BILL ANALYSIS �
AB 2063
Page 1
Date of Hearing: May 16, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 2063 (Alejo) - As Amended: April 30, 2012
Policy Committee: Water, Parks and
Wildlife Vote: 9-1
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill allows certain communications between interested
parties and regional or state water board members, declaring
them not to be ex parte communications, or to be allowable ex
parte communications, provided the board member reports the
communication using standard disclosure forms to be adopted by
the State Water Resources Control Board (SWRCB) and the regional
board.
FISCAL EFFECT
Minor, absorbable costs to SWRCB to develop reporting forms and
to report ex parte communications (special fund).
COMMENTS
1)Rationale . The author contends this bill will help ensure
members of the public are given adequate opportunities to
present their views and opinions to board members.
2)Background. According to the Office of the Chief Counsel of
the SWRCB, an ex parte communication is a communication to a
board member about a pending water board matter that occurs in
the absence of other parties to the matter and without notice
and opportunity for all parties to participate in the
communication. In very general terms, the Chief Counsel
explains the water boards' prohibition on ex parte
communication as follows:
a) If a proceeding is not pending or impending before a
water board, board members may communicate with the public
AB 2063
Page 2
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.
b) If an adjudicative proceeding is pending or impending
before a water board, ex parte communications with that
water board's members regarding an issue in that proceeding
are prohibited.
c) If a rulemaking or other proceeding is pending or
impending before a water board, a board member may, if he
or she chooses.
The Chief Counsel explains the rationale behind the
prohibition on ex parte communication thusly:
Ex parte communications are fundamentally offensive 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. Finally, ex parte
contacts may frustrate judicial review since the record would
be missing such communications.
3)Support. This bill is supported by a long list of industry
groups who regularly have adjudicative business before the
water boards who believe they may receive better outcomes if
they had more opportunities to communicate with board members.
4)Opposition. This bill is opposed by the Coastkeeper Alliance
and the Sierra Club of California, who contend the bill would
harm open process requirements without demonstrating there is
a need to do so.
Analysis Prepared by : Jay Dickenson / APPR. / (916) 319-2081