Public Forum Law -- Governor Schwarzenegger's end-of-session actions on legislative bills over the weekend represent a loss to open government and whistleblower protection not offset by a few good results.

Good Bills Vetoed: SB 218, SB 219, AB 756

Higher Education Funding Support Transparency

SB 218 by Senator Leland Yee (D-San Francisco), which overwhelmingly passed the Legislature, would have
updated the California Public Records Act (CPRA) to include nonprofit "auxiliary
organizations" that perform government functions at the University of
California (UC), the California State University (CSU), and the
California Community Colleges.  

The Governor's veto message stated:

Subjecting the altruistic activities of private donors and volunteers to the CPRA will have a chilling effect on their support and service, if they believe their personal privacy could be compromised.  Hindering private giving of time and resources becomes a detriment to our higher education institutions. Enacting this bill would result in a loss of private donations and volunteer activities supporting California public institutions of higher education, at a time when the University of California, California State University, and Community College campuses are facing significant reductions in state funding during this difficult fiscal situation.

This statement can only be viewed as a deliberate misrepresentation of the bill, which allowed for the withholding of the names of charitable contributors who asked for anonymity.

“The Governor has failed to keep his
promise of bringing greater sunshine to government agencies,” said
Yee.  “While he talks a lot about government waste, he vetoes the only
bills to actually provide public oversight and accountability.  His
vetoes are certain to allow further scandal at these public
institutions and will only result in fewer philanthropic dollars at a
time when they are needed more than ever.”

The public colleges and universitites have often evaded the public records act by shifting some
responsibilities to foundations and other auxiliary organizations
operating on campuses, Yee said.  He pointed to several recent examples demonstrated the need
for increased public oversight and accountability provided by SB 218:

  • At
    Sonoma State, a $1.25 million loan issued to a former foundation board
    member two days after he resigned.  He is now defaulting on that loan,
    which leaves less money in the foundation’s endowment for scholarships
    and other more important causes.

  • At Fresno State, a no-bid
    managing contract was given to a foundation member for a theatre
    complex he held financial interest in.  A recent Superior court ruling
    found that, despite CSU’s claims to the contrary, the foundation board
    member must comply with the state’s conflict of interest laws.  

  • At
    San Francisco City College, a campus executive has been indicted for
    using money from the San Francisco City College Foundation for personal
    and political purposes.

  • The latest example, as reported in the online community publication The Sacramento Press and
    verified by CSU Sacramento documents, indicates that University
    Enterprises, Inc., an auxiliary at Sacramento State, purchased a
    commercial building in 2007 just as the economy began to head towards a
    recession.  The building has only one tenant, which prompted Sacramento
    State University and the CSU Chancellor’s office to give $6.3 million
    from their general fund to offset the lost revenues from a lack of
    tenants.  These funding commitments were made at the same time the CSU
    has been forced to cap student enrollment, raise student fees, and
    impose harmful furloughs on faculty and staff. 

Additionally, while
arguing in opposition to SB 218, the CSU has made repeated claims that
campus auxiliary organizations are “self-supporting” and “do not rely
on general fund dollars for support.” 
“With 87 foundations and
auxiliaries operating on 23 CSU campuses, the SSU and FSU scandals may
be just the tip of the iceberg,” said Yee.  “Taxpayers and students
deserve to know how their public universities are run.”

According
to the CSU Chancellor’s Office, 20 percent of its $6.7 billion budget,
or $1.34 billion, is held in auxiliaries and foundations, which is out
of public view.

In 2001, the Fresno Bee was
denied information, specifically concerning the identity of individuals
and companies that purchased luxury suites at the Save Mart Center
arena at Fresno State.  The denial resulted in CSU v. Superior Court (McClatchy Company),
in which the Court opined that although it recognized university
auxiliaries ought to be covered by the CPRA and that its ruling was
counter to the obvious legislative intent of the CPRA, the rewriting of
the statute was a legislative responsibility.

Protection for University of California Whistleblowers

In July 2008, the California Supreme Court ruled (Miklosy v. the Regents of the University of California that UC employees who are retaliated against because
they report wrongdoing cannot sue for damages under the state’s
Whistleblower Protection Act, so long as the university itself reviews
the complaints in a timely fashion. 

The ruling uncovered an oversight
made by the Legislature when the Act was amended in 2001, which
provided legal standing for all other state employees to seek damages.
“This
is the classic case of the fox guarding the hen house,” said Senator Leland Yee
(D-San Francisco), whose SB 219 would have supplied the whistleblower protection found wanting in the Miklosy decision. 

“UC
executives should not be judge and jury on whether or not they are
liable for monetary claims.  This was not the intent of California’s
whistleblower law.
Unfortunately, the Governor has sent the
wrong message to those who witness wrongdoing at UC,” said Yee.
“Without legal protections, workers are certain to unfairly face
retaliation for doing the right thing and many others will just stay
silent.  

