BILL ANALYSIS Ó
AB 2658
Page 1
Date of Hearing: April 18, 2016
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 2658
(Maienschein) - As Introduced April 12, 2016
SUBJECT: California Coastal Commission: ex parte
communications: meetings
SUMMARY: Requires Coastal Commission (Commission) staff to
disclose in their staff reports any communication on a matter
before the Commission between the staff member acting in his or
her official capacity and an interested person. Imposes time
limits for posting recordings and materials on the Commission
website.
EXISTING LAW:
1)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.
2)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
AB 2658
Page 2
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.
3)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.
4)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.
5)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.
THIS BILL:
1)Requires Commission staff to maintain records of and disclose
any communication between the staff member acting in his or
her official capacity and an interested person pertaining to a
matter before the Commission by including the following
information:
AB 2658
Page 3
a) The date of the communication with an interested person;
b) The name of the interested person with whom the staff
member communicated;
c) The matter to which the communication applies; and,
d) A statement of the interested person's position with
regard to the matter discussed and whether he or she
represents another person or entity in the matter.
2)Requires video or audio recordings of all hearings, workshops,
or other proceedings to be posted on the Commission's internet
website within 72 hours of the proceeding.
3)Requires written and electronic communications submitted to
the Commission as part of a proceeding to be posted on the
Commission's website with seven days of receipt.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's statement:
The recent, very public firing of the Coastal
Commission Executive Director brought to light a
AB 2658
Page 4
number of transparency issues within the organization.
The lack of openness regarding communications between
Coastal Commission staff and interested parties, the
availability of information online for public comment,
and the limited information available to the
Commissioners themselves are just a few examples.
Currently, the Coastal Commission experiences very
limited oversight and is not subject to current law
that governs the actions of many similar entities such
as the State Water Board. This bill will help address
some of the problems they currently face.
Specifically, AB 2658 will bring Coastal Commission
staff under the same umbrella regarding ex parte
communications that the Commissioners themselves must
follow. Additionally, this bill requires that all
transcripts or audio recordings of all hearings,
workshops, or other written proceedings are posted on
the Commission website in a timely manner, allowing
for more public access/comment.
2)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
AB 2658
Page 5
Coastal Program (LCP).
The Commission is an independent, quasi-judicial state
agency 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 California State 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. It does so through careful
planning and regulation of environmentally-sustainable
development, rigorous use of science, strong public
participation, education, and effective
intergovernmental coordination.
3)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)
AB 2658
Page 6
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 relating
to 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.
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. 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.
4) This bill. The author claims the Commission experiences very
limited oversight and is not subject to current law that
governs the actions of many similar entities such as the State
Water Resources Control Board (SWRCB). However, SWRCB does
not follow many of the provisions of this bill. Unlike the
Commission, many of SWRCB regional boards do not make video or
audio recordings of their hearings. In addition, SWRCB does
not require staff to report ex parte communications. Ex parte
communications are intended for the decision-makers. Staff
members at the Commission are not decision makers, the
Commissioners are. It may be appropriate to include which
interested parties have communicated with staff in the staff
report. However, this bill requires an onerous level of
detail, and might deter Commission staff from working with
AB 2658
Page 7
interested parties. In addition, nothing in existing law
prohibits Commissioners from asking for this information from
staff.
5)Related legislation.
SB 1190 (Jackson) prohibits all ex parte communications at the
Commission. This bill is awaiting hearing in the Senate
Appropriations Committee.
AB 2002 (Stone) provides that communicating with the California
Coastal Commission in order to influence specified actions can
result in a person being considered a "lobbyist" under the
Political Reform Act. This bill prohibits an ex parte
communication with a Commissioner regarding a matter during the
24 hours before that matter will be discussed at a Commission
hearing. This bill is scheduled to be heard in this committee
on April 18, 2016.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
AB 2658
Page 8
Opposition
Audubon California
Azul
California Coastal Protection Network
California League of Conservation Voters
Coastal Environmental Rights Foundation
Committee for Green Foothills
Courage Campaign
Day One
Endangered Habitats League
Environment California
Heal the Bay
Surfrider Foundation
The City Project
Western Alliance for Nature
One individual
Analysis Prepared by:Michael Jarred / NAT. RES. / (916) 319-2092
AB 2658
Page 9