Strong headline, I know, but I didn’t believe this was true until I researched it myself. First some background; I once served as an elected official on my local school board. During orientation and virtually every annual CSBA meeting after that, along with numerous public meetings and letters to the editor where people constantly reminded us of the Brown Act, it loomed large as the most important law that we had to follow.
We were constantly reminded that if we did not follow the letter of the law and provide full and open access to all meetings (the exception being employee management) we would be guilty of breaking the open meeting law and subject to severe penalties. If our local school board in our small town ever tried to hold a closed-door meeting without the knowledge of the public, not only we would we be excoriated in the press and public discourse, but we would also have people filing for our election recall.
So, it was with shock and surprise that I learned today that the California Air Resources Board declared the method by which they could circumvent the public meeting laws. Even more shocking they put it in writing and, got the California State legislature to pass it as a law as a rider on a totally unrelated bill of legislation, and Governor Brown signed it into law on June 27th, 2012.
My friend Eric Eisenhammer first alerted me to the issue on his California Political Review blog. He writes:
On the afternoon the state budget was signed into law last Wednesday I received an email from a local activist informing me that hidden in a trailer bill titled SB 1018 was a provision exempting the upcoming cap and trade auction from open meeting rules.
CARB formed a company called Western Climate Initiative Inc. (WCI), to manage its upcoming cap and trade auction. This shadowy corporation, registered in Delaware, will be responsible for imposing billions in hidden energy taxes on California ratepayers and small businesses without public scrutiny or accountability.
SB 1018 was a “gut and amend” bill, with over 100 pages inserted the day before the bill was signed into law along with the state budget. This legislation did not go through one committee hearing and most legislators probably never had a chance to read it. But buried in this bill in Section 12894(b)(2) is a line exempting WCI from a critical provision of the California Constitution, known as the Bagley-Keene Act, which provides meetings be open to public scrutiny.
Small business owners and citizen energy consumers care about protecting the environment, but CARB continually behaves as if it has something to hide.
When I first read that I really could not believe it. I could not believe that a state agency who is beholden to the same sorts of open meetings law that I was as a school board member would go to the lengths of trying to circumvent it, much less get it passed into law as an exception. So, I decided to check it out for myself.
First I located the document related to SB 1018. Eric was kind enough to direct me to the actual document and to the section that was relevant. Here is the URL of just one section of the monster sized SB1018 bill, section 39. The PDF: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1001-1050/sb_1018_bill_20120627_chaptered.pdf
The relevant part is in 12894(b)(2) of SB 1018. You can find that section from the bottom of page 23 to near the top of page 24. The relevant section says:
Chapter 5. Greenhouse Gas Market-Based Compliance
Mechanisms and Linkages to the State
12894. (a) (1) The Legislature finds and declares that the establishment of nongovernmental entities, such as the Western Climate Initiative, Incorporated, and linkages with other states and countries by the State Air Resources Board or other state agencies for the purposes of implementing Division 25.5 (commencing with Section 38500) of the Health and Safety
Code, should be done transparently and should be independently reviewed by the Attorney General for consistency with all applicable laws.
(2) The purpose of this section is to establish new oversight and
transparency over any such linkages and related activities undertaken in relation to Division 25.5 (commencing with Section 38500) of the Health and Safety Code by the executive agencies in order to ensure consistency with applicable laws.
(b) (1) The California membership of the board of directors of the Western Climate Initiative, Incorporated, shall be modified as follows:
(A) One appointee or his or her designee who shall serve as an ex officio nonvoting member shall be appointed by the Senate Committee on Rules.
(B) One appointee or his or her designee who shall serve as an ex officio nonvoting member shall be appointed by the Speaker of the Assembly.
(C) The Chairperson of the State Air Resources Board or her or his designee.
(D) The Secretary for Environmental Protection or his or her designee.
(2) Sections 11120 through 11132 do not apply to the Western Climate Initiative, Incorporated, or to appointees specified in subparagraphs (C) and (D) of paragraph (1) when performing their duties under this section.
