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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 92-804 

of : 

: NOVEMBER 12, 1992 

DANIEL E. LUNGREN : 

Attorney General : 

: 

CLAYTON P. ROCHE : 

Deputy Attorney General : 

: 

THE HONORABLE JOHN R. LEWIS, MEMBER OF THE CALIFORNIA 

SENATE, has requested an opinion on the following question: 

Are the meetings of a task force comprised of private citizens appointed by the State

Insurance Commissioner to render advice on public policy issues, which operates under the direction

and timetable of the commissioner and receives its resources from the Department of Insurance,

required to be open to members of the public? 

CONCLUSION 

The meetings of a task force comprised of private citizens appointed by the State

Insurance Commissioner to render advice on public policy issues, which operates under the direction

and timetable of the commissioner and receives its resources from the Department of Insurance, are

not required to be open to members of the public. 

/ ANALYSIS 

The State Insurance Commissioner holds elective office (Ins. Code, § 12900) and is

responsible for administering the Department of Insurance (Ins. Code, § 12906). Among the 

commissioner's duties are: enforcing the laws regulating the business of insurance (Ins. Code, §

12921), disseminating information concerning insurance laws to the public (Ins. Code, §§ 12921.3,

12921.5), and submitting reports to the Governor showing the condition of the insurance business

in California (Ins. Code, §§ 12922, 12960). 

The question presented for resolution concerns a task force appointed by the

commissioner to render advice on public policy issues. The task force is comprised of private

citizens, operates under the specific direction and timetable of the commissioner, and is provided

necessary resources by the Department of Insurance. Are the meetings of the task force required to 

be open to members of the public? We conclude that they are not. 
 

The only "open meeting" statutory scheme arguably applicable to the commissioner's 

task force is the Bagley-Keene Open Meeting Act. (Gov. Code, §§ 11120-11132; hereafter "Act".)1/ 

It requires "state bodies" to hold their meetings open to the public unless specifically exempted in

the Act. (See §§ 11123, 11126, 11132.) The Act's provisions are applicable to most state officers 

and agencies.2/ 

As noted, the Act is only applicable to "state bodies." "State body" is defined in four

of the Act's provisions: sections 11121, 11121.2, 11121.7, and 11121.8. Section 11121 provides the

basic definition of a "state body" for purposes of the Act: 

"As used in this article 'state body' means every state board, or commission,

or similar multimember body of the state which is required by law to conduct official

meetings and every commission created by executive order . . . ." 

Section 11121.2 sets forth an additional definition for bodies which exercise delegated authority.

It provides: 

"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." 

Section 11121.7 then follows with a definition of subsidiary bodies on which members of "state

bodies" serve. It provides: 

"As used in this article, 'state body' also means any board, commission,

committee, or similar multimember body on which a member of a body which is a

state body pursuant to Section 11121, 11121.2, or 11121.5 serves in his or her

official capacity as a representative of such state body and which is supported, in

whole or in part, by funds provided by the state body, whether such body is

organized and operated by the state body or by a private corporation."3/ 

And finally section 11121.8 delineates the advisory bodies which are to be considered "state bodies"

for purposes of the Act: 

"As used in this article, 'state body' also means any advisory board, advisory

commission, advisory committee, advisory subcommittee, or similar multimember

advisory body of a state body, if created by formal action of the state body or of any

member of the state body, and if the advisory body so created consists of three or

more persons." 

1. All section references are to the Government Code unless otherwise indicated.

 2. Special open meeting laws, for example, are applicable to the Legislature (§§ 9027- 9031) and the Regents of the University of California (Ed. Code, §§ 92032-92033). Local public

agencies are subject to the open meeting requirements of the Ralph M. Brown Act (§§ 54950- 54962). 

3. Section 11121.5, which was applicable to student organizations at state universities

and community colleges, was repealed by Statutes of 1984, chapter 1158. 

2 92-804 
Looking first at section 11121, we find that the commissioner's task force is not one

that "is required by law to conduct official meetings." The meaning of this phrase was discussed

in our publication, "Open Meeting Laws" (1989), as follows: 

" . . . It is presumed that a multi-member board created by statute is required

by law to conduct meetings regardless of whether such an intention is expressed in

the statute, since there would be no legislative purpose in creating a body which was

not intended to meet. Thus, the mere act of statutory creation satisfies the BagleyKeene Act requirement to meet." (Id., at p. 8.)4/ 

Implicit in the requirements of the Act is that statutorily created bodies will act at meetings. (See

68 Ops.Cal.Atty.Gen. 65, 69 (1985).) Here, the task force in question was created by the

commissioner, not created by statute; thus it is not "required by law to conduct official meetings."

