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 SUMMARY 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 issues. 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, THE COC IS THE EFFECTIVE POLICYMAKING BODY. 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 11120): "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.