A California Chamber of Commerce-opposed bill that bans business from communicating with members of the Coastal Commission on issues before the Commission passed the Senate this week.
SB 1190 (Jackson; D-Santa Barbara) also severely limits the ability of commissioners to communicate with their staff.
Background
The California Coastal Commission is responsible for land use and permitting decisions along the 1,100-mile California coastline. Among other things, the Commission has authority to issue coastal development permits in areas without local coastal programs (LCPs) and act on appeals from areas with LCPs on matters ranging from small issues such as constructing or remodeling single family residences, to major public works projects, as well as enforcement issues, cease and desist orders, and matters in litigation.
Current Law/Practice
Before the early 1990s, the law was silent on ex parte communications at the Coastal Commission. The Coastal Act was then amended to explicitly allow commissioners to engage in ex parte communications as long as commissioners disclose the communications and pass along to staff any written materials provided.
Commissioners are free to speak with anyone on any side of an issue and they often do. Additionally, applicants are required to provide written disclosures to the Commission of anyone who receives compensation to communicate with the commissioners or staff.
Commissioners also are required to complete annual economic interest statements in conformance with state law.
SB 1190 prohibits ex parte communications between commissioners and interested parties on adjudication or enforcement proceedings even though the ex parte process has been working well for a number of years.
Citizen Participation
As a public body, the Commission should encourage citizen participation and communication. In turn, the Legislature should encourage maximum communication with the Commission, and commissioners who desire more information should be allowed to hear it as long as they publicly disclose and describe those communications as required by law.
Although SB 1190 would allow interested parties to speak with staff, it is the commissioners and not the staff who are the ultimate policy makers and who should be free to discuss permitting decisions with all parties who may be affected by an action.
Differing Views Needed
Discussions with parties who have differing views are an important source of information for commissioners.
Commissioners attend three-day meetings each month and receive dozens of staff reports totaling thousands of pages. People who wish to testify are limited in the time they are allowed to make a presentation due to the limited time available for meetings (sometimes being given only one minute to testify during a busy agenda).
Most commissioners have full-time jobs and/or are locally elected officials. If interested parties are limited to one or even a few minutes of testimony in a public hearing to make their case, commissioners are deprived of any in-depth discussion of the matter with parties having varying viewpoints, except the Commission staff.
Further, given the limited time commissioners have to review staff reports, many commissioners desire to conduct site visits at the locations where projects are proposed to get a better understanding of the physical attributes of the site and how the project would affect coastal resources.
For projects proposed on privately owned property, commissioners requesting a site visit must necessarily interact with interested parties such as the property owner, project applicant, and/or applicant’s representative(s). Prohibiting ex parte communications would essentially eliminate commissioners’ ability to conduct site visits.
Weakens Communication
Moreover, SB 1190 would significantly weaken the ability of commissioners to communicate with their staff—which would further limit the access to information that commissioners need in order to make informed decisions.
This bill would essentially prohibit commissioners from discussing any information in a staff report or staff analysis that is presented at a public hearing if such a discussion could be viewed as an “attempt to influence” a staff report or recommendation. The proposed penalty for violating this provision is a ban from ever holding any public office in the state. The vague standard and harsh penalty would have a significant chilling effect on commissioners’ discussions with staff.
Limiting the Commission’s ability to communicate openly with its own staff would cripple the function of the Commission and is unprecedented among other government agencies. Commission staff provides necessary knowledge, expertise and technical understanding to commissioners. The bill does not explain how a determination of “attempting to influence” staff would be made, or even who would make such a determination.
Vague Standard
Because of the vague standard in the bill, if commissioners fear that any allegation of staff influence could result in being disqualified from holding public office, commissioners will stop communicating with these key participants, denying the Commission the benefit of staff expertise.
Further, six Commission members are local government elected officials from six designated coastal regions under the Coastal Act. The perspective of these commissioners, given their role in representing the interests of their regions, is important and provides valuable additional information to staff.
Preventing the Commission from working with its staff on reports and analyses would turn the Commission into a rubber stamp.
The Commission’s role is to analyze and make decisions based on a comprehensive review of information from both staff and other parties. This bill would leave commissioners without the ability to work through issues with staff and without valuable information gained by properly disclosed ex parte communications.
Commissioners would be forced to accept staff conclusions at face value without a proper way to inquire about them, effectively stripping authority and discretion from the commissioners, whose responsibility is to oversee the staff.
Hampers Informed Decisions
The public should be able to communicate directly with public agency representatives, provided this communication is properly disclosed. Such communication is essential for informed decision making.
Further, commissioners must be able to communicate freely with their own staff. There is no reason to change the current practice. To limit the free exchange of information serves no public purpose, can limit mutually acceptable outcomes, and would prohibit the Commission from effectively carrying out its duties to the public.
Key Vote
SB 1190 passed the Senate 23-12 on May 23 on a party-line vote.
Ayes: Allen (D-Santa Monica), Beall (D-San Jose), Block (D-San Diego), de León (D-Los Angeles), Glazer (D-Contra Costa), Hall (D-Los Angeles), Hancock (D-Berkeley), Hertzberg (D-Van Nuys), Hill (D-San Mateo), Jackson (D-Santa Barbara), Lara (D-Bell Gardens), Leno (D-San Francisco), Leyva (D-Chino), Liu (D-La Cañada Flintridge), McGuire (D-Healdsburg), Mendoza (D-Artesia), Mitchell (D-Los Angeles), Monning (D-Carmel), Pan (D-Sacramento), Pavley (D-Agoura Hills), Roth (D-Riverside), Wieckowski (D-Fremont), Wolk (D-Davis).
Noes: Anderson (R-Alpine), Bates (R-Laguna Nigel), Berryhill (R-Twain Harte), Cannella (R-Ceres), Fuller (R-Bakersfield), Gaines (R-El Dorado Hills), Huff (R-San Dimas), Moorlach (R-Costa Mesa), Morrell (R-Rancho Cucamonga), Nielsen (R-Gerber), J. Stone (R-Temecula), Vidak (R-Hanford).
No Vote Recorded: Galgiani (D-Stockton), Hernandez (D-West Covina), Hueso (D-San Diego), Nguyen (R-Garden Grove), Runner (R-Antelope Valley).
The bill now awaits assignment to a policy committee in the Assembly.
Staff Contact: Valerie Nera
