Report 2011-504 Recommendation 3 Responses

Report 2011-504: High-Speed Rail Authority Follow-Up: Although the Authority Addressed Some of Our Prior Concerns, Its Funding Situation Has Become Increasingly Risky and the Authority's Weak Oversight Persists (Release Date: January 2012)

Recommendation #3 To: High-Speed Rail Authority, California

To avert possible legal challenges, the Authority should ensure that the independent peer review panel adheres to the Bagley-Keene Open Meeting Act or seek a formal opinion from the Office of the Attorney General (attorney general) regarding whether the panel is subject to this act.

Annual Follow-Up Agency Response From October 2013

As reported to the California State Auditor in the Authority's SB 1452 response dated September 17, 2012, and as discussed in Will Kempton's letter dated December 13, 2012, (provided with the one-year response) to the State Auditor, the peer review group serves as an advisor to the Legislature and is not appointed by nor does it report to the Authority. The Authority, therefore, does not have the legal authority to direct how the peer review group conducts its meetings, including providing legal advice to the group about open meeting law requirements.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

1-Year Agency Response

The Authority originally addressed our recommendation by requesting an opinion from the attorney general on January 5, 2012. Subsequently, on October 10, 2012, it withdrew its request for a legal opinion stating that it did so because the independent peer review group is appointed

by the State Treasurer, the State Controller, the Director of Finance, and the Secretary of Business, Transportation and Housing. The Authority explained that although it provides information requested by the peer review group, it believes that it does not have the legal authority to direct how the peer review group conducts its meetings including providing legal advice to the group about open meeting law requirements.

California State Auditor's Assessment of 1-Year Status: No Action Taken

While the Authority does not appoint the members of the peer review group, state law requires the Authority to "establish'' the independent peer review group and, as such, we believe the Authority would be an appropriate entity to request the opinion. In addition, the peer review group informed us that it believes its actions are not covered by the Bagley-Keene Open Meeting Act when it conducts its meetings. The peer group bases its belief on the advice of the Authority's former counsel when it explained to us why it does not comply with the Bagley-Keene Open Meeting Act. Therefore, the Authority has not implemented our recommendation.

6-Month Agency Response

The Authority originally addressed our recommendation by requesting an opinion from the attorney general on January 5, 2012. Subsequently, on October 16, 2012, it withdrew its request for a legal opinion stating that it did so because the independent peer review group is appointed by the State Treasurer, the State Controller, the Director of Finance, and the Secretary of Business, Transportation and Housing. The Authority explained that although it provides information requested by the peer review group, it believes that it does not have the legal authority to direct how the peer review group conducts its meetings including providing legal advice to the group about open meeting law requirements. Nevertheless, while the Authority does not appoint the members of the peer review group, state law requires the Authority to “establish” the independent peer review group and, as such, we believe the Authority would be an appropriate entity to request the opinion. In addition, the peer review group informed us that it believes its actions are not covered by the Bagley-Keene Open Meeting Act when it conducts its meetings. The peer group bases its belief on the advice of the authority's former counsel when it explained to us why it does not comply with the Bagley-Keene Open Meeting Act. Therefore, the Authority has not implemented our recommendation. (See 2013-406, p. 242)

California State Auditor's Assessment of 6-Month Status: No Action Taken

All Recommendations in 2011-504

Agency responses received after June 2013 are posted verbatim.