BILL ANALYSIS Ó
AB 2002
Page 1
Date of Hearing: March 30, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
AB 2002
(Mark Stone, et al.) - As Amended March 28, 2016
SUBJECT: Political Reform Act of 1974: California Coastal
Commission: communications.
SUMMARY: Provides that communicating with the California
Coastal Commission (Commission) in order to influence specified
actions can result in a person being considered a "lobbyist"
under the Political Reform Act (PRA). Prohibits an ex parte
communication with a member of the Commission regarding a matter
during the 24 hours before that matter will be discussed at a
Commission hearing. Specifically, this bill:
1)Provides that communications with members of the Commission
regarding specified business before the Commission can result
in a person being considered a lobbyist under the PRA,
pursuant to the following:
a) Provides that the proposal, drafting, development,
consideration, amendment, enactment, or defeat of any rule,
regulation, permit action, federal consistency review,
appeal, local coastal program, port master plan, public
works plan, long-range development plan, or categorical or
AB 2002
Page 2
other exclusion from coastal development permit
requirements, with respect to proceedings before the
Commission, is considered to be an "administrative action,"
for the purposes of the PRA, thereby making attempts to
influence these actions subject to the lobbying rules found
in the PRA.
b) Provides, for the purposes of a quasi-judicial matter
before the Commission, that the term "agency official" only
means a member of the Commission, thereby generally
excluding communications with staff or consultants of the
Commission regarding quasi-judicial matters from the types
of communications that may result in a person being
classified as a lobbyist under this bill.
c) Exempts from the definition of "lobbyist," for the
purposes of this bill, an employee of a local government
agency seeking, within the scope of his or her employment,
to influence quasi-judicial decisions of the Commission.
2)Requires a member of the Commission to disclose any ex parte
communication in writing at least 24 hours before a hearing if
the communication occurs within seven days of the next hearing
and relates to a matter that the Commission will discuss at
the hearing. Prohibits a member of the Commission or an
interested person in a Commission action from conducting an ex
parte communication within 24 hours before a hearing regarding
a matter that the Commission will discuss at that hearing.
3)Makes corresponding and technical changes.
AB 2002
Page 3
AB 2002
Page 4
EXISTING LAW:
1)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the PRA.
2)Defines a "lobbyist," for the purposes of the PRA, as an
individual who receives $2,000 or more in a calendar month, or
whose principal duties as an employee are, to communicate with
an elective state official, agency official, or legislative
official for the purpose of influencing legislative or
administrative action. This definition does not apply to any
elected public official acting in his or her official
capacity, or any state employee acting within the scope of his
or her employment.
3)Defines "administrative action," for the purposes of the PRA,
as either of the following:
a) The proposal, drafting, development, consideration,
amendment, enactment, or defeat by any state agency of any
rule, regulation, or other action in any ratemaking
proceeding or a quasi-legislative proceeding, as specified;
or,
b) With regard only to placement agents, as defined, the
decision by any state agency to enter into a contract to
invest state public retirement system assets on behalf of a
state public retirement system.
AB 2002
Page 5
4)Defines "agency official," for the purposes of the PRA, as any
member, officer, employee or consultant of any state agency
who as part of his official responsibilities participates in
any administrative action in other than a purely clerical,
secretarial or ministerial capacity.
5)Requires an individual who is considered a lobbyist, as
defined, to register as a lobbyist and to comply with various
ethics and reporting rules.
6)Requires lobbyists to complete a biennial orientation course
on the relevant ethical issues and laws relating to lobbying.
7)Requires lobbying firms and lobbyist employers to register
with the Secretary of State (SOS) and to file periodic
disclosure reports that contain information about the firms'
and employers' lobbying interests and agencies lobbied.
8)Permits any person to testify at a Commission hearing,
workshop, or other official proceeding, or submit written
comments for the record on a matter before the Commission.
9)Requires any person who applies to the Commission for approval
of a development permit to provide the Commission with the
names and addresses of all persons who, for compensation, will
be communicating with the Commission or its staff on the
applicant's behalf or on behalf of the applicant's business
partners. Requires that disclosure to be provided to the
Commission prior to any such communication.
AB 2002
Page 6
10)Requires a member of the Commission to disclose and make
public any ex parte communication by providing a full report
of the communication to the executive director within seven
days of the communication or, if the communication occurs
within seven days of the next Commission hearing, to the
Commission on the record of the proceeding at that hearing.
a) Defines an "ex parte communication," for the purposes of
communications related to actions of the Commission, as any
oral or written communication between a member of the
Commission and an interested person about a matter within
the Commission's jurisdiction, which does not occur in a
public hearing, workshop, or other official proceeding or
that is not on the record at such a proceeding.
b) Defines an "interested person" as (a) any applicant,
applicant's agent or representative, or participant in a
Commission proceeding, (b) any person with a financial
interest in a matter before the Commission, or his/her
agent or employee, or (c) a representative acting on behalf
of any civic, environmental, neighborhood, business, labor,
trade, or similar organization who intends to influence the
decision of a Commissioner.
c) Defines a "matter within the commission's jurisdiction"
as any permit action, federal consistency review, appeal,
local coastal program, port master plan, public works plan,
or any other quasi-judicial matter requiring Commission
action, for which an application has been submitted to the
Commission.
