CalPERS attempted the governance equivalent of a Saturday Night massacre by hiding a proposal to gag board members and deny them their First Amendment rights of free speech. To this date, CalPERS continues to hide its planned power grab by failing to upload the relevant document to the Internet. Fortunately, Randy Diamond publicized one of the worst aspects of this scheme in an article in CIO Magazine, CalPERS Board Considers Gag Policy. In a display of its sense of entitlement, CalPERS demanded a retraction when Diamond made an accurate report on the draft plan and board discussion of it. CalPERS must not be used to a venue that usually runs its press releases doing bona fide reporting.
The only good news is that, according to an update to Diamond’s story, staff has abandoned one of the clearly unconstitutional provisions in the proposed scheme: “…when action is taken by committee or the full board, all board members will support the actions regardless of their individual vote on the policy.”
Ironically, giving Diamond this nugget would have been a violation of the proposed policy, which bars board members from making “selective disclosure” of not just confidential, but also mere non-public information. Recall that for a public agency like CalPERS, records that are not confidential are subject to disclosure under the Public Records Act. So the draft policy would prohibit board members from discussing disclosable information, but the staff feels free to do so willy nilly.
Understand what a governance monstrosity this is: CalPERS staff is acting as if it is senior to the board. This is yet another concrete example that the people nominally in charge have abandoned their posts. But in addition to being an obvious reversal of authority, it demonstrates another toxic habit: CalPERS is more concerned about bad PR than bad conduct.
As we’ll show, this sorry episode demonstrates that CalPERS staff thinks that it is running the show and the board exists merely to cheerlead and rubber stamp what they do. The “code of conduct” is a proposal from staff for the board to cede yet more of its power to staff and to enable the board to silence board members who dare to require high standards of performance from that staff and honest answers to questions.
The thrust of this proposed policy is also utterly at odds with the role of the board as set forth in the legislation that governs CalPERS, the Public Employees Retirement Law. It clearly and unambiguously has the board and only the board of CalPERS responsible for the stewardship of retiree assets.
The “conduct” that this doublespeak document sets out to institutionalize is that board members, most of whom are elected officials, cannot speak outside CalPERS without first getting what they planned to say approved by the public relations department. On top of that, the document also provides for secret censures and attempts to bar board members from discussing them. The “code” is also problematic by failing to acknowledge or be properly integrated with existing CalPERS board policies.
CalPERS failed to present the draft of a major policy change intended to silence board members by handing out only paper copies at a board offsite on July 17 immediately before the meeting started. CalPERS is required to present material that the board will act upon in advance of meetings so that the public can review the material and show up and make public comments. Customarily, CalPERS uploads all the slides for board meetings roughly ten days in advance. But in yet another sign of CEO Marcie Frost’s incompetence as a manager or eagerness to bury dirty linen, CalPERS has taken to making these presentations public close to the meeting date than its long-established practice under Frost’s predecessor, Anne Stausboll.
And what was the excuse for the document barely getting to the meeting on time? That the comments from one of the subcommittee members, Rob Feckner, had come in too late for the staff to upload the document to the system used by board members. That’s irrelevant. The material was presented too late for it to be shared with the public. Staff should have been called out by the board for its tardiness and disregard for Bagley-Keene. Although the board did decide to push back the “first reading” of this plan to next month, staff should never have attempted to push for approval when it was behind the eight ball.
In addition, the plan to move this scheme forward at the offsite looks designed to circumvent oversight and input by stakeholders. Historically, no official action was taken at board offsites. Then Board Officer election were moved to the offsite. Then some time-sensitive Administrative Law Judge decisions make their way onto the offsite. Now, staff tries to initiate a board policy change, which is not time sensitive, at an offsite with none of the required public notices. The only possible reason for the unseemly haste and running roughshod over legal requirements is that staff and the board are concerned about a possible change in board composition in the form of former board member JJ Jelncic beating incumbent Henry Jones in the upcoming board election.
We’ve attached a copy of the only public version of this document, a scan of the handout presented immediately prior to an early morning board meeting. This meant that staff was not only flagrantly violating the Bagley-Keene Open Meeting Act by not making the documents available to the public so interested members of public could weigh in, but board members didn’t even have the opportunity to read it. The result was that many board members, such as Board President Henry Jones, Vice President Theresa Taylor, and David Miller trotted out a Big Lie: that they believe in protecting in First Amendment rights while at the same time backing a policy that is designed to restrict free speech. It’s embarrassing to see people in senior government roles either so ignorant of basic civics or so willing to prostitute themselves in defense of staff.
