California Family Bioethics Council v. California Institute for Regenerative Medicine

Filed 2/26/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

STORY CONTINUED FROM PART II..

Finally, Peoples Advocate contends that any state control over the ICOC is so attenuated as to be effectively non-existent because it is diluted by the ability of certain members of the ICOC to delegate their duties to nonappointed representatives and by the use of working groups to make initial recommendations regarding the award of grants. Neither feature of the Cures Act, however, undermines the necessary degree of state control.

Section 125290.20, subdivision (a)(2)(D) provides in pertinent part, The executive officer of a California university, a nonprofit research institution or life science commercial entity who is appointed as a member, may from time to time delegate those duties to an executive officer of the entity or to the dean of the medical school, if applicable. Delegates are subject to the same qualifications as the members who appoint them, they must take the same oath of office and file the same disclosure forms, and they serve at the pleasure of the appointed member. In light of the stringent qualifications for ICOC membership and the likely time constraints of individuals who meet these qualifications, it is not unreasonable to anticipate, as one trial witness testified, that these members will be unable to attend all of the many meetings held by ICOC during the year. The delegation provision accommodates this reality without sacrificing the level of expertise required of ICOC members. The requirement that delegates come from the same institution as the member was designed to ensure that the ICOC have the benefit of the expertise of alternates who share the same qualifications as members, when members of the ICOC are unavailable. We agree with the trial court that the use of alternates provides a permissible degree of flexibility and operational independence needed to further the public purposes of the Act, and thus does not cause the ICOC to be in violation of article XVI, section 3.

Similarly, we see no basis for the argument that the role of working groups to identify potentially meritorious grant and loan applications renders the ultimate decision regarding the disbursement of public funds outside of the states control. The Cures Act establishes three working groups: a Scientific and Medical Research Funding Working Group, a Scientific and Medical Accountability Standards Working Group and a Scientific and Medical Research Facilities Working Group. ( 125290.50, subd. (a).) Members of the working groups are appointed by a majority of a quorum of the ICOC and serve fixed six-year terms. (Id., subd. (b).) The qualifications for membership on the three scientific and medical working groups are defined to include, for example, ICOC members from groups focusing on disease-specific areas, scientists and clinicians nationally recognized in the field of pluripotent and progenitor cell research, medical ethicists, and scientists nationally recognized in the field of stem cell research. ( 125290.55, subd. (a), 12590.60, subd. (a), 125290.65, subd. (a).) Working group members who are not bound by the conflict of interest rules applicable to ICOC members are subject to conflict of interest rules adopted by the ICOC. ( 125290.50, subd. (e).) The working groups are purely advisory and have no final decision making authority. (Id., subd. (e)(3).) Recommendations of each of the working groups may be forwarded to the ICOC only by a vote of a majority of a quorum of the members of each working group. If 35 percent of the members of any working group join together in a minority position, a minority report may be submitted to the ICOC. The ICOC shall consider the recommendations of the working groups in making its decisions on applications for research and facility grants and loan awards and in adopting regulatory standards. Each working group shall recommend to ICOC rules, procedures, and practices for that working group. (Id., subd. (d).)

Peoples Advocate is particularly concerned with the Scientific and Medical Funding Working Group (grants working group), which it asserts is empowered to perform functions that are paramount in the operation of the Institute [citation], i.e., recommending the standards and requirements for awarding research grants, and reviewing grant applications and making recommendations to the [ICOC] for the award of grants. The grants working group has 23 members; 7 of whom are ICOC members from disease advocacy groups, 15 are scientists nationally recognized in the field of stem cell research and the last is the chairperson of the ICOC. ( 125290.60, subd. (a).)[1] In addition to the statutory qualifications, relying on the recommendations of the National Academy of Science, the ICOC added the additional requirement that the 15 scientist members be drawn from outside of California. This working group is required, among other things, to [r]ecommend to the ICOC . . . criteria, standards, and requirements for considering funding applications and for awarding research grants and loans and standards for the scientific and medical oversight of awards and [r]eview grant and loan applications based on the criteria, requirements, and standards adopted by the ICOC and make recommendations to the ICOC for the award of research, therapy development, and clinical trial grants and loans. (Id., subd. (b).) The working groups recommendations with regard to grant and loan applications are to be based on a competitive peer review of the scientific merit of the applications performed by the 15 scientist members of the group. The scientist members are required to score the applications based on scientific merit in three separate classificationsresearch, therapy development, and clinical trials.[2] (Id., subd. (c).) All of the members of the working group review the applications and as a group make a recommendation to the ICOC. The ICOC reviews and votes on all applications, including those not recommended for funding by the working group.

