Since its passage in 1967**, California’s Bagley-Keene Open Meeting Act has required that “the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
But Calbuzz has learned that a key member of the Commission on the 21st Century Economy, the panel appointed to revamp California’s tax code, sent out a series of emails to other commissioners privately soliciting support for changes in the group’s publicly-presented recommendations – two days after the commission’s last open meeting and 13 days before it released its final report.
Commissioner Christopher Edley, dean of UC Berkeley’s Boalt Hall School of Law, emailed two liberal members of the panel stating that he was “working with” five other commissioners on possible changes to the panel’s recommendations, including a reduction in the “flattening” of rates for the state personal income tax system; he also urged them to “take another look at” their opposition to commission recommendations.
This means that Edley’s behind-the-scenes communications (not posted on the commission’s web site) apparently involved at least eight –- a majority and a quorum -– of the 14-member, state financed panel. The Bagley-Keene act specifically states that “members of state bodies should avoid serial communications of a substantive nature that involve a quorum of the body.”
On Sept. 16, Edley sent an email to fellow commissioner Fred Keeley, who had opposed the income tax recommendation two days earlier, urging him to “take another look at it if we make some progress” in changing what was publicly discussed. After receiving the email, Keeley responded that “any further negotiations of any substantive issues before (the commission) should be conducted in public at properly noticed meetings” and suggested that Edley consult the panel’s lawyer to ensure his communication did not violate the open meeting act.
Edley sent back a sharply-worded response, citing his legal bona fides, insisting that he was not violating Bagley-Keene, and attacking Keeley for allegedly making threats to “blow up” the commission’s work.
Here are some of the emails; we’ve inserted numbers next to the names of commissioners to track how many members of the tax panel were referenced by Edley as being involved in private negotiations over the final recommendations.
From: Christopher Edley(1)
To: Fred Keeley(2)
CC: Richard Pomp(3)
Sent: Wed Sep 16 17:36:02 2009
Subject: More developments
Sorry I didn’t get to say goodbye and shake your hand on Monday. I was of course very disappointed in your decision with respect to the package. You made some good points, needless to say. I’ve been working with Jennifer(4), Ed(5) and Monica(6), and I am negotiating with Gerry(7) and John(8) to reduce the flattening of the PIT and do some other things that will make the package more attractive to the four of us. I hope you’ll be willing to take another look at it if we make some progress.
PS: Richard, unless you tell me otherwise, I will just assume you are just ungettable under any conditions.
Christopher Edley, Jr.
Dean and Orrick Professor of Law
Boalt Hall, U.C. Berkeley
To which Keeley, a former Assemblyman and current Treasurer of Santa Cruz County, responded:
From: Fred Keeley
Sent: Wednesday, September 16, 2009 9:06 PM
To: Christopher Edley (email address)
Cc: Richard Pomp (email address)
Subject: Re: More developments
Thank you for your continued good and hard work. It is an honor to serve with you.
My decision was based on the state of affairs at the end of the scheduled time in our last public meeting. In my view, any further negotiations of any substantive issues before COTCE should be conducted in public at properly noticed meetings.
Chris, I truly admire you and your public service work product. I am not trying to be overly restrictive in how I read the Bagley-Keene Act, but I would suggest that you seek advice from the Commission’s counsel on the process you are engaged in following the last public meeting. Again thank you for your fine work
To which Edley replied:
From: Christopher Edley
Sent: Friday, September 18, 2009 1:03 PM
To: Fred Keeley; Richard Pomp
Subject: BS secret discussions
Perhaps I am confused about Bagley-Keene. See the staff memo attached. Is it wrong? The law refers to a “quorum”, including serial conversations amounting to a quorum. The law does not prohibit communicating with each other. Nor does the law require that all thinking and talking and negotiating be done in public meetings. And unless this is completely different from federal statutes, which I know well and have taught, it doesn’t prohibit less-than-quorum sized groups from figuring out something they can jointly present to the full group. I’d be very interested in case law or citations to the contrary.
