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|SENATE RULES COMMITTEE | SB 8|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524| |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
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UNFINISHED BUSINESS


Bill No: SB 8
Author: Yee (D), et al.
Amended: 7/14/11
Vote: 21


SENATE JUDICIARY COMMITTEE : 4-1, 3/29/11
AYES: Evans, Harman, Corbett, Leno
NOES: Blakeslee

SENATE EDUCATION COMMITTEE : 7-1, 5/11/11
AYES: Lowenthal, Runner, Alquist, Hancock, Huff, Price,
Vargas
NOES: Blakeslee
NO VOTE RECORDED: Liu, Simitian, Vacancy

SENATE FLOOR : 38-1, 6/2/11
AYES: Alquist, Anderson, Berryhill, Calderon, Cannella,
Corbett, Correa, De León, DeSaulnier, Dutton, Emmerson,
Evans, Fuller, Gaines, Hancock, Harman, Hernandez, Huff,
Kehoe, La Malfa, Leno, Lieu, Liu, Lowenthal, Negrete
McLeod, Padilla, Pavley, Price, Rubio, Simitian,
Steinberg, Strickland, Vargas, Walters, Wolk, Wright,
Wyland, Yee
NOES: Blakeslee
NO VOTE RECORDED: Runner

ASSEMBLY FLOOR : 75-0, 8/15/11 - See last page for vote


SUBJECT : Public records: auxiliary organizations and
University of California campus foundations

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SOURCE : American Federation of State, County and
Municipal
Employees, AFL-CIO
California Faculty Association
California Newspaper Publishers Association


DIGEST : This bill updates the California Public Records
Act to include auxiliary organizations at University of
California, California State University, and the California
community colleges statewide foundation. Placing state
college and university auxiliaries under the authority of
the public records act will safeguard the use of taxpayer
funds and provide much needed accountability and oversight
to state policymakers.

Assembly Amendments (1) add legislative findings and
declarations, (2) recast language with the same intent as
when it left the Senate, (3) add co-authors, and (4)
tombstone the bill as the Richard McKee Transparency Act of
2011.

ANALYSIS : The California Public Records Act (CPRA)
requires state and local agencies to make their records
available for public inspection and to make copies
available upon request and payment of a fee unless those
records are exempt from disclosure.

Existing law establishes the segments of public
postsecondary education in the state, including, but not
limited to, the University of California (UC) administered
by the Regents of the UC and the California State
University (CSU) administered by the Trustees of the CSU.

This bill requires records maintained by an auxiliary
organization of the CSU, California Community Colleges
(CCC), and CCC districts and a campus foundation of the UC
be available to the public consistent with the CPRA,
excepting specified donor information. Specifically, this
bill:

1. Finds that CSU and CCC auxiliaries and UC foundations
are independently governed, legally separate entities
that are essential and integral to the missions of CSU,

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3

CCC, and UC, respectively.

2. Establishes the Richard McKee Transparency Acts of 2011,
which require records, as defined, maintained by a CSU
or CCC auxiliary organization or UC campus foundation to
be made available to the public and require the entities
to follow specified timelines and procedures for
responding to public records requests, consistent with
CPRA.

3. Exempts from disclosure the following records maintained
by a CSU or CCC auxiliary or UC campus foundation:

A. Existing CPRA exemptions as set forth in
Government Code Sections 6254-6255, inclusive;

B. Information that would disclose the identity of a
donor, prospective donor, or volunteer;

C. Personal financial information and gift and estate
planning information of a prospective donor or
volunteer;

D. Personal information related to a donor's private
trusts or a donor's private annuities administered by
an auxiliary or campus foundation;

E. Information related to fundraising plans,
fundraising research, and solicitation strategies to
the extent these activities are not already protected
under existing law, as specified; and,

F. The identity of students and alumni to the extent
that this information is already protected, excluding
a part-time or full-time employee of the auxiliary or
campus foundation or a student who participates in a
legislative body of a student body organization, as
defined.

