LOOKING INTO THE UC BUDGET  --  Report #11     (e-mail version)

by Charles Schwartz, Department of Physics, University of California
Berkeley, CA 94720.        510-642-4427        May 18, 1994


This Report is about openness vs. secrecy in the governance of the 
University.  Specifically, it concerns the proposition that:

  Meetings of the Council of Chancellors, and of other high level 
  bodies concerned with issues of policy, planning and budget within 
  the University, should routinely be open to public view.

While the UC Regents, President and Chancellors have consistently 
refused to enter into public debate on this proposition, a 
substantial body of correspondence has developed, and this provides 
an instructive look at the rationales for and the inconsistencies in 
the administration's defense of its traditional secrecy.

The question is not just one of philosophical preference and 
management style: questions of law and public policy are most 
relevant.  While UC is presently shielded from the full requirements 
of Open Meeting laws in California, this is not a matter of 
Constitutional autonomy but rather something that lies within the 
authority of the Legislature to change.  

The reasons given by the UC President for maintaining this secrecy 
seem insubstantial before the prevailing standards of public 
accountability.  It is thus the opinion and recommendation of this 
author that the University ought to act swiftly and convincingly to 
open up its system of internal governance.  The likely alternative is 
that the State will force it to do so.


     The monthly meetings of the UC Board of Regents and of its 
Committees are mostly open to the public.  However, it becomes 
apparent to an observer of those meetings that nearly all of the 
matters brought before the Board for action have already been 
"decided" and the Board's role is merely to ratify what the President 
of the University places before them.  The real business of 
policymaking - the examination of issues and of alternative courses 
of action, the competing arguments and the full process of debate - 
is hidden from public view, just as one would expect in any private 
business organization.  But UC is not a private enterprise; it is a 
public university.
                                          April 20, 1994
Dear President Peltason;

     I ask that I be allowed to attend, as an interested observer, 
the next meeting of the University's Council of Chancellors, which I 
understand is scheduled for May 4.

     You are doubtless aware that I have made this request before, 
both to you and to your predecessor, David Gardner, without 
success.  And you are doubtless also aware that I have repeatedly 
advocated that meetings of the Council of Chancellors, and of other 
top policy bodies in the University, should routinely be open to the 
public. This claim is based upon three considerations:

I. General Principles:  Public institutions in a democratic society 
should conduct their deliberations in the open; and the university, 
especially, is founded upon the principle of free and open exchange 
of ideas in the exercise of reason.

II. The University's Financial Crisis:  The University of California 
is being forced to consider and to make hard choices about its 
current and future operations. Decisions about what to protect and 
what to squeeze or cut will affect many citizens; and thus this 
ought to be debated fully in the open so that all the reasoning is 
made visible.

III. The Leadership Crisis:  The continual scandals of the past two 
years have left UC's image and reputation badly damaged.  The
President and the Chancellors and the Regents have lost an enormous 
amount of credibility, both on the campuses and in the public.  A 
genuine initiative to open up the University's administrative and
policy-making processes would be an important step toward 
rebuilding the respect and confidence that are essential to this 
institution's welfare.

     The well-publicized series of events flowing from the March 
meeting of the Council of Chancellors has led me to seek your 
reconsideration of this matter.
                                Sincerely yours,  Charles Schwartz
                                        2 May 1994
Dear Professor Schwartz:

I am writing on behalf of President J. W. Peltason to respond to your 
letters of April 20 and 27, 1994 requesting the opportunity to attend 
the May 4, 1994 meeting of the Council of Chancellors (COC).

