term: 12/11/03 to ?)
note: the chair is always the current head of the State and Consumer Services Agency
* Robert Pernell - organized labor position (Term: 3/18/04 to 1/1/08)
* Tim Brink - licensed contractor position (Term: 2/27/03 to 1/1/07)
* Richard Sawhill - public member position (Term: 1/18/05 to 1/1/09) [confirmation by Senate pending as of 1/5/06]
* Steven Winkel - architect position (Term: 2/27/03 to 1/1/07)
* Stephen Jensen - mechanical engineer position (Term: 1/18/05 to 1/1/09) [confirmation by Senate pending s of 1/5/06]
* Jimmy Hill - local fire official position (Term: 2/24/00 to 1/1/06)
* Isam Hasenin - local building official position (Term: 3/18/04 to 1/1/08)
* Anthony Sauer - public member/person with disabilities position (Term: 2/24/00 to 1/1/06)
* James Barthman - public member position (Term: 3/18/04 to 1/1/08)
* Kent Sasaki - structural engineer position (Term: 9/5/03 to 1/1/06)

JENSEN APPOINTMENT DRAWS FIRE FROM DISABILITY ADVOCATES
Nine disability rights advocates spoke in opposition to the Jensen appointment during the hearing, with others in attendance. The committee also received numerous letters from disability rights advocates across the state.
Two fire protection officials, a representative from the building officials association and one person with disabilities who is an Oakland based disability consultant spoke in strong support of Jensen. He was praised by his supporters for his expertise and work in fire protection related issues, which is the position or seat on the commission which the Governor appointed him to. The Oakland-based disability consultant praised him for his work on access issues regarding persons with disabilities. He underscored that individual decisions of building officials are "constantly second guessed" but that Jensen was very "very capable" and "very knowledgeable"

The other disability advocates in the hearing room however testified against the Jensen appointment, including members of the Californians for Disability Rights organization, California Council for the Blind, California Disability Community Action Network and others.

Richard Skaff, a resident of Marin County and a long time disability advocate and former San Francisco building official on disability access issues told the committee that "...the Attorney General does not take on cases such as this one, or the two others he took on at the same time, the City of Mill Valley and the City of Del Mar California. These three cases were based on a pattern and practice - very important language - the pattern and practice of noneforcement of California building code. As a former building official for the city of San Francisco for 15 years, I understand that there is no perfection in the industry. We all make mistakes. We make decisions that may or may not be correct in one or another person's eyes. But when Mr. Lockyer [the current state or another Attorney General takes on a case of a pattern and practice - it is much more than just one or two mistakes.....
Skaff said that ... if you look at the lawsuit, it speaks about the lack of management role in assuring training, policies and procedures - ad all the things that a building official is responsible to do to assure his department is run properly and fulfill its role based on state legislation."

Connie Arnold, a Sacramento advocate and a former Marin County resident said that "the fact that the Attorney General filed a lawsuit based on a pattern of practice, says something about Mr. Jensen." She said she didn't believe "equity and fairness" would be something Jensen would bring to the commission on behalf of 6 million Californians with disabilities based on his record in Marin County.

Susan Barnhill, a Sacramento advocate and member of Californians for Disability Rights, mentioned problems of attitudes in enforcement and compliance of access laws, and mentioned the lack of diversity on the commission that Jensen was being appointed to, telling the committee that the current commission had no women members. Sen. Perata expressed surprise and unhappiness at the membership makeup of the commission and later promised steps to address it.

Legislators Not Convinced of Link Between Lawsuit and Jensen
Sen. Gil Cedillo (D-Los Angeles) while appearing somewhat troubled about the appointment, felt that those in opposition did not clearly define a direct connection between abuse or violations of access laws and Jensen's official conduct as Marin County chief building official. Cedillo was virtually the only senator who spoke at length or asked numerous questions throughout the hearing. The Democratic members of the committee - Sens. Perata (D-Oakland), Debra Bowen (D-Marina Del Rey) and Cedillo were disturbed by the problems of access in Marin County but not convinced that Jensen abused his authority as building official.

"We all agree with the l[state access] laws and we support it" Cedillo said, but added that he wanted to find a more direct connection between the issues raised and Jensen.He said he was completely unpersuaded by the lawsuit complaint from the Attorney General, saying it was a "complaint but nothing more than that". He pointed out it was the actual language of the settlement or agreement that was important. Cedillo said that "these [access] laws were designed to protect disabled residents" but if the issue was that Jensen was simply using his own discretion within the boundaries of that law in his role as chief building official, then it was "in accordance" with the law and "no abuse. Its a choice", even if one didn't agree with it.

Skaff however argued that Jensen was responsible in his capacity as Marin County chief building official because the court settlement found that it was "a failure of the system to provide management of enforcement, design and construction. What ends up [is that] people with disabilities have to end up be the enforcer..."