(c) The State Air Resources Board shall provide notice to the Joint Legislative Budget Committee, consistent with that required for Department of Finance augmentation or reduction authorizations pursuant to subdivision (e) of Section 28.00 of the annual Budget Act, of any funds over one hundred
fifty thousand dollars ($150,000) provided to the Western Climate Initiative, Incorporated, or its derivatives or subcontractors no later than 30 days prior to transfer or expenditure of these funds.
Did you catch it? Most people wouldn’t as it is a very short sentence written in gov-speak with redirected references to other laws. I only caught it because I was familiar with the sections pertaining to the state open meeting laws.
Here’s the relevant section:
(2) Sections 11120 through 11132 do not apply to the Western Climate Initiative, Incorporated, or to appointees specified in subparagraphs (C) and (D) of paragraph (1) when performing their duties under this section.
Still don’t see it? It is about sections 11120 through 11132 of The California Code.
What are Sections 11120 through 11132? Wikipedia has a good summary:
The Bagley-Keene Act of 1967, officially known as the Bagley-Keene Open Meeting Act, 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. The act facilitates accountability and transparency of government activities and protects the rights of citizens to participate in State government deliberations. Similarly, California’s Brown Act of 1953 protects citizen rights with regard to open meetings at the county and local government level.
The 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.”
Here’s the relevant section of the code, section 11121, which says private corporations setup to do state business are not exempt:
As used in this article, “state body” means each of the following: (a) Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order. (b) A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body. (c) An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons. (d) A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
Section 11122.5 reads:
(a) As used in this article, “meeting” includes any congregation of a majority of the members of a state body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the state body to which it pertains. (b) (1) A majority of the members of a state body shall not, outside of a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter of the state body. (2) Paragraph (1) shall not be construed to prevent an employee or official of a state agency from engaging in separate conversations or communications outside of a meeting authorized by this chapter with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the state agency, if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.
There are some exceptions listed in 11122.5, such as for conversations in open air public meetings and gatherings, but nothing like the blanket exception written in for WCI in SB1018.
Consider this a minute. CARB sets up a private corporation, Western Climate Initiative Inc. to manage the cap and trade program, doesn’t even bother to put the corporation in California, and opts for Delaware and the advantages that brings over California incorporation. Delaware is well known as a corporate haven, and that alone suggests they want it out of the prying eyes of California taxpayers.
But that wasn’t good enough, they take the extraordinary step of writing in an exemption to prevent public scrutiny, and then hide it as a rider in the 100+ pages inserted the day before the bill was signed into law along with the state budget, effectively preventing any scrutiny.
What is CARB intent on hiding in WCI? Now, with a secret meetings get out of jail free card signed by Govenor Moonbeam, We may never know. Just like with the publicly funded Michael Mann fighting tooth and nail to prevent his emails from seeing sunshine, so it seems CARB has taken a cue from the behavior of climate science in general, and in a wave of the hand brushed aside the directive Bagley-Keene Open Meeting Act, deciding they know what is best for the people:
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.
In my opinion, this flagrant and orchestrated criminal disregard of the California open meetings law is the epitome of unmitigated gall on the part of CARB, and specifically CARB director Mary Nichols who has made it clear she doesn’t give a rats ass about what the people of California have to say about her empire and how it operates.
At this point, when they decide they can hold themselves above the law that every other town board, council, and agency has to follow, I’m ready to declare CARB as an enemy of the people of California.
If you are a resident of California, complain loudly to your elected representatives and write your newspapers. The only way to fight this is with more sunshine.
“No taxation without representation” … or ‘open’ meetings?
Passe … the new ‘normal’ has arrived; dictates from the enlightened overlord class.
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The local paper (SGVTribune) has been on a month’s long crusade for public access to teacher disciplinary records. I’ve tossed them a link to this article; who knows, maybe they’ll show some consistent interest.
+1; a keeper; This particular principle needs much wider exposure such that it enters the public’s vernacular …
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I had to deal with CARB regarding their regulations of formaldehyde emissions from pressed-wood furniture.
