Berkeley Assemblywoman Loni Hancock sent letters to Schwarzenegger's chief of staff, Susan Kennedy, and Cabinet Secretary Dan Dunmoyer, asking them to testify at the Natural Resources hearing she heads. Her committee is looking into accusations that the administration interfered with the board's implementation of AB 32, the landmark law to curb greenhouse gases by 25 percent by 2020.
"If we don't get the answers we hope and expect, the committee will explore the option of a subpoena," said Steve Maviglio, deputy chief of staff for Assembly Speaker Fabian Nunez, D-Los Angeles.
Schwarzenegger's aides had not replied to Hancock by Thursday, though a spokesman said they will send a representative of the administration to the hearing but not the two staff members.
The tension over whether they will testify points to a larger conflict that could ultimately go to the core of how disputes between the two branches of government are settled. It could also test the political will of legislative leaders who have to decide whether they want to pick a fight with the governor when they may need his support for something they consider more important, such as a ballot measure seeking to loosen term limits.
As recently as the Gray Davis administration, two aides appeared -- after a threat of a subpoena was issued -- before a committee investigating the Oracle scandal. Coincidentally, Kennedy was one of the aides to testify.
Schwarzenegger sidestepped the question when asked earlier this week whether he would allow the two to testify, saying, "My friend, Speaker Nunez, is always very welcome to come down to our tent and ask any questions that he has."
Agreeing to testify today were Robert Sawyer, the former air board chairman fired last week, and Catherine Witherspoon, the former executive director, who resigned Monday. Both have said they felt direct and indirect pressure from Dunmoyer and Kennedy to go slowly on implementing AB 32 to please industry officials concerned over the cost of aggressive regulations.
Schwarzenegger's image as a globe-trotting environmentalist took a hit when Sawyer and Witherspoon blasted the governor for showing little interest in enacting what are called "early action" measures -- regulations that are already known to be effective in curbing pollution -- and pursuing a more business-friendly cap-and-trade policy, which allows businesses that can't comply with air standards to buy carbon permits from those who can.
Schwarzenegger on Tuesday moved to blunt criticism of the firing and resignation by hiring a well-respected environmental lawyer, Mary Nichols, to replace Sawyer.
That move also might take some of the sting out of today's hearing or the need for subpoenas. Plus, there are political repercussions.
A subpoena would be unnecessarily aggressive, warned political scientist Barbara O'Connor and could damage relations between legislators and the governor just as they're considering the budget and other issues.
"You have to decide which is more important," said O'Connor, director of the Institute for the Study of Politics and the Media at Sacramento State. "Do you want his help on other issues or do you want him dragging and screaming. It's not a time to throw down the gauntlet."
Maviglio said the board's independence is important enough to Nunez, the principle co-author of AB 32, that he will use his full powers to get to the bottom of what he said was unprecedented meddling.
"This legislation is the speaker's biggest accomplishment and will be his legacy," Maviglio said. "Is he more interested in making sure it works than for some short-term gain? Yes."
If legislators do issue subpoenas, there is a question of whether the governor can claim executive privilege, as presidents do. Although subpoena powers are clearly spelled out in the state constitution and joint legislative rules, said Al Gress, a deputy principle legislative counsel in the Office of Legislative Counsel, executive privilege is not explicitly spelled out anywhere in state law.
The governor could try to use law stemming from federal cases, though typically, presidents have invoked national security reasons.
Reach Steven Harmon at email@example.com or 916-441-2101.