Dear Mr. Attorney General:

I am writing to request you to take action pursuant to your duties under the Bagley-Keene Open Meetings Act, Sec. 11130(a). I request you to take such steps as are necessary to prevent a meeting in violation of the Act-- the meeting of the Citizen's Independent Oversight Committee scheduled for December 17. In addition, I request you to determine if an attempt was made to build a consensus in advance of the meeting on issues that were properly the public's business and therefore should have been deliberated at the meeting, with full public participation.

As you know the voters of California passed a historic amendment to the California Constitution less than six weeks ago. Proposition 59, now enshrined in the Constitution, reaffirms the right of the people to participate actively about the conduct of the people's business; in particular, it states that the "meetings of public bodies… shall be open to public scrutiny" and that a statute implementing that policy "shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access."

The Constitution now underscores the fundamental importance of the open government principles of the Bagley-Keene Act which your office has the responsibility to enforce. Of course, "any person" can go to court to seek enforcement of the Act. I turn to you because you have the opportunity to affirm the importance you attach to Prop. 59 and its democratic principles, and to demonstrate that even a gathering like ICOC, with all the money and political power it represents, does not stand above the law.

Although I have only come to California a few years ago, I have had a strong interest in the evolution and promotion of Prop. 71. I am a longtime member of the Institute of Medicine of the National Academy of Sciences . I practiced public interest law in Washington, DC, at the intersection of medical research, biomedical ethics, and public policy (Mental Health Law Project). I taught administrative law at Stanford and Georgetown Law Schools and was actively involved in administrative law practice. I was Founding Dean of the City University of New York Law School. I administered a substantial grant program in the health field as President of the Nathan Cummings Foundation. I care deeply about seeing the Institute's program succeed.

It seems ironic that the Open Meeting Act, must be applied for the first time since it was elevated to constitutional principle to hold unlawful the implementation of Prop. 71, which establishes the Citizen's Independent Oversight Committee to supervise the California Institute for Regenerative Medicine, and to pay out $3 billion of the people's money. The Committee will administer grants in the sensitive, previously unexplored area where science, politics, ethics, and commerce interact. It is particularly important that the people's right to participate in decision-making by the ICOC be zealously guarded in light of the magnitude of the public money authorized, the high level of public controversy, and the unrepresentative membership of the ICOC ( a lack of diversity virtually mandated by the terms of Prop. 17).

The text of Prop. 71 is 16 opaque columns of small print and turgid prose, establishing a Byzantine bureaucracy with up to fifty employees and five interlocking committees-- very different from the simplified one paragraph description presented to the voters, and from the sunny advertising which blanketed the state. The text is full of surprises-and landmines. Its drafters showed a remarkable indifference-even hostility-- to the democratic principles in the Open Meetings Act.

Prop. 71 sets up an unusual process for the selection of the powerful Chair and Vice Chair of the ICOC. The Governor, the Lieutenant Governor, the Treasurer, and the Controller were each to nominate a candidate, and the Committee members are to choose among them. The Chair is to serve a six-year term. Forty-five days after Election Day, the Treasurer and the Controller are instructed to convene a meeting of the Committee for the sole purpose of electing a Chair and Vice Chair "from among the individuals nominated by the constitutional officers." The Proposition does not require the Committee to make its final decisions at the meeting.

The meeting-- insofar as its purpose is consideration of the nominees for the Chair and Vice Chair-- is to be treated as a "special meeting" for purposes of the Open Meeting Act, which means that the 10 day notice requirement for meetings is lifted. All other requirements of the Act are fully applicable to this meeting and all meetings of the ICOC, except for enumerated exceptions.

It is important to stress that the Open Meeting Act provisions are not legalisms or technical requirements. They are the sinew and muscle of the public's right to participate actively in the processes of their government, a right now reinforced by its Constitutional status.

Violations of the Open Meetings Act

On Monday, December 13, an Agenda was circulated for the meeting (See Attachment). The Agenda establishes that the meeting planned for this Friday is in clear violation of four provisions of the Act, suggesting a startling indifference to the policy of democratic participation. The Agenda compresses 15 items into a three-hour period. Although no time periods are assigned to the various items, it is clear from this packed agenda that there can be no more than a few minutes allocated to the "consideration and election" of the Chair and Vice Chair-- surely the most important decisions that the ICOC will make in its first year. It is followed immediately by the administration of the oath of office to the Chair and Vice Chair, on the apparent assumption that the members of ICOC will mildly concur in a process in which there participation is so obviously a mere formality. It is startling that there is so little deliberation for so weighty a matter. And it is unlawful.

