BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       SB 1190|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   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  








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            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. 








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          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







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          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  







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          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  







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          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


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