Even its own attorney concludes that the California Citizens Compensation Commission lacked authority to cut legislators' per diem for living expenses and eliminate their car-lease program in separate actions over the past three years.
Now the commission wants another opinion.
The independent, seven-member panel of gubernatorial appointees voted 5-1 Thursday to ask the Department of Personnel Administration to provide outside counsel to consider the scope of its control.
"So we can kind of settle this once and for all," Commissioner Scott Somers said in voting "yes."
The commission so far has struck out in finding a state attorney who will ratify its authority, but the issue has simmered for years because lawmakers have been reluctant to challenge cuts to their compensation.
The Department of Personnel Administration concluded in 2009 that the panel lacks authority over lawmakers' travel and living-expense subsidies, and the attorney general's office cited a similar rationale in an opinion on travel allowances last year.
Commission Chairman Tom Dalzell criticized the seven-member pay panel Thursday for balking at the advice. "We need to stop asking for an opinion and then ask for another opinion when we don't like what it is," Dalzell said.
Commission Attorney Melissa M. Meith, asked in March to study the issue, submitted an opinion that concluded there is a legal argument to affirm the commission's authority, but if sued, the state would likely lose.
"It is unlikely that a court would find in the commission's favor because doing so would require the court to ignore both the principles of construction and the required process," Meith wrote.
Commissioner Charles Murray pushed successfully Thursday for the commission to ask the Department of Personnel Administration for outside counsel, saying that Meith has an apparent conflict of interest because she is a retired annuitant paid by the state.
Meith disagreed, saying that she has no ties to the offices of Gov. Jerry Brown or Attorney General Kamala Harris and "I don't feel I have a conflict or am biased in any way" in opining on the panel's authority.
The controversy over legal interpretation stems from Proposition 112, approved by voters in 1990 to create the pay commission and give it authority over the "annual salary and the medical, dental, insurance and other similar benefits of state officers."
Murray contends that the term "similar benefits" encompasses all forms of compensation, including travel subsidies and per diem for living expenses while lawmakers are in Sacramento.
The Department of Personnel Administration concluded in 2009 that the term "similar benefits" refers only to those like medical and dental coverage – put simply, insurance.
Meith's opinion says the commission could argue that there is ambiguity which provides wide-ranging authority over benefits. But a separate provision of Proposition 112 gives the Legislature control over travel and living expenses, she noted.
To rule in favor of the pay commission, Meith wrote, a court "would have to nullify a portion of Proposition 112, and doing so is also prohibited."
Commissioner John Stites II, contending that the pay panel has acted aggressively in the public interest, was not deterred by Meith's opinion Thursday.
"We've been told (no) by every counsel, that we can't do what we're doing, by everyone," but the commission perseveres, Stites said.