In keeping with its anti-transparency, anti-beneficiary intent, the mislabeled “board code of conduct” was presented as if it were the product of a board subcommittee, when it was in fact a CalPERS staff document. As you’ll see by looking at the first embedded document at the end of this post, the comments from the committee members were presented in an appendix as a lit of edits, making them impossible to integrate. The effect was that the staff draft would serve as the official document.
New board member Lisa Middleton gets a special dishonorable mention for her put-foot-in-mouth-and-chew effort to argue that CalPERS, a government agency with extensive transparency requirements, ought be able to set its own rules just like, say, an animal rescue not-for-profit.
How the Draft Policy Violates the Constitution and Undermines Good Governance
There are glaring problems with the proposed board strait-jacket, even when being charitable and working from a version of the policy that incorporated the edits in Appendix. In the interest of keeping this post to a manageable length, we’ll focus on the worst provisions.
A competent version of the draft would have incorporated the comments in the Appendix, which came from the subcommittee members Jason Perez and Rob Feckner. Failure to do that has nothing to do with the dog-ate-my-homework excuses of supposedly uncooperative board document management systems. At best, this is laziness and more likely, insubordination by Anne Simpson, a direct report to CEO Marcie Frost.
Even allowing for the incorporation of those comments, there’s a lot not to like. For instance, at the start the very second paragraph, the document makes clear that the board is placing propaganda over performance:
CalPERS’ reputation depends upon the manner in which Board Members conduct business and the way the beneficiaries, stakeholders and public perceive that conduct.
No, CalPERS’ reputation depends not on some vague “manner of conducting business” but on results, above all its funded status and investment performance, and how the board and staff handle errors and shortfalls. For instance, if the board really cared about CalPERS’ reputation, it would have fired Marcie Frost when she was revealed to have misrepresented her educational credentials and job responsibilities before and after she joined CalPERS.
Another nonsensical statement:
Board Members shall be free from conflicting personal interests and shall serve the interests of the CalPERS Pension System over those of any other person or group.
It is impossible for board members to be “free from conflicting personal interests”. For instance, the gubernatorial appointees clearly have some loyalty to Gavin Newsome and would like to reduce pension costs to minimize the burden to the state. That does not mean they can’t choose to act as proper fiduciaries and still put the interests of the beneficiaries first, but demands to be conflict free will force board members to commit perjury were they to sign the document as required.
We then get to CalPERS’ doublespeak:
The CalPERS Board is committed to creating an environment where all individuals are treated with dignity and respect. Informed, critical and respectful debate is expected to ensure the most informed decisions and best outcomes are made on behalf of beneficiaries. Board Members will be professional and respectful to one another, management staff, team members, beneficiaries, and all persons and entities conducting business or providing public comment to CalPERS.
This may look innocuous but it isn’t. One of the ways that this document will be used against dissident board members will be to accuse them of not being respectful according to CalPERS’ warped, subjective standards.
“Respect” in CalPERS’ diseased culture means massive grade inflation for job performance and hostility towards those who correctly criticize sub-par results. If you’ve watched CalPERS board meetings, you will have seen the regular, bizarre ritual of staff members being praised to the skies merely for doing their jobs. Ahem, they get their paychecks and pensions for doing their jobs. By giving everyone an A++ and huzzas for merely showing up and being adequate to the task, it makes it impossible to single out truly superior work. And the board’s routine fawning over staff also conditions board members to view themselves as supplicants when they are in charge.
Just one example: recall that then-Treasurer John Chiang issued a press release last year calling for an independent investigation into Marcie Frost’s educational claims. The board would never dare act against either of its two most powerful members, the Treasurer and the Controller. But had any lesser mortal issued a press release like Chiang’s, the odds are good the board would use this policy to censure them for not being respectful.
And get a load of this:
CalPERS operates as a highly transparent organization, and only limited data are deemed confidential due to investment market sensitivities, personnel and/or other attorney client privileged communications and work products. In those exceptions, Board Members shall maintain the confidentiality of information entrusted to them by CalPERS and any other confidential information about CalPERS business, investments, personnel and other privileged information, except when disclosure is authorized or legally mandated. Board Members will not selectively disclose any non-public information.
The first two sentences are pretty good, but then they are negated by “Board Members will not selectively disclose any non-public information.”
Non-public is a completely different and vastly lower standard than “confidential”. For instance, pretty much the all records produced under the Public Records Act were non-public before they were disclosed, or the requester wouldn’t have bothered to put in the request to obtain them. Yet a board member would be forbidden to share that sort of information.
