Existing law establishes the California Coastal Commission in the Natural Resources Agency and designates the commission as the state coastal zone planning and management agency for all purposes. Existing law prohibits a commission member or an interested person, as defined, from conducting an ex parte communication unless the commission member fully discloses and makes public that communication within 7 days after the communication or, if the communication occurs within 7 days of the next commission hearing, to the commission on the record of the proceeding at that hearing.

This bill would require a commission member to fully disclose in writing 24 hours before a commission hearing any ex parte communication conducted within 7 days of the commission hearing relating to a matter that will be discussed at the hearing, and would prohibit a commission member or an interested person from conducting such an ex parte communication within 24 hours before the commission hearing.

The Political Reform Act of 1974 provides for the regulation of the lobbying industry, including defining the term lobbyist and regulating the conduct of lobbyists. Among its provisions, the act prohibits lobbyists from engaging in certain activities, including accepting or agreeing to accept any payment in any way contingent upon the defeat, enactment, or outcome of any proposed legislative or administrative action. Under the act, a lobbyist is, among others, an individual whose principal duties as an employee are to communicate with, among others, any agency official for the purpose of influencing legislative or administrative action. For these purposes, administrative action is defined as the proposal, drafting, development, consideration, amendment, enactment, or defeat by a state agency of any rule, regulation, or other action in any ratemaking or quasi-legislative proceeding and agency official is defined as any member, officer, employee, or consultant of any state agency who participates in any administrative action in other than a ministerial capacity.

This bill would revise the definition of administrative action to include, with regard to proceedings before the California Coastal Commission, specified actions relating to the review, approval, and appeal of certain permit actions and coastal plans and programs. The bill would, however, exclude from these provisions relating to lobbyists an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the commission. The bill would also, for purposes of a quasi-judicial matter those matters before the California Coastal Commission, limit the definition of agency official to a member of the commission.

Existing law makes a knowing and willful violation of the Political Reform Act of 1974 a misdemeanor and subjects offenders to criminal penalties.

This bill would impose a state-mandated local program by expanding those crimes.

The Political Reform Act of 1974, an initiative measure, provides that the Legislature may amend the act to further the acts purposes with a ²/₃ vote of each house and compliance with specified procedural requirements.

This bill would declare that it furthers the purposes of the act.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes the California Coastal Commission in the Natural Resources Agency and designates the commission as the state coastal zone planning and management agency for all purposes. Existing law prohibits a commission member or an interested person, as defined, from conducting an ex parte communication unless the commission member fully discloses and makes public that communication within 7 days after the communication or, if the communication occurs within 7 days of the next commission hearing, to the commission on the record of the proceeding at that hearing.

The Political Reform Act of 1974 provides for the regulation of the lobbying industry, including defining the term lobbyist and regulating the conduct of lobbyists. Among its provisions, the act prohibits lobbyists from engaging in certain activities, including accepting or agreeing to accept any payment in any way contingent upon the defeat, enactment, or outcome of any proposed legislative or administrative action. Under the act, a lobbyist is, among others, an individual whose principal duties as an employee are to communicate with, among others, any agency official for the purpose of influencing legislative or administrative action. For these purposes, administrative action is defined as the proposal, drafting, development, consideration, amendment, enactment, or defeat by a state agency of any rule, regulation, or other action in any ratemaking or quasi-legislative proceeding and agency official is defined as any member, officer, employee, or consultant of any state agency who participates in any administrative action in other than a ministerial capacity.

This bill would revise the definition of administrative action to include, with regard to proceedings before the California Coastal Commission, specified actions, plans, and orders, and any other quasi-judicial or quasi-legislative matter requiring commission action. actions relating to the review, approval, and appeal of certain permit actions and coastal plans and programs. The bill would, however, exclude from these provisions relating to lobbyists an individual who communicates with a member of the California Coastal Commission for compensation to advocate for an outcome in relation to no more than one administrative action during a calendar year and an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the commission. The bill would also, for purposes of a quasi-judicial matter before the California Coastal Commission, limit the definition of agency official to a member of the commission.

Existing law makes a knowing and willful violation of the Political Reform Act of 1974 a misdemeanor and subjects offenders to criminal penalties.

This bill would impose a state-mandated local program by expanding those crimes.

The Political Reform Act of 1974, an initiative measure, provides that the Legislature may amend the act to further the acts purposes with a ²/₃ vote of each house and compliance with specified procedural requirements.

This bill would declare that it furthers the purposes of the act.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes the California Coastal Commission in the Natural Resources Agency and designates the commission as the state coastal zone planning and management agency for all purposes.

The Political Reform Act of 1974 provides for the regulation of the lobbying industry, including defining the term lobbyist and regulating the conduct of lobbyists. Among its provisions, the act prohibits lobbyists from engaging in certain activities, including accepting or agreeing to accept any payment in any way contingent upon the defeat, enactment, or outcome of any proposed legislative or administrative action. Under the act, a lobbyist is, among others, an individual whose principal duties as an employee are to communicate with, among others, any agency official for the purpose of influencing legislative or administrative action. For these purposes, administrative action is defined as the proposal, drafting, development, consideration, amendment, enactment, or defeat by a state agency of any rule, regulation, or other action in any ratemaking or quasi-legislative proceeding and agency official is defined as any member, officer, employee, or consultant of any state agency who participates in any administrative action in other than a ministerial capacity.

This bill would revise the definition of administrative action to include, with regard to proceedings before the California Coastal Commission, specified actions, plans, and orders, and any other quasi-judicial or quasi-legislative matter requiring commission action. The bill would, however, exclude from these provisions relating to lobbyists an individual who communicates with a member of the California Coastal Commission for compensation to advocate for an outcome in relation to no more than one administrative action during a calendar year and an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the commission. The bill would also, for purposes of a quasi-judicial matter before the California Coastal Commission, limit the definition of agency official to a member of the commission.

Existing law makes a knowing and willful violation of the Political Reform Act of 1974 a misdemeanor and subjects offenders to criminal penalties.

This bill would impose a state-mandated local program by expanding those crimes.

The Political Reform Act of 1974, an initiative measure, provides that the Legislature may amend the act to further the acts purposes with a ²/₃ vote of each house and compliance with specified procedural requirements.

This bill would declare that it furthers the purposes of the act.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 THIRD READING  

Bill No: AB 2002

Author:

:

Vote:

SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 6/21/16

AYES: Allen, Hancock, Hertzberg, Liu

NOES: Anderson

SENATE NATURAL RES. & WATER COMMITTEE: 6-2, 6/28/16

AYES: Pavley, Allen, Hertzberg, Hueso, Jackson, Monning

NOES: Stone, Vidak

NO VOTE RECORDED: Wolk

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16

AYES: Lara, Beall, Hill, McGuire, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 54-23, 6/2/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill provides that communicating with the Coastal Commission (Commission) in order to influence specified actions can result in a person being considered a “lobbyist” under the Political Reform Act (PRA) and prohibits an ex parte communication with a member of the Commission regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing.

ANALYSIS:

Existing law:

