BILL ANALYSIS Ó SB 1190 Page 1 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 SB 1190 Page 2 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 SB 1190 Page 3 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. SB 1190 Page 4 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 SB 1190 Page 5 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 SB 1190 Page 6 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 SB 1190 Page 7 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. SB 1190 Page 8 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." SB 1190 Page 9 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 SB 1190 Page 10 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 SB 1190 Page 11 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 SB 1190 Page 12 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 SB 1190 Page 13 Western Plant Health Association Analysis Prepared by:Michael Jarred / NAT. RES. / (916) 319-2092