This Assemblyman gets $176 a day to work in Sacramento &#8212; even though he can't work, per doctor's orders

The legal troubles of Assemblyman Roger Hernandez (D-West Covina), shown in September 2013, have become a political headache for Assembly Democrats. At left is Assemblywoman Shannon Grove (R-Bakersfield).

By Melanie Mason, Patrick McGreevy

Aug. 4, 2016 12:05 AM PT

Assemblyman Roger Hernández, who was booted from his committee posts this summer after a judge issued a domestic violence restraining order against him, continues to draw per diem payments for travel-related expenses to Sacramento despite being absent from work and on medical leave.

Assembly officials confirmed this week Hernández continues to receive a daily stipend of $176. The development underscores how the West Covina Democrat’s ongoing legal trouble has become a political headache for Assembly Democrats — one that Speaker Anthony Rendon (D-Paramount) sought to avoid by encouraging Hernández to resign before the Legislature reconvened this week for the final month of the 2016 session.

The turmoil has also sparked debate in the Capitol over whether to invoke a new law — approved by voters in the wake of a series of scandals in the state Senate — that allows legislators to suspend a lawmaker without pay.

‘We are respecting his privacy’

Hernández, who is running for Congress against longtime Democratic Rep. Grace Napolitano of Norwalk, has been locked in a contentious divorce with Baldwin Park City Councilwoman Susan Rubio, who alleged the assemblyman had severely beaten her over the course of their marriage.

After a judge approved Rubio’s request for a restraining order in July, Rendon stripped Hernández of his committee assignments. Later that month, Rendon broached the question of whether Hernández would serve the rest of his two-year term, which expires this year.

“The speaker talked to Mr. Hernández and he suggested that he needs time to deal with his personal problems and that perhaps resigning would allow him to do that,” said a source close to Rendon, who requested anonymity to discuss a private conversation.

Hernández did not resign. On Monday, he submitted a doctor’s note saying the lawmaker was ill and would be out for one and a half weeks. He did not return calls for comment on this story, and two attorneys who had previously represented Hernández told The Times he is no longer a client.

Dayana Partida, a spokeswoman for Hernández, declined to comment beyond saying, “He is under ordered medical leave by his doctor. We are respecting his privacy.”

“The timing of that note seems to suggest that hopefully he is using that time to address his personal problems,” said the source close to Rendon. “Should Mr. Hernández then not take the issue seriously, and if there’s reason to believe he is not addressing those issues, the speaker will consider all of the options available to the Assembly.”

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Withholding pay

The situation leaves open the possibility that lawmakers could invoke Proposition 50, a law approved by voters in June that allows legislators to suspend a colleague without pay. Lawmakers in both parties said it would be fair to consider such an action.

“I definitely think this is a situation where my peers should be asked the question” about suspending Hernández without pay, said Assemblywoman Cristina Garcia (D-Bell Gardens), a leader of the Legislative Women’s Caucus. “I would be in support of it.”

Sen. Joel Anderson (R-Alpine) opposed Proposition 50 but said the Assembly’s reluctance to invoke the law now raises questions about whether ia “hollow promise” was made to hold lawmakers accountable.

“This is the perfect scenario for it,” Anderson said. “All these people supported it, and now it’s time that they can actually use it, and they are not using it. I think it’s a legitimate question to ask the speaker why he feels it doesn’t fall into that criteria.”

Assembly Republicans have stopped short of calling on Rendon to invoke that law, and did not address whether they would do so themselves.

“The allegations against Assemblyman Hernández are troubling. To date, no charges have been filed. However, this is a matter that the speaker should handle appropriately,” Assembly GOP Leader Chad Mayes (R-Yucca Valley) said in a statement.

Discussion about how to deal with a lawmaker facing allegations of wrongdoing surfaced in 2014, when three state senators were charged with separate crimes.

That year, Sens. Leland Yee (D-San Francisco) and Ron Calderon (D-Montebello) were indicted on federal corruption charges, while Sen. Rod Wright (D-Inglewood) was convicted for lying about living in his district. Yee and Calderon have since pleaded guilty to reduced charges.

The Office of Legislative Counsel advised lawmakers that year they may suspend a member for a fixed period of time as long as the Senate reasonably determines the suspension “to be necessary to preserve the honor, dignity, and efficiency” of the house.

Unable to suspend the three senators without pay, the Legislature put Proposition 50 on the ballot, which allows such suspensions by a two-thirds vote of the member’s house as long as a reason for the action is given.

There is no legal standard in Proposition 50 for what would justify an unpaid suspension, said Jim Mayer, president of the nonprofit advocacy group California Forward and a supporter of the initiative. He said the measure gives legislators the ability to hold colleagues accountable.