Both Sen. Roy Ashburn (R-) and Sen. Battin (R) both strongly defended Jensen dismissing the issue of the lawsuits as not relevant against Jensen and his appointment because others - including the County Board of Supervisors, were the ones named in the suit and ultimately responsible. Battin said that he was not "swayed" by the arguments made by the disability advocates

Verbatim Transcript of Senate Rules Committee Exchange Between Jensen and Cedillo
Jensen: "I know that I got some opposition - and the opposition is coming from the disabled community over a law suit filed in Marin County. There were three buildings that were in direct control of my building department. They involved a video store, a restaurant and a drug store. I made some decisions. Those are based on firm solid ground decision. I stand behind those decisions. I think those can be questioned like anything can be question. "
Sen. Cedillo: "On the courts finding on the lawsuit?"
Jensen: "What happened was that Marin County was sued by the state Attorney General over access violations that they had agreed to take care some 12 years ago. Those violations were not corrected, so they did another stipulated agreement two or three ago. In that stipulated agreement, the County admitted to no wrong doing. It was settled the same day the lawsuit was filed."
Sen. Cedillo: "And the result of the lawsuit?
Jensen: "The results were that I think we got a better situation [in Marin County]. We got a disabled community more protected now. We've got mandatory requirements for education within the county. We've got mandatory forms that are now being used for the complaint process. And the overall situation brought to the political bodies - a situation that brings it up to a higher level than the past where it should be."
Sen. Cedillo: "Let me see if I can be more specific. The State sues [the County of] Marin for questions of access and noncompliance. The State had to return to them again and so my question is this: Was there a judicial conclusion from the court on questions of your utilization of discretion?"
Jensen: "I'm not an attorney so all I know was that the lawsuit was filed and it was settled the same day. So I don't think it went before a judge, but I could be wrong."
Sen. Cedillo: " Was there an agreement that was submitted to the court?"
Jensen: "Yes, there was a stipulated agreement that required that the county..."
Sen. Cedillo: " More specific - people have a concern about your conduct. This is really about the exercise of your discretion, your conduct within the framework of the choices you made. And you stand by them and I respect that"
Jensen: "Yes"
Sen. Cedillo: "My question is if someone else evaluated that conduct, and what were the findings - or was there agreement or judicial findings in your conduct?"
Jensen: "There were three cases that involved the three buildings. Of the three buildings, I resolved all three of them in my own mind. The State had hired an outside consultant. On two of them they disagreed. One of them was completely taken care, so there is no violation there."
Sen. Cedillo: "Okay. Was there comment in the judicial findings in respect to that?"
Jensen: "No there was not."

Disability advocates disputed Jensen's conclusions regarding the lawsuit.

Skaff said that the lawsuit in Marin County - and Jensen's role as chief building official, ".. relates to an attitude of how the issue of accessibility relates to importance to other issues that a building official would be responsible for - other building codes related issues. This is going to be reflected in the way members of the Building Standards Commission make decisions. And that is the concern...The point is, if he has made the kinds of decisions and allowed his staff to make the kinds of decisions [regarding access] the nexus is - based on the kinds of decisions they made in Marin County about building permits about building code enforcement - those same kinds of decision making process will be made at the Building Standards Commission".

Sen. Cedillo: "Answer the questions that were raised about understanding that these [access] laws were designed for strict compliance for the disabled community. it was designed to raise... equity, justice for disabled residents of California and this county
Jensen: Let me first state, that I am all in favor of disabled access rights, disabled access laws. I have always been in favor of them. What is in dispute is some decisions I had made. But it was based on sound information that was given to me. I made decisions on a day to day basis. Sometimes they were right, sometimes it was wrong. It was based on my best knowledge. It wasn't to prohibit someone unable to get into a particular building or unable to use that building. Personally I have a tenant who is disabled. I am very much aware of his needs. I've made some improvements to my home in order to make his life...able to use that house. My mother, who is 80 years old, uses a cart to get around. So I am acutely aware of the needs of the disabled. I will fight [for access rights] They [disability rights advocates] shouldn't be afraid of me as a candidate. they should be actually supporting me for being a candidate. Generally this position [on the Building Standards Commission] is reserved for an engineer.. I just happen to be a building official who has the knowledge of access laws. I am aware of those laws. I am aware of pitfalls. I am aware of how to fix those pitfalls. And I am going to work with the disabled community - and I welcome working with you [turning to advocates in the audience].
Sen. Perata: Before we conclude, I just asked our staff to check - there are apparently between 11 and 15 members of this commission. If there are no women and I don't dispute that - that's a pretty good cause to be outraged... all these things are designated positions...I will do this on behalf of the Rules Committee is to talk to the Governor, specifically about the difficulty we have in not having a fair distribution of points of view....We've done that once before that I know of, with the Parole Board..which was not reflective of all the general community much less the population we were looking at. So we will do that - if you [disability rights advocates in the audience] can give us some recommendations - we'll have to change the categories...even though these have been male dominated professions before, there have to be women and disabled who would be able to qualify. I believe the Governor will be sensitive . He's new here - and alot of this is new to me, and I am not new here. Under any or all circumstances, disproportionately concerned with this individual, there's a much broader problem here, and I want to thank you [disability rights advocates present] for evidencing that and bringing it to our attention and it will not go unheard."
Sen. Bowen: "...This is a long history of struggle and I personally just want to take a moment to appreciate how tough that struggle has been and how on-going it is. If you come to my house you'd really have a problem. There are all steps...we [California] don't build with any kind of sensitivity to what it might be like to have a family member who even has a temporary disability like a knee replacement surgery. What I heard here today is that we have a continuing big problem. I think we need to look at the categories [on the commission].   We profess to be against quotas, yet we have statutory quotas, for certain kind of things on this and many other commissions....that make it difficult to bring in people who have experience rather than education in the formal sense...I think we as a Rules Committee need to take a look at that...Diversity has been an issue and we're having people whose lives are effected by the decisions has been an issue. I struggle with the same thing that Sen. Cedillo has, which is how much do you want to lay at the door step at a particular person. I don't have the benefit of having lived in Marin to know specifically. But I do know that, like many other civil rights struggles, that this has been big and broad. I sense there are votes here to confirm Mr Jensen. So given that , I think what is really important is that we dedicate ourselves to the broader issues of access and fairness....So I would like to personally challenge you [looking at Jensen] to make disabled access one of your top priorities during your tenure [on the commission]. And I would like to ask all the people [looking to the audience] who took the time here to come and talk to us - and I certainly learned a lot - to join us here in helping raise the awareness. I know you do this everyday - I know you do. But, for those of us who are not disabled, we still have plenty of room to learn what the obstacles are. I expect to have a lot more e-mails, voice mails, faxes whatever method it is, to learn. I expect you [looking at Jensen] to be a leader in this field."
Jensen: " I'll accept the challenge".
Perate: "I would just add...And speaking of categories - I wouldn't know what categories we should look like. So it would be helpful to think of the breadth of the categories, that would be very helpful. If you [looking at the disability rights advocates in the audience] do it as a priority, I promise I will do it as a priority."

