Friday, July 23, 2010

CIRM Defends Legality of Barring Public From Marriott Meeting

The California stem cell agency says it did not violate state open meeting laws when it barred two members of the public from a meeting in June at a San Francisco hotel.

In an unsolicited note earlier this month to the California Stem Cell Report, Ian Sweedler, deputy legal counsel for CIRM, said,
“The Bagley-Keene Open Meeting Act applies to multimember boards or commissions, like the ICOC (CIRM directors) and its subcommittees, not to agency staff, or to other meetings that staff attend or organize in the operation of the agency, including the SCNT workshop.  We are always mindful of Bagley-Keene, and careful to follow it when it applies.”
We asked him to clarify his response, including whether CIRM's actions in this case violated recent changes in the California Constitution that guarantee the public a broadly construed right to information about the taxpayer's business.

Sweedler said,
“Sorry if I wasn’t clear.  Yes, I am stating, without qualification, that the SCNT workshop did not violate Bagley-Keene or Proposition 59(the change in the state Constitution), or any other law that I am aware of.  You had stated that a specific CIRM activity violated a specific law, and I thought it was important to correct that.  Thanks.”
We understand and respect Sweedler's opinion. However, it would take a court decision to determine whether he is correct. Our research indicates that a strong case can be made that such meetings must be open. Additionally, the state's open meeting laws were written well before CIRM, an agency unlike any other in state history, came into being. They must be reinterpreted not only in the wake of the Prop. 71 but also in the wake of a new, much broader constitutional guarantee of right of public access. The most important point, however, is that CIRM has pledged to go beyond the mere compliance with open meeting laws. As we noted earlier,
“Legalities aside, it is not in CIRM's best interest to bar persons from any of its sessions – not to mention that it is not in the best interests of the people of California. CIRM needs to do more than meet the minimum standards of the state's sunshine laws. To fail to do so will create a record that will surely harm CIRM's public support and hamper its efforts to secure more funding after it runs out of the $2 billion it has left to spend.”
As to whether CIRM adhered to the law, Sweedler confirmed that the meeting in question included the attendance of at least one alternate for a CIRM director, Jeannie Fontana. We also understand that some persons were in attendance who had not been invited directly by CIRM.

Those facts have an impact on whether the ban on the public is strictly legal. The First Amendment Coalition of California watches over the application of sunshine laws in California. The group says,
“California law doesn’t exactly ban deal-making by politicians in smoke-filled rooms, but it comes close to doing that at the local level (under the Brown Act) and among state agencies (under the Bagley-Keene Act). The fundamental idea behind these statutes is that the full process of political deliberating and decision-making—justly likened to the making of sausage—should be conducted in the open, in public meetings for all to see. Although the laws allow for certain matters to be considered in 'executive session,' they are the rare exception (in theory, at any rate).”
The coalition's Web site discusses cases (see here, here and here) that have application concerning the incident at the Marriott Hotel. They deal with the presence of a board member (or alternate in this case) at meetings such as those held by CIRM, as well as the possibility that they could lead to an illegal “serial meeting” of the CIRM board of directors even if only CIRM staffers were involved at the initial meeting.

In one case involving local open meeting laws, the First Amendment Coalition quoted the state attorney general as saying,
“In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in decision-making processes of boards and commissions.  Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body.”
In other words, such meetings should be open to the public.

Sweedler's statements go beyond CIRM's earlier comments. The stem cell agency previously contended that the meeting was closed to protect proprietary information, but failed to argue that open meeting laws did not apply. Don Gibbons, CIRM communications chief, said the meeting was designed “to gather information for critical decisions regarding the direction our funding should take.” To us, that sounds like something the public should have access to.

CIRM has virtually nothing to gain by barring the public. It is not as if hoards will descend on the sessions. Even full CIRM board meetings rarely attract more than 10 members of the public. Indeed, the agency is likely to benefit from comments that come from a different angle.

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