(§ 11121.) 

Section 11121 also subjects "every commission created by executive order" to the

requirements of the Act. Is the commissioner's task force such a commission? In 63 

Ops.Cal.Atty.Gen. 583 (1980), we analyzed the general scope of "executive orders" as follows: 

"The Governor is authorized to issue directives, communicated verbally or

by formal written order, to subordinate executive officers concerning the

enforcement of law. Such authority emanates from his constitutional charge, as the 

'supreme executive power' of this state, to 'see that the laws are faithfully executed'

(Cal. Const., art. V, § 1) and by the very dimension of government which

necessitates and requires the assistance and participation of others. Accordingly,

Government Code section 12010 provides that '[t]he governor shall supervise the

official conduct of all executive and ministerial officers.' An executive order, then, 

is a formal written directive of the Governor which by interpretation, or the

specification of detail, directs and guides subordinate officers in the enforcement of

a particular law. (Unpub. opn. of the Cal. Atty. Gen., No. I.L. 63-86 (1963).) Such

an order, however, need not be predicated upon some express statutory provision, but

may properly be employed to effectuate a right, duty, or obligation which emanates

or may be implied from the Constitution or to enforce public policy embodied within

the Constitution and laws. (Cf. In re Neagle (1890) 135 U.S. 1, 63-64; Spear v. 

Reeves (1906) 148 Cal. 501, 504.) 

"Nevertheless, the Governor may not invade the province of the Legislature.

California Constitution, article III, section 3 provides as follows: 

'The powers of state government are legislative, executive,

and judicial. Persons charged with the exercise of one power may not

exercise either of the others except as permitted by this Constitution.' 

Consequently, the Governor is not empowered, by executive order or

otherwise, to amend the effect of, or to qualify the operation of existing legislation.

(Lukens v. Nye (1909) 156 Cal. 498, 503-504; and cf. Contractor's Ass'n of Eastern 

4. A prior edition of this publication was quoted extensively and given "great weight"

by the Court of Appeal in Henderson v. Board of Education (1978) 78 Cal.App.3d 875, 882-883. 

3 92-804 
 

Pa. v. Secretary of Labor (1971) 442 F.2d 159, 168; unpub. opn. of the Cal. Atty.

Gen., No. I.L. 78-32 (1978).)" (Id., at pp. 584-585.) 

Accordingly, an executive order is generally regarded as "a formal written directive of the

Governor." 

Of course, the Legislature may define a particular term in any manner it chooses to

effectuate its purposes. (See Delaney v. Superior Court (1990) 50 Cal.3d 785, 804; Rideaux v. 

Torgrimson (1939) 12 Cal.2d 633, 636; In re Marriage of Stephens (1984) 156 Cal.App.3d 909,

913.) For example, for purposes of the state's program involving mandated local costs which was

enacted in 1984 (§§ 17500-17630), the Legislature defined "executive order" in section 17516 as

follows: 

"Executive Order' means any order, plan, requirement, rule, or regulation

issued by any of the following: 

"(a) The Governor. 

"(b) Any officer or official serving at the pleasure of the Governor. 

"(c) Any agency, department, board, or commission of state government. . 

. ." 

The phrase "every commission created by executive order" was added to section 

11121 in 1980. (Stats. 1980, ch. 515, § 1.) We have examined in detail the legislative history of the 

1980 amendment. It is clear that for purposes of the Act, the 1980 addition of "executive order"

commissions refers solely to commissions appointed by the Governor. The legislation was enacted

in response to an opinion of the Legislative Counsel dated November 9, 1978, which stated in part: 

"The Commission on Government Reform was created by the Governor by

Executive Order No. B-45-78 and generally has as its function the making of

recommendations to the Governor and the Legislature for permanent reforms in the

tax, revenue, and spending systems of both state and local government as a result of

the passage of Proposition 13 at the June 6, 1978, Primary Election. In the 

performance of its tasks, it is required by the executive order to meet on a regular

basis. 