“Proposition 50 clearly outlined in the [state] Constitution what either house of the Legislature could do when it faced an issue regarding the behavior of one of its members,” Mayer said. “Whether they should do it or not is up to the members of the Legislature.”

Footing the bill

Meanwhile, Hernández continues to receive his $100,113 annual salary, as well as $176 in per diem payments while he is on paid medical leave, a stipend to defray transportation, housing and living expenses for lawmakers while they are in Sacramento for the legislative workweek.

Hernández’s medical leave is initially set to last through the end of next week. But Rendon privately signaled his absence could be even longer, telling Assembly Democrats during a caucus lunch Tuesday that Hernández may be out for several weeks and legislators should not count on his attendance when cobbling together votes for their bills, according to two people present for the conversation.

State officials say it is common practice to provide members on medical leave with per diem, which totals about $25,000 annually. For example, Sen. Sharon Runner (R-Lancaster) received per diem payments for most of the time she was on medical leave in the months leading up to her death July 14 from complications from lung disease, state officials said.

But paying Hernández tax-free per diem while he is on medical leave is inappropriate, said Kris Vosburgh, executive director of the Howard Jarvis Taxpayers Assn.

“It just seems that to ask taxpayers to foot the bill for his being in Sacramento when he is not going to be in Sacramento for an extended period of time is unreasonable and unfair,” Vosburgh said.

Hernández has faced a number of personal and political troubles during his time in office.

August 2012: Drunk driving charges

In 2012, a jury found Hernández not guilty of drunk driving after police arrested him for what they described as erratic driving of a state car in Contra Costa County. The jury deadlocked on a second count of driving with an illegal blood-alcohol level of 0.08.

November 2012: Domestic violence accusations

In 2013, prosecutors decided not to file domestic violence charges against Hernández after a former girlfriend, Carolina Taillon, filed a lawsuit in November 2012 alleging that he physically abused her.

Taillon told officers responding to an argument the couple was having at a restaurant that Hernández had assaulted her on two occasions, but prosecutors said there were no independent witnesses to the alleged assaults and Taillon was late in reporting them.

Taillon eventually dropped her lawsuit, which alleged Hernández whipped her with a belt and bragged about using cocaine.

Before filing the suit, Taillon obtained an emergency protective order. In it, a police officer wrote that Taillon "fears for her safety due to Hernández using cocaine." In response, Hernández voluntarily took a drug test that lab officials said indicated he had not used cocaine or other drugs in 30 days.

July 2015: Dispute with Republicans at committee hearing

Assembly Republican leaders accused Hernández of “bullying tactics” for shutting off a microphone to prevent GOP Assemblyman Matthew Harper of Huntington Beach from speaking on a minimum wage increase bill and ordering the sergeants-at-arms to remove the mic.

Hernández, who was chairman of the Assembly Labor and Employment Committee, called a vote before Harper could speak.

“You are out of order. Turn his mic off,” Hernández said when Harper asked to speak.

“That is totally inappropriate,” Harper complained.

Hernández later expressed “regret” over the incident after being called in to discuss the dispute by former Assembly Speaker Toni Atkins.

April 2016: A divorce and new allegations of domestic abuse

Hernández married Rubio in 2013; they began divorce proceedings the next year. The split made headlines in April, when Rubio sought and received a temporary restraining order after accusing Hernández of “pushing, shoving, hitting and choking” her during the marriage.

“My wife and I are nearing the completion of a 16 month divorce case,” Hernández wrote in an email at the time. “And despite all of the tensions that arise in any difficult situation and negotiation, at no time prior to today has there ever been a suggestion that she would need a restraining order. In fact, just minutes before this alleged incident, we were both in front of a judge with our lawyers and this issue was never raised.”

After the temporary restraining order was granted, female legislators called on Hernández to step aside from his role as chair of the Assembly labor committee.

June 2016: Comes in second in congressional race, loses endorsements

In late 2015, Hernández announced his campaign to unseat Napolitano. The Democratic intraparty fight was closely watched during the spring of 2016 and in the June primary, and Hernández eked out a second-place finish.

July 2016: Political fallout after restraining order imposed

After Rubio’s testimony alleging repeated domestic violence by Hernández, a judge ordered the legislator to stay away from his now former wife for three years.

The order was met with swift political fallout. Rendon stripped Hernández of his post as chairman of the labor panel, as well as other committee assignments. A number of Hernández’s colleagues in the Legislature withdrew their endorsements for his congressional bid.

August 2016: Hernández skips return to Legislature with a doctor’s note

When lawmakers returned to Sacramento on Monday for the final month of the legislative session, Hernández was not among them. He submitted a note from a physician excusing him from work for a week and a half. His spokeswoman would not disclose the reason for his absence, citing privacy concerns.

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