11)Prohibits a member of the Commission who has knowingly had an
ex parte communication that has not been reported, as
required, from voting on the matter or influencing the
AB 2002
Page 7
Commission in any way. Provides that knowing violations of
the disclosure or recusal requirements can result in fines of
up to $7,500, and a court order for the Commission to revoke
its action and rehear the matter.
FISCAL EFFECT: Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS:
1)Purpose of the Bill: According to the author:
AB 2002 will amend the California Coastal Act and the
[PRA] to require that those lobbying the Commission
must register with the [FPPC] as a lobbyist; they
must?disclose activities they are pursuing on behalf
of a client.
The decisions made by the Commission can have broad
and lasting impacts on coastal conservation and
coastal access. The Commission works with cities and
counties in the coastal zone to approve land use
policy that reflects the values put forth by the
voters in 1972. Due to the gravity of these decisions,
transparency of the process?is critical.
2)Coastal Commission Background & Lobbying Regulation: The
Commission is an independent, quasi-judicial state agency
generally charged with the management and regulation of
California's coastal resources. The Commission is empowered
to act as a policy-maker and a regulator with regard to
AB 2002
Page 8
coastal resources, and is heavily lobbied by the many
interests affected by its policies and decisions.
The Commission has 12 voting members and three ex officio
(non-voting) members. Of the voting members, six are "public
members," and six are local elected officials who come from
specific coastal districts. The Governor, the Senate Rules
Committee, and the Speaker of the Assembly each appoints four
Commissioners-two public members and two elected officials.
The Secretaries of the Resources Agency and the California
State Transportation Agency, and the Chair of the State Lands
Commission, are the three ex officio members of the
Commission.
The Commission, in partnership with coastal cities and counties,
plans and regulates the use of land and water in the coastal
zone. Development activities, which are broadly defined by
the Coastal Act to include, among others, construction of
buildings, divisions of land, and activities that change the
intensity of use of land or public access to coastal waters,
generally require a coastal permit from either the Commission
or the local government.
Under existing law, individuals and entities that make or
receive specified levels of payments for the purpose of
influencing legislative or administrative actions may be
required to comply with the state's lobbying rules, including
requirements to register with the SOS and to file periodic
reports. The term "legislative action," for these purposes,
is limited to matters before the Legislature and the action of
the Governor in approving or vetoing bills. The term
"administrative action" is defined primarily to include rule-
and rate-making, the adoption of regulations, and
quasi-legislative proceedings. Most of the Commission's
proceedings are quasi-judicial. Because quasi-judicial
AB 2002
Page 9
proceedings are not legislative or administrative actions,
payments for the purpose of influencing quasi-judicial
proceedings do not currently trigger the lobbying rules found
in the PRA.
Most boards and commissions that conduct quasi-judicial
hearings prohibit members from having ex parte communications
with interested parties. This ban does not apply to members
of the Commission. Instead, members of the Commission are
required to publicly disclose any ex parte communication.
3)Transparency of Coastal Commission Proceedings: The author
and supporters of this bill argue that it will help ensure
greater transparency of the actions of the Commission, and
thereby will help ensure the integrity of the Commission's
decisions. While it is true that existing law does not
require individuals who receive compensation for attempting to
influence Commission decisions to register as lobbyists and to
comply with the lobbying rules found in the PRA, state law
nonetheless includes provisions that are designed to ensure
transparency of the Commission's decisions. As noted above,
state law requires ex parte communications between members of
the Commission and interested parties to be publicly
disclosed, and includes significant penalties for violations
of the ex parte rules. Additionally, state law prohibits an
interested person, as defined, from making gifts aggregating
more than $10 in a calendar month to a member or staff of the
Commission. Requiring certain people to register as lobbyists
if they receive compensation to communicate with members of
the Commission may provide some additional information about
who those individuals' clients are and how much they are being
paid to influence Commission decisions. Much of the
information that would be required to be disclosed on lobbyist
disclosure reports, however, may already be disclosed under
existing law.
AB 2002
Page 10
4)Arguments in Support: In a letter submitted on behalf of
itself and 40 other organizations in support of the prior
version of this bill (which did not contain the provisions
related to ex parte communications), the California Coastal
Protection Network writes:
Many of the projects that come before the Commission
are valued in the range of tens of millions of
dollar[s], with one current project estimated at over
one billion dollars, and yet disclosure of the dollars
spent lobbying Commissioners for their approval is
unreported?.
Numerous other state agencies are subject to lobbying
and public disclosure rules, and we believe that it is
in the best interest of all Californians to have those
paid to lobby the [Commission] to provide the same
level of transparency.