Peoples Advocate acknowledges that [a]s a group the [ICOC] does not have the scientific acumen in stem cell technology that is possessed by the [grants working group] and that [i]t only makes sense that the [ICOC] would rely so heavily on the [grants working group] because the [grants working group] invests so much more effort into the evaluation.[3] Nonetheless, they argue that the ICOCs reliance on working groups renders the Cures Act beyond the limits of state control required by article XVI, section 3. We disagree. The use of a working group consisting of highly qualified experts to evaluate and make recommendations regarding grant and loan applications is both reasonable and falls within the range of constitutionally acceptable operational procedures. One trial witness explained, The 15 scientist and physician scientists on the grants working group are there to bring a broad range of expertise to the peer review of scientific and medical grant proposals that have the potential to advance our knowledge and understanding of stem cell research . . . . Both the statute itself and the evidence at trial make clear that the final decision regarding any grant application is to be made, and in fact is being made, by the ICOC. The activities of the working group are transparent to the public through application of the Public Records Act and to the ICOC through its eight representatives in the group. The evidence at trial established that while the ICOC has generally followed the recommendations of the working groups, it has often made changes to the recommendations before awarding grants. There is no basis under either the terms of the statute or the evidence concerning practices that have been adopted to conclude that the ultimate decisions regarding disbursement of taxpayer funds are not made by the ICOC.

Indeed, the trial court also found, and substantial evidence supports the finding, that the application of the Act has been in compliance with the statutory framework . . . . Each ICOC member, and each alternate, has taken the oath of office and publicly filed Form 700, the standard form California public officials file to disclose financial holdings. The ICOC developed and adopted incompatible activities statements, the conflict of interest code required by the Political Reform Act, and conflict of interest policies for ICOC members, CIRM staff, and members of each of the ICOC advisory groups. Between January 2005 and the date of trial, the ICOC, its subcommittees, and its working groups held over 40 noticed, public meetings in cities across the state, held pursuant to the Bagley-Keene Open Meeting Act. CIRM has responded to numerous Public Records Act requests. The selection of the site for CIRMs facilities was run by the Department of General Services, as required of state agencies, which department also executed the lease. The required independent audit is in process and is to be reviewed by the Citizens Financial Oversight Committee. In addition, testimony was presented that CIRM is subject to audit by the Controller and the Department of Finance, and that the Controller has met with the ICOC to discuss the types of practices he expected the ICOC to follow. [] There was also evidence that the State Treasurer, Controller, and Director of Finance, through their membership on the Finance Committee, exercised their authority to make sure that bonds are only issued for purposes permitted by the Act. Further, there was evidence that the State Legislature has already held several public oversight hearings looking into CIRMs budget, policies, and standards, which is pertinent not only because it shows on-going oversight by the Legislature, but because the Act expressly provides that the Legislature can amend the Act to enhance the ability of the institute to further the purposes of the grant and loan programs after a three-year start-up period.

In short, we conclude, as did the court in CART, that the Cures Act here is replete with controls, including the manner of appointment of members [of both the ICOC and its working groups], the specificity regarding how [bond] revenues must be spent, and the annual audit and reporting requirements. (CART, supra, 109 Cal.App.4th at p. 820.) The Act does not violate article XVI, section 3 of the California Constitution.