4. Stipulates that these provisions do not exempt
disclosure of the following information:

A. The amount and date of a donation;


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B. Any donor-designated use or purpose of a donation
and any other donor-designated restrictions on the
use of a donation;

C. The identity of a donor who, in any fiscal year,
makes a gift or gifts, in a quid pro quo arrangement,
where either the value of the benefit received is
greater than $2,500, adjusted for inflation as
specified, or the benefit would be impermissible
under existing law;

D. Self-dealing transactions as set forth in existing
law, as specified; and,

E. Any instance in which a volunteer or donor of a
gift is awarded, within five years of the date of the
service or gift, a contract from the auxiliary or
campus foundation that was not subject to competitive
bidding.

5. Authorizes proceedings for injunctive or declarative
relief to enforce the right to inspect or receive a copy
of a record maintained by an auxiliary or campus
foundation, including the awarding of attorney's fees,
consistent with the authority provided in CPRA.

6. Provides that when an auxiliary or campus foundation
disclose a record that is exempt from this bill, this
disclosure shall constitute a waiver for the exemptions
specified in this bill, excluding the following
information:

A. Disclosures made to a donor or prospective donor
with regard to that donor's donation or prospective
donation to an auxiliary organization;

B. Disclosures made to a volunteer or prospective
volunteer with respect to that volunteer's services
being provided to the auxiliary organization;

C. Disclosures made through other legal proceedings
or as otherwise required by law;

D. Disclosures within the scope of a disclosure

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required by law that limits disclosure of specified
writings to certain purposes;

E. Disclosures to an auditor conducting an audit, as
defined; or,

F. Disclosures to a bank or similar financial
institution, as specified.

7. Provides that these provisions do not apply to any
records subject to a request made pursuant to CPRA.

8. Defines a UC campus foundation as the following
corporations organized under the laws of the State of
California: UC Berkeley Foundation, UC Davis
Foundation, UC Irvine Foundation, UCLA Foundation, UC
Merced Foundation, UC Riverside Foundation, UC San Diego
Foundation, UC San Francisco Foundation, UC Santa
Barbara Foundation, UC Santa Cruz Foundation, and any
other foundation authorized by the Regents of the UC.

Comments

A 2001 court decision, California State University, Fresno
Assn., Inc. v. Superior Court
(2001) 90 Cal.App.4th 810,
found that CPRA applies only to state agencies and would
need to be specifically applied to campus auxiliary
organizations in statute. In the past decade, there have
been numerous attempts to obtain records from CSU auxiliary
organizations that have been denied and several legislative
attempts to directly apply CPRA to auxiliaries and campus
foundations (SB 218 ÝYee] of 2010, and SB 330 ÝYee] of
2009) that either died in the legislative process or were
vetoed over concerns about the appropriateness of
subjecting private organizations to CPRA and jeopardizing
these entities' ability to raise funds.

This bill is the result of negotiations between the author,
the sponsors (the California Newspaper Publishers
Association and the California Faculty Association), UC,
CSU, and CCC. This new approach does not subject
auxiliaries and campus foundations to CPRA; instead, this
bill recreates and applies CPRA provisions to these
entities in the Education Code. This bill differs slightly

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from CPRA in that it adds information supplied as part of
an audit or to a financial institution to the list of items
that do not constitute a waiver from the exemptions
specified in this bill. This bill also exempts donor
information unique to these entities from disclosure,
except under the following circumstances:

1. The amount and date of a donation;

2. Any donor-designated use or purpose of a donation and
any other donor-designated restrictions on the use of a
donation;

3. Self-dealing transactions as set forth in existing law,
as specified;

4. Any instance in which a volunteer or donor of a gift is
awarded, within five years of the date of the service or
gift, a contract from the auxiliary or campus foundation
that was not subject to competitive bidding; and,

5. The identity of a donor who, in any fiscal year, makes a
gift or gifts, in a quid pro quo arrangement, where
either the value of the benefit received is greater than
$2,500, adjusted for inflation as specified, or the
benefit would be impermissible under existing law. This
provision is designed to exclude season ticketholders
for athletic events, who often must donate a specified
amount (usually $10,000 to $12,500) above the cost of
their tickets in order to receive preferred seats.
Since the IRS values these contributions at 20 percent
of the value of the donation, $2,500 was selected to
ensure that this bill did not capture these donors who
participate in well-publicized fundraising campaigns.