1. Creates the Fair Political Practices Commission (FPPC) and makes it responsible for the impartial, effective administration and implementation of the PRA.
2. Defines a "lobbyist," for the purposes of the PRA, as an individual who receives $2,000 or more in a calendar month, or whose principal duties as an employee are, to communicate with an agency official, elected state official, or legislative official for the purpose of influencing legislative or administrative action. This definition does not apply to any elected public official acting in her official capacity, or any state employee acting within the scope of his or her employment.
3. Defines "administrative action," for the purposes of the PRA, as either of the following:
   1. The proposal, drafting, development, consideration, amendment, enactment, or defeat by any state agency of any rule, regulation, or other action in any ratemaking proceeding or a quasi-legislative proceeding, as specified; or,
   2. With regard only to placement agents, as defined, the decision by any state agency to enter into a contract to invest state public retirement system assets on behalf of a state public retirement system.
4. Defines “agency official,” for the purposes of the PRA, as any member, officer, employee, or consultant of any state agency who as part of her official responsibilities participates in any administrative action in other than a purely clerical, secretarial, or ministerial capacity.
5. Requires a lobbyist to register as a lobbyist and to comply with various ethics and reporting rules.
6. Requires lobbying firms and lobbyist employers to register with the Secretary of State and to file periodic disclosure reports that contain information about the firms' and employers' lobbying interests and agencies lobbied.
7. Permits any person to testify at a Commission hearing, workshop, or other official proceeding, or submit written comments for the record on a matter before the Commission.
8. Requires any person who applies to the Commission for approval of a development permit to provide the Commission with the names and addresses of all persons who, for compensation, will be communicating with the Commission or its staff on the applicant’s behalf or on behalf of the applicant’s business partners. Requires that disclosure to be provided to the Commission prior to any such communication.
9. Requires Commissioners to disclose and make public any ex parte communication by providing a full report of the communication to the executive director within seven days of the communication or, if the communication occurs within seven days of the next Commission hearing, to the Commission on the record of the proceeding at that hearing.
10. Defines an "ex parte communication," for the purposes of communications related to actions of the Commission, as any oral or written communication between a member of the Commission and an interested person about a matter within the Commission's jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or that is not on the record at such a proceeding.
11. Defines an "interested person" as (a) any applicant, applicant's agent or representative, or participant in a Commission proceeding, (b) any person with a financial interest in a matter before the Commission, or her agent or employee, or (c) a representative acting on behalf of any civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a Commissioner.
12. Defines a "matter within the commission's jurisdiction" as any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, or any other quasi-judicial matter requiring Commission action, for which an application has been submitted to the Commission.
13. Prohibits a Commissioner who has knowingly had an ex parte communication that has not been reported as required from voting on the matter or influencing the Commission in any way. Provides that knowing violations of the disclosure or recusal requirements can result in fines of up to $7,500, and a court order for the Commission to revoke its action and rehear the matter.

This bill:

• 1. Provides that communications with Commissioners regarding specified business before the Commission can result in a person being considered a lobbyist under the PRA, pursuant to the following:

1. Expands the definition of “administrative action” to also mean the proposal, drafting, development, consideration, amendment, enactment, or defeat of any rule, regulation, permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, or categorical or other exclusion from coastal development permit requirements.
2. Provides, for the purposes of a quasi-judicial matter before the Commission, that the term "agency official" only means Commissioners, thereby generally excluding communications with staff or consultants of the Commission regarding matter before the Commission from the types of communications that may result in a person being classified as a lobbyist under this bill.
3. Exempts from the definition of "lobbyist," for the purposes of this bill, an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the Commission.
   1. Requires Commissioners to disclose any ex parte communication in writing as follows:
4. If the communication occurs more than seven days before the next commission hearing, to the executive director within seven days after the communication.
5. If the communication occurs within seven days of the next commission hearing, to the commission on the record of the proceeding at that hearing.
6. If the communication occurs within seven days of the next commission hearing and relates to a matter that the commission will discuss at the hearing, to the commission in writing at least 24 hours before that hearing.
   
7. No commission member, nor any interested person, shall conduct an ex parte communication within 24 hours before a commission hearing regarding a matter that the commission will discuss at the hearing.

Background

Coastal Commission. The Commission was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976 (Coastal Act). In partnership with coastal cities and counties, the Commission plans and regulates the use of land and water in the coastal zone. Development activities, which are broadly defined by the Coastal Act to include construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a Coastal Development Permit from either the Commission or the local government with a certified Local Coastal Program.

The Commission is an independent, quasi-judicial state agency, and is composed of 12 voting members, appointed equally (four each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Six of the voting commissioners are locally elected officials and six are appointed from the public at large. Three ex officio (non-voting) members represent the Natural Resources Agency, the Transportation Agency, and the State Lands Commission.

According to the Commission’s mission statement, the Commission is committed to protecting and enhancing California’s coast and ocean for present and future generations through careful planning and regulation of environmentally-sustainable development, rigorous use of science, strong public participation, education, and effective intergovernmental coordination.

Ex parte communications. Ex parte communications refer to any communication made in private (i.e., off the record and without notice and opportunity for all parties to participate) between an interested party in a decision-making process and any state official in a decision-making position. Ex parte communication disclosure requirements for state policy makers are intended to provide the public with information regarding a decision and to prevent bias in decision makers.

Prior to 1992, there was no mention of ex parte communications in the Coastal Act. In 1992, basic ex parte communications reporting was added to the Coastal Act. In 2014, AB 474 (Stone, Chapter 125, Statutes of 2014) improved ex parte communications reporting requirements. The additions to the reporting requirements included the identity of the person on whose behalf the communication was made, the identity of all persons present during the communication, and a complete, comprehensive description of the content of the ex parte communication, including a complete set of all text and graphic material that was part of the communication. This bill requires written reports for all ex parte communications. This bill also prohibits ex parte communications within 24 hours of a Commission hearing.

Comments

According to the author, currently members of the Commission are lobbied without the same level of transparency that is met when other state officials are lobbied. AB 2002 will amend the California Coastal Act and the PRA to require that those lobbying the Commission must register with the FPPC as a lobbyist; they must disclose activities they are pursuing on behalf of a client.

The decisions made by the Commission can have broad and lasting impacts on coastal conservation and coastal access. The Commission works with cities and counties in the coastal zone to approve land use policy that reflects the values put forth by the voters in 1972. Due to the gravity of these decisions, transparency of the process is critical.

Related/Prior Legislation

SB 1190 (Jackson), which is pending in the Assembly Natural Resources Committee, prohibits all ex parte communications at the Commission.

AB 2658 (Maienschein), which was never voted on in the Assembly Natural Resources Committee, would have required Commission staff to disclose certain communications as specified and imposed time limits for posting specified recordings and materials on the Commission Web site.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• The FPPC indicates that it would incur first-year costs of $215,000, and ongoing annual costs of $201,000 to implement the provisions of this bill (General Fund).

SUPPORT: (Verified 8/11/16)

California State Controller Betty Yee

Asian Pacific Policy & Planning Council

Audubon California

AzulBlack Surfers Collective

Blue Frontier

California Coastal Commission

California Coastal Protection Network

California Coastkeeper Alliance

California League of Conservation Voters

California Native Plant Society

California Public Interest Research Group

California Watershed Network

City of West Hollywood

Climate Parents

Coastal Environmental Rights Foundation

Courage Campaign

Environment California

Environmental Defense Center

Environmental Justice Coalition for Water

Friends of Harbors, Beaches and Parks

Hispanic Access Foundation

Humboldt Baykeeper

IDARE Sustainable Leadership

Inland Empire Waterkeeper

Klamath Riverkeeper

Los Angeles Waterkeeper

Los Cerritos Wetlands Land Trust

Monterey Coastkeeper & Otter Projects

National Parks Conservation Association

Orange County Coastkeeper

Petaluma River Council

Preserve Rural Sonoma County

Russian Riverkeeper

San Diego Coastkeeper

San Francisco Baykeeper

San Luis Obispo Channelkeeper

Santa Barbara Channelkeeper

Sierra Club California

Smith River Alliance

Sonoma County Conservation Action

Surfrider Foundation

The City Project

The Nature Conservancy

Turtle Island Restoration Network

Ventura Coastkeeper

WildCoast

Wishotyo Chumash Foundation

One individual

OPPOSITION: (Verified 8/11/16)

California Apartment Association

California Building Industry Association

California Business Properties Association

California Cattlemen’s Association

California Chamber of Commerce

California Construction and Industrial Materials Association

California Farm Bureau Federation

California Independent Petroleum Association

Department of the Navy

Fair Political Practices Commission

Loftin Firm, P.C.

National Federation of Independent Business

Western States Petroleum Association

ASSEMBLY FLOOR: 54-23, 6/2/16

AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Brough, Chang, Chávez, Dahle, Gray, Grove, Harper, Jones, Kim, Lackey, Linder, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Bigelow, Beth Gaines, Gallagher

Prepared by:

8/15/16 20:17:25

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2002 (Mark Stone) - Political Reform Act of 1974: California Coastal Commission: communications

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2002 would (1) provide that communicating with the California Coastal Commission in order to influence specified actions can result in a person being considered a “lobbyist” under the Political Reform Act (PRA), and (2) prohibit an ex parte communication with a member of the Commission regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing.

Fiscal Impact:

• The Fair Political Practices Commission (FPPC) indicates that it would incur first-year costs of $215,000, and ongoing annual costs of $201,000 to implement the provisions of the bill (General Fund).
• The California Coastal Commission would incur costs of up to $240,000 annually related to conducting site visits under the provisions of the bill.

