BILL ANALYSIS �
AB 2063
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 2063
AUTHOR: Alejo
AMENDED: June 18, 2012
FISCAL: Yes HEARING DATE: July 2, 2012
URGENCY: No CONSULTANT: Rachel Wagoner/
Joanne Roy
SUBJECT : STATE WATER RESOURCES CONTROL BOARD AND REGIONAL
WATER QUALITY CONTROL BOARDS: EX PARTE
COMMUNICATIONS
SUMMARY :
Existing law :
1) Under the fifth and fourteenth amendments of the United
States Constitution, guarantees due process whenever an
adjudicative governmental action deprives a person of life,
liberty or property. The core requirements for meeting due
process are:
a) Effective notice to directly affected parties;
b) A meaningful opportunity to participate in the process;
c) Decisionmakers who are as unbiased as possible.
2) Under the federal Administrative Procedure Act, defines:
a) Ex parte contacts as "oral or written communication not
on the public record with respect to which reasonable
prior notice to all parties is given." In formal
rulemaking or adjudication, ex parte contacts are
forbidden; any such communication must be placed in the
public record.
b)Rulemaking as "an agency process for formulating, amending,
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or repealing a rule." A rule in turn is "the whole or a
part of an agency statement of general or particular
applicability and future effect designed to implement,
interpret, or prescribe law or policy."
c)Adjudication as "an agency process for the formulation of
an order." An order in turn is "the whole or part of a
final disposition ... of an agency in a matter other than
rulemaking but including licensing."
3) Under the California Administrative Procedure Act (APA):
a) "Prohibits any communication, direct or indirect, to a
presiding officer in an adjudicatory proceeding from any
party, unless there is notice and an opportunity for all
parties to participate in the communication." As defined
by the APA "presiding officer" means "agency head, member
of the agency, administrative law judge, hearing officer
or other person who presides in the adjudicative
proceedings." Exceptions are allowed for communications
concerning matters of procedure or practice. If a
presiding officer receives a communication in violation of
the ex parte prohibition, the officer must make full
written disclosure, notify all parties, provide an
opportunity for the opposing party to address the
communication and reopen the hearing at the officer's
discretion. Receipt of an ex parte communication is
grounds for disqualifying the presiding officer.
(Government Code ��11405.10-11430.80). The California
Coastal Commission, the former Integrated Waste Management
Board and the Public Utilities Commission (PUC) were
statutorily exempted from the APA's prohibition on ex
parte communications, among other state agencies. These
requirements do not cover quasi-legislative proceedings.
b) Defines "adjudicatory proceeding" as "an evidentiary
hearing for determination of facts pursuant to which an
agency formulates and issues a decision."
4) Requires the State Water Resources Control Board (SWRCB)
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and the California regional water quality control boards
(RWQCBs) to implement the Federal Water Pollution Control
Act and the Porter-Cologne Water Quality Control Act by
prescribing waste discharge requirements for discharges to
the waters of the state, as specified. The SWRCB and
RWQCBs may hold hearings necessary for carrying out their
duties, as specified. The SWRCB and RWQCBs are governed by
the APA ex parte requirements.
This bill :
1) Defines "interested party" as:
a) A participant in the proceeding regarding a matter
before a board, or an agent, employee, or a person
receiving consideration for representing that participant.
b) A person with a financial interest in a matter before a
board, or an agent, employee, or a person receiving
consideration for representing that person.
c) A representative acting on behalf of a civic,
environmental, neighborhood, business, labor, trade, or
similar organization who intends to influence the decision
of a board member on a matter before the board.
2) Defines "ex parte communication" as an oral or written
communication between a board member and an interested person
about a matter within the board's jurisdiction, and the
communication does not occur in a public hearing, workshop,
or other official proceeding, or on the official record of
the proceeding on the matter.
3) Excludes a communication between a SWRCB or RWQCB staff and
either a board member or any interested person from the
requirements and prohibitions in the APA pertaining to ex
parte communications.
