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
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          |Author:    |Jackson                |           |                 |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|William Craven                                       |
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                 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." 








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          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  








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          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  








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          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








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          Friends of Harbors Beaches and Parks
          Sierra Club California
          SoCal 350 Climate Action
          Western Alliance for Nature
          3 individuals

          OPPOSITION
          None received

          
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