BILL ANALYSIS Ó
SB 965
Page 1
SENATE THIRD READING
SB 965 (Wright)
As Amended June 21, 2012
Majority vote
SENATE VOTE :33-1
ENVIRONMENTAL SAFETY 9-0GOVERNMENTAL ORGANIZATION 15-0
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|Ayes:|Wieckowski, Miller, |Ayes:|Hall, Nestande, Atkins, |
| |Campos, Chesbro, Davis, | |Block, Chesbro, Cook, |
| |Donnelly, Feuer, Bonnie | |Galgiani, Garrick, Gatto, |
| |Lowenthal, Morrell | |Hill, Jeffries, Ma, |
| | | |Perea, Silva, Bradford |
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APPROPRIATIONS 17-0
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|Ayes:|Fuentes, Harkey, |
| |Blumenfield, Bradford, |
| |Charles Calderon, Campos, |
| |Davis, Donnelly, Gatto, |
| |Hall, Hill, Lara, |
| |Mitchell, Nielsen, Norby, |
| |Solorio, Wagner |
| | |
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SUMMARY : Establishes allowable ex parte communications with
State Water Resources Control Board (SWRCB) and Regional Water
Quality Control Board (RWQCB) members. Specifically, this bill :
1)Provides that ex parte communication provisions of the
Administrative Procedure Act (APA) do not apply to actions of
the SWRCB and RWQCBs concerning waste discharge requirements,
conditions of water quality certification, or conditional
waiver waste discharge requirements.
2)Defines "ex parte communication" as an oral or written
communication with one or more board members concerning
matters, other than a matter of procedure or practice that is
not in controversy, under the jurisdiction of a board,
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regarding an action of the board, as specified.
3)Defines "interested person" as either of the following:
a) Any person who will be required to enroll or file
authorization to discharge pursuant to the action or with a
financial interest in a matter at issue before a board, or
that person's agents or employees, including persons
receiving consideration to represent that person; or,
b) A representative acting on behalf of any formally
organized civic, environmental, neighborhood, business,
labor, trade, or similar association who intends to
influence the decision of a board member on a matter before
the board.
4)Provides that ex parte communications provisions of the
Administrative Procedure Act (APA) do not apply to actions of
the SWRCB and RWQCB members concerning waste discharge
requirements, conditions of water quality certification, or
conditional waiver waste discharge requirements.
5)Allows ex parte communications as follows:
a) Oral ex parte communications may be permitted at any
time by any board member provided that the board member
involved in the communication does each of the following:
i) Invites all interested persons to attend the meeting
or sets up a conference call in which all interested
persons may participate; and,
ii) Gives notice of the meeting or call as soon as
possible, but no less than three days before the meeting
or call.
b) Written ex parte communications may be permitted by any
interested person provided that the interested person
making the communication serves copies of the communication
on all other interested persons on the same day the
communication is sent to a board member or makes
arrangements with the board staff to ensure that all
interested persons have been provided copies of
communication; and,
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c) If an individual ex parte communication meeting or call
is granted to any interested person, all other interested
persons shall also be granted individual ex parte meetings
of a substantially equal period of time with the board
member. The interested person requesting the initial
individual meeting shall notify the other interested
persons that its request has been granted, and shall file a
certificate of service of this notification at least three
days before the meeting or call.
6)Provides that a board may prohibit ex parte communications for
a period beginning not more than 14 days before the day of the
board meeting which the decision in the proceeding is
scheduled for board action. If the board continues the
decision, it may permit ex parte communications during the
first half of the interval between the originally scheduled
date and the date that the decision is calendared for final
decision, and may prohibit ex parte communications for the
second half of the period, provided that the period of
prohibition shall begin not more than 14 days before the day
of the board meeting to which the decision is continued.
7)Requires ex parte communications made regarding a board action
shall be reported by the interested person, regardless of
whether the communication was initiated by the interested
person. A notice of ex parte communication shall be filed
with the board within three working days of the communication.
