|Fiat Lux: Open Meeting Law Loophole at
10 Sept. 1999
Three years ago, UC San Diego Chancellor Robert C. Dynes launched a task force to chart the course of the UCSD's educational outreach the aftermath of a tenious faculty vote rejecting a proposed charter school. The chair of this elite group of faculty, staff and students announced that the first half of the task force's ten meetings would be held in light of the public. The last five meetings would be held behind closed doors. The reason given was that members of the task force would be feel freer to express their opinions without public scrutiny.
As a newly minted news editor for the school newspaper, I took exception to the policy -- it seemed to be a violation of the Bagley-Keene Act, the California open-meeting law that applies to state bodies.
Since those meetings three years ago, I have kept a keen interest in the open-meeting policy on campus. I did not conduct heavy research into the matter until last April when a student government election committee closed their doors to conduct a candidate trial in private.
Based on my latest research of the open-meeting laws, I am forced to conclude that there is no state law governing open-meetings at UCSD or any of the other nine individual campuses in the University of California.
There are two main open-meeting laws in California. The Ralph M. Brown Act (Gov't § 54950, et. seq.) regulates the behavior of all local public agencies. The Bagley-Keene Act (Calif. Gov't Code § 11120, et. seq.) was enacted in 1967 to apply open-meeting principles to state agencies.
The University of California is a special exception to these two main laws. The University of California and its governing Board of Regents are a constitutional body created in article IX, section nine of the state constitution. The constitution grants the regents "full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university and such competitice bidding procedures as may be made applicable to the university by statute for the letting of consturction contracts, sales of real property, and purchasing of materials, goods, and services...."
In 1970, there was a provision added to article IX, section nine of the Constitution which states that the regents' meetings "shall be public, with ecceptions and notice requirements as may be provided by statute." This statute is set forth in Education Code § 92030 which states that the Board of Regents and certain of their committees shall follow the Bagley-Keene Open-Meeting Act.
There is a record of one challenge to this policy. In Tafoya v. Hastings College (1987, 1st) 191 Cal App 3d 437, students at Hastings College, a law school affiliated with the University of California, sought to open the meetings of the faculty. The state court of appeal rejected the claims of the students "holding that faculty and board meetings of the state law college are not subject to the [Bagley-Keene Open-Meeting] act, but, as an affiliate of the University, are controlled by Ed. Code, § 92030, which requires only that the meetings of the Regents of the University of California and certain of its committees, with some exceptions (Ed. Code, § 92032), be open." Based on legislative anaylsis written during the passage of Ed. Code, § 92030, the court of appeal inferred "that the Legislature intended that only the meetings of the Regents and certain committees would be subject to the open meeting requirements of the Bagley-Keene Act and that the faculty meetings would be exempt." (ibid, 444)
With the state legislature constitutionally unable to regulate the administration of the University of California, the governing regents are responsible for setting policy. According a representative from the regent's general secretary, the UC Board of Regents has no policy governing open meetings at their ten campuses. After talking to local campus administrators, UCSD Chancellor Robert Dynes has no policy concerning open meetings in San Diego.
One of the outcomes of this policy is confusion -- it appears that any meeting on campus can be closed to the public. Only a few groups on campus have policies ensuring that their meetings be open. The policies of these groups are almost always less stringent than state law.
There is a further discrepancy in university policy. During the discussion of the 1982 amendment to Ed. Code, § 92030, "The staff analysis of the Senate Committee on Education concluded that 'Meetings of U.C. student body organizations are covered by the State Agencies Open Meetings [Bagley-Keene] Act; those of the U.C. academic senate are not." (ibid). I don't know what reasoning of the analysis, but this conclusion creates a dangerous double standard between the student body and the faculty. I have not as yet found any sort of legal precident affirming this statement.
As an individual campus, UCSD controls almost a billion dollars of state funds. It seems absurd for UCSD to have the ability to shut out members of the public in the decision-making process. The motto of the University of California is Fiat Lux, Let There Be Light. It is my feverent wish that some light may be shed on the decision-making process at the university
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