The COC meeting is a routine staff meeting convened by the President 
which includes candid, informal discussion and full ranging 
exploration of ideas about a variety of topics.  As such it is a 
session which is open only to the President, the Chancellors, Vice 
Presidents, and a few invited senior staff.  This type of meeting is 
common practice in all lines of professional pursuit owing to its 
value in providing a forum for the full and frank evaluation of 

Thank you for your enquiry.
                                  Sincerely,  Janet E. Young
                                  Special Assistant to the President

     On March 20, 1994, the San Francisco Examiner published excerpts 
from a "verbatim account" of the March 2 meeting of President 
Peltason with his Council of Chancellors.  This created quite a 
furor; and Peltason wrote a letter to all UC faculty and staff, dated 
March 23, providing further official statements about the COC:
Over the past week, there have been several articles in local 
newspapers reporting on a meeting of our Council of Chancellors.  
These articles have created a distorted image of that particular 
meeting and of the process through which issues are debated and 
decisions are made at the University. Nevertheless, distorted or not, 
these articles can be damaging to morale and can make it difficult 
for all of us to concentrate on the severe problems with which we 
must deal:  budget reductions, enrollment pressures, maintaining 
quality.  For these reasons, I want you to hear directly from me on 
these matters.

First, there is the characterization of the meeting as "secret."  
This is a false characterization.  As many of you know, I hold these 
meetings on a monthly basis to discuss a wide range of issues 
affecting the University.  In this case, more than 20 items, over a 
period of 6 hours, were discussed.  The meetings are certainly not 
"secret."  They are private only in the sense that most meetings of 
this type in any organization are confined to those with a need to 
attend. ...

     The meetings of the Council of Chancellors certainly are 
"secret" in the common usage of that word; and Peltason only makes a 
fool of himself by trying to deny that characterization.  In Young's 
letter the COC meeting is described as "a routine staff meeting" for 
"candid, informal discussion,"  which suggests that it is a kind of 
monthly "bull session." Is that an accurate characterization?  I 
haven't been allowed to attend any of these meetings, so I cannot 
offer a first hand opinion; but I do have a striking contradiction to 
this claim of the informality of the COC, expressed by President 
Peltason himself.  The following are excerpts from a January 4, 1994, 
letter written by Peltason to UC Regent Ward Connerly (with copies to 
all regents and chancellors), providing a definitive description of 
the policymaking process within the University.
The Board of Regents is not an impartial judicial hearing body, a 
legislative committee, or a court of law.  A meeting of the Board of 
Regents should not be conducted like a legislative hearing, a meeting 
of a city council, or a presentation before an impartial court in 
which various persons come before it to argue their cases.  Although 
there are circumstances and issues in which the Board solicits a wide 
variety of comments and hears from a number of different 
constituencies, the Board is not there to balance among competing 
claims and pick and choose which it will support.

The Board of Regents is the governing body of a great university, an 
incredibly complex multicampus university.  The administration--and 
this is also true of the Academic Senate--is not just one of many 
constituencies, but is the Board of Regents' chosen and publicly 
designated agent in whom it has vested confidence and to whom it has 
delegated responsibility to manage the University.  The Bylaws and 
Standing Orders of The Regents recognize this role in designating the 
President, Chancellors, Laboratory Directors, and several other 
senior administrators as Officers of the University.

The Board, by its policies, has instructed the President and the 
Chancellors to consult with constituencies--faculty, staff, students, 
alumni, and external publics--prior to bringing a recommendation to 
the Board.  By the time a recommendation is presented to the Board it 
has been through an elaborate consultative process, appropriate for 
the particular recommendation at issue.  Such a recommendation, 
appropriately, should come to the Board with a very strong 
presumption that it will be supported.  Of course the Board should 
not be a rubber stamp.  Of course it should ask tough questions.  Of 
course it can turn down recommendations.  I also agree with you that 
every time a Regent or the Board votes against a recommendation of 
the President, such action should not be construed as a vote of no 
confidence in the President.  However, if there is a pattern in which 
a Board member consistently votes against key recommendations which 
the President and the Chancellors believe to be in the best interest 
of the University, almost by definition this becomes a vote of no 
confidence by that particular Regent.  For a vote of no confidence is 
not a personal judgment about a particular person's motives or good 
will or character, but a vote that one in general believes that the 
President and the Chancellors are not carrying out policies and 
bringing to the Board recommendations that preserve and enhance the 
University of California.
A word about the Chancellors.  Each Chancellor is the head of a major 
university, carrying out the policies of the Board of Regents and the 
President.  They are on the firing line.  They spend much of their 
time trying to build consensus among the various constituencies on 
the campus.  They are key persons with whom I consult in presenting 
recommendations to the Board, and they participate with me in 
responding to questions and explaining our recommendations.  The 
Chancellors deserve the Board's deepest respect and are entitled to 
be heard and to present to the Board their best judgments about what 
is in the welfare of their campus.
The University of California is not an internal democracy in which we 
decide what is in its long-run best interest by a polling of votes.  
On the other hand it is also not a command structure, which is why we 
do our best to secure a consensus among the various groups that make 
up the University community.  Yet especially in these tough times, 
the administration simply must take responsibility, after consulting 
with the faculty and other members of the University community, for 
recommending to The Regents what is in our judgment in the long-run 
best interest of the University and the students and the public it 
serves, even if those recommendations are not always popular.
   [Portions of the original letter were in italics for emphasis.]

