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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