BILL ANALYSIS Ó
SB 8
Page 1
SENATE THIRD READING
SB 8 (Yee)
As Amended July 14, 2011
Majority vote
SENATE VOTE : 38-1
HIGHER EDUCATION 9-0 GOVERNMENTAL ORGANIZATION 15-0
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|Ayes:|Block, Donnelly, |Ayes:|Hall, Nestande, Atkins, |
| |Achadjian, Brownley, | |Block, Cook, Galgiani, |
| |Fong, Galgiani, Lara, | |Garrick, Gatto, Hill, |
| |Miller, Portantino | |Jeffries, Ma, Perea, V. |
| | | |Manuel Pérez, Silva, |
| | | |Torres |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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)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;
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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;
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
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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 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.
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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 Section
72670.5, Section 89900 et seq.)
2)Establishes CPRA, which 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. (Government Code
Section 6250 et seq.)
FISCAL EFFECT : Unknown. This bill has been keyed non-fiscal
by the Legislative Counsel.
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 ÝSB 218 (Yee) of
2010, and SB 330 (Yee) 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 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
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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.
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.
CPRA presumes that all records held by government are accessible
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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 a 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.
Analysis Prepared by : Sandra Fried / HIGHER ED. / (916)
319-3960
FN: 0001695