BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1190


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          Date of Hearing:  June 27, 2016


                       ASSEMBLY COMMITTEE ON NATURAL RESOURCES


                                 Das Williams, Chair


          SB  
          1190 (Jackson) - As Amended June 8, 2016


          SENATE VOTE:  23-12


          SUBJECT:  California Coastal Commission:  ex parte  
          communications:  staff communications


          SUMMARY:  Prohibits commissioners at the Coastal Commission  
          (Commission) from conducting ex parte communications on matters  
          within the Commission's jurisdiction or unduly influencing a  
          Commission staff report.



          EXISTING LAW, pursuant to the Coastal Act:


          1)Permits any person to testify at a Commission hearing,  
            workshop, or other official proceeding, or submit written  
            comments for the record on a matter before the Commission.

          2)Requires any person who applies to the Commission for approval  
            of a development permit to provide the Commission with the  
            names and addresses of all persons who, for compensation, will  
            be communicating with the Commission or its staff on the  
            applicant's behalf or on behalf of the applicant's business  








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            partners.  Requires that disclosure to be provided to the  
            Commission prior to any such communication.

          3)Defines an "ex parte communication," for the purposes of  
            communications related to actions of the Commission, as any  
            oral or written communication between a commissioner and an  
            interested person about a matter within the Commission's  
            jurisdiction which does not occur in a public hearing,  
            workshop, or other official proceeding, or that is not on the  
            record at such a proceeding.   

          4)Prohibits an ex parte communication unless the commissioner  
            fully discloses the communication.

          5)Requires commissioners to disclose and make public any ex  
            parte communication by providing a full report of the  
            communication to the executive director within seven days of  
            the communication or, if the communication occurs within seven  
            days of the next Commission hearing, to the Commission on the  
            record of the proceeding at that hearing.

          6)Requires the Commission to adopt standard disclosure forms for  
            reporting ex parte communications, which shall include:

             a)   The date, time, and location;

             b)   Identity of the person who made the communication and  
               the people who were present during the communication;

             c)   A complete, comprehensive description of the content of  
               the communication, including all material that was part of  
               the communication.

          7)Defines an "interested person" as (a) any applicant,  
            applicant's agent or representative, or participant in a  
            Commission proceeding, (b) any person with a financial  
            interest in a matter before the Commission his or her agent or  
            employee, or (c) a representative acting on behalf of any  
            civic, environmental, neighborhood, business, labor, trade, or  








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            similar organization who intends to influence the decision of  
            a commissioner.

          8)Prohibits a commissioner who has knowingly had an ex parte  
            communication that has not been reported as required from  
            voting on the matter or influencing the Commission in any way.  
             Provides that knowing violations of the disclosure or recusal  
            requirements can result in fines of up to $7,500 and a court  
            order for the Commission to revoke its action and rehear the  
            matter.





          THIS BILL:





          1)Prohibits a commissioner from conducting an ex parte  
            communication with an interested person.



          2)Requires disclosure of ex parte communications that are a  
            violation of the law and prohibits a commissioner from voting  
            or participating in a Commission matter if he or she has had  
            an ex parte communication. 

          3)Prohibits a commissioner from using his or her official  
            position to place undue influence on Commission staff to alter  
            their staff report.













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          4)Disqualifies a commissioner from holding a position at the  
            Commission if they willfully attempt to place undue influence  
            on staff. 

          FISCAL EFFECT: According to the Senate Appropriations Committee,  
          pursuant to Senate Rule 28.8, negligible state costs.


          COMMENTS:  


          1)Author's statement:


               Established by initiative in 1972 and indefinitely  
               extended in 1976, the California Coastal Commission  
               plans and regulates land use and public access on the  
               California coast. In matters before the Commission, ex  
               parte communications are defined as any private oral  
               or written communications between a decision-maker and  
               an interested party that do not occur in a public  
               meeting. Interested parties include, but are not  
               limited to, project applicants, people with a  
               financial interest in a matter before the Commission,  
               and any representative of a civic, environmental,  
               neighborhood, business, labor, trade, or similar  
               organization who intends to influence the decision of  
               a commissioner on a matter before the Commission.