Background:

The Coastal Commission (Commission) was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976 (Coastal Act). In partnership with coastal cities and counties, the Commission plans and regulates the use of land and water in the coastal zone. Development activities, which are broadly defined by the Coastal Act to include construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a Coastal Development Permit (CDP) from either the Commission or the local government with a certified Local Coastal Program (LCP).

The Commission is an independent, quasi-judicial state agency, and is composed of 12 voting members, appointed equally (four each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Six of the voting commissioners are locally elected officials and six are appointed from the public at large. Three ex officio (non-voting) members represent the Natural Resources Agency, the Transportation Agency, and the State Lands Commission.

Ex parte communications refer to any communication made in private (i.e., off the record and without notice and opportunity for all parties to participate) between an interested party in a decision-making process and any state official in a decision-making position. Ex parte communication disclosure requirements for state policy makers are intended to provide the public with information regarding a decision and to prevent bias in decision makers.

Prior to 1992, there was no mention of ex parte communications in the Coastal Act. In 2014, AB 474 (Stone, Chapter 125, Statutes of 2014), expanded ex parte communications reporting requirements. The additions to the reporting requirements included the identity of the person on whose behalf the communication was made, the identity of all persons present during the communication, and a complete, comprehensive description of the content of the ex parte communication, including a complete set of all text and graphic material that was part of the communication.

Proposed Law:

This bill would do the following:

• Provide that communicating with the Commission in order to influence specified actions can result in a person being considered a “lobbyist” under the Political Reform Act (PRA).
• Require Commissioners to disclose any ex parte communication in writing at least 24 hours before a hearing if the communication occurs within seven days of the next hearing and relates to a matter that the Commission will discuss at the hearing.
• Prohibit Commissioners or an interested person in a Commission action from conducting an ex parte communication within 24 hours before a hearing regarding a matter that the Commission will discuss at that hearing.

Related Legislation:

SB 1190 (Jackson) would prohibit all ex parte communications at the Commission. The bill is currently pending in the Assembly Appropriations Committee.

Staff Comments:

Due to the bill's expanding the regulation of lobbying into matters before the Commission, FPPC would require two positions, at an annual General Fund cost of around $200,000 to amend regulations and manuals, respond to additional advice requests, and for additional enforcement.

The work of Coastal Commissioners involves, among other duties, voting monthly on several dozen permits, appeals, and agreements of settlements of enforcement. It is common that Commissioners will participate in site visits prior to a meeting to see first-hand issues that may be considered in a meeting. By creating a 24 hour blackout period on ex parte communication, the Commission indicates that the bill would require that any site visits conducted in that time period be done as formal commission meetings with public participation. Costs resulting from the bill would range from $3,000 to $10,000 per site visit, depending on public interest. Assuming two site visits per meeting, total annual costs could range from $72,000 to $240,000. This estimate excludes live streaming, translation services, and other access costs that typical commission meetings incur.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Fran Pavley, Chair

2015 - 2016 Regular

Bill No: AB 2002 Hearing Date: June 28, 2016

Subject: Political Reform Act of 1974: California Coastal Commission: communications

BACKGROUND AND EXISTING LAW

1. Creates the Fair Political Practices Commission (FPPC) and makes it responsible for the impartial, effective administration and implementation of the Political Reform Act (PRA).
2. Defines a "lobbyist," for the purposes of the PRA, as an individual who receives $2,000 or more in a calendar month, or whose principal duties as an employee are, to communicate with an agency official, elected state official, or legislative official for the purpose of influencing legislative or administrative action. This definition does not apply to any elected public official acting in her official capacity, or any state employee acting within the scope of his or her employment.
3. Defines "administrative action," for the purposes of the PRA, as either of the following:
4. The proposal, drafting, development, consideration, amendment, enactment, or defeat by any state agency of any rule, regulation, or other action in any ratemaking proceeding or a quasi-legislative proceeding, as specified; or
5. With regard only to placement agents, as defined, the decision by any state agency to enter into a contract to invest state public retirement system assets on behalf of a state public retirement system.
6. Defines "agency official," for the purposes of the PRA, as any member, officer, employee, or consultant of any state agency who as part of her official responsibilities participates in any administrative action in other than a purely clerical, secretarial, or ministerial capacity.
7. Requires a lobbyist to register as a lobbyist and to comply with various ethics and reporting rules.
8. Requires lobbying firms and lobbyist employers to register with the Secretary of State (SOS) and to file periodic disclosure reports that contain information about the firms' and employers' lobbying interests and agencies lobbied.
9. Permits any person to testify at a California Coastal Commission (Commission) hearing, workshop, or other official proceeding, or submit written comments for the record on a matter before the Commission.
10. Requires any person who applies to the Commission for approval of a development permit to provide the Commission with the names and addresses of all persons who, for compensation, will be communicating with the Commission or its staff on the applicant's behalf or on behalf of the applicant's business partners and further requires that disclosure to be provided to the Commission prior to any such communication.
11. Requires Commissioners to disclose and make public any ex parte communication by providing a full report of the communication to the executive director of the commission within seven days of the communication or, if the communication occurs within seven days of the next Commission hearing, to the Commission on the record of the proceeding at that hearing.
12. Defines an "ex parte communication," for the purposes of communications related to actions of the Commission, as any oral or written communication between a member of the Commission and an interested person about a matter within the Commission's jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or that is not on the record at such a proceeding.
13. Defines an "interested person" as (a) any applicant, applicant's agent or representative, or participant in a Commission proceeding, (b) any person with a financial interest in a matter before the Commission, or his or her agent or employee, or (c) a representative acting on behalf of any civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a Commissioner.
14. Defines a "matter within the Commission's jurisdiction" as any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, or any other quasi-judicial matter requiring Commission action, for which an application has been submitted to the Commission.
15. Prohibits a Commissioner who has knowingly had an ex parte communication that has not been reported as required from voting on the matter or influencing the Commission in any way and further provides that knowing violations of the disclosure or recusal requirements can result in fines of up to $7,500, and a court order for the Commission to revoke its action and rehear the matter.

PROPOSED LAW

This bill provides that communicating with the Coastal Commission in order to influence specified actions can result in a person being considered a "lobbyist" under the Political Reform Act (PRA) and prohibits an ex parte communication with a member of the Commission regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing. Specifically, this bill:

1. Provides that communications with Commissioners regarding specified business before the Commission can result in a person being considered a lobbyist under the PRA, pursuant to the following:
   1. Expands the definition of "administrative action" to also mean the proposal, drafting, development, consideration, amendment, enactment, or defeat of any rule, regulation, permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, or categorical or other exclusion from coastal development permit requirements.
   2. Provides, for the purposes of a quasi-judicial matter before the Commission, that the term "agency official" only means Commissioners, thereby generally excluding communications with staff or consultants of the Commission regarding matter before the Commission from the types of communications that may result in a person being classified as a lobbyist under this bill.
   3. Exempts from the definition of "lobbyist," for the purposes of this bill, an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the Commission.
2. Requires Commissioners to disclose any ex parte communication in writing as follows:
   1. If the communication occurs more than seven days before the next Commission hearing, to the executive director within seven days after the communication.
   2. If the communication occurs within seven days of the next Commission hearing, to the Commission on the record of the proceeding at that hearing.
   3. If the communication occurs within seven days of the next Commission hearing and relates to a matter that the Commission will discuss at the hearing, to the Commission in writing at least 24 hours before that hearing.
   4. No Commission member nor any interested party shall conduct an ex parte communication within 24 hours before a Commission hearing regarding a matter that the Commission will discuss at the hearing.

ARGUMENTS IN SUPPORT

According to the author, currently members of the California Coastal Commission are lobbied without the same level of transparency that is met when other state officials are lobbied. AB 2002 will amend the California Coastal Act and the California Political Reform Act to require that those lobbying the Commission must register with the Fair Political Practices Commission as a lobbyist; they must disclose activities they are

pursuing on behalf of a client.

The decisions made by the Commission can have broad and lasting impacts on coastal conservation and coastal access. The Commission works with cities and counties in the coastal zone to approve land use policy that reflects the values put forth by the voters in 1972. Due to the gravity of these decisions, transparency of the process is critical.