Similarly, board member Margaret Brown got nowhere in her efforts to stop an illegal practice of board members pre-signing travel expense forms in blank, and so she presented that information to the media. Brown also went to the press over CalPERS’ use of an unconstitutional, non-secret paper ballot. The publicity led CalPERS to end both abuses. It’s not hard to see that one big aim of this policy is to prevent vigilant board members from going to the media when necessary to stop bad practices.
Here is a coded requirement to run everything through the PR department:
Board Members will be truthful and use accurate characterizations in all platforms when making statements about CalPERS and its decisions and services.
The power faction reserves the right to make up the rules on the fly. Nothing like a malleable Code of Conduct!
To the extent appropriate, review of breaches of this Code shall be in accordance with the Board Governance policy developed and which does not address all possible scenarios, and may be amended.
Notice that the staff version of the policy had a provision that allowed the board to run a star chamber:
If a Board Member is found to have violated this Code, the Board President and/or Governance committee will determine whether the misconduct and corrective action(s) are made public.
This provision alone would be a justification for a board member to refuse to sign the policy since it arguably conflicts with the due process protections of the Constitution, which courts have found to include procedural due process. If you read the Appendix, you will see that the subcommittee deleted the word “public”. That would make this provision more reasonable, since CalPERS would have less latitude to be arbitrary if the accused board member could present his side of the story to the public. We’ll see if staff tries to snooker the board by reverting to its version.1
Board Members Show How Much They Resent Accountability and Transparency
Due to the lack of having a proper document, much the less not having gotten it in advance, the discussion at the board meeting offsite revolved around what board members thought a policy like this ought to do. And it’s clear many give only lip service to the values they like to tout, like professionalism, accountability, and transparency.
For instance, Board President Henry Jones opposes going to the media even when a board member thinks the board made a poor decision:
But I think there’s a place to continue to advocate. If you bring it back to that body that’s where you advocate. You don’t go out to the press and advocate. You continue, if you strongly believe that that was the wrong decision, every meeting you could bring it back up and try to get people to concur with your viewpoint.
Help me. First, the Second Restatement of Trusts states that board members have a duty to oppose board actions that they believe were contrary to fiduciary duty. If you’ve watched CalPERS, the allies of staff are incredibly resistant to doing the right thing unless external pressure is brought to bear. Second, Jones forgets that a former controller Kathleen Connell went so far as to sue CalPERS to reverse a board policy and won her case. Third, going public with dissent is precisely what not only John Chiang did in calling for an investigation of Marcie Frost, but Controller Betty Yee, the very afternoon after this board discussion, did when she put out a press release opposing CalPERS’ policy of not divesting from private prisons.
Some board members were more open about their hostility to the press than Jones. For instance, board Vice President Taylor was uncomfortable with the fact that the draft contained a statement that nothing in the policy would curtail the First Amendment rights of board members:
It’s sort of…we live in the United States of America, it’s part of the Constitution in the United States of America. I think everybody’s made it very clear that they don’t want their rights infringed upon. So, I mean, it’s up to you guys, include in the doc. We can read through it and vote on it. But, yeah.
Her waffle should be no surprise given that she also said:
…we do need to keep that there, because there’s been some problems with postings on social media that have not had the facts correct, and I think that’s important. So if we’re talking about when action is taken, refrain from criticism against individual board members or the board itself and stick to the facts.
I have no doubt this blog is prominent in Taylor’s assertion about facts in “social media”. CalPERS has never once asked for us to correct a post, so her belief that our work is inaccurate is a board urban legend.
Following on Taylor’s heels, David Miller said:
I think in the long run we may even need to have something more specific related to how we interact with the media as board members.
The board has no legal basis for restricting the speech of board members so long as they do not violate confidentiality, and that means bona fide legal standards of what is confidential information, not CalPERS’ self-serving, made-up variant. If CalPERS wants to further damage its reputation by trying to impose illegal and/or unconstitutional policies and forcing board members and others sue them, this is just the way to go about it.2
We also have Taylor ginning up witch hunts by seeking to sanction board members for the vague catchall of disrespect:
But David [Miller] had said something about, you know, sometimes something happens, and you sort of referred to it in this conversation, and somebody may feel disrespected. It’s about perception. I think we also have to think about when disrespect occurs, the person may not be feeling disrespected because it’s not in their nature. But somebody observing it may be seeing it and saying, “Oh, that’s really not, that’s a problem.” So I think we need to take that in into account. And that’s, you know, when I represent people, you know, that’s what you’re looking at is, you’re looking at perception. Not just of the person that was disrespected or in your view disrespected, but other people who thought they saw it too. Yeah, exactly.