               The Supreme Court has found that ex parte  
               communications can significantly bias decision-makers  
               in adjudicative government actions by allowing one  
               party to influence a decision maker outside the  
               presence of other parties and off the record. The  
               court found that this is a violation of procedural due  








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               process. As such, although current law allows ex parte  
               communications with commissioners, it requires that  
               such communications be cursorily disclosed on a form  
               or, if they occurred seven days prior to a meeting,  
               verbally in a public meeting. 


               Unlike other government agencies, commission staff  
               works independently of decision-makers, interpreting  
               the California Coastal Act free from political  
               influence. In a public hearing, the commissioners may  
               vote to accept the independent staff analysis, but  
               they may also reject staff recommendations. The  
               independence of commission staff is intended to ensure  
               the law is interpreted impartially and fairly.


               In February, the California Coastal Commission voted  
               to fire their executive director behind closed doors  
               despite being advised by their Counsel that doing so  
               was not necessary. This controversial action has led  
               to public accusations of undue political influence by  
               commissioners on Commission staff and a lack of  
               transparency in the decision-making process at the  
               Commission.


          2)Coastal Commission.  The Commission was established by  
            voter initiative in 1972 (Proposition 20) and later made  
            permanent by the Legislature through adoption of the  
            California Coastal Act of 1976 (Coastal Act).  In  
            partnership with coastal cities and counties, the  
            Commission plans and regulates the use of land and water  
            in the coastal zone.  Development activities, which are  
            broadly defined by the Coastal Act to include  
            construction of buildings, divisions of land, and  
            activities that change the intensity of use of land or  
            public access to coastal waters, generally require a  
            Coastal Development Permit (CDP) from either the  








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            Commission or the local government with a certified Local  
            Coastal Program (LCP).
            


            The Commission is an independent, quasi-judicial state  
            agency, and is composed of 12 voting members, appointed  
            equally (4 each) by the Governor, the Senate Rules  
            Committee, and the Speaker of the Assembly.  Six of the  
            voting commissioners are locally elected officials and  
            six are appointed from the public at large.  Three ex  
            officio (non-voting) members represent the Natural  
            Resources Agency, the Transportation Agency, and the  
            State Lands Commission. 





            According to the Commission's mission statement: 





               The Commission is committed to protecting and  
               enhancing California's coast and ocean for present and  
               future generations. It does so through careful  
               planning and regulation of environmentally-sustainable  
               development, rigorous use of science, strong public  
               participation, education, and effective  
               intergovernmental coordination. 





          3)Ex parte communications.  Ex parte communications refer to any  
            communication made in private (i.e., off the record and  








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            without notice and opportunity for all parties to participate)  
            between an interested party in a decision-making process and  
            any state official in a decision-making position.  Ex parte  
            communication disclosure requirements for state policy makers  
            are intended to provide the public with information regarding  
            a decision and to prevent bias in decision makers.  Prior to  
            1992, there was no mention of ex parte communications in the  
            Coastal Act.  There were claims of frequent unreported ex  
            parte communications at the Commission.  Then Assemblymember  
            Terry Friedman authored AB 3459, Chapter 1114, Statutes of  
            1992 and AB 909, Chapter 798, Statutes of 1993 to prohibit ex  
            parte communications.  These laws were interpreted as  
            prohibiting ex parte communication unless they are fully  
            disclosed.



            In 2014, AB 474 (Stone), Chapter 125, Statutes of 2014,  
            improved ex parte communications reporting requirements.  The  
            additions to the reporting requirements included the identity  
            of the person on whose behalf the communication was made; the  
            identity of all persons present during the communication; and  
            a complete, comprehensive description of the content of the ex  
            parte communication, including a complete set of all text and  
            graphic material that was part of the communication.  However,  
            concerns remain about ex parte communications at the  
            Commission.  Many of the ex parte communications submitted to  
            this Committee are not comprehensive, and news accounts state  
            some commissioners have not filed ex parte disclosure forms  
            for their ex parte communications.  There have been accounts  
            of commissioners filing brief disclosure forms and then  
            sending staff detailed e-mails about their ex parte  
            communications creating a discrepancy in the public record.   
            Commissioners also commonly disclose on the microphone at  
            Commission meetings.  The oral disclosures are usually an  
            extremely short account of the communication.  Finally, it is  
            difficult for the public to have access to the ex parte  
            communication disclosure forms. 