The [Commission] plays a critically important role in
protecting and enhancing equal access to the coast for
all, stewarding our coastal resources and ensuring
that new development upholds these core tenets of the
Coastal Act. Our coast is our democratic commons, thus
it is imperative that those paid to lobby the
[Commission] are subject to the same lobbying
reporting and public disclosure laws to ensure
integrity, transparency and accountability in all its
actions.
AB 2002
Page 11
5)Arguments in Opposition: In a letter submitted on behalf of
itself and four other organizations in opposition to the prior
version of this bill (which did not contain the provisions
related to ex parte communications), the California Chamber of
Commerce writes:
Prior to the early 1990s the law was silent on ex
parte communications at the Coastal Commission. The
Coastal Act was then amended to explicitly allow
commissioners to engage in ex parte communications as
long as they disclose it and give written materials
provided to them to commission staff. Commissioners
are free to speak with anyone on any side of an issue
and they often do. Additionally, applicants are
required to provide written disclosures to the
Commission of anyone who receives compensation to
communicate with commissioners or staff. The
disclosure process has been working well for a number
of years. There is no reason to add cumbersome new
reporting requirements for applicants, their
employees, and their consultants to disclosures they
currently provide?.
The public should be encouraged to communicate
directly with public agency representatives, provided
this communication is properly disclosed. There is no
reason to change the current practice. To limit the
free exchange of information by imposing burdensome
and costly requirements?serves no public purpose and
can limit mutually acceptable outcomes.
Additionally, the American Planning Association, California
Chapter (APA California) has an "oppose unless amended"
position on the prior version of this bill (which did not
AB 2002
Page 12
contain the provisions related to ex parte communications).
APA California is seeking an amendment to exempt planning
consultants and design professionals who are hired by local
agencies from the requirement to register as lobbyists.
6)Related Legislation: AB 2658 (Maienschein), which is pending
in the Assembly Natural Resources Committee, would make
provisions of law that require reporting of ex parte
communications between Commission members and interested
parties applicable to ex parte communications between
Commission staff and interested parties.
7)Previous Legislation: The provisions of this bill that would
make certain communications with the Commission subject to the
PRA's rules governing lobbying are similar to provisions from
SB 929 (Kehoe) of 2005. SB 929 failed passage on the Senate
Floor, and was never heard in the Assembly.
8)Political Reform Act of 1974: California voters passed an
initiative, Proposition 9, in 1974 that created the FPPC and
codified significant restrictions and prohibitions on
candidates, officeholders and lobbyists. That initiative is
commonly known as the PRA. Amendments to the PRA that are not
submitted to the voters, such as those contained in this bill,
must further the purposes of the initiative and require a
two-thirds vote of both houses of the Legislature.
9)Double-Referral: This bill has been double-referred to the
Assembly Natural Resources Committee.
REGISTERED SUPPORT / OPPOSITION:
AB 2002
Page 13
Support
Asian Pacific Policy & Planning Council (prior version)
Audubon California (prior version)
Azul (prior version)
Black Surfers Collective (prior version)
Blue Frontier (prior version)
California Coastal Protection Network (prior version)
California Coastkeeper Alliance (prior version)
California League of Conservation Voters (prior version)
California Native Plant Society (prior version)
California Watershed Network (prior version)
CALPIRG (prior version)
The City Project (prior version)
Climate Parents (prior version)
Coastal Environmental Rights Foundation (prior version)
Courage Campaign (prior version)
Environment California (prior version)
Environmental Defense Center (prior version)
Environmental Justice Coalition for Water (prior version)
Friends of Harbors, Beaches, and Parks (prior version)
Hispanic Access Foundation (prior version)
Humboldt Baykeeper (prior version)
IDARE Sustainable Leadership (prior version)
Inland Empire Waterkeeper (prior version)
Klamath Riverkeeper (prior version)
Los Angeles Waterkeeper (prior version)
Los Cerritos Wetlands Land Trust (prior version)
Monterey Coastkeeper & Otter Project (prior version)
National Parks Conservation Association (prior version)
The Nature Conservancy (prior version)
AB 2002
Page 14
Orange County Coastkeeper (prior version)
Petaluma River Council (prior version)
Preserve Rural Sonoma County (prior version)
Russian Riverkeeper (prior version)
San Diego Coastkeeper (prior version)
San Francisco Baykeeper (prior version)
San Luis Obispo Channelkeeper (prior version)
Santa Barbara Channelkeeper (prior version)
Sierra Club California (prior version)
Smith River Alliance (prior version)
Sonoma County Conservation Action (prior version)
Surfrider Foundation (prior version)
Turtle Island Restoration Network (prior version)
Ventura Coastkeeper (prior version)
WILDCOAST (prior version)
Wishtoyo Chumash Foundation (prior version)
One individual (prior version)
Opposition
American Planning Association, California Chapter (unless
amended; prior version)
California Apartment Association (prior version)
California Association of Realtors (prior version)
California Business Properties Association (prior version)
AB 2002
Page 15
California Chamber of Commerce (prior version)
California Independent Petroleum Association (prior version)
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094