BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1190|
|Office of Senate Floor Analyses | |
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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: (Verified5/16/16)
Audubon California
California Coastal Commission
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
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SoCal 350 Climate Action
The Wildlands Conservancy
Western Alliance for Nature
5 individuals
17 former California Coastal Commissioners
OPPOSITION: (Verified5/16/16)
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.
The California Coastal Commission (Commission) letter indicated
that recent news coverage has revealed inconsistencies in
conducting and reporting these private [ex parte]
communications, some of which may raise legal questions that
could affect Commission actions. At this point, the Commission
concluded that there is no feasible means of oversight or
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realistic enforcement mechanisms to ensure consistent compliance
with the law. The Commission prefers that information from
applicants and others be submitted uniformly through the
Commission to all commissioners which would ensure that there
are no limits on sharing or conveying information and that all
such information is also available to the public.
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
independently of the decision-makers and provide their
professional and scientific analysis free from political
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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
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
5/16/16 10:42:26
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