1. The Open Meetings Act requires an opportunity for members of the public to address the ICOC directly before these important decisions are made. (Sec. 11125.7) The ICOC "shall provide an opportunity to members of the public to directly address" the Committee "before or during" the Committee's consideration of the item. The agenda scarcely allows time for the members' discussion. It allows time for public comment only at the end of the meeting, just before adjournment, long after the decisions have been made. The Open Meetings Act contemplates that the public has the right to participate effectively, before a decision has been made. Members of the public with views on the leadership issue, after reading the Agenda, could reasonably conclude that there was no point in attending the meeting.

2. The Open Meetings Act requires that the Agenda give a " description of the items of business to be transacted or discussed " in the meeting. "A brief general description of an item generally need not exceed 20 words." (Sec. 11125(b)) The ICOC Agenda has no descriptions, only empty and uninformative phrases, seemingly intended to obscure more than inform-"Overview of Government and Ethics Issues; …Delegation of Authority to the Chair; …Discussion of By-Laws;… Establish a hiring committee…" It is unclear whether these items are being presented for casual comments, brief and informal conversation, or for decision by the ICOC. The Agenda requirement is intended to permit the public to prepare in advance of a meeting for intelligent evaluation of the issues and informed participation. This cursory Agenda fails to serve that purpose.

3. In any event, it is illegal to present any of the Agenda issues other than the discussion of leadership. A "special meeting" is permitted under the Open Meetings Act to discuss only the urgent issue that justifies the special meeting (Sec. 11125.4(b))-in this case the discussion of the nominees for Chair and Vice Chair. The Act provides that "No other business shall be considered at a special meeting …." In ignoring this clear statutory language, the Agenda introduces eight additional items. None of them can be discussed since the public was not provided the required 10 days notice. The ten-day notice provision is an important policy-to assure that the public has ample opportunity to plan, prepare, and attend.

4. Each special meeting must begin with a specific finding that 10 days delay "would cause a substantial hardship [for the Committee] or that immediate action is required to protect the public interest." The finding must be supported by "specific facts" and approved by a two-thirds vote. The Agenda provides no time for such a finding. "Failure to adopt the finding terminates the meeting." (Sec. 11125.4(c)).

Each of these law violations, individually, is sufficient to make the scheduled meeting unlawful. Taken together, they show a disregard for a policy of highest importance, just last month raised to constitutional status. The legislative purpose of the Act is to assure that state agencies' "deliberation be conducted openly." If the process of the anticipated Friday meeting can be dignified with the name of deliberation, it surely is not being conducted openly, as the Act defines that term.

The planned meeting cannot be held lawfully, and I urge you to use your authority under Sec 11130(a) for "stopping or preventing violations or threatened violations" of the Act. Failure to do so in this clear case would condone the violations and break faith with the voters who amended the Constitution last month to reaffirm their right to participate in an open government.

The Attorney General also has authority to "determine the applicability of [the Act] to past actions…" The Open Meetings Act and Prop. 59 demand an investigation of the promotional phase of Prop. 71, and any deals which may taint the proceedings of the ICOC. The Open Meetings Act prohibits any effort to negotiate agreements in advance of meetings, reducing the open meetings themselves to ceremonial occasions where agreements are announced. Since the terms of the Act apply to people who have been appointed but not yet taken office, the two-day meeting in San Diego, at which six appointees to the ICOC and Mr. Klein discussed important policy issues about the program of the Institute, violates the spirit of the Act and perhaps the letter, and deserves scrutiny.

Any actions taken in violation of any of the provisions are null and void. (Sec. 11130.3(a)). Any "interested person" can file suit for 90 days after the meeting, to set aside any actions taken at unlawful meeting.

Moreover, the Act creates a responsibility that is personal to each ICOC member who attends an illegal meeting. " Each member who attends a meeting of [the Committee] in violation of any provision of [the Act], and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under [the Act], is guilty of a misdemeanor." (Sec. 11130.7)

I request you to take appropriate action to assure that the illegal meeting planned for Friday does not take place, including litigation, if necessary. I know that this action will be disruptive in the short-term, but I believe that it serves the long-term interest of the Institute and its program. It will help to draw a bright line between the promotional phase of the Prop. 71 and the implementation phase of the Institute, grounded in sound science and democratic participation. This is essential in assuring that the Institute earns the trust of the public and the state's elected leadership.

The Institute cannot operate above the law. If it tries to operate without transparency and full compliance with democratic norms, it will breach the trust and high hopes reposed in it by the state's voters.

Sincerely,

Charles Halpern