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.
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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.
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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
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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
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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:
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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. ...
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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.
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...
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.]
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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.