BILL ANALYSIS Ó
SB 8
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Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Marty Block, Chair
SB 8 (Yee) - As Amended: June 15, 2011
SENATE VOTE : 38-1
SUBJECT : Public records: auxiliary organizations and UC campus
foundations.
SUMMARY : Requires records maintained by an auxiliary
organization of the California State University (CSU),
California Community Colleges (CCC), and CCC districts and a
campus foundation of the University of California (UC) be
available to the public consistent with the California Public
Records Act (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, CCC, and UC,
respectively.
2)Requires records, as defined, maintained by a CSU or CCC
auxiliary organization or UC campus foundation to be made
available to the public and requires 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
§ 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;
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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;
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:
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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 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:
University of California, Berkeley Foundation, UC Davis
Foundation, The University of California, Irvine Foundation,
The UCLA Foundation, University of California, Merced
Foundation, UC Riverside Foundation, UC San Diego Foundation,
University of California, San Francisco Foundation, UC Santa
Barbara Foundation, UC Santa Cruz Foundation, and any other
foundation authorized by the Regents of the University of
California.
EXISTING LAW :
1)Authorizes UC, CSU, and CCC to form auxiliary organizations
for the various purposes related to their educational mission
and defines CSU and CCC auxiliaries. (Education Code §
72670.5, § 89900 et seq.)
2)Establishes CPRA, which requires state and local agencies to
make their records available for public inspection and to make
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copies available upon request and payment of a fee unless
those records are exempt from disclosure. (Government Code §
6250 et seq.)
FISCAL EFFECT : Unknown. This bill has been tagged non-fiscal
by Legislative Counsel.
COMMENTS : This bill has been double-referred to the Assembly
Governmental Organization Committee.
Need for this bill . According to the author, the public has
been unable to hold auxiliaries and foundations accountable for
their activities, yet these quasi-governmental entities provide
the same types of essential services to students and the public
that the colleges and universities provide. Moreover, these
entities use public resources to perform their activities, e.g.,
university office space, equipment, personnel, etc.
Auxiliaries and campus foundations . 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
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.
Background . A 2001 court decision, CSU Fresno Association v.
Superior Court, 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
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organizations that have been denied and several legislative
attempts to directly apply CPRA to auxiliaries and campus
foundations (SB 218, Yee, 2010 and SB 330, Yee, 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.
New approach . 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 also exempts donor information unique to these
entities from disclosure, except under specified circumstances.
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.
Donor exemptions . As noted above, UC and CSU opposed previous
legislation due to concerns about the possible "chilling effect"
on donor and volunteer contributions. This bill exempts from
disclosure information that would disclose the identity of a
donor, prospective donor, or volunteer, except for the
following:
1)The amount and date of a donation;
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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% 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.
This bill differs slightly 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.
Clarifying amendments .
1)The definition of CCC auxiliary organizations should be
clarified, as follows, since the CCC Foundation is not an
independently governed corporation.
72670.01 (c) The auxiliary organizations that operate
on the campuses of California Community Colleges are
independently governed corporations that are legally
separate from the California Community Colleges.
2)CCC has requested language referencing the existing exemption
for trade secrets in the Civil Code, consistent with the
mention in Section 89916.5 in this bill governing CSU, as
follows:
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72696.5 (a) Notwithstanding any provision of law, trade
secrets, as defined in Section 3426.1 of the Civil Code, shall
not be subject to disclosure. This information shall be
redacted from auxiliary organization records before
disclosure.
(b) For purposes of this section, "trade secrets" means
information, including a formula, pattern, compilation,
program, device, method, technique, or process, that does both
of the following:
(1) Derives independent economic value, actual or potential,
from not being generally known to the public or to other
persons who can obtain economic value from its disclosure or
use.
(2) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
REGISTERED SUPPORT / OPPOSITION :
Support
Academic Professionals of California
American Federation of State, County and Municipal Employees
California Aware
California Broadcasters Association
California Faculty Association
California Federation of Teachers
California Newspaper Publishers Association
California Nurses Association
California State Pipe Trades Council
California State University
California Teachers Association
CalTax
Coalition of California Utility Employees
Eric Mar, District 1 Supervisor, San Francisco
International Brotherhood of Electrical Workers
International Union of Elevator Constructors
Pacific Media Workers Guild
University of California
University of California Student Association
Utility Workers Union of America
Western States Council of Sheet Metal Workers
Opposition
None on file.
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Analysis Prepared by : Sandra Fried / HIGHER ED. / (916)
319-3960