2. The Conflict of Interest Provisions of the Cures Act Are Not Unlawful.

The Council contends that the conflict of interest rules applicable to the ICOC and to working group members violate California law and public policy and render Proposition 71 invalid. The Council asserts that Proposition 71 is replete with conflicts of interest among the members of the ICOC, because the structure of the ICOC under the initiative mandates appointment of board members who have personal, professional and institutional interests that conflict with the public interest. These arguments can be dismissed rather summarily.[4]

The Council first suggests that the trial court erroneously dismisses the conflicts of interest of the ICOC member, including the making of grants of millions of dollars to their own members institutions as legally and ethically permissible. This statement, however, mischaracterizes both the trial courts decision and the statutory provisions. Members of the ICOC are expressly prohibited from participating in decisions involving grant applications submitted by the institutions with which they are affiliated. ( 125290.30, subd. (g).) Section 125290.30, subdivision (g) specifies that the provisions of the Political Reform Act (Gov. Code,  81000 et seq.) apply to the institute and the ICOC except as otherwise specified in the Cures Act. Subdivision (g)(1) provides that while no member of the ICOC may participate in a decision to award a grant, loan or contract to his or her employer, a member may participate in a decision to approve or award a grant, loan, or contract to a nonprofit entity in the same field as his or her employer or to an entity for the purpose of research involving a disease from which a member of his or her immediate family suffers or in which the member has an interest as a representative of a disease advocacy organization. Subdivision (g)(2) provides that Service as a member of the ICOC by a member of the faculty or administration of any system of the University of California shall not, by itself, be deemed to be inconsistent, incompatible, in conflict with, or inimical to the duties of the ICOC member as a member of the faculty or administration of any system of the University of California and shall not result in the automatic vacation of either such office. Service as a member of the ICOC by a representative or employee of a disease advocacy organization, a nonprofit academic and research institution, or a life science commercial entity shall not be deemed to be inconsistent, incompatible, in conflict with, or inimical to the duties of the ICOC member as a representative or employee of that organization, institution or entity. Subdivision (g)(3) limits the circumstances under which Government Code section 1090, which prohibits public officers and employees from being financially interested in contracts made by agencies on which they serve, applies to any grant, loan or contract made by the ICOC.[5] Other provisions relating to potential conflicts of interest of ICOC members and working group members appear elsewhere throughout the Cures Act. (E.g.,  125290.20, subd. (a)(2)(C),[6] 125290.50, subd. (e).[7])

It is unnecessary to consider whether membership on the ICOC by those who are qualified to serve would violate conflict of interest restrictions that would apply in the absence of the provisions included in the Cures Act. To the extent these provisions conflict with other statutory or common law rules regarding the regulation of conflicts of interest, the more specific and later enacted provisions of the Act govern. (See Woods v. Young (1991) 53 Cal.3d 315, 324-325; People v. Tanner (1979) 24 Cal.3d 514, 521.) The Councils suggestion that section 125290.30 be reconciled with more general conflict of interest laws by appointing ICOC members who do not have conflicts of interest and . . . by prohibiting the ICOC from awarding grants to the institutions represented by the members of the ICOC would both rewrite the Act and defeat the very purpose of the qualifications for appointment to the ICOC. The trial court concluded, correctly we believe, that these specific and limited conflicts of interest provisions are necessary in order to allow individuals with the necessary expertise from academic and commercial entities that do have financial interests in the subject of stem cell research to serve on the ICOC.

The Council contends that if the more general statutory and common law conflict of interest provisions are not applicable to the ICOC members, they should nonetheless apply to members of the grants working group. This argument is based on the incorrect assertion that the grants working group is a decisionmaking rather than an advisory body. However, section 125290.50, subdivision (e)(3) provides that [b]ecause the working groups are purely advisory and have no final decisionmaking authority, members of the working groups shall not be considered public officials, employees or consultants for purposes of the Political Reform Act and other conflict of interest statutes. Subdivision (e)(1) requires the ICOC to adopt conflict of interest rules for non-ICOC working group members based on standards applicable to members of scientific review committees of the National Institutes of Health and subdivision (e)(2) requires the ICOC to appoint an ethics officer. And, as noted above, the rules adopted by the ICOC require all scientist members of the grants working group to come from institutions outside of California, which institutions are not eligible for grants or loans from CIRM. A trial witness explained that the ICOC wanted to have the strongest conflict provisions and that if you have a Californian scientist on the working group and that scientist [was] able to apply for the grant, they would certainly have an inside advantage which [the ICOC] [does] not want to permit.