"Since the commission was created by executive order and not by statute, it

is our opinion that the commission cannot be considered a 'state agency . . . required

by law to conduct official meetings' (emphasis added) for purposes of Section 

11121. The executive power of the Governor is to see to it that the law is faithfully

executed (Sec. 1, Art. V, Cal. Const.). The power to make law, on the other hand,

is vested generally in the Legislature, with the people reserving to themselves the

power of initiative and referendum (Sec. 1, Art. IV, Cal. Const.). Accordingly, we

conclude that meetings of the Commission on Government Reform are not required

by the state open meeting law to be open to the public." 

4 92-804
 
 

No suggestion is contained in the legislative history that an "executive order" is something other

than a directive executed by the Governor. Since the task force in question was not created by the

Governor, section 11121 is inapplicable here.5/ 

We next consider section 11121.2. Is the task force one "which exercises any

authority of a state body delegated to it by that state body"? The commissioner is not a "state body" 

for purposes of the Act. As we stated in our Open Meeting Laws publication, supra: 

"The Brown Act applies to the 'legislative bodies' of all local agencies in

California as defined by this Act, e.g., councils, boards, commissions and 

committees. (§§ 54951-54952.5, 54953.) The Bagley-Keene Act applies to multi- member state bodies which are required to meet by law or which are created by

executive order. (§§ 11121, 11123.) . . . . 

"Neither act applies to individual decision makers who are not members of

boards or commissions such as agency or department heads when they meet with

advisors, staff, colleagues or anyone else. Similarly, neither act applies to multi- member bodies which are created by an individual decision maker. (56 

Ops.Cal.Atty.Gen. 14, 19 (1973).) However, boards or commissions which are 

created by statute or ordinance are covered even if they are under the jurisdiction of

an individual department head. (§§ 54957.3, 11121, 11121.8.)" (Id., at p. 8.) 

Since the commissioner does not come within any of the definitions of a "state body," a task force

appointed by him would not constitute a "state body" under the terms of section 11121.2. 

Next we consider section 11121.7. The task force in question is comprised of private 

individuals. No one is a member of the task force who is "a member of a body which is a state body

. . . [serving] in his or her official capacity as a representative of such state body . . . ." (See Farron 

v. City and County of San Francisco (1989) 216 Cal.App.3d 1071, 1075-1076; Yoffie v. Marin 

Hospital District (1987) 193 Cal.App.3d 743, 750; 67 Ops.Cal.Atty.Gen. 487, 490 (1984).) Plainly,

the commissioner's task force does not come within the language of section 11121.7 under the facts

we have been given. 

Finally, we consider the language of section 11121.8. While it expressly refers to

an "advisory body," such body must be "created by formal action of the state body or any member

of the state body" in order for it to come within the definition of section 11121.8. As we have 

demonstrated, the commissioner is not a "state body" under the Act. Nor is he a member of a "state 

body." Consequently, his task force does not come within the language of section 11121.8. 

In short, an advisory body to a single state officer is outside the scope of the open

meeting requirements of the Act. We reached a similar conclusion with respect to an advisory body 

to a county officer. In 56 Ops.Cal.Atty.Gen. 14 (1973), we concluded that a local admissions

committee appointed by and rendering advice to a county superintendent of schools was not subject

to the open meeting requirements of the Ralph M. Brown Act. We noted: "It is thus made clear that 

a local admissions committee is an advisory group, but only to a single county officer . . . [and

hence] is only an advisory arm or adjunct to a single county officer." (Id. at p. 16.) In Farron v. 

City and County of San Francisco, supra, 216 Cal.App.3d 1071, the Court of Appeal ruled similarly 

5. Because of our interpretation of the term "executive order," we need not determine

whether the task force constitutes a "commission" for purposes of section 11121. 

5 92-804 
with respect to an advisory committee appointed by a mayor as distinguished from being appointed

by a city council or board of supervisors. "The board of supervisors is the legislative body of the

city . . . under the Brown Act. . . . The task force at issue, however, was formed by the mayor . . .

." (Id., at p. 1075.) 

We therefore conclude that the meetings of a task force comprised of private citizens

appointed by the State Insurance Commissioner to render advice on public policy issues which

operates under the direction and timetable of the commissioner and receives its resources from the

Department of Insurance, are not required to be open to members of the public. 

* * * * * 

6 92-804