In vetoing SB 219 the Governor stated:

I strongly support correcting the current problem with existing law concerning the availability of judicial review for employees of the University of California that file claims of retaliation against the University of California for violations of the Whistleblower Protection Act.  Unfortunately, rather than extending the same protections as provided for California State University employees and other state employees to employees of the University of California, this measure, as drafted, could discourage employees of the University of California from exhausting their administrative remedies before filing claims in the superior court.

What "discouragement" the Governor refers to is not clear.  The relevant provision in the bill states:

An action for damages shall be available to the injured party only if the injured party has first filed a complaint with the university (retaliation complaint) officer and the university has either reached a decision regarding the complaint, or failed, within the time limits established by the regents, to reach a decision regarding the complaint. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months.

In other words, the employee could go to court for damages only if he or she had filed a retaliation complaint through the university's administrative process and the university had ruled against the complaint or sat on it without action for a year and a half.

Yee said the Governor had let down not only UC workers, but all
California taxpayers, Yee said. ”
In the Miklosy decision, three of
the seven judges urged the Legislature to consider changes to the law,
as the current statute undermines the purpose of the Act.

“The
court’s reading of the Act, making the University the judge of its own
civil liability and leaving its employees vulnerable to retaliation for
reporting abuses, thwarts the demonstrated legislative intent to
protect those employees and thereby encourage candid reporting,” wrote
Justice Kathryn Mickle Werdegar, joined by Chief Justice Ronald George
and Justice Carlos Moreno.  “If the same government organization that
has tried to silence the reporting employee also sits in final judgment
of the employee’s retaliation claim, the law’s protection against
retaliation is illusory.”

The Miklosy decision dealt
with the plight of two former scientists at UC’s Lawrence Livermore
National Laboratory, who repeatedly told their supervisors about
equipment problems and poorly trained operators of a project designed
to determine the safety and reliability of the nation’s nuclear weapons
stockpile.  One of the scientists, Leo Miklosy, was fired in February
2003 and the other, Luciana Messina, resigned a few days later after
overhearing a supervisor say she would also be fired.

Internet Posting of State Service, Consulting Contract Data

AB 756 by Assemblyman Mike Eng (D-Monterey Park), would have required most state agencies to provide a link on their websites to a centrally located and accessible state-run website that included a list of the personal services and consulting services contracts entered into by the agency. The bill would have required the listings on the site to include the following information:

  • The name and license, registration, certification, or identification number of each contractor, as well as whether the contractor is a for profit, nonprofit, small business, microbusiness, disabled veteran, or nonprofit veteran's service agency.
  • The statutory basis for the authorization of each contract, including, if relevant, any applicable condition permitting personal services contracts provided by Section 19130 of the Government Code.
  • The duration of each contract.
  • The number of amendments to each contract and the number of renewals of each contract, where applicable.
  • The reason why the low bid was not accepted, if applicable.
  • The reason for noncompetitive bidding, if applicable.
  • The total amount of the contract allocation over the duration of the contract, including all known amendments to the contract, the total amount paid by the state agency during the most recently completed fiscal year, and the number, cost, bill rate, and staffing levels associated with each type of contract employee retained during the most recently completed fiscal year.

The bill would have required, on and after January 1, 2012, a summary of a contract to be initially posted within 15 working days of being signed by all parties.

No veto message was available at the time of this post.

Good Bills Signed: SB 312, SB 320, SB 359

Live Video/Audio of State Board Meetings

SB 312 by Senator Gloria Romero (D-Los Angeles) will require the State Board of Education and the State Allocation Board—the latter charged among other things with determining how bond funds are allocated for public school construction and modernization projects—to provide for live video and audio transmission of all meetings and hearings that are open to the public through a technology that is accessible to as large a segment of the public as possible. The technologies to be used would include, but not be limited to, cable, satellite, over-the-air, or any other type of transmission that can be accessed through a television, and webcast. These boards would be required to ensure that any webcast transmission implemented pursuant to these provisions be transmitted over and accessed through the K-12 High-Speed Network.

Libel Tourism

SB 320
by Sen. Ellen Corbett (D-San Leandro), the anti-Libel
Tourism Act, will protect California writers from frivolous lawsuits filed
in foreign courts. 

CPRA Exemptions List Update

SB 359
by Sen. Gloria Romero (D-Los Angeles) updates the
sections of the California Public Records Act that, in alphabetical
order, describe the records that may be exempt under the law.  

Bad Bill Signed

Paparazzi Publication Liability

AB 524
by Assembly Speaker Karen Bass (D-Los Angeles) will amend the
anti-Paparazzi law to allow media disseminators to be sued
for the mere publication of an image captured by a third party in
violation of the law.