State of California
Energy Resources Conservation
And Development Commission

 In the Matter of:                          )
                                            )      Docket No. 99-AFC-3
                                            )
 Application for Certification for the      )
 Metcalf Energy Center [Calpine             )
 Corporation and Bechtel Enterprises, Inc.] )
 ___________________________________________)


Demand to Correct or Cure Violations of the Bagley-Keene Open Meeting Act

Demand of California Energy Commission (CEC) to cure or correct actions alleged to have been taken in violation of Cal Government Code section 11125(a)&(b), and section 11125.7(a), &(c) at the CEC Metcalf Committee meeting of 12-17-1999. The transcript for this meeting is not yet available, but will provide further evidence of the petitioner's cause for this action upon its release.

Californians for Renewable Energy is a nonprofit corporation whose purposes include, "to engage on a nonprofit basis in research and information dissemination with respect to legal rights in a healthy environment by giving legal advice, appearing before administrative bodies, and enforcing environmental laws through court actions," and also, "to supply on a nonprofit basis professional legal assistance to planning, conservation groups, and neighborhood groups, in regards to new energy projects in the State of California." Petitioner is an advocate for new renewable energy supplies as the "environmental preferred alternative" for the people of the State of California.

Petitioner cites Section 11120 of the Bagley-Keene Open Meeting Act.

"It is the public policy of this state that public agencies exist to aid in the conduct of the people's business and the proceedings of public agencies be conducted openly so that the public may remain informed.

"In enacting this article the Legislature finds and declares that it is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly.

"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 " Bagley-Keene Open Meeting Act " establishes the basic requirements for open meetings and notice of hearings for state agencies.

"Section 11121. As used in this article "state body" means every state board, or commission, or similar multimember body of the state that is required by law to conduct official meetings and every commission created by executive order.

"Section 11121.2. As used in this article, "state body" also means any board, commission, committee, or similar multimember body which exercises any authority of a state body delegated to it by that state body."


Procedural Requirements:

The state body shall provide notice of its meeting to any person who requests that notice in writing. Notice shall be given at least 10 days in advance of the meeting, and shall include the name, address, and telephone number of any person who can provide further information prior to the meeting (Section 11125(a)).

Agendas The notice of a meeting of a body that is a state body as defined in Section 11121, 11121.2, 11121.5, or 11121.7 shall include a specific agenda for the meeting, which shall include the items of business to be transacted. A brief general description of an item generally need not exceed 20 words (Section 11125(b)).

Petitioner cites the following e-mail agenda received by petitioner from the Public Advisors Office herein referred to as the Agenda (see Exhibit 1). The petitioner would like the record to reflect that the Draft agenda was received by the petitioner on Wednesday December 15, 1999, via e-mail approximately 24 hours in advance of the California Energy Commission's Metcalf Committee meeting of December 16, 1999. Petitioner contends that this agenda notification fails to meet the requirements of Section 11125(a) of the Government Code, and petitioner therefore issues this demand to correct or cure this violation of the Bagley-Keene Open Meeting Act.

From: "Priscilla Ross" Pross@energy.state.ca.us
To: STaction@aol.com,
williams4064@earthlink.net,
mike_e_boyd@hotmail.com,
STEVE_CARRIE@NETSCAPE.NET;
INTERNET,sascholz@southsanjose.com,
iajlouny@us.ibm.com Save Address
 
CC:
 
Rmendonc@energy.state.ca.us

Exhibit 1 Notification of agenda via e-mail on December 15, 1999


Public Testimony:

Agendas for meetings must provide the opportunity for the public to directly address the legislative body on any item on the agenda either before or during its consideration of the item (Section 11125.7(a)). Petitioner contends that the Commission denied the Public an opportunity to provide input to the Committee on petitioner's "Motion to Disapprove" item 1.a. on said agenda. Petitioner also contends that the Committee failed to provide the "Santa Teresa Action Group" an opportunity to make their presentation pursuant to agenda item 3 that was noticed as "Presentation by Santa Teresa Action Group". The Committee's hearing officer would only allow Santa Teresa Action Committee members to speak on the Committee's "Motion to Set Schedule". Petitioner objected to this for the record, and further stated that the petitioner's "Motion to Disapprove" should also be allowed under this objectionable procedure. This violates Government Code Section 11125.7(a) of the Bagley-Keene Open Meeting Act, which defines the Public's right to testify at meetings.

Petitioner contends that since the agenda listed the agenda item 3 as "Presentation by Santa Teresa Action Group" that this organization should have been allowed to make their presentation on any matter within the Committee's jurisdiction as opposed to being limited to the motions on the agenda

Petitioner contends that the Committee further violated Section 11125.7(a) in that the Committee's hearing Officer would not allow the public to provide public comment "on any subject under the jurisdiction of the body" in that the public's comments were limited to the motions 1.a) and 1.b) on the agenda. In addition, the notice requirement of Section 11125 shall not preclude the acceptance of testimony at meetings from members of the public, provided, however, that no action is taken by the state body at the same meeting on matters brought before the body by members of the public (Section 11125.7(a)). Further, the state body shall not prohibit public criticism of the policies, programs, or services of the state body, or of the acts or omissions of the state body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law (Section 11125.7(c)).

Petitioner contends that Commission Hearing Officer's decision to limit public comment on these matters fails to meet the requirements of Section 11125.7 of the Government Code in regards to three agenda items under the Committee's jurisdiction, and petitioner therefore issues this demand to correct or cure this violation of the Brown Act.

The cure sought by petitioner is a public vote (at the same meeting location) on petitioner's motion to disapprove.

Additional cures sought are

  1. An opportunity for the Public to comment on the Motion to Disapprove

  2. An opportunity for the Santa Teresa Action Group to make its presentation un-impeded by the Committee's Hearing Officer

  3. An opportunity for the general public to provide general comments on "any subject under the jurisdiction of the body"



Your assistance in this matter is appreciated.

Californians for Renewable Energy, Inc.
C/O Michael E. Boyd
821 Lakeknoll Dr.
Sunnyvale, California 94089