The regulators honestly by naively assumed every retail store dealing in such products had, somewhere on premises, a file cabinet with paper purchase orders, freight bills, and invoices, which could be (their words) “rubber stamped” with the various assurances and certifications their regulation required. And they were prepared to send out inspectors to see such stamps on such paperwork.
My role was to explain that, since about 1980, retailers in general had been working very very hard and spent lots and lots of money to eliminate paperwork of that sort. The information about orders and invoices is now likely to reside in the form of bits and code in computers thousands of miles from California — and be highly protected against local store managers or regulators or inspectors arbitrarily adding “rubber stamp” data.
I failed to persuade. Me, WalMart, an industry association of furniture makers — we talked for hours without persuading the experts in California that paperwork no longer “works” as a primary business process.
So, most of us in that industry, at present, are lawbreakers lobbying for waivers and entrusting that the courts, eventually, will rule that we’ve made good faith efforts to comply with an impossible requirement …
I emerged from the experience with little respect for CARB.
I bet that Al Gore is associated with WCI. Trading carbon credits is how he makes his money. Cronyism and corruption?
If this is a law and not an amendment to California’s constitution, legal action would challenge the law as being against that state’s Constitution, would it not?
Follow the money. Somebody is neck deep in graft and bribery.
tonyb says:
July 15, 2012 at 12:42 am
Do the US media or Congress not have the same power to expose this breathtaking piece of effrontery and the two fingers the organisation concerned has raised to the notion of democracy?
The US media is, with some few exceptions, head-over-heels in love with anything described as “green” or any politician described as “liberal.”
Congresscritters have no say in what laws individual states may or may not pass, and Congress itself has passed laws which violate the US Constitution.
“breathtaking piece of effrontery.”
Brilliant description!!!
The question is how many more have been signed into law that is buried in legal speak to deceive the public. The consequence is the loss of representation and abuse of the US citizen by elected officials.
Ditto here; these programs (2 out of the 3; I don’t catch the CBS program) have become worthless, FNS less so save for one pundit … ’emitting sound and fury signifying nothing’ … tuning into NBC or ABC results in a net loss of info rather than any gain or a new perspective; at that point it’s a loss so turn it off … the constant repetition of the same ‘talking points’ going all last week do not make for enjoyable viewing one who has paid attention to the facts. Were it not for George Will I would skip the ABC production entirely. I do enjoy it when the ever-left (Hurricane) Katrina vanden Heuvel from “The Nation” contributes with her substantially altered view of reality; now THAT is entertainment! Alas, David Corn who used to appear just as naturally confused (in his take on ‘reality) and also from “The Nation” (and the left) moved on from that rag to another and is now Washington bureau chief at Mother Jones rag (-er- mag) …
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The people of California are the ones who have to do something about this. I lived there until 1995 and moved my business out in 2004. There are a lot of very smart people in California but unfortunately the smart ones I know of don’t attention to what goes on in Sacramento.
Anthony, thanks for highlighting this – I’ll tell my California friends and relatives.
Sadly, this kind of legalese stunt is becoming a favourite trick of our political masters. For example, here in Ontario, Canada the provincial Green Energy Act specifically exempts electricity generating wind turbine industrial facilities (aka “wind farms”) from any kind of environmental impact studies (which often delay standard development/construction projects for years), and removes the ability of local municipalities to object. The province have given itself the ability to force wind farms where they want, and if you don’t like it you can pound sand.
On the other hand, the Species At Risk act can effectively block (non-wind farm) development indefinitely if a turtle or bird’s nest (with or without eggs) is found on the property under development.
The lunatics have taken over the asylum.
It’s simply Canadian style (British) government. Get used to it. We live with it — you can too.
The government gets elected every four years — the dictators change — then we get more of — “the same?” — you guessed it!