4) Allows an ex parte communication if:
a) The contact is initiated by an interested party and
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directed to:
i) An SWRCB or RWQCB member regarding:
a) Waste discharge requirements.
b) Conditions of water quality
certification.
c) Conditional waiver of waste discharge
requirements where the board action does not
identify specific persons or dischargers, but
instead allows persons to enroll or file an
authorization to discharge under the action.
ii) An RWQCB member regarding a municipal separate
sewer permit under Section 402(p)(3) of the federal
Clean Water Act (33 U.S.C. Section 1344 et seq.).
b) The SWRCB or RWQCB member discloses and makes public
the ex parte communication by providing a full report to
the board on the record within seven days after the
communication, or if the communication occurs within seven
days of the next board hearing, to the board on the record
of the proceeding at that hearing.
5) Requires the Office of Administrative Law (OAL) to adopt, and
provide to the RWQCBs for adoption, standard disclosure forms
for reporting ex parte communications.
6) Requires the disclosure form to include specified
information.
7) Requires SWRCB or RWQCB to place in public record any report
of an ex parte communication involving that board.
8) Requires the presiding officer to notify specified parties by
electronic mail in a timely manner that a communication has
been made as part of the record.
9) Allows a party to request an opportunity to address the
communication within 10 days after receipt of notice of the
communication and to comment on the communication.
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COMMENTS :
1) Purpose of Bill . The author states, "The purpose of AB 2063
is to change the current restrictions on ex parte
communications between the SWRCB and its nine RWQCBs to allow
board members to engage in communications with members of the
public on issues decided by the board."
"Given the expansive jurisdiction under SWRCB and its RWQCBs, it
is important that board members make informed decisions on
issues pertaining to water quality. As part of making an
informed decision, board members should understand the ways
in which their decision will impact the varying interests of
the public. As an act of good government, members of the
public should be given adequate opportunities to present
their views and opinions to the board members on matters that
would affect them."
2) Ex parte rules for boards and commissions. Ex parte
communications are private communications between an
interested party in a decisionmaking process and an official
in a decisionmaking position. Because they can introduce an
element of bias in a decisionmaking process federal and state
law as well as agency policy prescribe requirements for ex
parte communications for specified proceedings. Because
boards and commissions can vary in the type of proceedings
held, the process of each may vary for each board or
commission.
a) SWRCB . SWRCB regulations (Title 23 California Code of
Regulations, Section 648) conform to the APA relative to
adjudicatory proceedings, including the limitations on ex
parte communications. Should a prohibited ex parte
communication be received during an adjudicatory
proceeding, the board member must disclose the
communication on the record. Disclosure requires either:
i) including a written ex parte communication in the
record, along with any response from the board member; or
ii) memorializing an oral communication by including a
memorandum in the record stating the substance of the
communication, identifying who was present at the time of
the communication and any response from the member. The
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board member must notify all parties of the ex parte
disclosures.
b) The former California Integrated Waste Management Board
(CIWMB) . The former CIWMB was statutorily exempted from
the APA's provisions regarding ex parte communication in
adjudicatory proceedings and instead was governed by
former provisions in the Public Resources Code. The CIWMB
held only two or three adjudicatory proceedings every
year. All other matters were quasi-legislative.
Public Resources Code �40412 defined ex parte
communications for CIWMB as "? any oral or written
communication concerning matters, other than purely
procedural matters, under the board's jurisdiction which
are subject to a rollcall vote?"
The statute provided that no board member or person
(except a staff member of the board acting in an official
capacity) may conduct an ex parte communication. However
if an ex parte communication occurred, the board member
was to notify the interested party that a full disclosure
of the communication would be entered into the board's
record. The statute also provided that once a board
member disclosed the ex parte communication in writing and
requested that it be entered into the board's official
record of the proceeding, it was no longer considered an
ex parte communication.
Any person who violated the ex parte statute governing
CIWMB was punishable by a fine of not more than $50,000 or
by imprisonment for not more than a year. Furthermore,
upon the request of any person, the Attorney General could
file a civil complaint in the superior court of the county
in which the board has its principal office alleging that
a board member has knowingly violated the ex parte law.