Other supporters, and they are numerous, make one fundamental point: The bill adds much-needed transparency and accountability so the public obtains more information about the conduct of Commission business.

ARGUMENTS IN OPPOSITION

The coalition in opposition raises issues regarding the penalties for non-compliance, and the scope of the bill is too broad as it includes those who only provide technical information. However, the main opposition argument seems to be that the bill would reduce the information flow to commissioners and diminish interactions between the public and commissioners.

The U.S. Department of Navy is opposed because it wants an exemption from the bill for specified senior members of the military.

A private law firm has requested numerous amendments including restoration of language exempting attorneys who handle administrative actions before the commission no more than once a year, elimination of the registration exemption for local governments, expanding the ex parte ban to Commission staff, and others.

COMMENTS

1. Coastal Commission. The Commission was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976 (Coastal Act). In partnership with coastal cities and counties, the Commission plans and regulates the use of land and water in the coastal zone. Development activities, which are broadly defined by the Coastal Act to include construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a Coastal Development Permit (CDP) from either the Commission or the local government with a certified Local Coastal Program (LCP).
2. Ex parte communications. Ex parte communications refer to any communication made in private (i.e., off the record and without notice and opportunity for all parties to participate) between an interested party in a decision-making process and any state official in a decision-making position. Ex parte communication disclosure requirements for state policy makers are intended to provide the public with information regarding a decision and to prevent bias in decision makers. Prior to 1992, there was no mention of ex parte communications in the Coastal Act. There were claims of frequent unreported ex parte communications at the Commission. In 1992, basic ex parte communications reporting was added to the Coastal Act.
3. In 2014, AB 474 (Stone), Chapter 125, Statutes of 2014, improved ex parte communications reporting requirements. The additions to the reporting requirements included the identity of the person on whose behalf the communication was made, the identity of all persons present during the communication, and a complete, comprehensive description of the content of the ex parte communication, including a complete set of all text and graphic material that was part of the communication.
4. However, concerns remain about ex parte communications at the Commission. Those concerns include the quality of the oral reports that are required within a week of a meeting and the ability of the public to find specific ex parte communication reports. This bill requires written reports for all ex parte communications. This bill also prohibits ex parte communications within 24 hours of a Commission hearing.
5. Political Reform Act of 1974. California voters passed an initiative, Proposition 9, in 1974 that created the FPPC and codified significant restrictions and prohibitions on candidates, officeholders, and lobbyists. That initiative is commonly known as the PRA. Amendments to the PRA that are not submitted to the voters, such as the lobbying provisions of this bill, must further the purposes of the initiative and require a two-thirds vote of both houses of the Legislature.

SUPPORT

Asian Pacific Policy & Planning Council

Audubon California

Azul

Black Surfers Collective

Blue Frontier

California League of Conservation Voters

California Coastal Protection Network

California Coastkeeper Alliance

California Native Plant Society

California State Controller, Betty Yee

California Watershed Network

CALPRIG

City of Berkeley

City of West Hollywood

Climate Parents

Coastal Environmental Rights Foundation

Courage Campaign

Environment California

Environmental Defense Center

Environmental Justice Coalition for Water

Friends of Harbors, Beaches and Parks

Hispanic Access Foundation

Humboldt Baykeeper

IDARE Sustainable Leadership

Inland Empire Waterkeeper

Klamath Riverkeeper

Los Angeles Waterkeeper

Los Cerritos Wetlands Land Trust

Monterey Coastkeeper & Otter Project

National Parks Conservation Association

Orange County Coastkeeper

Petaluma River Council

Planning and Conservation League

Preserve Rural Sonoma County

Russian Riverkeeper

San Diego Coastkeeper

San Francisco Baykeeper

San Luis Obispo Channelkeeper

Santa Barbara Channelkeeper

Sierra Club California

Smith River Alliance

Sonoma County Conservation Action

Surfrider Foundation

The City Project

The Nature Conservancy

Turtle Island Restoration Network

Ventura Coastkeeper

WildCoast

Wishtoyo Chumash Foundation

One Individual

OPPOSITION

California Apartment Association

California Building Industry Association

California Business Properties Association

California Cattlemen’s Association

California Chamber of Commerce

California Construction and Industrial Materials Association

California Farm Bureau Federation

California Independent Petroleum Association

Department of the Navy

National Federation of Independent Business

The Loftin Firm, P.C.

Western States Petroleum Association

-- END --

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Ben Allen, Chair

2015 - 2016 Regular

Bill No: 2002 Hearing Date: 6/21/16

Subject:

DIGEST

This bill provides that communicating with the Coastal Commission (Commission) in order to influence specified actions can result in a person being considered a “lobbyist” under the Political Reform Act (PRA) and prohibits an ex parte communication with a member of the Commission regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing.

ANALYSIS

Existing law:

1. Creates the Fair Political Practices Commission (FPPC) and makes it responsible for the impartial, effective administration and implementation of the PRA.
2. Defines a "lobbyist," for the purposes of the PRA, as an individual who receives $2,000 or more in a calendar month, or whose principal duties as an employee are, to communicate with an agency official, elected state official, or legislative official for the purpose of influencing legislative or administrative action. This definition does not apply to any elected public official acting in her official capacity, or any state employee acting within the scope of his or her employment.
3. Defines "administrative action," for the purposes of the PRA, as either of the following:
4. The proposal, drafting, development, consideration, amendment, enactment, or defeat by any state agency of any rule, regulation, or other action in any ratemaking proceeding or a quasi-legislative proceeding, as specified; or,
5. With regard only to placement agents, as defined, the decision by any state agency to enter into a contract to invest state public retirement system assets on behalf of a state public retirement system.
6. Defines “agency official,” for the purposes of the PRA, as any member, officer, employee, or consultant of any state agency who as part of her official responsibilities participates in any administrative action in other than a purely clerical, secretarial, or ministerial capacity.
7. Requires a lobbyist to register as a lobbyist and to comply with various ethics and reporting rules.
8. Requires lobbying firms and lobbyist employers to register with the Secretary of State (SOS) and to file periodic disclosure reports that contain information about the firms' and employers' lobbying interests and agencies lobbied.
9. Permits any person to testify at a Commission hearing, workshop, or other official proceeding, or submit written comments for the record on a matter before the Commission.
10. Requires any person who applies to the Commission for approval of a development permit to provide the Commission with the names and addresses of all persons who, for compensation, will be communicating with the Commission or its staff on the applicant’s behalf or on behalf of the applicant’s business partners. Requires that disclosure to be provided to the Commission prior to any such communication.
11. Requires Commissioners to disclose and make public any ex parte communication by providing a full report of the communication to the executive director within seven days of the communication or, if the communication occurs within seven days of the next Commission hearing, to the Commission on the record of the proceeding at that hearing.
12. Defines an "ex parte communication," for the purposes of communications related to actions of the Commission, as any oral or written communication between a member of the Commission and an interested person about a matter within the Commission's jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or that is not on the record at such a proceeding.
13. Defines an "interested person" as (a) any applicant, applicant's agent or representative, or participant in a Commission proceeding, (b) any person with a financial interest in a matter before the Commission, or her agent or employee, or (c) a representative acting on behalf of any civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a Commissioner.
14. Defines a "matter within the commission's jurisdiction" as any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, or any other quasi-judicial matter requiring Commission action, for which an application has been submitted to the Commission.
15. Prohibits a Commissioner who has knowingly had an ex parte communication that has not been reported as required from voting on the matter or influencing the Commission in any way. Provides that knowing violations of the disclosure or recusal requirements can result in fines of up to $7,500, and a court order for the Commission to revoke its action and rehear the matter.

This bill:

• 1. Provides that communications with Commissioners regarding specified business before the Commission can result in a person being considered a lobbyist under the PRA, pursuant to the following:

1. Expands the definition of “administrative action” to also mean the proposal, drafting, development, consideration, amendment, enactment, or defeat of any rule, regulation, permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, or categorical or other exclusion from coastal development permit requirements.
2. Provides, for the purposes of a quasi-judicial matter before the Commission, that the term "agency official" only means Commissioners, thereby generally excluding communications with staff or consultants of the Commission regarding matter before the Commission from the types of communications that may result in a person being classified as a lobbyist under this bill.
3. Exempts from the definition of "lobbyist," for the purposes of this bill, an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the Commission.
   1. Requires Commissioners to disclose any ex parte communication in writing as follows:
4. If the communication occurs more than seven days before the next commission hearing, to the executive director within seven days after the communication.
5. If the communication occurs within seven days of the next commission hearing, to the commission on the record of the proceeding at that hearing.
6. If the communication occurs within seven days of the next commission hearing and relates to a matter that the commission will discuss at the hearing, to the commission in writing at least 24 hours before that hearing.
   