I read the not-so-thinly veiled threat to “blow up” the Commission’s work based on procedural objections. I understand better and better why the state is so screwed up. After the hours the members of the Commission spent giving a full hearing to Fred’s proposals, which ultimately had zero — ZERO — support from the rest of the Commission, and created untold anxiety among members of the public who waited to berate all of (sic) during the comment period . . .. . the notion that he would make threats about process is mind-boggling.
Fred and Richard, it would be entertaining in the extreme if you want to launch a big public furor about who has or hasn’t been constructive through this process; or who has or hasn’t searched for pragmatic compromise rather than ideological or professional purity. Can’t for the life of me figure out why you agreed to serve.
Christopher Edley, Jr.
Dean and Orrick Professor of Law
Boalt Hall, U.C. Berkeley
A key question about Edley’s emails, as regards a possible Bagley-Keene violation, is whether or not they involved a “quorum” of commissioners.
Here’s what Bagley-Keene says, according to the Attorney General’s guide:
The Act expressly prohibits the use of direct communication, personal intermediaries, or technological devices that are employed by a majority of the members of the state body to develop a collective concurrence as to action to be taken on an item by the members of the state body outside of an open meeting. (§ 11122.5(b).)
Typically, a serial meeting is a series of communications, each of which involves less than a quorum of the legislative body, but which taken as a whole involves a majority of the body’s members. For example, a chain of communications involving contact from member A to member B who then communicates with member C would constitute a serial meeting in the case of a five-person body. Similarly, when a person acts as the hub of a wheel (member A) and communicates individually with the various spokes (members B and C), a serial meeting has occurred…
The prohibition applies only to communications employed by a quorum to develop a collective concurrence concerning action to be taken by the body. Conversations that 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 that contribute to the development of a concurrence as to action to be taken by the body. Accordingly, with respect to items that have been placed on an agenda or that are likely to be placed upon an agenda, members of state bodies should avoid serial communications of a substantive nature that involve a quorum of the body. (emphasis ours).
In a follow-up email, an apparently angry Edley insisted to Keeley that his actions conformed to Bagley-Keene because he did not involve a quorum of the commission:
“Of course “decisions” must be made in public. Duh. But what’s a “decision”, and what’s ‘deliberation’?
“Answer: a quorum gets together and thinks. As far as I know, that’s not happening. Having different conversations with different people on different issues is not a serial meeting. I’m a lawyer, too. I’ve read the statute. Can’t for the life of me imagine the basis for your accusing me or others of crossing some line — a line that just isn’t in the statute. I’d be grateful — truly — if there’s case law I don’t know about. (My job requires me to obey state law. Or face furloughs.) “
Calbuzz counts eight commissioners whom Edley references in urging Keeley and Pomp to reconsider their positions: The three of them, plus Jennifer Ito, Ed De La Rosa, Monica Lozano, Gerry Parsky and John Cogan.
We’re not big-time lawyers like Dean Christopher Edley Jr. Esq, so WTF do we know? Just because it looks and smells like a skunk doesn’t necessarily mean it’s a skunk. Or does it? Hey Mr. Attorney General Brown: Inquiring minds want to know.
* We learned, after the fact, that Laura Mahoney, a Sacramento writer for the Bureau of National Affairs, published details of the probable Bagley-Keene violation even before we posted our story. Hers is available here.
**Note: The initial version of this post said the Bagley-Keene Act was passed in 1967. Our Department of Legislative History and Musty Factoids was informed this may be wrong (since Barry Keene wasn’t in the Legislature then) so, for a while, we removed the date. Further checking (beyond the Wiki that provided the initial reference) found 1967 as the passage date in several other places, including here, here and here. For those still not convinced, a footnote on p. 188 of Barry Keene’s oral history in the state archive says the bill passed in 1967.