The Council contends that the refinements made by section 125290.30, subdivision (g) to more general conflict of interest provisions violate public policy or are somehow inherently unethical. These concerns are misplaced. (See Topanga Assn. for a Scenic Community v. County of Los Angeles (1989) 214 Cal.App.3d 1348, 1365-1366 [A statute is not subject to objection on the ground it contravenes public policy because, as a legislative enactment, it becomes public policy].) The regulation of conflicts of interest often requires balancing competing interests. It is not for the courts to strike a different balance than has been made by the Legislature or the people. (See Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446, 1456, disapproved on other grounds in Western States Petroleum Assn. v.Superior Court (1995) 9 Cal.4th 559, 570, fn. 2 [Except where the law clearly provides rules for identification and rectification of what might be termed conflicts of interest, that is a legislative not a judicial function]; cf., e.g., Woodland Hills Residents Assn., Inc. v. City Council (1980) 26 Cal.3d 938, 946-947.) In this case, by approving Proposition 71 the voters have determined that the advantages of permitting particularly knowledgeable persons to decide which research projects to fund outweigh any concerns that these decisions may be influenced by the personal or professional interests of those members, so long as the members do not participate in any decision to award grants to themselves or their employer.

The Council argues, It is a violation of due process of law for applicants for grants to the ICOC to have their grant applications voted on by ICOC members whose own institutions have competing grant applications before the ICOC . . . . Even though the members do not vote directly on their own institutions grant application, they have the information and opportunity to favor the ICOC member institutions and their fellow members on the ICOC . . . . Section 125290.30, subdivision (g)(1)(a), however, prohibits ICOC members not only from making or participating in making a grant to their employer, but also from in any way attempt[ing] to use his or her official position to influence a decision to approve or award a grant, loan, or contract to his or her employer. We have no reason to believe, and certainly will not presume, that ICOC members will not comply with this prohibition.

The Council also argues that the grants of conflicts of interest exemptions to the ICOC members and their institutions represent unconstitutional privileges and immunities.[8] The Council suggests, The ability to engage in such self-serving grantmaking . . . represents an unconstitutional privilege, privileged access to state funds, and an unconstitutional immunity, immunity from liability for conflicts of interest. The Cures Act, however, does not grant any personal privilege, entitlement or immunity to the members of the ICOC. Any loosening of conflicts rules that might otherwise apply merely permits the individual to serve on the ICOC while employed by an entity that may be interested in or affected by the work of CIRM. Such statutory qualifications or exemptions from conflict of interest regulations are commonplace. For example, there are several statutory exemptions to Government Code section 1090, which prohibits public officials from being financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Exceptions are made for the subdivision of land owned by a public official (Gov. Code,  1091.1), for a contract or grant made by local workforce investment boards (Gov. Code,  1091.2) and for a contract or grant made by a county children and families commission (Gov. Code,  1091.3). These exemptions are remarkably similar to those made under section 125290.30.[9]

In Consumers Union of U.S., Inc. v. California Milk Producers Advisory Bd., supra, 82 Cal.App.3d 433, this court upheld the validity of a regulation permitting industry members to serve on a board regulating that industry so long as they did not participate in decisions affecting their own interests in a manner different from the interests of other members of the industry. The court pointed to a survey by the Fair Political Practices Commission indicating that in California there are approximately 92 state boards, as well as numerous local boards, which include such members. (Id. at p. 438.) The court upheld the regulation as applied to the Milk Advisory Board, pointing out that, much like the situation under the Cures Act, the board was required to adopt a conflict of interest code and that board members were required to disclose potential conflicts, file periodic statements disclosing their income, investments and assets, and disqualify themselves if a decision would have a material effect on their personal financial interest. (Id. at p. 448.) Tellingly, the court observed: Merely because a board member derives income from within a given industry, he or she does not lose the ability to be objective. Nor does that person lose the capacity to make decisions beneficial to the publics interest. (Ibid.)