7. No commission member, nor any interested person, shall conduct an ex parte communication within 24 hours before a commission hearing regarding a matter that the commission will discuss at the hearing.

BACKGROUND

Coastal Commission. The Commission was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976 (Coastal Act). In partnership with coastal cities and counties, the Commission plans and regulates the use of land and water in the coastal zone. Development activities, which are broadly defined by the Coastal Act to include construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a Coastal Development Permit (CDP) from either the Commission or the local government with a certified Local Coastal Program (LCP).

The Commission is an independent, quasi-judicial state agency, and is composed of 12 voting members, appointed equally (4 each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Six of the voting commissioners are locally elected officials and six are appointed from the public at large. Three ex officio (non-voting) members represent the Natural Resources Agency, the Transportation Agency, and the State Lands Commission.

According to the Commission’s mission statement, the Commission is committed to protecting and enhancing California’s coast and ocean for present and future generations through careful planning and regulation of environmentally-sustainable development, rigorous use of science, strong public participation, education, and effective intergovernmental coordination.

Ex parte communications. Ex parte communications refer to any communication made in private (i.e., off the record and without notice and opportunity for all parties to participate) between an interested party in a decision-making process and any state official in a decision-making position. Ex parte communication disclosure requirements for state policy makers are intended to provide the public with information regarding a decision and to prevent bias in decision makers.

Prior to 1992, there was no mention of ex parte communications in the Coastal Act. In 1992, basic ex parte communications reporting was added to the Coastal Act. In 2014, AB 474 (Stone, Chapter 125, Statutes of 2014), improved ex parte communications reporting requirements. The additions to the reporting requirements included the identity of the person on whose behalf the communication was made, the identity of all persons present during the communication, and a complete, comprehensive description of the content of the ex parte communication, including a complete set of all text and graphic material that was part of the communication. This bill requires written reports for all ex parte communications. This bill also prohibits ex parte communications within 24 hours of a Commission hearing.

COMMENTS

According to the author: Currently members of the California Coastal Commission are lobbied without the same level of transparency that is met when other state officials are lobbied. AB 2002 will amend the California Coastal Act and the California Political Reform Act to require that those lobbying the Commission must register with the Fair Political Practices Commission as a lobbyist; they must disclose activities they are pursuing on behalf of a client.

The decisions made by the Commission can have broad and lasting impacts on coastal conservation and coastal access. The Commission works with cities and counties in the coastal zone to approve land use policy that reflects the values put forth by the voters in 1972. Due to the gravity of these decisions, transparency of the process is critical.

RELATED/PRIOR LEGISLATION

SB 1190 (Jackson), which is pending in the Assembly Natural Resources Committee, prohibits all ex parte communications at the Commission.

AB 2658 (Maienschein), which was never voted on in the Assembly Natural Resources Committee, would have required Commission staff to disclose certain communications as specified and imposed time limits for posting specified recordings and materials on the Commission website.

PRIOR ACTION

POSITIONS

Sponsor: Author

Support: Betty Yee, California State Controller

Asian Pacific Policy & Planning Council

Audubon California

Azul\Hispanic Access Foundation

Black Surfers Collective

Blue Frontier

CA Native Plant Society

California Coastal Protection Network

California Coastkeeper Alliance

California League of Conservation Voters

California Public Interest Research Group

California Watershed Network

City of West Hollywood

Climate Parents

Coastal Environmental Rights Foundation

Courage Campaign

Environment California

Environmental Defense Center

Environmental Justice Coalition for Water

Friends of Harbors, Beaches and Parks

Hispanic Access Foundation

Humboldt Baykeeper

IDARE Sustainable Leadership

Inland Empire Waterkeeper

Klamath Riverkeeper

Los Angeles Waterkeeper

Los Cerritos Wetlands Land Trust

Monterey Coastkeeper & Otter Projects

National Parks Conservation Association

Orange County Coastkeeper

Petaluma River Council

Preserve Rural Sonoma County

Russian Riverkeeper

San Francisco Baykeeper

San Diego Coastkeeper

San Luis Obispo Channelkeeper

Santa Barbara Channelkeeper

Sierra Club California

Smith River Alliance

Sonoma County Conservation Action

Surfrider Foundation

The City Project

The Nature Conservancy

Turtle Island Restoration Network

Ventura Coastkeeper

Wallace J. Nicholas, Ph.D., Author, Blue Mind

WildCoast

Wishotyo Chumash Foundation

Oppose: California Apartment Association

California Building Industry Association

California Business Properties Association

California Cattlemen’s Association

California Chamber of Commerce

California Construction and Industrial Materials Association

California Farm Bureau Federation

California Independent Petroleum Association

Loftin Firm, P.C.

National Federation of Independent Business

Western States Petroleum Association

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2002

Author:(Mark Stone, et al.)

As Amended Ver:April 12, 2016

2/3 vote

SUMMARY: Provides that communicating with the California Coastal Commission (Commission) in order to influence specified actions can result in a person being considered a "lobbyist" under the Political Reform Act (PRA). Prohibits an ex parte communication with a member of the Commission regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing. Specifically, this bill:

1. Provides that communications with members of the Commission regarding specified business before the Commission can result in a person being considered a lobbyist under the PRA:
   1. Provides that the proposal, drafting, development, consideration, amendment, enactment, or defeat of any rule, regulation, permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, or categorical or other exclusion from coastal development permit requirements, with respect to proceedings before the Commission, is considered to be an "administrative action," for the purposes of the PRA, thereby making attempts to influence these actions subject to the lobbying rules found in the PRA.
   2. Provides, for the purposes of a matter before the Commission, that the term "agency official" only means a member of the Commission, thereby generally excluding communications with staff or consultants from the types of communications that may result in a person being classified as a lobbyist under this bill.
   3. Provides that an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the Commission, does not subject that employee to the lobbying requirements in the PRA.
2. Requires a member of the Commission to disclose any ex parte communication in writing at least 24 hours before a hearing if the communication occurs within seven days of the next hearing and relates to a matter that the Commission will discuss at the hearing. Prohibits a member of the Commission, or an interested person in a Commission action, from conducting an ex parte communication within 24 hours before a hearing regarding a matter that the Commission will discuss at that hearing.
3. Makes corresponding and technical changes.

FISCAL EFFECT: According to the Assembly Appropriations Committee analysis:

1. Due to the bill's expanding the regulation of lobbying into matters before the Commission, the Fair Political Practices Commission (FPPC) will require two positions, at an annual General Fund cost of around $200,000 to amend regulations and manuals, respond to additional advice requests, and for additional enforcement.
2. Minor absorbable costs to the Commission associated with an increase in public disclosures for ex parte communications occurring within seven days before the hearing on any matter.

COMMENTS: According to the author, "AB 2002 will amend the California Coastal Act and the [PRA] to require that those lobbying the Commission must register with the [FPPC] as a lobbyist; they must… disclose activities they are pursuing on behalf of a client. The decisions made by the Commission can have broad and lasting impacts on coastal conservation and coastal access. The Commission works with cities and counties in the coastal zone to approve land use policy that reflects the values put forth by the voters in 1972. Due to the gravity of these decisions, transparency of the process… is critical."

The Commission is an independent, quasi-judicial state agency generally charged with the management and regulation of California's coastal resources. The Commission is empowered to act as a policy-maker and a regulator with regard to coastal resources, and is heavily lobbied by the many interests affected by its policies and decisions.

Under existing law, individuals and entities that make or receive specified levels of payments for the purpose of influencing legislative or administrative actions may be required to comply with the state's lobbying rules, including requirements to register and file periodic reports. The term "legislative action," for these purposes, is limited to matters before the Legislature and the action of the Governor in approving or vetoing bills. The term "administrative action" is defined primarily to include rule- and rate-making, the adoption of regulations, and quasi-legislative proceedings. Most of the Commission's proceedings are quasi-judicial. Because quasi-judicial proceedings are not legislative or administrative actions, payments for the purpose of influencing quasi-judicial proceedings do not currently trigger the lobbying rules found in the PRA.

