Anti-democracy bill guts California open-government laws

July 18, 2012

By Katy Grimes

Buried deep within the new state budget lies a bill so evil, so corrupt and so illegal, a state agency is now being declared an official “enemy of the people” by weary taxpayers. The little jewel, secretly placed into a trailer bill in the recently passed state budget, will allow the California Air Resources Board to conduct state business without any of that pesky transparency stuff.

California’s Legislature now relies on the surreptitious passage of legislation, rather than the open, transparent democratic process for new laws.

California’s legislative process has largely become the equivalent of a show trial. Legislators still conduct committee hearings, as required by the state Constitution. But the real legislation is passed at the end of the legislative session, when lawmakers sneak damaging language into budget trailer bills. These are passed by legislative leadership without the usual committee hearing process, and are usually bills which legislators could not get passed by colleagues during the previous session.

It’s underhanded, and makes a mockery of our Representative Republic.

While both parties are guilty of abusing the trailer bill process, Republicans have traditionally used the process to provide pork-laden goodies to friends back home.

But Democrats use the trailer bill process to whittle away at Democracy.

Whittling away at open government

According to legislative staffers, the California Air Resources Board, with help from Democratic Assembly Speaker John Perez, D-Los Angeles, figured out a way to exempt itself from the state’s open meeting act.

This is yet another blatant example of California Democrats doing whatever they can to operate in secret. Because if they were as transparent as they constantly blather about, they’d never be able to implement their extreme agenda.

Government Code 11120, the Bagley-Keene Open Meeting Act, is explicitly exempted in the language of budget trailer bill SB 1018.  “That was the final nail in the coffin of transparency,” a Capitol staffer commented.

The latest government cover up is transparency issue specifically with WCI, Inc., the corporation created by California Air Resources Board to manage the upcoming cap and trade auctions. The problem is that Western Climate Initiative Inc. was formed in Delaware. However, Delaware is not subject to California state open meeting or sunshine laws, leaving many questioning why CARB opted for such secrecy. The only reason to register the corporation in Delaware is the lack public or legislative scrutiny on any of their meetings or actions they take.

Legal snafu

Attorneys are already pointing out the legality issues. Specifically, this appears to be an illegal statute, if it functions as it is actually written in SB 1018, because it does not conform with the California Constitution, Article I Section 3, which states, “The people have the right of access to information 
concerning the conduct of the people’s business, and, therefore, the
meetings of public bodies and the writings of public officials and
agencies shall be open to public scrutiny.”

Closed meetings may render WCI’s decisions invalid, and all such business may be required to be conducted again, with full public scrutiny.

Currently, it appears that WCI Inc. and CARB believe their system will be so fail-safe they don’t need scrutiny.  “The more they breathe in their own oxygen, the more they think it to be true,” said an industry expert, who asked to remain anonymous.  “In school I believe it’s what I learned to be paradoxical thinking.”

CARB operates like no other state agency. The rogue agency conducts its business in private, without the scrutiny of the public it is accountable to. Despite legislative and public outrage over the shroud of secrecy at CARB, Assembly Speaker John Perez is said to have crafted the language for SB 1018.

SB 1018 specifically exempted CARB from open meeting rules in upcoming cap-and-trade auctions, allowing CARB’s WCI Inc. to manage carbon trading auctions without any public scrutiny.

The outrage comes from the sole purpose of WCI Inc. — to impose hidden taxes on energy customers, as well as large and small businesses, without accountability or public knowledge.

Operating in secrecy

A memo sent out by the California Air Resources Board referred to the industries CARB has identified as polluters as California’s “regulated class.” These polluters are now subject to the heavy-handed rules and regulation of the agency, and must accept the new costs of doing business in California, in the ugly world according to CARB.

While the rest of the country shuns carbon-trading schemes, California politicians continue to embrace the concept, and are forging ahead with a cap and trade carbon trading system. But eight states have dropped out of California’s Western Climate Initiative, leaving many scratching their heads in wonderment, as only California and the Canadian province of Quebec are left alone to solve the world’s global warming and climate change issues.

At the May 24 CARB workshop hearing, Assemblywoman Diane Harkey, R-Dana Point, expressed her concerns about how the cap and trade program will work, and whether the program will actually result in lower greenhouse gas emissions, as mandated by AB 32. Harkey suggested that California’s cap and trade may just be a scheme to allow vast sums of money to change hands, with investors eventually getting rich off of market speculation, and with no improvement in the reduction of emissions.

Harkey warned that CARB was entering the sophisticated financial world of derivative markets and hedge derivatives, where investors get involved in betting, trading and profiting on the value of carbon credit shares. She warned that such sophisticated financial dealings should be managed by specialists, and not a state agency tasked with a mission of cleaner air.

But because CARB’s money-making scheme doesn’t coexist legally with state laws which require a clear nexus for taxing, CARB and Nichols have apparently decided to take the agency out of the open meeting rules, and conduct business the way they want to, without the keen eye of the public watching.

This sounds like the Soviet Union, not California.

CARB ‘public’ meeting

CARB’s Board of Directors held a hearing in late May to discuss the anticipated revenues from upcoming cap and trade auctions, and how the board planned to spend the windfall money.

“We are looking for synergy and consensus,” CARB Chairwoman Mary Nichols said at the hearing, using her best bureaucrat-speak. Nichols said that in the transportation sector, “efforts to capture the synergies have been successful, which will help to make our state more competitive.”

Despite the talk of making California more competitive, Nichols had a meltdown when challenged by the public over her asinine assertions that anything the California Air Resources Board could do would make the state more competitive.

Many members of the public who attended the hearing drove several hours for a chance to speak on-the-record. But they had to sit through three hours of CARB-friendly panel discussions before public comment was allowed.

As soon as the public comments began, members of the participating panels left the meeting.

After only a few public comments, Nichols announced that the meeting was adjourned, and cut off the long list of members of the public who remained to make comments.

Nichols, in her signature lordly style, simply adjourned the meeting before dissenting public comment could cause alarm over her disastrous cap-and-trade program and spending plans. You can see in the video that Nichols had no plans to listen for very long to the public concerns.

The legal rub

Legally, CARB cannot exempt itself from the Bagley-Keene Act of 1967, which states “the meetings of public bodies…shall be open to public scrutiny.” Transparency measures are used as a means of holding public officials accountable in order to fight corruption.

Known formally as the Bagley-Keene Open Meeting Act, it officially implements a provision of the California Constitution which declares that “the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny,” and explicitly mandates open meetings for California state agencies, boards and commissions, according to Ballotpedia.

If that is not enough clarity, the open records act also reaffirms, “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

“The act applies to all state bodies, boards, and commissions including advisory boards and private corporations on whose board at least one member of a state organization serves in an official capacity as representative of the state and which receives funding from the state,” reported Lawrence J, McQuillan, Ph.D, in “Bringing more sunshine to California: How to expand open government in the Golden State.”

“To counter the powerful incentives facing elected and appointed public-sector officials and government employees to conceal information and operations, ‘sunshine laws’ have been enacted to open the doors of government so the public can view the debates, decisions, and actions of government and the outcomes of government policies,” McQuillan said.

However, despite warnings, Nichols and the CARB Board of Directors appear headed in the wrong direction—and they are doing this under cover from the powerful Assembly apeaker.

But consider how state government employees and officials feel about the open records act, in this quote from a 2004 “Handy Guide to the Bagley-Keene Open Meetings Act,” written by the California attorney general’s office: “Operating under the requirements of the Act can sometimes be frustrating for both board members and staff.” But democracy requires that they conduct open meetings anyway.