Does commission on California elected officials' pay have power to cut their salaries?

A push to cut the salaries of California's statewide elected officials shines a light on an obscure fact in the state constitution: Pay was not meant to be tied to performance.

Nor were the salaries of legislators or other top elected officials designed to be swayed by state budget crises, such as this year's projected $10 billion deficit.

The 1990 constitutional amendment that created California's independent, governor-appointed salary commission did not address the possibility of reducing pay.

Controversy erupted last week when two members of the pay commission said they want to consider officeholder pay cuts amid the massive deficit that threatens government services.

Never before has the seven-member panel slashed salaries for the state's 120 legislators and 12 constitutional officers, raising a key question: Can it legally do so?

Former Senate President Pro Tem David Roberti – whose ballot initiative created the commission – said it would not be easy to justify pay cuts, if it could be done at all, under current law.

"I can't say we vetoed salary cuts; we never contemplated them," said Roberti, a Democrat now working as an attorney in Los Angeles.

But Roberti said he intended to limit the commission to narrow criteria, largely job duties and comparable salaries, rather than allow politics to creep into salary setting.

"I think you have to follow the criteria," he said.

But attorney Jon Coupal, president of the Howard Jarvis Taxpayers Association, said he cannot believe that courts would uphold a system so narrow that salaries only can rise.

"Just a fair, common-sense interpretation of the constitution would be that reductions would be allowed upon consideration of all facts," Coupal said.

Clearing that legal hurdle would pose another: A separate constitutional statute prohibits cutting an officeholder's salary in midterm – so not every elected official would be affected this year by any reduction imposed.

Chairman Charles Murray and commissioner Kathy Sands raised the issue of cutting officeholders' pay at a meeting Tuesday in Los Angeles. Two commissioners said they oppose salary reductions, one colleague was absent, and two did not comment.

Salaries currently range from a high of $212,179 for the governor – Arnold Schwarzenegger does not accept his – to a low of $116,208 for legislators, who also receive about $30,000 in per diem for living expenses.

Decreasing pay would send a message about officials' performance, Sands said.

"We don't have a budget and they're not working any overtime to get it done," Sands said last week. "People have said that to me. They're not doing their job."

But Thomas Dominguez, another member of the pay panel, said Friday that salaries should not be used to punish legislators or play "politics du jour."

"We didn't pick the legislators," he said. "It's not our job to evaluate their performance. That's the job of each voter."

The commission has asked its attorney, K. William Curtis, to render a written opinion before it takes a final vote in about a month.

Curtis told commissioners last week that there is no question that salaries can be cut – the constitution says the panel shall "adjust" salaries – but that the mechanism to do so requires study.

Roberti's 1990 constitutional amendment said commissioners, when setting pay, "shall consider" job responsibilities and time required – neither likely to drop – and salaries paid to other public and private officials, many of whom earn far more than lawmakers.

The narrow criteria means officeholder salaries can rise regardless of economic recession or whether the Legislature ever passes a budget on time and effectively tackles problems.

"Most people out there in the real world are judged on their performance," Coupal said.

Two decades ago, Roberti said, "nobody thought in terms of reducing" salaries because even critics of the Legislature conceded that wages – $40,816 for lawmakers – were very low.

Tim Hodson, a former legislative consultant who helped Roberti craft his initiative, said the salary-setting criteria were narrow to avoid the possibility that commissioners would use salaries as a hostage in political games.

"It was never the intent of the Legislature or the people … to allow seven gubernatorial appointees the power to punish the Legislature because it is not doing what they would like them to do," said Hodson, now director of the Center for California Studies at California State University, Sacramento.

Salary cuts conceivably could be imposed under the existing criteria, Hodson said, if a recession or some other calamity caused local government salaries to plummet, thus affecting comparisons that must be weighed by the pay commission.

Attorney Bob Stern disagrees that commissioners' hands are tied.

By requiring that specific criteria be weighed, the constitution does not bar consideration of other factors – including a budget deficit, said Stern, former counsel for California's Fair Political Practices Commission.

"It doesn't say 'shall consider only' the following items," he said.

Counters Hodson: "Shall means shall."

Murray, chairman of the pay commission, said it makes sense to consider officeholder pay cuts at a time when many private employees are hurting and Schwarzenegger has asked state agencies to tighten their belts.

"I think it would be imprudent of the commission not to look at this, given what's going on around us," Murray said.

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• Call Jim Sanders, Bee Capitol Bureau, (916) 326-5538.