BILL ANALYSIS Ó SENATE COMMITTEE ON ELECTIONS AND CONSTITUTIONAL AMENDMENTS Senator Ben Allen, Chair 2015 - 2016 Regular Bill No: AB 2002 Hearing Date: 6/21/16 ----------------------------------------------------------------- |Author: |Mark Stone | |-----------+-----------------------------------------------------| |Version: |4/12/16 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Darren Chesin | | | | ----------------------------------------------------------------- Subject: Political Reform Act of 1974: California Coastal Commission: communications DIGEST This bill provides that communicating with the Coastal Commission (Commission) in order to influence specified actions can result in a person being considered a "lobbyist" under the Political Reform Act (PRA) and 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. ANALYSIS 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 agency official, elected state 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 her official capacity, or any state employee acting within the scope of his or her employment. AB 2002 (Mark Stone) Page 2 of ? 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. 1)Defines "agency official," for the purposes of the PRA, as any member, officer, employee, or consultant of any state agency who as part of her official responsibilities participates in any administrative action in other than a purely clerical, secretarial, or ministerial capacity. 2)Requires a lobbyist to register as a lobbyist and to comply with various ethics and reporting rules. 3)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. 4)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. 5)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 (Mark Stone) Page 3 of ? 6)Requires Commissioners 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. 7)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. 8)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 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. 9)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. 10)Prohibits a Commissioner who has knowingly had an ex parte communication that has not been reported as required from voting on the matter or influencing the 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. AB 2002 (Mark Stone) Page 4 of ? This bill: 1)Provides that communications with Commissioners regarding specified business before the Commission can result in a person being considered a lobbyist under the PRA, pursuant to the following: a) Expands the definition of "administrative action" to also mean 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 other exclusion from coastal development permit requirements. b) Provides, for the purposes of a quasi-judicial matter before the Commission, that the term "agency official" only means Commissioners, thereby generally excluding communications with staff or consultants of the Commission regarding matter before the Commission 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. 1)Requires Commissioners to disclose any ex parte communication in writing as follows: a) If the communication occurs more than seven days before the next commission hearing, to the executive director within seven days after the communication. b) If the communication occurs within seven days of the next commission hearing, to the commission on the record of the proceeding at that hearing. c) If the communication occurs within seven days of the next commission hearing and relates to a matter that the AB 2002 (Mark Stone) Page 5 of ? commission will discuss at the hearing, to the commission in writing at least 24 hours before that hearing. d) No commission member, nor any interested person, shall conduct an ex parte communication within 24 hours before a commission hearing regarding a matter that the commission will discuss at the hearing. BACKGROUND Coastal Commission . The Commission was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976 (Coastal Act). In partnership with coastal cities and counties, the Commission 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 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 Development Permit (CDP) from either the Commission or the local government with a certified Local Coastal Program (LCP). The Commission is an independent, quasi-judicial state agency, and is composed of 12 voting members, appointed equally (4 each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Six of the voting commissioners are locally elected officials and six are appointed from the public at large. Three ex officio (non-voting) members represent the Natural Resources Agency, the Transportation Agency, and the State Lands Commission. According to the Commission's mission statement, the Commission is committed to protecting and enhancing California's coast and ocean for present and future generations through careful planning and regulation of environmentally-sustainable development, rigorous use of science, strong public participation, education, and effective intergovernmental coordination. Ex parte communications . Ex parte communications refer to any communication made in private (i.e., off the record and without notice and opportunity for all parties to participate) between an interested party in a decision-making process and any state official in a decision-making position. Ex parte communication AB 2002 (Mark Stone) Page 6 of ? disclosure requirements for state policy makers are intended to provide the public with information regarding a decision and to prevent bias in decision makers. Prior to 1992, there was no mention of ex parte communications in the Coastal Act. In 1992, basic ex parte communications reporting was added to the Coastal Act. In 2014, AB 474 (Stone, Chapter 125, Statutes of 2014), improved ex parte communications reporting requirements. The additions to the reporting requirements included the identity of the person on whose behalf the communication was made, the identity of all persons present during the communication, and a complete, comprehensive description of the content of the ex parte communication, including a complete set of all text and graphic material that was part of the communication. This bill requires written reports for all ex parte communications. This bill also prohibits ex parte communications within 24 hours of a Commission hearing. COMMENTS According to the author : Currently members of the California Coastal Commission are lobbied without the same level of transparency that is met when other state officials are lobbied. AB 2002 will amend the California Coastal Act and the California Political Reform Act to require that those lobbying the Commission must register with the Fair Political Practices Commission 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. AB 2002 (Mark Stone) Page 7 of ? RELATED/PRIOR LEGISLATION SB 1190 (Jackson), which is pending in the Assembly Natural Resources Committee, prohibits all ex parte communications at the Commission. AB 2658 (Maienschein), which was never voted on in the Assembly Natural Resources Committee, would have required Commission staff to disclose certain communications as specified and imposed time limits for posting specified recordings and materials on the Commission website. PRIOR ACTION ------------------------------------------------------------------ |Assembly Floor: |54 - 23 | |--------------------------------------+---------------------------| |Assembly Appropriations Committee: |14 - 6 | |--------------------------------------+---------------------------| |Assembly Natural Resouces Committee: | 7 - 2 | |--------------------------------------+---------------------------| |Assembly Elections and Redistricting | 6 - 1 | |Committee: | | |--------------------------------------+---------------------------| | | | ------------------------------------------------------------------ POSITIONS Sponsor: Author Support: Betty Yee, California State Controller Asian Pacific Policy & Planning Council Audubon California Azul\Hispanic Access Foundation Black Surfers Collective Blue Frontier CA Native Plant Society California Coastal Protection Network California Coastkeeper Alliance California League of Conservation Voters California Public Interest Research Group California Watershed Network AB 2002 (Mark Stone) Page 8 of ? City of West Hollywood Climate Parents Coastal Environmental Rights Foundation Courage Campaign Environment California Environmental Defense Center Environmental Justice Coalition for Water Friends of Harbors, Beaches and Parks Hispanic Access Foundation Humboldt Baykeeper IDARE Sustainable Leadership Inland Empire Waterkeeper Klamath Riverkeeper Los Angeles Waterkeeper Los Cerritos Wetlands Land Trust Monterey Coastkeeper & Otter Projects National Parks Conservation Association Orange County Coastkeeper Petaluma River Council Preserve Rural Sonoma County Russian Riverkeeper San Francisco Baykeeper San Diego Coastkeeper San Luis Obispo Channelkeeper Santa Barbara Channelkeeper Sierra Club California Smith River Alliance Sonoma County Conservation Action Surfrider Foundation The City Project The Nature Conservancy Turtle Island Restoration Network Ventura Coastkeeper Wallace J. Nicholas, Ph.D., Author, Blue Mind WildCoast Wishotyo Chumash Foundation Oppose: California Apartment Association California Building Industry Association California Business Properties Association California Cattlemen's Association California Chamber of Commerce California Construction and Industrial Materials Association AB 2002 (Mark Stone) Page 9 of ? California Farm Bureau Federation California Independent Petroleum Association Loftin Firm, P.C. National Federation of Independent Business Western States Petroleum Association -- END --