BILL NUMBER: SB 965 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 2, 2012
AMENDED IN SENATE MARCH 28, 2012
AMENDED IN SENATE MARCH 8, 2012
INTRODUCED BY Senator Wright
(Coauthor: Senator Blakeslee)
JANUARY 11, 2012
An act to add Section 13293 to the Water Code, relating to water
quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 965, as amended, Wright. State Water Resources Control Board
and California regional water quality control boards: ex parte
communications.
Under existing law, the State Water Resources Control Board (state
board) and the California regional water quality control boards
(regional boards) 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. Existing law authorizes the state board and regional
boards to hold hearings necessary for carrying out their duties, as
specified.
The Administrative Procedure Act establishes the conduct of
administrative adjudicative proceedings, which are defined as
evidentiary hearings for determination of facts pursuant to which a
state agency formulates and issues a decision. Existing law defines a
decision as an agency action of specific application that determines
a legal right, duty, privilege, immunity, or other legal interest of
a particular person. The act prohibits, as an ex parte
communication, while an adjudication is pending, any communication,
direct or indirect, regarding any issue in the proceeding, to the
presiding officer, as defined, from an employee or representative of
an agency that is a party or from an interested person outside the
agency, without notice and opportunity for all parties to participate
in the communication. The act provides that if the above prohibition
is violated, the presiding officer shall promptly disclose the
content of the communication on record and give all parties an
opportunity to address the communication, as specified. The act also
provides that a violation of that prohibition may be grounds for
disqualification of the officer who engaged in the ex parte
communication.
This bill would provide that the ex parte communications
provisions of the Administrative Procedure Act do not apply to
specified proceedings of the state board or a regional board.
This The bill would ,
instead, prohibit a state board, regional board member, or a
person, other than a board staff member acting in his or her
official capacity, who intends to influence the decision of a board
member on a matter before the board, from conducting an ex parte
communication, as defined. This bill would provide that if an ex
parte communication occurs, the board member shall notify the
interested party that a full disclosure of the ex parte communication
shall be entered in the board's record. This bill would also
provide, however, that a communication is not a prohibited ex parte
communication if the communication is fully disclosed and a request
is made that the communication be placed in the board's official
record of the proceeding, as specified. define an ex
parte communication as an oral or written communication with one or
more board members regarding those specified state or regional board
proceedings. The bill would permit oral ex parte communications at
any time by any board member if the board member involved in the
communication notifies, and provides for the participation of, all
parties, as specified. The bill would permit written ex parte
communications by any party provided that the interested person, as
defined, who makes the communications provides copies of the
communication to all parties, as specified. The bill would require
that if an individual ex parte comm unication meeting or
call is granted to any interested party, all other parties shall also
be granted individual ex parte meetings of a substantially equal
period of time with the board member.
The bill would authorize a board to prohibit ex parte
communications for a period beginning not more than 14 days before
the day of the board meeting at which the decision in the proceeding
is scheduled for board action.
The bill would require that, in any case, all ex parte
communications be reported, as specified, by the interested person,
regardless of whether the communication was initiated by the
interested person.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 13293 is added to the Water Code, to read:
13293. (a) For the purposes of this section:
(1) "Ex parte communication" means an oral or written
communication with one or more board members concerning
matters, other than purely procedural matters, under the jurisdiction
of the state board or a regional a
board, pursuant to Article 4 (commencing with Section 13260)
or Chapter 5.5 (commencing with Section 13370).
regarding an action of the board that satisfies both of the
following:
(2) "Board" refers to both the State Water Resources Control Board
and the regional water quality control boards.
(b) A board member, or a person, other than a board staff member
acting in his or her official capacity, who intends to influence the
decision of a board member on a matter before the board, shall not
conduct an ex parte communication, except as follows:
(1) If an ex parte communication occurs, the board member shall
notify the interested party that a full disclosure of the ex parte
communication shall be entered in the board's record.