The Councils reliance on the training grants awarded by the ICOC to illustrate problematic conflicts of interest is unavailing. The trial evidence establishes that the ICOC awarded sixteen training grants for a total of $38,912,252, eight of which, totaling $20,867,547, were awarded to U.C. campuses.[10] An additional approximately $12 million was awarded to five institutions with representatives on the ICOC. Approximately $6 million was awarded to entities with no representative on the ICOC. This evidence, without any additional information suggesting improper self-dealing, fails to demonstrate any impropriety, much less illegality, in the training grants. Indeed, the data might just as well be viewed as confirming the successful inclusion on the ICOC of members from a broad range of institutions with expertise in the field of stem cell research. Moreover, as the trial court noted, Neither the original complaint filed by [the Council] nor its amended complaint challenges the validity of specific awards made by the ICOC. The amended complaint was filed in July 2005, months before any such awards were made, and [the Council] did not seek to amend it after that time.

Insofar as the Council contends that specific ICOC members have disqualifying conflicts of interest, those arguments are not relevant to the validity of the Cures Act. To the extent that the trial court considered the Councils evidence regarding individual members as relevant to the Councils second cause of action, seeking a declaration that those members, including the chair and vice-chair, are disqualified from serving on the ICOC, we review the findings under the substantial evidence test. The court found that the Council failed to make a showing that any specific ICOC member  has reason to believe or expect that he will derive a direct monetary gain or suffer a direct monetary loss, as the case may be, by reason on his official activity.  (Quoting Gov. Code,  8921, emphasis omitted.) The court explained, Plaintiff simply points to disclosure forms and biographies showing that some of the members have ownership interests in various biotech companies, and some are employees of companies or academic institutions of potential granteesbut presents no evidence that any committee member will accrue a direct monetary gain or loss from service on the ICOC. Under the express terms of section 125290.30, an ICOC members affiliation with a particular institution that may seek funding from CIRM is insufficient to establish a disqualifying conflict of interest.

Thus, we conclude, as did the trial court, that the conflict of interest provisions of the Cures Act violate no constitutional restriction, and that there has been no showing that any member serving on the ICOC has violated the governing conflict provisions.

D. The Exclusion of Correspondence Between Employees of the FiveUniversity of California Campuses Represented in the ICOC, if Error, Was Not Prejudicial.

Peoples Advocate contends that due to a series of rulings by the trial court relating to the scope and duration of discovery and the admissibility of evidence, correspondence between employees of the five University of California (U.C.) campuses represented on the ICOC was erroneously excluded at trial, and that the exclusion of this evidence was prejudicial because the evidence would have established that these members of the ICOC were in fact representatives of their university and that the ICOC was a private entity not under the exclusive control of the state.[11] Peoples Advocate asserts that the correspondence shows both that the ICOC members from the University of California would put the interests of the university before that of the state and also that there was coordination, cooperation, and central control of the nine University of California representatives on the [ICOC].

It is unnecessary to detail each of the trial court rulings that led to exclusion of this evidence because it is clear that even if any of the disputed correspondence should have been admitted, any error was not prejudicial. Even if considered, this correspondence does not establish that the institute or the ICOC was outside the management and control of the state.[12] Rather, the evidence establishes that the faculty and administration at the U.C. campuses were working together cooperatively at times to further the interests of both the institute and the campuses, while at the same time remaining mindful of the potential for actual and perceived conflicts of interests. Dr. Klein testified that the five U.C. campuses were chosen because they house the five medical schools in the U.C. system. And they have tremendous repository of medical and scientific expertise. And they have strong histories in stem cell research, so that those five campuses are part of a core of the State of California university medical system and scientific research system . . . that looks at this new frontier. Dr. Klein stated that each of [the campuses] is very highly competitive with the other, so that they each have something individual to bring to the table. For example, in an e-mail in which it was suggested that Dr. Kessler be appointed to represent the U.C. campus in San Francisco (UCSF), the author explains his recommendation as follows: UCSF has a statutory role on the Independent Citizens Oversight Committee, yet members must recuse themselves from decisions involving their employers. Depending on how employer is interpreted, that could take five people out of each decision on a U.C. grant . . . . With that in mind, our representative may have more of a role as an overall policy influencer and potentially public advocate for science than strictly a decision-maker or a grant-making body. [] . . . I think we are better served by having a representative who can be a strong advocate for sound scienceand whose public visibility may be important to steer the debate . . . . Nothing in this letter demonstrates that the interests of UCSF representatives are contrary to the interests of the state or that the ICOC members compromise the interests of the state in favor their individual interests. Likewise, in an e-mail containing the draft intellectual property model, the author advises, please be mindful of the rule requiring ICOC members to avoid un-noticed serial meetings, which means that members should avoid discussing ICOC business with other members in such a way that the discussion (whether live, by phone, or by email) might wind up including more than a quorum of members. These letters provide no basis on which to conclude that the ICOC was outside the management and control of the state.[13] Their admission would not have affected the conclusions reached in the trial court and in this court.