The notice may address multiple ex parte communications in
the same proceeding, provided that the notice of each
communication identified therein is timely. The notice shall
include all of the following information:
a) The date, time, and location of the communication, and
whether it was oral, written, or both;
b) The identities of each board member involved, the person
initiating the communication, and any persons present
during the communication; and,
c) A description of the interested person's communication
and the content of this communication. A copy of any
written, audiovisual, or other material used for or during
the communication shall be attached to this description.
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8)If an interested person fails to provide notice, a board may
use the remedies available under the APA, including the
issuance of an enforcement order.
EXISTING LAW :
1)Prohibits communications between SWRCB or RWQCB members and
any other person about a pending, quasi-judicial matter if
such communications occur in the absence of other parties to
the matter without notice and an opportunity for all parties
to participate in the discussion.
2)Allows SWRCB or RWQCB members to have communications with the
public and governmental officials outside of a noticed public
meeting if the topic of discussion is a general issue within
the board's jurisdiction or a rulemaking or other regulatory
proceeding.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, this bill would result in minor, absorbable costs to
the SWRCB and the regional boards to manage ex parte
communication requirements.
COMMENTS :
Need for the bill . According to the author, the ex parte
communication rules of the SWRCB and RWQCBs should be reformed
to allow more communication between decision-makers and
stakeholders. The author contends that the regulated community
should have greater opportunity to talk with board members who
have such significant power to influence their activities. The
boards should adopt rules similar to those used by other state
regulatory boards such as the Air Resources Board and the
California Coastal Commission, which allow communication between
regulators and the regulated as long as it is disclosed at
public meetings.
The author argues that, "The current rules in place at the State
Board severely restrict participation by affected stakeholders
in the state board permitting process, and prohibit
communication with Members of the State Water Board once a draft
permit or other notice of proposed action has been prepared and
released by staff of the water board. Instead, local
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governments, businesses and other stakeholders are often limited
to just a few minutes of testimony before the board during a
formal hearing, despite the profound impact board decisions can
have on these regulated entities.
"These self-imposed ex parte rules adopted by the water boards
have resulted in a lack of transparency and accountability. A
strict prohibition against ex parte communications undermines
stakeholder confidence in the system."
Why limit ex parte communications ? Rules regarding ex parte
communications have their roots in constitutional principles of
due process and fundamental fairness. With public agencies, ex
parte communications rules also serve an important function in
providing transparency. Ex parte communications may contribute
to public cynicism that decisions are based more on special
access and influence than on the facts, the laws, and the
exercise of discretion to promote the public interest.
Ex parte communications are concerning in adjudicative
proceedings because they involve an opportunity by one party to
influence the decision maker outside the presence of opposing
parties, thus violating due process requirements. Such
communications are not subject to rebuttal or comment by other
parties. Ex parte communications can frustrate a lengthy and
painstaking adjudicative process because certain decisive facts
and arguments would not be reflected in the record or in the
decisions.
SWRCB and RWQCB ex parte communication requirements . According
to the SWRCB the ex parte communications rules reflect the SWRCB
and RWQCBs hybrid powers. Unlike the Legislature, the SWRCB and
RWQCBs have attributes of both legislative power and judicial
power. The ex parte communications prohibition arises when the
SWRCB or RWQCBs are exercising their judicial power. Rules and
due process preclude judges from receiving ex parte
communications on matters pending before them. Similarly, even
when exercising legislative power, the SWRCB and RWQCBs do so
within the narrow confines of power granted by the Legislature.
The California Public Utilities Commission (CPUC) ex parte
communication model . State boards and commissions have highly
varied ex-parte communication rules and procedures. This bill
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provides an ex-parte communication reporting and public access
process similar to the provision that regulate the CPUC in which
ex parte communications are allowed but regulated for rate
setting cases, "?oral ex parte communications may be permitted
at any time by any commissioner if all interested parties are
invited and given not less than three days' notice. Written ex
parte communications may be permitted by any party provided that
copies of the communication are transmitted to all parties on
the same day." The statute further specifies that if an
individual ex parte meeting is granted, all parties must be
granted substantially equal periods of time and given three days
notice. The CPUC may establish a period not to exceed 14 days
in which ex parte communications are not permitted and may meet
in closed session during that time.
Analysis Prepared by : Bob Fredenburg/ E.S. & T.M. / (916)
319-3965
FN: 0004669