CSU and CCC auxiliary organizations and UC campus
foundations are formed to further the educational missions
of their institutions. Examples include alumni groups,
student associations, faculty organizations, and groups
that bear the name of the particular college or university
or campus. These groups operate as nonprofit public
benefit corporations chartered under the California
Nonprofit Public Benefit Corporation Law and must meet
certain standards of operation such as: (1) auditing and

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financial reporting procedures with oversight by a
certified public accountant; (2) expenditures that are in
accordance with policies delineated by the governing body;
(3) meetings of boards and committees that are open to the
public; and, (4) conformity of operational procedures with
regulations established by the governing body.

UC auxiliaries differ from those at CSU and CCC; they
engage in commercial-type activities, such as parking
operations and certain athletics department operations,
that are not separate, independent entities. As such,
these "auxiliary enterprises" are already subject to CPRA.

CPRA presumes that all records held by government are
accessible to the public unless expressly made exempt from
disclosure. It gives members of the public two main
rights: the right to inspect records free of charge and
the right to obtain a copy of records after paying for the
direct costs of duplication or a statutory fee. The law
gives agencies time periods for responding to a request;
once a request is made, the agency must either produce the
records in a reasonable amount of time, as specified, or
justify its decision to withhold the record by showing that
the record is exempt under an express provision of law or
that the public interest in disclosure of the record is
clearly outweighed by the public interest in nondisclosure.
There are 30 general categories of documents or
information that are exempt from disclosure, essentially
due to the character of the information. CPRA allows a
member of the public to sue to enforce the law and provides
that a prevailing plaintiff can recover attorney fees and
costs of bringing the suit.

Richard McKee was co-founder of Californians Aware, which
promotes open government. Mr. McKee, who passed away in
April 2011, was a chemistry professor at Pasadena City
College who, despite a lack of formal legal training,
became a leading advocate for open government. According
to the Los Angeles Times, he filed 25 lawsuits over the
last 17 years and prevailed in the majority of them.

FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No


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SUPPORT : (Verified 8/16/11)

American Federation of State, County and Municipal
Employees,
AFL-CIO (co-source)
California Faculty Association (co-source)
California Newspaper Publishers Association (co-source)
Academic Professionals of California
California Broadcasters Association
California Federation of Teachers
California Nurses Association, National Nurses Organizing
Committee
California State Pipe Trades Council
California State University Employees Union
California Taxpayers Association
California Teachers Association
Californians Aware
Coalition of California Utility Employees
International Brotherhood of Electrical Workers
International Union of Elevator constructors
Pacific Media Workers Guild
Supervisor Eric Mar, San Francisco Board of Supervisors
University of California
University of California Student Association
Utility Workers Union of America
Western States Council of Sheet Metal Workers

ARGUMENTS IN SUPPORT : Responding to Governor
Schwarzenegger's veto message of SB 218 (Yee), Session of
2009-10, this bill now exempts the names of volunteers and
donors so long as certain provisions are met. This bill
also allows auxiliary organizations to exempt from
disclosure information "obtained in the process of
soliciting potential donors that has actual or potential
independent economic value because it is not generally
known to the public or because individuals can obtain
economic value from its disclosure or use."

This bill applies the CPRA to auxiliary organizations at
UC, CSU, and any auxiliary established CCC Board of
Governors (the CPRA already applies to auxiliary bodies
established by local community college districts). This
bill reaffirms existing exemptions to the CPRA for
propriety information, trade secrets, or other documents

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that have an economic value (actual or potential economic
value such as prospective
donor lists).


ASSEMBLY FLOOR : 75-0, 8/15/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng,
Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines,
Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall,
Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso,
Huffman, Jeffries, Jones, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Perea,
V. Manuel Pérez, Portantino, Silva, Skinner, Smyth,
Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Blumenfield, Bonilla, Galgiani, Gorell,
Pan


RJG:kc 8/16/11 Senate Floor Analyses

SUPPORT/OPPOSITION: SEE ABOVE

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