     Whatever one may think about the familiar claims of wide 
consultation and shared governance within the University, this 
document confirms that the Council of Chancellors meeting is where 
the essential discussion and decision takes place about each 
recommendation that the President brings before the Board of Regents.  
And note that Peltason says, with emphasis, "Such a recommendation, 
appropriately, should come to the Board with a very strong 
presumption that it will be supported."  

     Thus, one concludes that while the Board of Regents is the 
nominal governing body of the University of California, 

                     OPEN MEETING LAWS

     California has a number of Open Meeting Laws for the various 
agencies of government.  The Ralph M. Brown Act (Government Code, 
Section 54950 et seq.) covers local agencies; and the Bagley-Keene 
Open Meeting Act (Government Code, Section 11120 et seq.) covers 
state agencies.  The public policy principles and the Legislative 
findings and intent of this law are stated as follows (Section 

     "It is the public policy of this state that public agencies 
  exist to aid in the conduct of the people's business and the 
  proceedings of public agencies be conducted openly so that the 
  public may remain informed.
     "In enacting this article the Legislature finds and declares 
  that it is the intent of the law that actions of state agencies be 
  taken openly and that their deliberation be conducted openly.
     "The people of this state do not yield their sovereignty to the 
  agencies which serve them.  The people, in delegating authority, 
  do not give their public servants the right to decide what is good 
  for the people to know and what is not good for them to know.  The
  people insist on remaining informed so that they may retain control
  over the instruments they have created."

     Among the provisions of Bagley-Keene are:  all meetings of a 
state body shall be open to the public, with certain specific 
exceptions; notice of such meetings and their agendas shall be 
provided to the public; these requirements also apply to any body 
that advises the state body or exercises authority delegated to it by 
the state body.

     The University of California exists as an independent agency of 
the State, established under Article IX, Section 9 of the State 
Constitution, in which UC is defined as "a public trust" under the 
administration of The Regents.  Because of this special status, many 
laws passed by the Legislature do not apply to the University, but 
some of them do.  Open Meetings Law is one area where the Legislature 
does have authority to mandate how the Regents conduct their 
business.  My principal reference here is: Opinions of the Attorney 
General of California, vol. 66, page 458, 12/1/83.

     All agencies must be covered by some Open Meeting Act unless 
expressly excluded (UC is not so excluded) and the Legislature has 
previously chosen to subject the Regents to a particular Open Meeting 
Law - Education Code, Section 92030 et seq. - specially constructed 
for UC.  Section 92030 states: "All meetings of the Regents of the 
University of California shall, except as otherwise provided in this 
article, be subject to ... commencing with Section 11120 ... of the 
Government Code."   Section 92032 allows for special meetings of 
The Regents and also allows for closed sessions when they meet to
discuss personnel cases or to discuss matters involving investments, 
negotiations, litigation, gifts, honors, etc.

     This appears to say that UC is subject to all of Bagley-Keene 
and that, therefore, the Council of Chancellors (among other UC 
committees that advise the Regents or exercise authority delegated to 
them by the Regents) must conduct open meetings.  But this is not 
what the Attorney General has opined.  

