BILL ANALYSIS Ó SENATE COMMITTEE ON NATURAL RESOURCES AND WATER Senator Fran Pavley, Chair 2015 - 2016 Regular Bill No: SB 1190 Hearing Date: April 12, 2016 ----------------------------------------------------------------- |Author: |Jackson | | | ----------------------------------------------------------------- ----------------------------------------------------------------- |Version: |March 28, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|William Craven | | | | ----------------------------------------------------------------- Subject: California Coastal Commission: ex parte communications: staff communications BACKGROUND AND EXISTING LAW The California Coastal Act of 1976 prohibits, with specified exceptions, "ex parte" communications between a member of the Coastal Commission and an interested person about a matter within the jurisdiction of the commission. Such communications, by definition, do not occur in a public hearing or other official proceeding or on the record. When proper disclosure of such communications is made, ex parte communications are lawful. Existing law also prohibits commissioners or alternates from trying to influence a commission decision in circumstances in which an ex parte communication has not been reported. A civil fine of up to $7500 may be imposed, plus attorney's fees, and the commission action may be revoked. Public Resources Code Sections 30324 (a), 30327, and 30824. Public Resources Code Section 30321 establishes the commission's jurisdiction for matters that are subject to the above prohibition on ex parte communications and the disclosure requirements. These include "any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, categorical or other exclusions from coastal development permit requirements, or any other quasi-judicial matter requiring commission action, for which an application has been submitted to the commission." SB 1190 (Jackson) Page 2 of ? Section 30323 defines an "interested person" to be "any applicant, an agent or an employee of the applicant, or a person receiving any consideration for representing the applicant, or a participant in a proceeding in any matter before the Commission." An "interested person" also includes "a person with a financial interest in a matter before the Commission and their agents as well as organizational representatives who intend to influence commission decisions." Commissioners must disclose to the public an ex parte communication on the prescribed form within 7 days of the communication. If the communication occurs within 7 days of the next commission meeting, the disclosure must be made on the record of the proceeding in that hearing. The California Attorney General has opined that commissioners may not engage in ex parte communications in the context of enforcement proceedings because enforcement proceedings are not contained in Section 30321. This advice letter does not have the effect of law. The policy of the Coastal Act is to "ensure full and adequate participation by all interested groups and the public at large." Public Resources Code Section 30339. PROPOSED LAW This bill would ban ex parte communications. It would also amend the Coastal Act to ensure that commissioners or alternates do not attempt to influence, change, or alter a staff report, analysis, or recommendation prior to the time the staff report is made public at a hearing or other official proceeding. Violations of this provision would be subject to a fine of $1000 or imprisonment and a violator would be disqualified forever from holding any office in California. ARGUMENTS IN SUPPORT According to the author, the recent firing of the executive director of the Coastal Commission has resulted in a high degree of public uncertainty, accusations of a lack of transparency in the decision-making process, and generated concerns of undue political influence by commissioners on commission staff. The author stated that the bill will help restore the public's trust in the commission, ensure that decisions are made more openly and transparently, and remove the possibility of back-room SB 1190 (Jackson) Page 3 of ? decision-making or the perception that it is happening. She added that SB 1190 would level the playing field between big-moneyed interests and those without such financial resources. By protecting the independence of commission staff, she believes that the bill adds to coastal protection from threats related to climate change, pollution, and unchecked development. All of the supporters stress the importance not only of the ban on ex parte communications but also the importance of clarifying the independence of staff. Most are sharply critical of the existing practice of "reporting" ex parte communications which they characterize as inadequate and cursory. Many suggest that ex parte communications are handled unevenly by commissioners such that certain viewpoints are often not able to have an audience with certain commissioners. Others note that the ability to travel to ex parte meetings is not something that individuals or small non-profits are able to do. Instead, that is a perk for those who can afford to do so and it is often done by those with very expensive and potentially lucrative development applications pending before the commission. The Sierra Club noted that many of its members have successfully worked with commissioners using ex parte communications, but this group nevertheless supports the proposed ban because "the recent firing of Dr. Charles Lester [as the executive director of the commission] has shown the ability of other groups to use ex parte communications far more effectively with terrible results for the coast." Almost all of the supporters would agree with another Sierra Club statement that "ex parte communication restrictions are common for other judicial and quasi-judicial bodies, from courts to most state agencies. This protects the public who does not have the same access and is not able to wine and dine with commissioners before meetings, with little disclosure. Developers and other interests that would prefer a privatized coast have more resources available that makes leveling the field necessary." Almost all of the supporters also stressed the importance of the independence of staff. As said by the Western Alliance for Nature (Sara Wan, a long time former coastal commissioner is the Executive Director), "the commission staff must be free to work SB 1190 (Jackson) Page 4 of ? independently of the decision-makers and provide their professional and scientific analysis free from political influence and pressure. Commissioners should enter the hearing process with an independent staff report and written correspondence from all interested parties. Then they should listen to the public hearing with an open mind taking into consideration the input from all. It is important to also recognize that there are 12 voting commissioners, each with their own personal biases. They are free to express and act accordingly in casting their votes, but they should not be allowed to taint the staff report with those biases. If allowed, it would mean that those in the majority would be, in essence, slanting the staff recommendation in advance of the hearing. This is contrary to a fair and open process." ARGUMENTS IN OPPOSITION None received COMMENTS Commentators and court decisions have noted that ex parte communications introduce an improper element of bias into decision-making but providing, in this context, a coastal commissioner with information that can't be challenged by an adverse party. Court decisions by the U.S. Supreme Court and California courts have established the procedural due process requires a meaningful opportunity to participate in the process as well as decision makers who are as unbiased as possible. As said in a California decision, "One adversary should not be permitted to bend the ear of the ultimate decision maker or the decision maker's advisors in private." Department of Beverage Control v Alcoholic Beverage Control Appeals Board. Agencies subject to the California Administrative Procedure Act (APA) prohibit ex parte communications. Most of the state's adjudicative agencies, such as the coastal commission, have their own provisions. The Coastal Commission is exempted from the prohibition on ex parte communications contained in the APA. SUPPORT Endangered Habitats League Ex-Commissioner Phyllis Faber SB 1190 (Jackson) Page 5 of ? Friends of Harbors Beaches and Parks Sierra Club California SoCal 350 Climate Action Western Alliance for Nature 3 individuals OPPOSITION None received -- END --