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 ----------------------------------------------------------------- |Author: |Mark Stone | | | ----------------------------------------------------------------- ----------------------------------------------------------------- |Version: |April 12, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|William Craven | | | | ----------------------------------------------------------------- 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 AB 2002 (Mark Stone) Page 2 of ? 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 AB 2002 (Mark Stone) Page 3 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 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 AB 2002 (Mark Stone) Page 4 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 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 AB 2002 (Mark Stone) Page 5 of ? 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 AB 2002 (Mark Stone) Page 6 of ? 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 AB 2002 (Mark Stone) Page 7 of ? 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 AB 2002 (Mark Stone) Page 8 of ? 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 -- END --