State government’s anti-secrecy law under scrutiny

A California law intended to block secret decisions in the state bureaucracy actually prevents officials from talking to each other on crucial matters, according to their testimony before a state investigative panel.

The issue, which intensified in the wake of recent activities at the California Public Utilities Commission, arises from changes in the 1967 Bagley-Keene Act, which is intended to assure the public’s access to the actions of state boards and commissions. In 2009, an amendment to that law — approved by lawmakers and signed by former Gov. Arnold Schwarzenegger – barred so-called “serial” meetings as well as direct or indirect communications between a majority of the body.

All government entities covered by Brown and Bagley-Keene must hold meetings in a public place with an agenda released in advance and permit public testimony.

Questions about the PUC’s deliberations, oversight and transparency drew public attention in the aftermath of the Pacific Gas and Electric Co.’s gas line explosion in September 2010 that killed eight people and destroyed three dozen homes in San Bruno. PG&E, the state’s largest utility, is regulated by the PUC. There have been complaints from the public, local officials and others that key PUC discussions involving staff members and commissioners were inappropriately conducted confidentially.

“It has been my observation that the impact of the 2009 Bagley-Keene amendments . . . has been to make the CPUC’s decision-making less transparent to the public, rather than more,” PUC Commissioner Michel Florio said in written testimony last month before the Little Hoover Commission. The commission investigates and reviews government operations and recommends improvements.  The panel has scheduled an Oct. 23 meeting to examine Bagley-Keene and other issues related to government transparency.

The Bagley-Keene Act is one of two laws dealing with the public’s access to government meetings. The other, the better-known Ralph M. Brown Act of 1954, deals with local government bodies, such as school boards and city councils. The Bagley-Keene Open Meeting Act imposes similar rules on all state boards and commissions, such as the PUC, the California Energy Commission and the Coastal Commission.

All government entities covered by Brown and Bagley-Keene must hold meetings in a public place with an agenda released in advance and permit public testimony.

“If the [state board or commission] were permitted to meet in secret, the public’s role in the decision-making process would be negated. The public should be allowed to monitor and participate in the decision-making process,” the state attorney general’s office noted in an earlier guide to the Bagley-Keene Act.

An exception to the Eng amendment allows commissioners to speak to and answer questions by the California Legislature.

But some members of the powerful, five-member PUC said the 2009 change prevents commissioners from communicating with each other and cripples their ability to effectively regulate. Similar language was contained in a change to the Brown Act the year before.

The Bagley-Keene amendment, backed by the California Newspaper Publishers Association, was carried by then-Assemblyman Mike Eng, D-Monterey Park.

The amendment says flatly that “a majority of the members of a state body shall not . . . use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter of the state body.”

An exception to the Eng amendment allows commissioners to speak to and answer questions by the California Legislature.

The language changes were crafted to fix what some considered to be a flawed 2006 ruling by a state appeals court in a case involving the city of Fremont. In that case, Wolfe v. the City of Fremont, an appellate court found that the Brown Act was not violated because the members discussing policy behind closed doors did not lead to a decision on how to act, known as “collective concurrence.” Similar concerns were raised about Bagley-Keene.

“Commissioners need to be able to gather background and educate themselves on the issues outside of formal meetings, and need a mechanism by which to communicate in doing so,” he said.

If it couldn’t be demonstrated that they had come to a decision based on those private meetings, the members were in compliance with the Brown Act. This would be difficult to prove, critics argued, so the Legislature amended the Brown and Bagley-Keene Acts to overturn the ruling.

Years later, panelists told the Little Hoover Commission that the amendment has caused “real damage” within the PUC.

“No level of transparency can be sufficient, but occasionally it’s important for people to be able to talk to each other,” said Ralph Cavanagh of the Natural Resources Defense Council.

Florio agreed.

“Worse, it has made the commission’s already cumbersome processes more difficult and less timely,” he noted. “I also fear that the commission’s decisions may be less well-informed than in the past and that accountability has been diffused due to the lack of internal communication.”

Before the amendment, commissioners “rarely” met outside public meetings and mostly communicated through their advisers so that everyone was using the same facts, Florio told the Little Hoover Commission. Now, not even commissioner’s advisers can meet, he said.

“Commissioners need to be able to gather background and educate themselves on the issues outside of formal meetings, and need a mechanism by which to communicate in doing so,” he said.

To create some communication, the PUC will sometimes create “Bagley-Keene Alliances” between two commissioners’ offices to share information, he said, but then the commissioners cannot discuss it with the other three offices.

This uncertainty has understandably led to very cautious advice from our attorneys as to the scope of discussions we may have among ourselves, and has frustrated our good intentions to participate …

Florio suggested that an exception could be made for the PUC in the Bagley-Keene Act, as its problem with the amendment arises from the commission’s complicated and large work load – a problem that smaller commissions, like Little Hoover, do not experience.

Some local officials, who are subject to the Brown Act, have expressed views similar to those of the PUC commissioners.

But not everyone agrees there is a problem because of the Eng amendments.

“[The Bagley-Keene amendments] do not prevent the boards from conducting their business,” Deputy Attorney General Ted Prim wrote to the Little Hoover Commission. “Moreover, in many instances boards can increase their flexibility within the bounds of Bagley-Keene, while still achieving the Act’s purpose of government transparency.”

Prim’s comments were echoed by Mary Shallenberger, a veteran member – and former chair – of the California Coastal Commission. Shallenberger, who has been on the commission for a decade, is the only current member to have served before and after the 2009 amendments.

“There has been no noticeable difference in the way Coastal Commissioners are able to interact with the public, one another, staff or conduct its business since the 2009 amendments,” Shallenberger wrote in an email to Pedro Nava, a former lawmaker and now the chair of the Little Hoover Commission.

One question is whether the issue is unique to the PUC, said Peter Scheer, the executive director of the First Amendment Coalition,

But Jana Zimmer, who serves on the Coastal Commission with Shallenberger, had a different view, saying the Eng amendment has created confusion and uncertainty.

“In my opinion, this uncertainty has, in turn, understandably led to very cautious advice from our attorneys as to the scope of discussions we may have among ourselves, and has frustrated our good intentions to participate, as Commissioners, in improving our own process and work product as an agency,” Zimmer said.

One question is whether the issue is unique to the PUC, said Peter Scheer, the executive director of the First Amendment Coalition, a nonprofit group that advocates for free speech and greater public access to government.

“If it really is a problem, it’s possible that it is uniquely a problem with them (the PUC). It’s possible, but I’m not convinced yet that this body uniquely has a problem under the law,” Scheer said. “I have not been hearing any complaints that other bodies can’t do their work … the one exception is the PUC,” he added.

Scheer suggested that increasing the number of meetings might enable the PUC commissioners to communicate more effectively, and Prim agreed.

“We are offering to have our attorneys work with the PUC to develop an approach by which the PUC would conduct frequent noticed meetings, possibly even multiple times each week, in an effort to balance the pressure of work with the public’s interest in open deliberations,” Prim told the Little Hoover Commission in written testimony. “The idea would be to craft a systematic approach to a layered use of permissible unnoticed 2-person advisory committees.”

“The details of such an arrangement would need to be carefully considered,” Prim he added, “but we would be glad to help develop a solution for the PUC’s meeting needs.”