Conclusion

As we indicated at the outset, our review of the various constitutional and other objections appellants have addressed to the stem cell initiative involves no normative evaluation of the merit of the measure. Nonetheless, the objective of the proposition is to find, as speedily as possible, therapies for the treatment and cure of major diseases and injuries, an aim the legitimacy of which no one disputes. The very pendency of this litigation, however, has interfered with implementation for more than two years. After careful consideration of all of appellants legal objections, we have no hesitation in concluding, in the exercise of  our solemn duty to jealously guard the precious initiative power  (CART, supra, 109 Cal.App.4th at p. 808), that Proposition 71 suffers from no constitutional or other legal infirmity. Accordingly, we shall affirm the well-reasoned decision of the trial court upholding the validity of the initiative.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] The evidence at trial indicated that alternates to the grants working group, satisfying the same qualifications as the 15 scientist members, have been appointed by the ICOC, and that these alternates serve at the direction of institute staff when a working group member is unable to attend a meeting or has a conflict of interest, and that no more than 15 scientist members participate in reviewing any one grant or loan application. Although the Act does not expressly provide for alternates to the working group members, we see nothing in the Act that precludes the use of such alternates.

[2] Section 12529.60, subdivision (c) provides additional criteria for consideration in each of those classifications including, (A) A demonstrated record of achievement in the areas of pluripotent stem cell and progenitor cell biology and medicine, unless the research is determined to be a vital research opportunity. [] (B) The quality of the research proposal, the potential for achieving significant research, or clinical results, the timetable for realizing such significant results, the importance of the research objectives, and the innovativeness of the proposed research. [] (C) In order to ensure that institute funding does not duplicate or supplant existing funding, a high priority shall be placed on funding pluripotent stem cell and progenitor cell research that cannot, or is unlikely to, receive timely or sufficient federal funding, unencumbered by limitations that would impede the research. In this regard, other research categories funded by the National Institutes of Health shall not be funded by the institute. [] (D) Notwithstanding subparagraph (C), other scientific and medical research and technologies and/or any stem cell research proposal not actually funded by the institute under subparagraph (C) may be funded by the institute if at least two-thirds of a quorum of the members of the Scientific and Medical Research Funding Working Group recommend to the ICOC that such a research proposal is a vital research opportunity.

[3] Trial testimony established that the primary review of an average proposal takes between four and five days and a complex application may take up to seven days.

[4] Initially, we note that the Councils presentation of its arguments fails in large part to meet the most basic standards for acceptable appellate briefing. Most notably, the Council fails to cite authority for most of its arguments, including the claim that the Proposition 71 conflict of interest rules are unconstitutional. Although the Councils bare allegations of constitutional infirmity do not reflect the substantial effort required when a party mounts a constitutional challenge, we decline the Attorney Generals suggestion that we deem the argument waived without further discussion. (Calderon v. Kane (1995) 36 Cal.App.4th 1663, 1668-1669.)

[5] Subdivision (g)(3) of section 125290.30 provides that Government Code section 1090 does not apply to such transactions unless both of the following conditions apply: (A) The grant, loan, or contract directly relates to services to be provided by any member of the ICOC or the entity the member represents or financially benefits the member or the entity he or she represents [and] (B) The member fails to recuse himself or herself from making, participating in making, or in any way attempting to use his or her official position to influence a decision on the grant, loan or contract.

[6] Subdivision (a)(2)(c) of section 125290.20 limits executive officers of life science commercial entities appointed to the ICOC to those who are not actively engaged in researching or developing therapies with pluripotent or progenitor stem cells, and have not been awarded, or applied for, funding by the institute at the time of appointment. However, the subdivision provides, A board member of that entity with a successful history of developing innovative medical therapies may be appointed in lieu of an executive officer.

[7] See text at page 48, post.