Most boards and commissions that conduct quasi-judicial hearings prohibit members from having ex parte communications with interested parties. This ban does not apply to members of the Commission. Instead, members of the Commission are required to publicly disclose any ex parte communication.

California voters passed an initiative, Proposition 9, in 1974 that created the FPPC and codified significant restrictions and prohibitions on candidates, officeholders and lobbyists. That initiative is commonly known as the PRA. Amendments to the PRA that are not submitted to the voters, such as those contained in this bill, must further the purposes of the initiative and require a two-thirds vote of both houses of the Legislature.

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094 FN: 0003123

Date of Hearing: May 4, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2002

Author:(Mark Stone) – As Amended Ver:April 12, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill:

1. Provides that communicating with the Coastal Commission in order to influence specified actions can result in a person being considered a “lobbyist” under the Political Reform Act (PRA).
2. Requires Commissioners to disclose any ex parte communication in writing at least 24 hours before a hearing if the communication occurs within seven days of the next hearing and relates to a matter that the Commission will discuss at the hearing.
3. Prohibits Commissioners or an interested person in a Commission action from conducting an ex parte communication within 24 hours before a hearing regarding a matter that the Commission will discuss at that hearing.

FISCAL EFFECT:

1. Due to the bill's expanding the regulation of lobbying into matters before the Coastal Commission, the Fair Political Practices Commission (FPPC) will require two positions, at an annual General Fund cost of around $200,000 to amend regulations and manuals, respond to additional advice requests, and for additional enforcement.
2. Minor absorbable costs to the Coastal Commission associated with an increased in public disclosures for ex parte communications occurring within seven days before the hearing on any matter.

COMMENTS:

1. Background. The Commission is an independent, quasi-judicial state agency generally charged with the management and regulation of California's coastal resources. The Commission is empowered to act as a policy-maker and a regulator with regard to coastal resources, and is heavily lobbied by the many interests affected by its policies and decisions.

Under existing law, individuals and entities that make or receive specified levels of payments for the purpose of influencing legislative or administrative actions may be required to comply with the state's lobbying rules, including requirements to register with the SOS and to file periodic reports. The term "legislative action," for these purposes, is limited to matters before the Legislature and the action of the Governor in approving or vetoing bills. The term "administrative action" is defined primarily to include rule- and rate-making, the adoption of regulations, and quasi-legislative proceedings. Most of the Commission's proceedings are quasi-judicial. Because quasi-judicial proceedings are not legislative or administrative actions, payments for the purpose of influencing quasi-judicial proceedings do not currently trigger the lobbying rules found in the PRA.

Most boards and commissions that conduct quasi-judicial hearings prohibit members from having ex parte communications with interested parties. This ban does not apply to members of the Commission. Instead, members of the Commission are required to publicly disclose any ex parte communication.

1. Purpose. According to the author, "Currently, members of the California Coastal Commission are lobbied without the same level of transparency that is met when other state officials are lobbied…The decisions made by the Commission can have broad and lasting impacts on coastal conservation and coastal access. The Commission works with cities and counties in the coastal zone to approve land use policy that reflects the values put forth by the voters in 1972. Due to the gravity of these decisions, transparency of the process is critical."

Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081

Date of Hearing: April 18, 2016

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Das Williams, Chair

ABPCA Bill Id:AB 2002 (

Author:Mark Stone) – As Amended Ver:April 12, 2016

SUBJECT: Political Reform Act of 1974: California Coastal Commission: communications

SUMMARY: Provides that communicating with the Coastal Commission (Commission) in order to influence specified actions can result in a person being considered a “lobbyist” under the Political Reform Act (PRA). Prohibits an ex parte communication with a member of the Commission regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing.

EXISTING LAW:

1. Creates the Fair Political Practices Commission (FPPC) and makes it responsible for the impartial, effective administration and implementation of the PRA.
2. Defines a "lobbyist," for the purposes of the PRA, as an individual who receives $2,000 or more in a calendar month, or whose principal duties as an employee are, to communicate with an agency official, elected state official, or legislative official for the purpose of influencing legislative or administrative action. This definition does not apply to any elected public official acting in her official capacity, or any state employee acting within the scope of his or her employment.
   
3. Defines "administrative action," for the purposes of the PRA, as either of the following:
   1. The proposal, drafting, development, consideration, amendment, enactment, or defeat by any state agency of any rule, regulation, or other action in any ratemaking proceeding or a quasi-legislative proceeding, as specified; or,
   2. With regard only to placement agents, as defined, the decision by any state agency to enter into a contract to invest state public retirement system assets on behalf of a state public retirement system.
4. Defines “agency official,” for the purposes of the PRA, as any member, officer, employee, or consultant of any state agency who as part of her official responsibilities participates in any administrative action in other than a purely clerical, secretarial, or ministerial capacity. Excludes Commissioners from the agency official definition.
   
5. Requires a lobbyist to register as a lobbyist and to comply with various ethics and reporting rules.
6. Requires lobbying firms and lobbyist employers to register with the Secretary of State (SOS) and to file periodic disclosure reports that contain information about the firms' and employers' lobbying interests and agencies lobbied.
7. Permits any person to testify at a Commission hearing, workshop, or other official proceeding, or submit written comments for the record on a matter before the Commission.
   
8. Requires any person who applies to the Commission for approval of a development permit to provide the Commission with the names and addresses of all persons who, for compensation, will be communicating with the Commission or its staff on the applicant’s behalf or on behalf of the applicant’s business partners. Requires that disclosure to be provided to the Commission prior to any such communication.
   
9. Requires Commissioners to disclose and make public any ex parte communication by providing a full report of the communication to the executive director within seven days of the communication or, if the communication occurs within seven days of the next Commission hearing, to the Commission on the record of the proceeding at that hearing.
   
   1. Defines an "ex parte communication," for the purposes of communications related to actions of the Commission, as any oral or written communication between a member of the Commission and an interested person about a matter within the Commission's jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or that is not on the record at such a proceeding.
      
   2. Defines an "interested person" as (a) any applicant, applicant's agent or representative, or participant in a Commission proceeding, (b) any person with a financial interest in a matter before the Commission, or her agent or employee, or (c) a representative acting on behalf of any civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a Commissioner.
   3. Defines a "matter within the commission's jurisdiction" as any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, or any other quasi-judicial matter requiring Commission action, for which an application has been submitted to the Commission.
      
10. Prohibits a Commissioner who has knowingly had an ex parte communication that has not been reported as required from voting on the matter or influencing the Commission in any way. Provides that knowing violations of the disclosure or recusal requirements can result in fines of up to $7,500, and a court order for the Commission to revoke its action and rehear the matter.
    

THIS BILL:

1. Provides that communications with Commissioners regarding specified business before the Commission can result in a person being considered a lobbyist under the PRA, pursuant to the following:
   1. Expands the definition of “administrative action” to also mean various actions intending to influence decisions in proceedings before the Commission.
   2. Provides, for the purposes of a quasi-judicial matter before the Commission, that the term "agency official" only means Commissioners, thereby generally excluding communications with staff or consultants of the Commission regarding matter before the Commission from the types of communications that may result in a person being classified as a lobbyist under this bill.
   3. Exempts from the definition of "lobbyist," for the purposes of this bill, an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the Commission.
      
2. Requires Commissioners to disclose any ex parte communication in writing at least 24 hours before a hearing if the communication occurs within seven days of the next hearing and relates to a matter that the Commission will discuss at the hearing. Prohibits Commissioners or an interested person in a Commission action from conducting an ex parte communication within 24 hours before a hearing regarding a matter that the Commission will discuss at that hearing.
   

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement.

Currently members of the California Coastal Commission are lobbied without the same level of transparency that is met when other state officials are lobbied. AB 2002 will amend the California Coastal Act and the California Political Reform Act to require that those lobbying the Commission must register with the Fair Political Practices Commission as a lobbyist; they must disclose activities they are pursuing on behalf of a client.

The decisions made by the Commission can have broad and lasting impacts on coastal conservation and coastal access. The Commission works with cities and counties in the coastal zone to approve land use policy that reflects the values put forth by the voters in 1972. Due to the gravity of these decisions, transparency of the process is critical.

