California’s Civil Rights Department should not spend your tax dollars on private law firms

OPINION – Most reasonable people would agree that a California state agency should not spend your tax dollars on private law firms that charge hundreds of dollars per hour when they could get the same, if not better, service for free. Kevin Kish, Director of a Department that is little known – but hugely influential – seems to disagree. And there’s nothing reasonable about that.

Director Kish’s Civil Rights Department (CRD), formerly known as the Department of Fair Employment and Housing (DFEH), has made a habit of retaining outside counsel from expensive law firms to do the job of state-employed attorneys, leaving taxpayers on the hook for funding both compensation for state attorneys and retainers for expensive boutique law firms. Meanwhile, the State of California is facing an estimated $30 billion deficit as it enters its next fiscal year, resulting in cuts to education, healthcare, climate programs, and more. So how does Director Kish defend the millions of tax dollars on outside contracts with private law firms when his department could be utilizing the skill sets and capabilities of the existing state employees?

Currently, CRD employs approximately 30 to 40 attorneys. The Department also has at its disposal over 1,000 attorneys employed by the Office of the Attorney General. These attorneys’ salaries and benefits are funded by the taxpayer. They are considered State Bargaining Unit 2 employees, and as a result are protected from unjustifiable outsourcing to private entities by California law. And yet, according to the Department of General Services Statewide Procurement Data Dashboard, CRD spent over $1.5 million dollars on retention of outside counsel for legal services, excluding money spent on expert witness services, independent dispute services, criminal law, and employment law, over the past three years.

CRD’s practices have not gone unnoticed: the California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment (CASE), a labor union that represents state-employed legal professionals, brought a lawsuit challenging the legality of CRD’s outsourcing decisions, criticizing the department for failing to comply with a California law that bars state departments from contracting out jobs that could be done as effectively and for equal or cheaper cost by existing union-protected employees. Their argument centers around two cases in which CRD spent a combined $200,000 on the retention of boutique law firms instead of utilizing state attorneys at the Attorney General’s office.

Californians have time and time again signaled their expectation that state agencies use state-funded and union-protected labor instead of paying out millions to private companies.

So now, because of this lawsuit, public funds are not only being used to grow the bottom lines of private law firms, but they are also being used to defend CRD in the court of law, further increasing the wastefulness of CRD’s rampant outsourcing.

Californians have time and time again signaled their expectation that state agencies use state-funded and union-protected labor instead of paying out millions to private companies. In 2019, University of California came under fire for outsourcing union-protected healthcare jobs to private temp agencies. In 2013, CalPERS was criticized for using private contractors to install a new IT system instead of using state-employed unionized IT professionals. If not reigned in, CRD will be setting a dangerous precedent regarding the use of private contracts to obtain services, instead of utilizing union-protected employees, all while wasting millions of tax dollars.

The CASE lawsuit is currently making its way through the judicial process; however, at its core it raises an important question: why is CRD choosing to waste state resources to further line the pockets of expensive, prestigious law firms, while allowing union-covered and state-funded legal talent to go unutilized?

At a time where the California Government is faced with a budget deficit, my former colleagues in the Legislature should work with the Governor to find ways to save money while still delivering the results necessary to keep our state moving forward. Right now, Californians are paying two CRD legal bills, one for the private attorneys and another to defend against the CASE lawsuit about those private attorneys. Those are two expenses that are completely unnecessary at any time, but especially during a budget tightening.

Bob Hertzberg is Former Speaker of the California State Assembly and Senate Majority Leader