If found guilty, the board member was to be removed from
office.
c) The California Air Resources Board (ARB) . The ARB,
like SWRCB, falls under the provisions of the APA.
Regulations regarding ex parte communications during
adjudicatory proceedings are found in the California Code
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of Regulations, Title 17, Division 3, Article 2,
Subarticles 3 and 4, prohibiting a hearing officer and the
executive officer from participating in "any
communications with any party, representative of party, or
any person who has a direct or indirect interest in the
outcome of the proceedings about the subject matter or
merits of the case at issue, without notice and
opportunity of all parties, to participate in
communication? No pleading, letter, document or other
writing shall be filed unless service of a copy
therefore?is made on all parties to a proceeding."
The regulations require that if a hearing officer or the
executive officer receives a communication in violation of
the ex parte prohibition, the officer is required to
promptly disclose the contents on the record and give all
parties the opportunity to address it. The officer has
the discretion to reopen a hearing to allow all parties
the opportunity to present evidence regarding the subject
of the ex parte communication. Receipt of ex parte
communications may be grounds for disqualification.
As noted previously, the APA does not require disclosure
of ex parte communications in rulemaking
proceedings/quasi-legislative proceedings that consider
board policy questions. However, it is ARB's policy to
disclose those communications.
d) The California Coastal Commission (CCC). The CCC is
statutorily exempted from the APA provisions regarding ex
parte communications and instead is governed by provisions
in Public Resources Code ��30320-30329. In general, ex
parte communications to CCC commissioners are prohibited
unless disclosed. The Coastal Act requires the CCC to
conduct its business in an "?open, objective and impartial
manner free from undue influence and the abuse of power
and authority." (�30320).
Public Resources Code �30321 broadly defines the
jurisdiction of the CCC for purposes of the ex parte
prohibition as, "?any permit action, federal consistency
review, appeal, local coastal program port master plan,
public works plan, long-range development plan,
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categorical or other exclusions from coastal development
permit requirements, or any other quasi-judicial matter
requiring commission action, for which an application has
been submitted" to the CCC. CCC Commissioners must
disclose and make public ex parte communication from an
interested person by providing a full report to the
executive director within 7 days. The report is to be
placed in the public record. If communication occurs
within seven days of the next commission meeting, the
disclosure must be made to the full Commission on the
record of the proceedings at that hearing. Once disclosed
and placed in the Commission's official record, a
communication ceases to be an ex parte communication.
The statute limits disclosure of advocates paid to
influence matters before the CCC.
e) The Public Utilities Commission (PUC) . The Public
Utilities Act governs the PUC's procedures for hearings
and judicial review. The PUC holds three types of
hearings: quasi-legislative, adjudicative and rate
setting, each with different ex parte requirements.
Adjudication cases: Ex parte communications are prohibited
in adjudication cases.
Rate setting cases: Ex parte communication is also
prohibited in rate setting cases.
The ex parte prohibition is qualified for rate setting
cases as "?oral ex parte communications may be permitted
at any time by any commissioner if all interested parties
are invited and given not less than three days' notice.
Written ex parte communications may be permitted by any
party provided that copies of the communication are
transmitted to all parties on the same day." The statute
further specifies that if an individual ex parte meeting
is granted, all parties must be granted substantially
equal periods of time and given three days' notice. The
PUC may establish a period not to exceed 14 days in which
ex parte communications are not permitted and may meet in
closed session during that time.
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Quasi-legislative cases: In quasi-legislative proceedings,
ex parte communications are "?allowed without restriction
or reporting requirement."
For PUC's purposes, Public Resources Code �1701.1(c)(4)
defines ex parte communication as, "any oral or written
communication between a decision maker and a person with
an interest in a matter before the PUC concerning
substantive, but not procedural issues, that does not
occur in a public hearing workshop, or other public
proceeding or on the official record of the proceeding on
the matter."