1. Coastal Commission. The Commission was established by voter initiative in 1972 (Proposition 20) and later made permanent by the Legislature through adoption of the California Coastal Act of 1976 (Coastal Act). In partnership with coastal cities and counties, the Commission plans and regulates the use of land and water in the coastal zone. Development activities, which are broadly defined by the Coastal Act to include construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a Coastal Development Permit (CDP) from either the Commission or the local government with a certified Local Coastal Program (LCP).

The Commission is an independent, quasi-judicial state agency, and is composed of 12 voting members, appointed equally (4 each) by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Six of the voting commissioners are locally elected officials and six are appointed from the public at large. Three ex officio (non-voting) members represent the Natural Resources Agency, the Transportation Agency, and the State Lands Commission.

According to the Commission’s mission statement:

The Commission is committed to protecting and enhancing California’s coast and ocean for present and future generations. It does so through careful planning and regulation of environmentally-sustainable development, rigorous use of science, strong public participation, education, and effective intergovernmental coordination.

1. Ex parte communications. Ex parte communications refer to any communication made in private (i.e., off the record and without notice and opportunity for all parties to participate) between an interested party in a decision-making process and any state official in a decision-making position. Ex parte communication disclosure requirements for state policy makers are intended to provide the public with information regarding a decision and to prevent bias in decision makers. Prior to 1992, there was no mention of ex parte communications in the Coastal Act. There were claims of frequent unreported ex parte communications at the Commission. In 1992, basic ex parte communications reporting was added to the Coastal Act. In 2014, AB 474 (Stone), Chapter 125, Statutes of 2014, improved ex parte communications reporting requirements. The additions to the reporting requirements included the identity of the person on whose behalf the communication was made, the identity of all persons present during the communication, and a complete, comprehensive description of the content of the ex parte communication, including a complete set of all text and graphic material that was part of the communication. However, concerns remain about ex parte communications at the Commission. Those concerns include the quality of the oral reports that are required within a week of a meeting and the ability of the public to find specific ex parte communication reports. This bill requires written reports for all ex parte communications. This bill also prohibits ex parte communications within 24 hours of a Commission hearing.
2. Political Reform Act of 1974. California voters passed an initiative, Proposition 9, in 1974 that created the FPPC and codified significant restrictions and prohibitions on candidates, officeholders, and lobbyists. That initiative is commonly known as the PRA. Amendments to the PRA that are not submitted to the voters, such as the lobbying provisions of this bill, must further the purposes of the initiative and require a two-thirds vote of both houses of the Legislature.
3. Double-Referral. This bill was double-referred to the Elections and Redistricting Committee and on March 30, 2016 passed out of that Committee 6-1.
4. Related legislation.

SB 1190 (Jackson) prohibits all ex parte communications at the Commission. This bill is awaiting hearing in the Senate Appropriations Committee.

AB 2658 (Maienschein) imposes ex parte communications reporting requirements on Commission staff. Specifies when videos and other related material must be posted on the Commission’s website. This bill is scheduled to be heard in this Committee on April 18.

REGISTERED SUPPORT / OPPOSITION:

Support

Asian Pacific Policy & Planning Council

Audubon California

Azul

Black Surfers Collective

Blue Frontier

California Coastal Protection Network

California Coastkeeper Alliance

California League of Conservation Voters

California Native Plant Society

California Watershed Network

CALPIRG

The City Project

Climate Parents

Coastal Environmental Rights Foundation

Controller Betty Yee

Courage Campaign

Environment California

Environmental Defense Center

Environmental Justice Coalition for Water

Friends of Harbors, Beaches, and Parks

Hispanic Access Foundation

Humboldt Baykeeper

IDARE Sustainable Leadership

Inland Empire Waterkeeper

Klamath Riverkeeper

Los Angeles Waterkeeper

Los Cerritos Wetlands Land Trust

Monterey Coastkeeper & Otter Project

National Parks Conservation Association

The Nature Conservancy

Orange County Coastkeeper

Petaluma River Council

Preserve Rural Sonoma County

Russian Riverkeeper

San Diego Coastkeeper

San Francisco Baykeeper

San Luis Obispo Channelkeeper

Santa Barbara Channelkeeper

Sierra Club California

Smith River Alliance

Sonoma County Conservation Action

Surfrider Foundation

Turtle Island Restoration Network

Ventura Coastkeeper

WILDCOAST

Wishtoyo Chumash Foundation

One individual

Opposition

California Apartment Association
California Building Industry Association

California Business Properties Association
California Cattlemen’s Association

California Chamber of Commerce
California Construction and Industrial Materials Association
California Farm Bureau Federation

California Independent Petroleum Association
Western States Petroleum Association

Analysis Prepared by: Michael Jarred / NAT. RES. / (916) 319-2092

Date of Hearing: March 30, 2016

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Shirley Weber, Chair

ABPCA Bill Id:AB 2002 (

Author:Mark Stone, et al.) – As Amended Ver:March 28, 2016

SUBJECT: Political Reform Act of 1974: California Coastal Commission: communications.

SUMMARY: Provides that communicating with the California Coastal Commission (Commission) in order to influence specified actions can result in a person being considered a “lobbyist” under the Political Reform Act (PRA). Prohibits an ex parte communication with a member of the Commission regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing. Specifically, this bill:

1. Provides that communications with members of the Commission regarding specified business before the Commission can result in a person being considered a lobbyist under the PRA, pursuant to the following:
   1. Provides that the proposal, drafting, development, consideration, amendment, enactment, or defeat of any rule, regulation, permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, or categorical or other exclusion from coastal development permit requirements, with respect to proceedings before the Commission, is considered to be an “administrative action,” for the purposes of the PRA, thereby making attempts to influence these actions subject to the lobbying rules found in the PRA.
   2. Provides, for the purposes of a quasi-judicial matter before the Commission, that the term "agency official" only means a member of the Commission, thereby generally excluding communications with staff or consultants of the Commission regarding quasi-judicial matters from the types of communications that may result in a person being classified as a lobbyist under this bill.
   3. Exempts from the definition of "lobbyist," for the purposes of this bill, an employee of a local government agency seeking, within the scope of his or her employment, to influence quasi-judicial decisions of the Commission.
      
2. Requires a member of the Commission to disclose any ex parte communication in writing at least 24 hours before a hearing if the communication occurs within seven days of the next hearing and relates to a matter that the Commission will discuss at the hearing. Prohibits a member of the Commission or an interested person in a Commission action from conducting an ex parte communication within 24 hours before a hearing regarding a matter that the Commission will discuss at that hearing.
   
3. Makes corresponding and technical changes.

EXISTING LAW:

1. Creates the Fair Political Practices Commission (FPPC), and makes it responsible for the impartial, effective administration and implementation of the PRA.
2. Defines a "lobbyist," for the purposes of the PRA, as an individual who receives $2,000 or more in a calendar month, or whose principal duties as an employee are, to communicate with an elective state official, agency official, or legislative official for the purpose of influencing legislative or administrative action. This definition does not apply to any elected public official acting in his or her official capacity, or any state employee acting within the scope of his or her employment.
   
3. Defines "administrative action," for the purposes of the PRA, as either of the following:
   1. The proposal, drafting, development, consideration, amendment, enactment, or defeat by any state agency of any rule, regulation, or other action in any ratemaking proceeding or a quasi-legislative proceeding, as specified; or,
   2. With regard only to placement agents, as defined, the decision by any state agency to enter into a contract to invest state public retirement system assets on behalf of a state public retirement system.
4. Defines “agency official,” for the purposes of the PRA, as any member, officer, employee or consultant of any state agency who as part of his official responsibilities participates in any administrative action in other than a purely clerical, secretarial or ministerial capacity.
   
5. Requires an individual who is considered a lobbyist, as defined, to register as a lobbyist and to comply with various ethics and reporting rules.
6. Requires lobbyists to complete a biennial orientation course on the relevant ethical issues and laws relating to lobbying.
7. Requires lobbying firms and lobbyist employers to register with the Secretary of State (SOS) and to file periodic disclosure reports that contain information about the firms' and employers' lobbying interests and agencies lobbied.
8. Permits any person to testify at a Commission hearing, workshop, or other official proceeding, or submit written comments for the record on a matter before the Commission.
   
