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 --