3) Initiating the Communication . AB 2063 allows for an ex parte
communication on specified issues if the communication was
initiated by an interested party. If an uninterested third
party raises one of the specified issues in discussion among
a group of people including a board member and an interested
party, and a 30-minute conversation ensues on the issue
involving the board member and interested party, should that
conversation not be disclosed simply because someone other
than an interested party started the conversation? The
substance of the communication should be the basis for
determining authorized ex parte communication rather than who
started it.
4) Disclosure vs. Access . AB 2063 provides for disclosure of ex
parte communications but does not increase accessibility to
board members. AB 2063 authorizes a board member to
communicate with an interested party on an issue, requires
the board member to disclose this communication, and allows a
party to comment on that communication. However, it is
questionable whether a comment can be as impactful or as
influential as an ex parte communication. AB 2063 does not
allow other interested parties the same opportunity or equal
time as an ex parte communication that has taken place and
may result in putting other interested parties at an unfair
disadvantage.
5) Adoption of Standard Disclosure Forms . AB 2063 requires OAL
to adopt standard disclosure forms for reporting ex parte
communications. The previously amended version of AB 2063
required SWRCB to adopt standard disclosure forms. SWRCB
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would be the more appropriate choice for such an action. The
APA requires a state agency's proposed regulation, in this
case the adoption of standard disclosure forms, be approved
by OAL. OAL would not be the appropriate agency to adopt
standard disclosure forms for SWRCB or the regional boards.
6) Similar legislation. SB 965 (Wright) was heard in the Senate
Environmental Quality Committee in April. The provisions of
SB 965, as amended March 28, 2012, and as heard by the
committee, were modeled after the former California
Integrated Waste Management Board's process and would have
changed the ex parte communication rules for SWRCB exempting
specified proceedings of SWRCB or a RWQCB from the ex parte
communications of the APA. If an ex parte communication
occurs, the board member must notify the interested party
that a full disclosure of the ex parte communication shall be
entered in the board's record. The members of the committee
acknowledged that SWRCB communications are in need of reform
to give greater access to SWRCB and RWQCB members. However,
the suggested changes to the process in SB 965, as amended
March 28, 2012, lacked transparency.
The committee and author of SB 965 agreed that a more
transparent model was the PUC's process for setting rates.
Under this model the ex parte rule governing PUC's rate
setting proceedings offer a greater level of communication
between board members and stakeholders while preserving the
highest level of transparency. Allowing ex parte
communications to occur in a way that all interested parties
are invited to participate and receive the same information,
enables water board members to have conversations about
complex issues that are before the board, but in a way that
steers clear of bias and is fully transparent.
Therefore, AB 2063 conflicts with SB 965 and it would be
inappropriate for the committee to approve conflicting
provisions.
SOURCE : Assemblymember Alejo
SUPPORT : California Association of Nurseries and Garden
Centers
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California Bean Shippers Association
California Building Industry Association
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Grain and Feed Association
California Grape and Tree Fruit League
California League of Food Processors
California Manufacturers & Technology Association
California Metals Coalition
California Pear Growers Association
California Precast Concrete Association
California Rice Commission
California Seed Association
California State Association of Counties
California State Floral Association
Chemical Industry Council of California
City of Salinas
City of Soledad
City of Watsonville
Coalition for Adequate School Housing
Lumber Association of California & Nevada
Monterey Peninsula Water Management District
Municipal Water District of Orange County
National Federation of Independent Business
Nisei Farmers League
Pacific Egg and Poultry Association
Regional Council of Rural Counties
Santa Clara County Board of Supervisors
South Orange County Wastewater Authority
Western Agricultural Processors Association
Western Growers Association
Western Plant Health Association
Western Wood Preservers' Institute
Wine Institute
OPPOSITION : California Coastkeeper Alliance
California Water Impact Network
Clean Water Action
Community Water Center
Heal the Bay
NCCFFF Council
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Sierra Club California
Surfrider Foundation