It’s not hard to see what this is really about. Any legitimate, indeed, necessary criticism of staff or fellow board members for poor thinking or poor performance can be couched as “disrespect” because it hurt the recipient’s feelers. If someone has pride in their work and they screwed up, they ought to feel bad. If there were no consequences for sloppiness or dishonesty, most organizations would quickly seize up due to errors and fraud. Because it is difficult to fire civil service employees, criticism is an even more important check than in the private sector, yet the board wants to make that well-nigh impossible.
Put it another way: Do you have any doubt that this board would have looked the other way as Fred Buenrotro was taking bribes? Worse, it would have censured any board member that dared question his ethics.
But the real whopper came from Lisa Middleton:
…these types of code of conducts are the…are the norm. This is what you encounter every time you join a non-profit board or some other organization where you’re going to see a code of conduct. And you are going to see issues around confidentiality raised, and one of the things that’s fundamental when it comes to these questions of confidentiality: they are a collective decision. They are not an individual decision, and it is the group that is making decisions as to what is going to be treated as confidential. And whether you agree with the specific decision that was made on whether a document A should be confidential or not, you have agreed to join an organization and abide by its rules when it comes to the treatment of confidentiality. So I think it’s critically important that we have that. When it comes to number seven, I would recommend that we look at any statutory references that may be applicable in going through this.
Did Middleton fall off a turnip truck?
In her initial remarks, she acts as if she believes that CalPERS has been operating for over 80 years without a basic governance documents like a code of conduct. In fact, the board has long had one. That means she’s admitted that she’s been serving as a board member not even having bothered to look for it, let alone review it so she can comply with its requirements.
But worse, she then proceeds to act as if the board of a public agency like CalPERS, which is subject to the high levels of transparency required by the Bagley-Keene and the Public Records Act, can make up confidentiality standards just because it feels like it. She further ignores that because CalPERS is a governmental body, board members and employees also have First Amendment rights, when those don’t apply in private contexts. Finally, she seems not to have the foggiest concept of what confidentiality means under the law. If something is public information, the CalPERS board can’t demand it be treated as secret just because they’d like to.
It was telling that Jason Perez, a comparative newbie to the board, who had to keep reminding the other board members of their obligations under Bagley-Keene and their fiduciary duty, specifically, that the board’s own fiduciary counsel has said that board members had a duty to continue to advocate for change if they thought the board had made a bad decision.
Watching the video, it was deeply disconcerting to see what a warped sense of priorities this board has. This is a considerably underfunded pension fund whose position has been shored up by two mini-bailouts by the state. And pretty much every expert in finance has been saying for over two years that all financial asset classes are overvalued, most of all the high risk ones like private equity that CalPERS has clung to like a man hanging onto a float in a stormy sea. CalPERS fell short of its return target for its latest fiscal year and the prospects for good performance in the future are poor.
Yet rather than deal with tough issues that are critical to serving the beneficiaries properly, the board instead wants to waste time and energy playing Miss Manners with board members it thinks aren’t genteel enough. For a board that is obsessed with its image, fixating on issues that beneficiaries and taxpayers will correctly regard as non-essential will only further damage CalPERS’ tarnished reputation. As Pulitzer Prize winner Mike Hiltzik of the Los Angeles Times pointed out in 2018:
…the board has shown itself to be one of our less impressive public bodies. Just a year ago, as I reported, the board was bogged down in intramural bickering and attacks on one of its most tough-minded members, J.J. Jelincic…
All this suggests that the CalPERS board members need to be given something serious to work on so they have less time to act childishly.
The board might start with acting like it takes overseeing $360 billion seriously and step up and operate like it’s in the big leagues, rather than engage in petty score-settling like a junior high school council.
1 CalPERS would be make it easy for an accused board member to upend the policy if it tried sanctioning members privately. Treasurer Fiona Ma’s designee Frank Ruffino objected to the idea and Jason Perez, who was on the subcommittee, said Bageley-Keene prohibited keeping this sort of process secret.
2 Even though hardly anyone knows about the plan to muzzle the board, Randy Diamond reported that. “A well-known press freedom group, the Reporters Committee for Freedom of the Press, is also concerned.” An important stakeholder group is interviewing law firms and plans to litigate if the policy is approved.00 CalPERS Draft Code of Conduct July 17