     In the cited Opinion, the question was asked, "Are the 
provisions of the Bagley-Keene Open Meeting Act applicable to bodies 
that advise the Regents of the University of California or that 
exercise authority delegated to them by the Regents?"  And the answer 
given was, No.  The reasoning used was this: The Regents are not a 
"state body" for the purposes of Bagley-Keene; and this is so because 
the Legislature could have made that designation but chose not to, 
choosing instead the Education Code to construct a special Open 
Meeting Law for the Regents.

     I do not know how a court would rule if someone brought legal 
action against the University, challenging that Attorney General's 
Opinion, especially in the present historical context.  However, 
it seems clear that the Legislature does have the power to amend
these laws and thus could put UC entirely under the Bagley-Keene 
Act with all of its provisions (requiring open meetings for the 
Council of Chancellors, etc.)

     A recent development:  Last year the Legislature enacted an 
amendment to Bagley-Keene (SB 367, Kopp) which provides that members 
of the public shall have an opportunity to address each state body 
concerning matters on that body's meeting agenda.  At their January 
21, 1994, meeting, the UC Board of Regents adopted changes in their 
own Bylaws "in order to implement the provisions of Senate Bill 367."
[See Regents' Minutes of that date, page 26.]  Does this mean that 
the Regents now, in effect, accept the Bagley-Keene Act as 
applicable to UC?  At a previous Regents meeting one member asked 
whether, under Article IX, Section 9, the Board is bound by the Kopp 
amendment. "Mr Holst [General Counsel of the Regents] noted that 
while conformance is discretionary on the part of the Board, there is 
a desire to be responsive to emerging public policy."  [See page 7 of 
the Minutes of the November 18, 1993, meeting of the Special 
Committee on Regents' Procedures.]  Was it the intent of Senator Kopp 
and his colleagues in the Legislature that conformance by UC to this 
amendment was to be discretionary?  Can the Regents pick and choose 
which portions of a law they will conform to and which they will not?

     The questions raised here are not just legal questions, they are 
public policy questions, public accountability questions, public 
relations questions, political questions - for both University 
leaders and State government leaders to face.

     Two further excuses are given in the letters from the 
President's Office in defense of the secrecy of COC meetings.  First 
is the need for "candid ... discussion and full ranging exploration 
of ideas" and "providing a forum for the full and frank evaluation of 
issues," suggesting that open COC meetings would inhibit the 
participants from expressing themselves with full honesty.  These are 
top level officials of the University, meeting to discuss official 
business.  They hold the trust and responsibility for "the conduct of 
the people's business", quoting a phrase from the Bagley-Keene Act.  
Further quoting from that Act: 
  "The people, in delegating authority, do not give their public 
  servants the right to decide what is good for the people to know and
  what is not good for them to know.  The people insist on remaining
  informed so that they may retain control over the instruments they 
  have created."
Furthermore, Open Meetings law specifically covers not only
formal "actions" of a state agency but also the "deliberation" 
that preceeds such action, and this is where the COC and other 
subordinate UC bodies come in.  Aside from legal standards, the 
"full ranging exploration of ideas" is just what an academic community 
is all about; and the explorations are supposed to be the subject of 
open, not secret, scrutiny and debate.

     The second excuse is: "They [COC meetings] are private only in 
the sense that most meetings of this type in any organization are 
confined to those with a need to attend."  What organizations does 
Peltason have in mind here, to which the University should be 
compared?  Do we have to remind him that UC is not a private business 
but a public trust?  The best comparison institutions would be the 
other sectors of public higher education in California.  Both the 
California State University system and the Community Colleges are 
fully subject to the existing Open Meeting Laws.  Why should UC be 
treated any differently?  The answer is that UC is given a unique 
independent status in the California Constitution.  But what does 
that special status imply?  The Regents and the President and the 
Chancellors at UC have greater autonomy, and thus greater independent 
power in the conduct of their duties, than do their counterparts in 
those other institutions.  The appropriate corollary of greater power 
is greater openness, not less.