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            The Commission voted 6-5 this year to support banning ex parte  
            communications, and in their support letter they state,  
            "Commissioners have expressed concerns that the practice lacks  
            transparency, undermines due process, and erodes public trust  
            in the commission.  Some have stated that they would prefer  
            not to conduct ex partes, but feel pressured to do so because  
            the practice is so widespread.  The general conclusion is that  
            the current process leads to an 'uneven' level of information  
            available to the public." 





            On April 18, this Committee passed AB 2002 (Stone) which also  
            contained provisions on ex parte communications.  AB 2002  
            prohibits commissioners or an interested person in a  
            Commission action from conducting an ex parte communication  
            within 24 hours before a hearing regarding a matter that the  
            Commission will discuss at that hearing.  AB 2002 also  
            requires written disclosure of all ex parte disclosure forms.   
            The Commission also supports AB 2002. 





            Opponents of this legislation believe the Commission should be  
            accessible to the public and that public comment periods at  
            the Commission are limited.  The Commission's support letter  
            asserts, "Nothing in this bill would limit in any way the  
            ability of interested parties to share or convey information  
            with the Commission as an agency.  There are no limits on  
            submitting information, provided that it is provided equally  
            to all commissioners, staff and the public."








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          4)Staff reports.  Commission staff reports serve as independent  
            analysis for a CDP or LCP review.  Staff reports include a  
            scientific analysis of all impacts and identification of any  
            inconsistency with the Coastal Act.  Staff reports can be a  
            hundred pages and include staff's recommendations on how the  
            Commission should act.  Commissioners may follow, modify, or  
            reject staff's recommendation in the Commission meeting based  
            on their review of the material and testimony provided.  This  
            bill seeks to prohibit commissioners from unduly influencing  
            staff's recommendations prior to a public hearing on the  
            matter.
            
          REGISTERED SUPPORT / OPPOSITION:




          Support


          Audubon California


          California Coastal Commission


          California Coastal Protection Network


          California League of Conservation Voters


          Courage Campaign









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          Endangered Habitats League


          Friends of Harbors, Beaches and Parks


          Malibu Coalition for Slow Growth


          Organization of Regional Coastal Activists


          Planning and Conservation League


          Resources Legacy Fund


          Sierra Club California


          SoCal 350 Climate Action


          The Wildlands Conservancy


          Western Alliance for Nature


          24 Individuals




          Opposition










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          CalChamber


          California Association of Realtors


          California Building Industry Association


          California Business Properties Association


          California Construction and Industrial Materials Association


          California Cotton Ginners and Growers Association


          California Farm Bureau Federation


          California League of United Latin American Citizens


          California State Association of Electrical Workers


          California State Pipe Trades Council


          Coalition of California Utility Employees


          Commercial Real Estate Development Association - NAIOP


          Department of the Navy










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          International Brotherhood of Electrical Workers, Local Union No.  
          6


          International Brotherhood of Electrical Workers, Local No. 47


          International Brotherhood of Electrical Workers, Local Union No.  
          180


          International Brotherhood of Electrical Workers, Local Union No.  
          340


          International Brotherhood of Electrical Workers, Local Union No.  
          441


          International Brotherhood of Electrical Workers, Local Union 477


          National Federation of Independent Business


          Sheet Metal, Air, Rail, Transportation Workers Local Union 105


          Sheet Metal Workers' Local Union No. 104


          The Environmental Center of San Diego


          UA Local Union 345


          Western Agricultural Processors Association









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          Western Plant Health Association




          Analysis Prepared by:Michael Jarred / NAT. RES. / (916)  
          319-2092