BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 2002 Hearing Date: June 28,
2016
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|Author: |Mark Stone | | |
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|Version: |April 12, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|William Craven |
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Subject: Political Reform Act of 1974: California Coastal
Commission: communications
BACKGROUND AND EXISTING LAW
1)Creates the Fair Political Practices Commission (FPPC) and
makes it responsible for the impartial, effective
administration and implementation of the Political Reform Act
(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.
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
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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 California Coastal
Commission (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 and further requires that disclosure to be provided
to the Commission prior to any such communication.
6)Requires Commissioners to disclose and make public any ex
parte communication by providing a full report of the
communication to the executive director of the commission
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 his or her
agent or employee, or (c) a representative acting on behalf of
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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 and further 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.
PROPOSED LAW
This bill provides that communicating with the Coastal
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.
Specifically, 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
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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 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
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 party shall
conduct an ex parte communication within 24 hours before a
Commission hearing regarding a matter that the Commission
will discuss at the hearing.
ARGUMENTS IN SUPPORT
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
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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.
Other supporters, and they are numerous, make one fundamental
point: The bill adds much-needed transparency and
accountability so the public obtains more information about the
conduct of Commission business.
ARGUMENTS IN OPPOSITION
The coalition in opposition raises issues regarding the
penalties for non-compliance, and the scope of the bill is too
broad as it includes those who only provide technical
information. However, the main opposition argument seems to be
that the bill would reduce the information flow to commissioners
and diminish interactions between the public and commissioners.
The U.S. Department of Navy is opposed because it wants an
exemption from the bill for specified senior members of the
military.
A private law firm has requested numerous amendments including
restoration of language exempting attorneys who handle
administrative actions before the commission no more than once a
year, elimination of the registration exemption for local
governments, expanding the ex parte ban to Commission staff, and
others.
COMMENTS
1) 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).
2)Ex parte communications. Ex parte communications refer to any
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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 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. There were claims of frequent unreported ex
parte communications at the Commission. In 1992, basic ex
parte communications reporting was added to the Coastal Act.
3)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.
4)However, concerns remain about ex parte communications at the
Commission. Those concerns include the quality of the oral
reports that are required within a week of a meeting and the
ability of the public to find specific ex parte communication
reports. This bill requires written reports for all ex parte
communications. This bill also prohibits ex parte
communications within 24 hours of a Commission hearing.
5)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 the lobbying provisions of
this bill, must further the purposes of the initiative and
require a two-thirds vote of both houses of the Legislature.
SUPPORT
Asian Pacific Policy & Planning Council
Audubon California
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Azul
Black Surfers Collective
Blue Frontier
California League of Conservation Voters
California Coastal Protection Network
California Coastkeeper Alliance
California Native Plant Society
California State Controller, Betty Yee
California Watershed Network
CALPRIG
City of Berkeley
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 Project
National Parks Conservation Association
Orange County Coastkeeper
Petaluma River Council
Planning and Conservation League
Preserve Rural Sonoma County
Russian Riverkeeper
San Diego Coastkeeper
San Francisco Baykeeper
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
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Ventura Coastkeeper
WildCoast
Wishtoyo Chumash Foundation
One Individual
OPPOSITION
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
California Farm Bureau Federation
California Independent Petroleum Association
Department of the Navy
National Federation of Independent Business
The Loftin Firm, P.C.
Western States Petroleum Association
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