TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

______________________________________

OPINION : : No. 98-304 of :

: June 30, 1998 DANIEL E. LUNGREN : Attorney General :

: ANTHONY M. SUMMERS :

Deputy Attorney General :

:

______________________________________________________________________ HONORABLE SCOTT BAUGH, MEMBER OF THE CALIFORNIA ASSEMBLY, has requested an opinion on the following question:
Is Corporations Code section 318, requiring the Secretary of Stat e to maintain a registry of women and minorities to serve on corporate boards of directors, rendered unconstitutional by the recent adoption of section 31 of article I of the Constitution?

CONCLUSION
Corporations Code section 318, requiring the Secr etary of State to maintain a registry of women and minorities to serve on corporate boards of directors, is not rendered unconstitutional by the recent adoption of section 31 of article I of th e Constitution.

ANALYSIS
Corporations Code section 318 Footnote No. 1 requires the Secretary of State to maintain a registry of "distinguished wome n and minorities" who are available to serve on corporate boards of directors. Section 318 states:
"(a) The Secretary of State shall develop and maintain a registry of distinguished women and minorities who are available to serve on corporate bo ards of directors. As used in this section, 'minority' means an ethnic person of color including American Indians, Asians (including, but not limited to, Chinese, Japane se, Koreans, Pacific Islanders, Samoans, and Southeast Asians), Blacks, Filipinos, and Hispanics."(b) For each woman or minority who participat es in the registry, the Secretary of State shall maintain information on his or her educational, professional, co mmunity service, and corporate governance background. . . .

"(c) In addition to the information subdivisi on (b) requires, each woman or minority who participates in the registry may disclose any numbe r of personal attributes that may contribute to board diversity. Those attributes may include, bu t are not limited to, gend er, physical disability, race, or ethnic origin.

"(d) In addition to the information subdivisi on (b) requires, each woman or minority who participates in the registry may indicate characte ristics of corporations for which he or she would consider, or is especially intere sted in, serving as a director. These characteristics may include, but are not limited to, company size, industry, geographic location, boardmeeting frequency, director time commitments, director compensati on, director insurance orindemnification, or social policy concerns.
"(e) Any woman or minority may nominate himsel f or herself to the re gistry by filing with the Secretary of State the information require d by subdivision (b) on a form the secretary prescribes. Any registrant may attach a copy of his or her resu me and up to two letters of recommendation to his or her regi stration form. Each registrant's registration form, together with any attached resume or letters of recommendation, shall constitute his or her registry transcript.
"(f) The Secretary of State shall make appropriate rules requiring re gistrants to renew or update their filings with the registry, as necessary to ensure continued accuracy of registry information.
"(g) The Secretary of State shall assign eachregistrant a file number, then enter the information described in subdivisions (b), (c), and (d) into a data base, usin g the registrant's file number to identify him or her. Th e registry data base shall not di sclose any registrant's name or street address, but may list the city, county, or ZIP Code of hi s or her business or residence address. The secretary shall make data base information availabl e to those persons described in subdivisions (i) and (j).The secretary may provide that access either by permitting direct data base searches or by performing data base searches on written request.
"(h) The Secretary of State may also make info rmation contained in the registry data base available to any person or entity qualified to transact business in Ca lifornia that regularly engages in the business of providing data base access or search se rvices; provided, that data base access will not be construed to entitle the us er to access any registrant's transcript.
"(i) The Secretary of State shall make info rmation contained in a reasonable number of registrants' transcripts available to any corporatio n or its representative. A 'representative' may be an attorney, an accountant, or a retained executive recruiter. A 'retained exec utive recruiter' is an individual or business entity engaged in the executiv e search business that is regularly retained to locate qualified candidates for appointment or election as corporate di rectors or executive officers."(j) The Secretary of State may also grant access to a reasonable num ber of registrants' transcripts to any other person . . . .
"(k) The Secretary of State may employ reasona ble means to verify that any party seeking access to registry transcript information is one of those specified in subdivision (i) or (j). To that end, the secretary may require a re presentative to identify its principal, but ma y not disclose that principal's identity to any other person.
"(l ) Upon written request specifying the registrant 's file number, the Secretary of State shall provide any party entitled to access to registry transcripts with a copy of any registrant's transcript. The secretary may by rule or regul ation specify other reasonable means by which persons entitled thereto may order copi es of registrants' transcripts.
"(m) Notwithstanding any other pr ovision of law, no person sha ll be entitled to access to information the registry contains, except as this section speci fically provides.
"(n) The Secretary of State shall charge fees for registering with the registry, obtaining access to the registry data base, and obtaining copies of registrants' transcripts. The Secretary of State, in consultation with the Senate Co mmission on Corporate Governance, Shareholder Rights, and Securities Transactions, shall fix those fees by regulation. Fees shall be fixed so that the aggregate amount of all fees collected shall be sufficient to cover the to tal cost of administering the registry program . Registration fees shall be fixe d so as to encourage qualified women and minorities to participate. Fees shall be deposited into the Secretary of State's Business Fee Fund.
"(o) The Secretary of State may make any rule, regulation, guidelin e, or agreement the secretary deems necessary to carry out the pu rposes and provisions of this section.
"(p) The Secretary of State may cooperate w ith the California Commi ssion on the Status of Women, the California Council to Promote Business Ownership by Women, the Senate Commission on Corporate Governance, Sharehol der Rights, and Secu rities Transactions, women's organizations, minority organizations, business and prof essional organizations, and any other individual or entity the secr etary deems appropriate . . . .
"(q) The Secretary of State may seek registrants' consent to be listed in a published directory of women and minorities eligible to serve as corporate director s, which will contain a summary of each listed registrant's qualifications. The secr etary may periodically publish, or cause to be published, such a directory. Only those registrants who so consent in writing may be included in the directory. The printed directory shall be pr ovided to any person upon payment of a fee, which the Secretary of State will determine by regulation, in consultation with the Senate Commission on Corporate Governance, Shareholder Ri ghts, and Securitie s Transactions.
"(r) The Secretary of State shall implemen t this section no later than January 1, 1995.
"(s) At least once in each three-year peri od during which the registry is available for corporate use, the Secretary of State, in cons ultation with the Senate Commission on CorporateGovernance, Shareholder Rights, and Securities Transactions, sha ll report to the Legislature on the extent to which the registry has helped women and minorities progress toward achieving parity in corporate board appointments or elections."
Accordingly, a person meeting the qualifications of s ection 318 may become a registrant by selfnomination, which consists of fili ng a form prescribed by the Secret ary of State, to which may be attached a resume and up to two letters of recommendation. These documents, collectively, become the registrant's "transcript." The registry , including transcripts, is made available to persons who are seeking qualified candidate s to serve as corporate directors.