It’s no big deal. It’s just that you Americans are so used to “open government” (where you even elect your dog catchers) you have no idea what “real government” is…
We elect hardly anybody, almost every government position is a patronage appointment — Maybe the PRI will move in and show you how it’s really done…
GeoLurking says:
July 14, 2012 at 10:38 pm
MtK says: “November is rapidly approaching. Please, Please support candidates that will work aggressively to end this madness! MtK
GL says: “I don’t have a whole lot of hope for that. People in general, are full on morons, and our elected “officials” do everything in their power to keep them that way.”
GL,
If you’re sitting on the sidelines, the ‘full on morons’ are guaranteed to win. The value of the information presented on WUWT is greatly magnified when we carry it into the mainstream of our lives and communicated to our friends and acquaintances.
Get in the game! Get in now! Find candidates you can support and help educate them on both the false aspects and the debatable aspects of AGW. Give them what time and money you can to help them defeat the full on morons! Help them with ‘face recognition’ and defining their message. There are many ways: Post campaign signs. Help with fund raisers. Blog. Tweet. Write letters to Editors and Guest Editorials. Assist with identifying, scheduling, and advertising public speaking opportunities for your candidates within your communities.
But Get In The Game Now! Time is running out!
If not Now, When?
If not You, Who?
MtK
rats ass = rat’s ass (speech recognition fix)
WOW, I guess you can’t allow rational voices in the echo-chamber. I’m wondering what all of the Happy Cows are going to eat when fuel is too expensive to grow feed.
The recent explosion of lost cost, abundant natural gas from shale deposits has produced a revolution is increased natural gas use in the U.S. which has caused CO2 emissions to plummet in 2012 to the extent that U.S. total emissions could be at 1990 levels by years end. This emissions reduction in 2012 exceeds more than 2.5 times the total reduction targeted by California’s absurd AB 32 through 2020 but has been achieved while providing $100 billion per year in market driven reduced fuel costs. Meanwhile California’s AB 32 with its screwball government mandated CO2 reductions and taxing schemes devised by the labotomized thinking of Nichols Air Resources Board will cost those of us who live here hundreds of billions in job killing, economy busting damage. Just another example of how out of control government is here in California.
Or maybe what they’re trying to hide is the fact that many ‘elected’ officials are googlebots?
This will not end well. But then neither will CA.
Crooks in government, again. Maybe you need to start with a recall petition to get rid of your governor. Or even better, I would suggest that people start moving from California and let it sink.
Brian H says July 14, 2012 at 9:06 pm
… “You’ll have to pass it to know what’s in it!” … The Pelosi Principle?
Oh look – sweetcorn!.
“John Silver says:
July 15, 2012 at 12:26 am
“pass it as a law as a rider on a totally unrelated bill of legislation”
That is the most peculiar thing about the US.
It means, you’re nuts.”
~ 0 ~
I remember reading an article about something similar happening in England.
In the 19th century, divorce was only possible by act of parliament. A parliamentary clerk, who wished to divorce his wife, put an addendum on a particularly boring piece of legislation. While nobody was paying much attention, the sentence ‘Mr John Smith hereby divorces his wife, Mrs John Smith’ (or words to that effect) was read into law and he was thereby legally divorced.
I believe the whole act of parliament would have had to be withdrawn to nullify the divorce, and it was allowed to stand. Unlike the sneaky, underhand actions described in this post, the only person adversely affected was poor old Mrs Smith.
That’s fairly nuts too, so it’s not just peculiar to Americans.
BC has somthing similar to this CARB thing. It’s called the “Pacific Carbon Trust”. But in BC we don’t even have a law to ignore that keeps it in check. Arnold and Gordy got together a few years ago and decided on this carb trust crap and trade. We are all such bloody sheep!
actually…..CARB CRAB may accurately describe some eco-zealots…
the possibility of “voice recognition software issues” has added to my list of explainations for these same juxtaposition errors, which had been limited to….dementia, dyslexia, old age and brain farts…
accepting an underlying inter-governmental problem maybe directing errant science….sometimes satire says it best….”Pinata Planet Syndrome”….find and share Truth….