BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1190| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 1190 Author: Jackson (D), et al. Amended: 5/3/16 Vote: 21 SENATE NATURAL RES. & WATER COMMITTEE: 6-3, 4/12/16 AYES: Pavley, Allen, Hertzberg, Jackson, Monning, Wolk NOES: Stone, Hueso, Vidak SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 SUBJECT: California Coastal Commission: ex parte communications: staff communications SOURCE: Author DIGEST: This bill prohibits coastal commissioners and interested persons from conducting ex parte communications on adjudicative or enforcement proceedings before the California Coastal Commission (Commission), requires disclosure of ex parte communications (including those that violated the prohibition), bans a commissioner from voting or participating on that item, and provides for communications between commissioners and Commission staff but prohibits attempts by commissioners to influence staff. ANALYSIS: Existing law: 1)Prohibits, with specified exceptions, "ex parte" communications between a member of the Coastal Commission and SB 1190 Page 2 an interested person about a matter within the jurisdiction of the Commission pursuant to the California Coastal Act of 1976. Such communications, by definition, do not occur in a public hearing or other official proceeding or on the record. 2)Authorizes, provided proper disclosure of such communications is made, ex parte communications. 3)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 pursuant to various provisions in the Public Resources Code. 4)Establishes that the Commission's procedures for prohibiting ex parte communications unless they are disclosed extends to "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. 5)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." 6)Requires commissioners to disclose to the public an ex parte communication on a 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. 7)Exempts enforcement proceedings from the prohibition on ex parte communications which are not specifically included in the statutory ban, pursuant to an opinion of the California Attorney General, which does not have the effect of law. SB 1190 Page 3 This bill: 1)Bans ex parte communications concerning adjudicative or enforcement proceedings before the Commission. 2)Requires disclosure even of banned communications within seven days of the ex parte communication or, on the record if the communication occurred within 7 days of the next Commission meeting and specifies the elements of the disclosure. 3)Bans a commissioner from voting on a matter that was the subject of an ex parte communication. 4)Authorizes commissioners to communicate to Commission staff provided no attempt is made to influence a Commission staff report or recommendation and bans commissioners who violate this provision from other public office in California. Comments Amendments in the Senate Appropriations Committee narrowed the prohibition on ex parte communications to adjudicative and enforcement matters, and exempts legislative and policy determinations made by the commission. This was an option discussed in policy committee but it did not remove the opposition from the coalition that opposes the bill. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No SUPPORT: (Verified5/10/16) Audubon California California Coastal Protection Network Courage Campaign Endangered Habitats League Friends of Harbors, Beaches and Parks Malibu Coalition for Slow Growth Organization of Regional Coastal Activists Sierra Club California SoCal 350 Climate Action SB 1190 Page 4 Western Alliance for Nature 5 individuals 17 former California Coastal Commissioners OPPOSITION: (Verified5/10/16) California Association of Realtors California Building Industry Association California Business Properties Association California Chamber of Commerce California Construction and Industrial Material Association California Cotton Ginners and Growers Association California Farm Bureau Federation Commercial Real Estate Development Association National Federation of Independent Business Western Agricultural Processors Association Western Plant Health Association 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 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 SB 1190 Page 5 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 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: The opposition coalition headed by SB 1190 Page 6 the California Chamber sent in a revised letter subsequent to the recent amendments. The coalition objects to a ban on ex parte communications even when limited to adjudicative or enforcement proceedings. It also objects to the proposed limitations on communications between commissioners and staff. According to the coalition headed by the California Chamber, citizen participation and communication should be encouraged, and that principle should extend not only to commissioners, but to staff. Prepared by:William Craven / N.R. & W. / (916) 651-4116 5/11/16 15:12:47 **** END ****