BILL ANALYSIS
AB 1978
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Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Pedro Nava, Chair
AB 1978 (Harkey) - As Amended: March 25, 2010
SUBJECT : Ex parte communications.
SUMMARY : Revises the ex parte communication requirements for
the California Regional Water Quality Control Boards (RWQCBs).
Specifically, this bill :
1)Provides that communications with RWQCB members are considered
ex parte communications if they are concerning RWQCB actions
including:
a) Waste discharge requirements;
b) Cleanup or abatement orders;
c) Cease and desist orders;
d) Administrative penalties; and,
e) Quasi-judicial matters that come before the RWQCB.
2)Prohibits RWQCB members from participating in ex parte
communications on any of the adjudicative proceedings
identified above.
3)Provides that communications are not considered ex parte if
the RWQCB members fully disclosed the communication and the
disclosure is made part of the official record of the RWQCB's
proceedings.
EXISTING LAW : Provides that if an adjudicative proceeding is
pending or impending before a RWQCB, ex parte communications
with that water board's members regarding an issue in that
proceeding are prohibited pursuant to the Administrative
Procedure Act. (Section 11430.10 of the Government Code).
FISCAL EFFECT : Unknown.
COMMENTS :
Need for the bill : According to the author, "the current ex
parte communication rules in place for Regional Water Quality
Boards limit access to board members, making it difficult for
individuals to present all relevant information pertaining to
AB 1978
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their case. Current rules state that if a board member has
engaged in communication deemed to be ex-parte, then they must
recuse themselves from voting once the case comes before the
board. In addition individuals are given a limited amount of
time to present their case, and the board members must rely
heavily on staff driven analysis. In the Assemblymember's case,
she was given 3 minutes to present. Individuals with pending
cases should be able to communicate/conduct site visits with
board members as long as these discussions are fully disclosed
on the record. This allows for a fair presentation of one's
case."
Why do we limit ex parte communications : Rules regarding ex
parte communications have their roots in constitutional
principles of due process and fundamental fairness. With public
agencies, ex parte communications rules also serve an important
function in providing transparency. Ex parte communications may
contribute to public cynicism that decisions are based more on
special access and influence than on the facts, the laws, and
the exercise of discretion to promote the public interest.
Ex parte communications are concerning in adjudicative
proceedings because they involve an opportunity by one party to
influence the decision maker outside the presence of opposing
parties, thus violating due process requirements. Such
communications are not subject to rebuttal or comment by other
parties. Ex parte communications can frustrate a lengthy and
painstaking adjudicative process because certain decisive facts
and arguments would not be reflected in the record or in the
decisions.
RWQCB ex parte communication requirements: According to the
State Water Resouces Control Board the ex parte communications
rules reflect the State and regional Water Boards hybrid powers.
Unlike the Legislature, the State and regional water boards
have attributes of both legislative power and judicial power.
The ex parte communications prohibition arises when the water
boards are exercising their judicial power. Rules and due
process preclude judges from receiving ex parte communications
on matters pending before them or inferior courts. Similarly,
even when exercising legislative power, the state and regional
water boards do so within the narrow confines of power granted
by the Legislature. Ex parte rules can help ensure that the
water boards are exercising the powers conferred by the
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Legislature within the confines of the power conferred by the
Legislature.
Current ex-parte rules very based on the type of issue that the
RWQCB is considering. For example, if a proceeding is not
pending before a water board, board members may communicate with
the public and governmental officials regarding general issues
within the water board's jurisdiction. Water board members may
also participate in information gathering efforts such as tours
or site visits. Issues for which an adjudicative proceeding is
pending before a RWQCB, ex parte communications with RWQCB
members regarding an issue in that proceeding are prohibited.
REGISTERED SUPPORT / OPPOSITION :
Support
Western Growers
Opposition
California Coastkeeper Alliance
Analysis Prepared by : Robert Fredenburg / E.S. & T.M. / (916)
319-3965