We are asked whether section 318 is now uncons titutional due to the adoption of section 31 of article I of the Constituti on by the voters at the general election on November 5, 1996. The 1996 constitutional amendment states:
"(a) The state shall not discriminate agains t, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public edu cation, or public contracting.
"(b) This section shall appl y only to action taken after th e section's effective date.
"(c) Nothing in this section shall be interpre ted as prohibiting bona fi de qualifications based on sex which are reasonably n ecessary to the norma l operation of public employment, public education, or public contracting.
"(d) Nothing in this section shall be interpre ted as invalidating any court order or consent decree which is in force as of the effective date of this section.
"(e) Nothing in this section shall be interpre ted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
"(f) For the purposes of this section, 'state' shall include, but not necessarily be limited to, the state itself, any city, county, city and c ounty, public university system, including the University of California, community college distri ct, school district, specia l district, or any other political subdivision or governmental instrumentality of or within the state.
"(g) The remedies available for violations of th is section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.
"(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from th e remaining portions of this section."We conclude that the 1996 constituti onal amendment does not render section 318 unconstitutional.
In interpreting a constitutional provision, we follow the same principles utilized in construing a statutory provision. "Ordinarily, '[r]ule s of construction and interpretation that are applicable when considering statutes are equa lly applicable in interpreting constitutional provisions' [Citation.]" (Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 608.) As in the case of a statute, we must determine the intent of the provision, lo oking first at the plain meaning of the words used. "To determine the inte nt of legislation, we first consult the words themselves, giving them their usual and ordinary meaning. [Citations.]" ( DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) When the constitu tional provision has been adopted as an initiative measure approved by the voters, we may consider the analysis prepared by the Legislative Analyst, the arguments included inthe ballot pamphlet, a nd the summary of the measure by the Attorney General. In 75 Ops. Cal.Atty.Gen. 155, 213 (1993), we explained:
"In construing constitutional pr ovisions adopted through the initiative power, one long accepted extrinsic aid is the election brochur e pamphlet, which may constitute the only legislative history of a constitutional amendment adopted through the initiative power. [Citation.] In addressing issues of constitutional interp retation, the brochure arguments, analysis by the Legislative Analyst, and title and summary prepared by the Attorney General may be considered." (Fn. omitted.)
Applying these principles of c onstruction, we first note that se ction 31 of article I, by its own terms, is limited to governmental discrimina tion against or preferences for individuals or groups on the basis of race, sex, color, ethnicity, or national or igin "in the operation of public employment, public education, or public contracti ng." (Cal. Const., art. I, § 31, subd. (a).) Thus, it does not purport to apply to every distinction made on the basis of race, sex, color, ethnicity, or national origin, but only to disc rimination or preferences in th e operation of public employment, public education, or public contracting.
The Attorney General's summary of the initi ative measure (Proposition 209) contained in the voter's pamphlet stated in part:
"Prohibits the state, local governments, district s, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in pub lic employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin." (Ballot Pamp., Gen. Elec. (Nov. 5, 1996), p. 30.)

In Lungren v. Superior Court (1996) 48 Cal.App.4th 435, 442, the court upheld the validity of the ballot summary prepared by th e Attorney General, stating inpart: "[A]ny statement to the effect that Proposition 209 repeals affirmative action programs would be overinclusive and hence 'false and misleading.' (Elec. Code, § 9092.)" Consis tent with the ballot su mmary of the Attorney General, the Legislative Analyst stated w ith respect to the initiative measure:"This measure would eliminate state and lo cal government affirmative action programs in the areas of public employment, pub lic education, and public contracting to the extent these programs involve 'preferential treatment' based on race, sex, color, ethnicity, or national origin. . . ." (Ballot Pamp., Gen. Elec. (Nov. 5, 1996), p. 30, italics added.)
It is beyond dispute that Pr oposition 209 was limited in scope to the areas of public employment, public contracting, and public educati on. It is readily apparent that section 318 does not fall into any of these categor ies. The registry created under section 318 is for use by those seeking candidates to serve as directors of corp orations. The registry ha s no role in facilitating public employment, contracting, or education.

We conclude that section 318, re quiring the Secretary of State to maintain a registry of women and minorities to serve on corporate boards of directors, is not rendered unconstitutional by the recent adoption of section 31 of article I of th e Constitution.

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Footnote No. 1 All references hereafter to the Corporations Code are by section number only.