BACKGROUND OF OPPOSITION TO JENSEN APPOINTMENT
Disability advocates across the state argued that the Jensen, given his role as the chief building official in Marin County, failed for years along with other county officials, to comply and enforce state laws ensuring the rights of children and adults with disabilities access at all county buildings, facilities and private businesses. Advocates say the noncompliance continued for nearly a decade even after a lawsuit filed against the county was won by the Attorney General's office in 1994.   Jensen and his supporters say he was acting properly in his official role and did not abuse or violate the law.

A subsequent investigation by the California Attorney General's Civil Rights Enforcement Division began in 2002, when a Marin County resident complained that the county had failed to comply with the1994 settlement regarding violations at the Veteran's Auditorium. The investigation, according to a report by the Attorney General, revealed that Marin County "systematically engaged in a pattern of ignoring other citizen complaints, including those regarding a Mill Valley pharmacy and video store, a Sausalito steakhouse, a San Rafael street and a Marin County park."

As a result of the investigation, Attorney General Lockyer filed a lawsuit in Marin County Superior Court charging that Marin County had failed to carry out the terms of the 1994 previous court settlement with the State of California, regarding access violations at the Veterans Auditorium and the failure of the county to promptly investigate and resolve complaints about other violations of the access laws and regulations protecting the rights of children and adults with disabilities.
The lawsuit was settled in September 2003, when Attorney General Bill Lockyer announced that an agreement with Marin County had been reached in what Lockyer said was over the county's "failure to meet its mandatory duty to enforce state disabled access laws and regulations" Under that settlement, the county was required to implement a three-year, aggressive enforcement program that will be overseen by an independent monitor appointed by the Attorney General's Office to ensure the county's compliance to "improve enforcement and provide greater access for persons with disabilities at all county buildings and facilities, and private businesses in the county".

"Almost 6 million Californians have some disability, yet we continue to see local governments violate the state's 34-year-old law requiring equal access," Lockyer said at the time of the settlement. "Under this agreement, my office will work closely with Marin County to ensure appropriate corrections and improvements are made so that no one is denied access to public property or private businesses."

In April 2002, the Attorney General sent a letter to all county and city building officials, including Stephen Jensen as Marin County's chief building official, urging that they improve enforcement of the state access laws and regulations, and advising them of his intent to ensure they are aggressively enforced. That letter followed with lawsuits filed by the Attorney General against Del Mar, Marin County, and in January 2004, against Mill Valley, a city in Marin County for violations and noncompliance of state laws and regulations protecting the rights of people with disabilities of access.

NEXT STEPS
* The appointments of both Jensen and Sawhill to the California Building Standards Commission now goes to the full Senate in the coming weeks for a vote. Both appointments, given the unanimous approval by Senate Rules Committee, will likely be easily approved.
* Advocates promise to continue at least sending letters of opposition against the Jensen appointment to members of the Senate, though it is not clear yet if a major effort oppose Jensen's appointment on the floor will be launched.
* Advocates also are mobilizing on other disability access related issues, including a proposed initiative waiting approval at the Attorney General's office (before it can be circulated for signatures for possibly the November 2006 election) that they say will roll back rights of children and adults with disabilities and their families regarding access. In addition, there will be legislation moving this year impacting compliance and enforcement of state access laws.

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