[8] The privileges and immunities clause of the California Constitution provides in pertinent part, A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. . . . (Cal. Const., art. I, 7, subd. (b).)

[9] Section 1091.1 provides: The prohibition against an interest in contracts provided by this article or any other provision of law shall not be deemed to prohibit any public officer or member of any public board or commission from subdividing lands owned by him or in which he has an interest and which subdivision of lands is effected under the provisions of Division 2 (commencing with Section 66410) of Title 7 of the Government Code or any local ordinance concerning subdivisions; provided, that (a) said officer or member of such board or commission shall first fully disclose the nature of his interest in any such lands to the legislative body having jurisdiction over the subdivision thereof, and (b) said officer or member of such board or commission shall not cast his vote upon any matter or contract concerning said subdivision in any manner whatever. Section 1091.3 provides: Section 1090 shall not apply to any contract or grant made by a county children and families commission . . . except where both of the following conditions are met: [] (a) The contract or grant directly relates to services to be provided by any member of a county children and families commission or the entity the member represents or financially benefits the member or the entity he or she represents. [] (b) The member fails to recuse himself or herself from making, participating in making, or in any way attempting to use his or her official position to influence a decision on the grant or grants.

[10] The Councils contention that all ICOC members affiliated with a U.C. campus were required to recuse themselves from voting on grant applications involving any U.C. campus is simply wrong. Nothing in section 125290.30, or any other provision of the Act, requires that the five U.C. campuses be treated as a single institution or employer for purposes of regulating conflicts of interest. The fact that the University of California is considered a unitary system in other contexts is irrelevant. The trial testimony established that the five U.C. campuses operate individually with regard to both research and grant applications.

[11] Peoples Advocate also states that it had no fair chance to take any meaningful discovery about these documents or the activities they recorded because many of these documents were assertedly produced late in the discovery period. However, Peoples Advocate has not raised a specific challenge to any particular discovery or in limine ruling. It contends only that the effect of the trial courts rulings as a whole was to deny it a full and fair trial on the merits, a proposition that is thoroughly dispelled by a review of the record.

[12] Peoples Advocate quotes selectively from five excluded e-mails or memoranda that it asserts support its claim. In one excluded email it is suggested that Dr. David Kessler serve as the UCSF representative to the ICOC because he has the public recognition that can help position UCSF best, especially in comparison to other California institutions. In a subsequent email, the UCSF Assistant News Director states that she is not sure that it is in UCSFs interest to have [Dr. Kessler] serve as an academic spokesperson to the [San Francisco Chronicle] editorial board on the ICOC/CIRM process . . . when UCSF is going to be one of the key applicants for major funding from CIRM. She adds that Dr. Kessler should continue to do his part on the board . . . but not to create a high profile for himself as a defender of/explainer of the ICOC/CIRM process. . . . The goal of this strategy would be to diminish the possible perception of a conflict of interest in his two roles. Peoples Advocate also cites an e-mail from an employee of the U.C. Office of the President seeking input regarding faculty we should nominate for ICOC membership. A second e-mail circulates an internal draft proposing considerations for developing a Proposition 71 intellectual property model among the U.C.s ICOC representatives. Finally, a memo was excluded in which the author, apparently a U.C. Chancellor, objects to plans to ask all U.C. campuses to submit their proposals for Proposition 71 funding to the U.C. Office of the President for approval. He argues that the requirement seems a considerable intrusion on campus prerogative and that it would be a tactical error. He explains, I expect that there will be a natural tendency on the part of the [ICOC] to spread the wealth around, and that there will be a resistance to overendowing U.C. Anything that detracts from the image of each campus as an independent agent seems likely to add to the sensitivities about U.C. as the gorilla on the scene.

[13] Peoples Advocate also contends that the trial court erred in excluding a letter written by an ICOC appointee from the University of Southern California (USC) in which he stated that he was working to be named to the ICOC  so that the Keck Schools and USCs concerns can be well represented from the initial stages of this important endeavor.  For the same reasons, the exclusion of this evidence, if error, was not prejudicial because the appointees expressed desire to have the concerns of his university heard is not necessarily inconsistent with the goals and purposes of the ICOC. The conflict of interest rules ensure that a member does not participate in any decisions directly affecting the university at which the member is employed.