(2) Communications cease to be ex parte communications when either
of the following occurs:
(A) The board member or the person who engaged in the
communication with the board member fully discloses the communication
and requests in writing that the communication be placed in the
board's official record of the proceeding.
(B) Two or more board members receive substantially the same
written communication, or are party to the same oral communication,
from the same party on the same matter, and a single board member
fully discloses the communication on behalf of the other board member
or members who received the communication and requests in writing
that it be placed in the board's official record of the proceeding.
(A) The action does not identify specific persons as dischargers,
but instead allows persons to enroll or file an authorization to
discharge under the action.
(B) The action is for adoption, modification, or rescission of one
or more of the following:
(i) Waste discharge requirements pursuant to Section 13263 or
13377.
(ii) Conditions of water quality certification pursuant to Section
13160.
(iii) Conditional waiver of waste discharge requirements pursuant
to Section 13269.
(2) "Interested person" means any of the following:
(A) Any party to the proceeding or the agents or employees of any
party, including persons receiving consideration to represent any of
them.
(B) Any person with a financial interest, as described in Article
1 (commencing with Section 87100) of Chapter 7 of Title 9 of the
Government Code, in a matter at issue before a board, or that person'
s agents or employees, including persons receiving consideration to
represent that person.
(C) A representative acting on behalf of any formally organized
civic, environmental, neighborhood, business, labor, trade, or
similar association who intends to influence the decision of a board
member on a matter before the board, even if that association is not
a party to the proceeding.
(c)
( b) Notwithstanding Section 11425.10 of the
Government Code, the ex parte communications provisions of the
Administrative Procedure Act (Article 7 (commencing with Section
11430.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the
Government Code) do not apply to proceedings of the state
a board or a regional water quality
control board to which this section applies action
identified in paragraph (1) of subdivision (a). This
section only applies to those actions .
(c) For the purposes of this section, ex parte communications
regarding a board action identified in paragraph (1) of subdivision
(a) shall be prohibited. Ex parte communications may be permitted as
follows:
(1) Oral ex parte communications may be permitted at any time by
any board member provided that the board member involved in the
communication does each of the following:
(A) Invites all parties to attend the meeting or sets up a
conference call in which all parties may participate.
(B) Gives notice of the meeting or call as soon as possible, but
no less than three days before the meeting or call.
(2) Written ex parte communications may be permitted by any party
provided that the interested person making the communication serves
copies of the communication on all parties on the same day the
communication is sent to a board member or makes arrangements with
the board staff to ensure that all interested parties have been
provided copies of the communication.
(3) If an individual ex parte communication meeting or call is
granted to any interested party, all other parties shall also be
granted individual ex parte meetings of a substantially equal period
of time with the board member. The interested person requesting the
initial individual meeting shall notify the parties that its request
has been granted, and shall file a certificate of service of this
notification at least three days before the meeting or call.
(d) A board may prohibit ex parte communications for a period
beginning not more than 14 days before the day of the board meeting
at which the decision in the proceeding is scheduled for board
action. If the board holds the decision, it may permit ex parte
communications during the first half of the interval between the hold
date and the date that the decision is calendared for final
decision, and may prohibit these communications for the second half
of the period, provided that the period of prohibition shall begin
not more than 14 days before the day of the board meeting to which
the decision is held.
(e) All ex parte communications made regarding a board action
identified in paragraph (1) of subdivision (a) shall be reported by
the interested person, regardless of whether the communication was
initiated by the interested person. A notice of ex parte
communication shall be filed with the board within three working days
of the communication. The notice may address multiple ex parte
communications in the same proceeding, provided that notice of each
communication identified therein is timely. The notice shall include
all of the following information:
(1) The date, time, and location of the communication, and whether
it was oral, written, or both.
(2) The identities of each board member involved, the person
initiating the communication, and any persons present during the
communication.
(3) A description of the interested person's communication and the
content of this communication. A copy of any written, audiovisual,
or other material used for or during the communication shall be
attached to this description.