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
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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