9. Requires any person who applies to the Commission for approval of a development permit to provide the Commission with the names and addresses of all persons who, for compensation, will be communicating with the Commission or its staff on the applicant’s behalf or on behalf of the applicant’s business partners. Requires that disclosure to be provided to the Commission prior to any such communication.
   
10. Requires a member of the Commission to disclose and make public any ex parte communication by providing a full report of the communication to the executive director within seven days of the communication or, if the communication occurs within seven days of the next Commission hearing, to the Commission on the record of the proceeding at that hearing.
    
    1. Defines an "ex parte communication," for the purposes of communications related to actions of the Commission, as any oral or written communication between a member of the Commission and an interested person about a matter within the Commission's jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding or that is not on the record at such a proceeding.
       
    2. Defines an "interested person" as (a) any applicant, applicant's agent or representative, or participant in a Commission proceeding, (b) any person with a financial interest in a matter before the Commission, or his/her agent or employee, or (c) a representative acting on behalf of any civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a Commissioner.
    3. Defines a "matter within the commission's jurisdiction" as any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, or any other quasi-judicial matter requiring Commission action, for which an application has been submitted to the Commission.
       
11. Prohibits a member of the Commission who has knowingly had an ex parte communication that has not been reported, as required, from voting on the matter or influencing the Commission in any way. Provides that knowing violations of the disclosure or recusal requirements can result in fines of up to $7,500, and a court order for the Commission to revoke its action and rehear the matter.

FISCAL EFFECT: Unknown. State-mandated local program; contains a crimes and infractions disclaimer.

COMMENTS:

1. Purpose of the Bill: According to the author:

AB 2002 will amend the California Coastal Act and the [PRA] to require that those lobbying the Commission must register with the [FPPC] as a lobbyist; they must…disclose activities they are pursuing on behalf of a client.

The decisions made by the Commission can have broad and lasting impacts on coastal conservation and coastal access. The Commission works with cities and counties in the coastal zone to approve land use policy that reflects the values put forth by the voters in 1972. Due to the gravity of these decisions, transparency of the process…is critical.

1. Coastal Commission Background & Lobbying Regulation: The Commission is an independent, quasi-judicial state agency generally charged with the management and regulation of California's coastal resources. The Commission is empowered to act as a policy-maker and a regulator with regard to coastal resources, and is heavily lobbied by the many interests affected by its policies and decisions.
   
   The Commission has 12 voting members and three ex officio (non-voting) members. Of the voting members, six are "public members," and six are local elected officials who come from specific coastal districts. The Governor, the Senate Rules Committee, and the Speaker of the Assembly each appoints four Commissioners—two public members and two elected officials. The Secretaries of the Resources Agency and the California State Transportation Agency, and the Chair of the State Lands Commission, are the three ex officio members of the Commission.
   
   The Commission, in partnership with coastal cities and counties, plans and regulates the use of land and water in the coastal zone. Development activities, which are broadly defined by the Coastal Act to include, among others, construction of buildings, divisions of land, and activities that change the intensity of use of land or public access to coastal waters, generally require a coastal permit from either the Commission or the local government.

Under existing law, individuals and entities that make or receive specified levels of payments for the purpose of influencing legislative or administrative actions may be required to comply with the state's lobbying rules, including requirements to register with the SOS and to file periodic reports. The term "legislative action," for these purposes, is limited to matters before the Legislature and the action of the Governor in approving or vetoing bills. The term "administrative action" is defined primarily to include rule- and rate-making, the adoption of regulations, and quasi-legislative proceedings. Most of the Commission's proceedings are quasi-judicial. Because quasi-judicial proceedings are not legislative or administrative actions, payments for the purpose of influencing quasi-judicial proceedings do not currently trigger the lobbying rules found in the PRA.

Most boards and commissions that conduct quasi-judicial hearings prohibit members from having ex parte communications with interested parties. This ban does not apply to members of the Commission. Instead, members of the Commission are required to publicly disclose any ex parte communication.

1. Transparency of Coastal Commission Proceedings: The author and supporters of this bill argue that it will help ensure greater transparency of the actions of the Commission, and thereby will help ensure the integrity of the Commission’s decisions. While it is true that existing law does not require individuals who receive compensation for attempting to influence Commission decisions to register as lobbyists and to comply with the lobbying rules found in the PRA, state law nonetheless includes provisions that are designed to ensure transparency of the Commission’s decisions. As noted above, state law requires ex parte communications between members of the Commission and interested parties to be publicly disclosed, and includes significant penalties for violations of the ex parte rules. Additionally, state law prohibits an interested person, as defined, from making gifts aggregating more than $10 in a calendar month to a member or staff of the Commission. Requiring certain people to register as lobbyists if they receive compensation to communicate with members of the Commission may provide some additional information about who those individuals’ clients are and how much they are being paid to influence Commission decisions. Much of the information that would be required to be disclosed on lobbyist disclosure reports, however, may already be disclosed under existing law.
   
2. Arguments in Support: In a letter submitted on behalf of itself and 40 other organizations in support of the prior version of this bill (which did not contain the provisions related to ex parte communications), the California Coastal Protection Network writes:

Many of the projects that come before the Commission are valued in the range of tens of millions of dollar[s], with one current project estimated at over one billion dollars, and yet disclosure of the dollars spent lobbying Commissioners for their approval is unreported….

Numerous other state agencies are subject to lobbying and public disclosure rules, and we believe that it is in the best interest of all Californians to have those paid to lobby the [Commission] to provide the same level of transparency.

The [Commission] plays a critically important role in protecting and enhancing equal access to the coast for all, stewarding our coastal resources and ensuring that new development upholds these core tenets of the Coastal Act. Our coast is our democratic commons, thus it is imperative that those paid to lobby the [Commission] are subject to the same lobbying reporting and public disclosure laws to ensure integrity, transparency and accountability in all its actions.

1. Arguments in Opposition: In a letter submitted on behalf of itself and four other organizations in opposition to the prior version of this bill (which did not contain the provisions related to ex parte communications), the California Chamber of Commerce writes:

Prior to 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 they disclose it and give written materials provided to them to commission staff. 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 commissioners or staff. The disclosure process has been working well for a number of years. There is no reason to add cumbersome new reporting requirements for applicants, their employees, and their consultants to disclosures they currently provide….

The public should be encouraged to communicate directly with public agency representatives, provided this communication is properly disclosed. There is no reason to change the current practice. To limit the free exchange of information by imposing burdensome and costly requirements…serves no public purpose and can limit mutually acceptable outcomes.

Additionally, the American Planning Association, California Chapter (APA California) has an "oppose unless amended" position on the prior version of this bill (which did not contain the provisions related to ex parte communications). APA California is seeking an amendment to exempt planning consultants and design professionals who are hired by local agencies from the requirement to register as lobbyists.

1. Related Legislation: AB 2658 (Maienschein), which is pending in the Assembly Natural Resources Committee, would make provisions of law that require reporting of ex parte communications between Commission members and interested parties applicable to ex parte communications between Commission staff and interested parties.
2. Previous Legislation: The provisions of this bill that would make certain communications with the Commission subject to the PRA's rules governing lobbying are similar to provisions from SB 929 (Kehoe) of 2005. SB 929 failed passage on the Senate Floor, and was never heard in the Assembly.
3. Political Reform Act of 1974: California voters passed an initiative, Proposition 9, in 1974 that created the FPPC and codified significant restrictions and prohibitions on candidates, officeholders and lobbyists. That initiative is commonly known as the PRA. Amendments to the PRA that are not submitted to the voters, such as those contained in this bill, must further the purposes of the initiative and require a two-thirds vote of both houses of the Legislature.
4. Double-Referral: This bill has been double-referred to the Assembly Natural Resources Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Asian Pacific Policy & Planning Council (prior version)

Audubon California (prior version)

Azul (prior version)

Black Surfers Collective (prior version)

Blue Frontier (prior version)

California Coastal Protection Network (prior version)

California Coastkeeper Alliance (prior version)

California League of Conservation Voters (prior version)

California Native Plant Society (prior version)

California Watershed Network (prior version)

CALPIRG (prior version)

The City Project (prior version)

Climate Parents (prior version)

Coastal Environmental Rights Foundation (prior version)

Courage Campaign (prior version)

Environment California (prior version)

Environmental Defense Center (prior version)

Environmental Justice Coalition for Water (prior version)

Friends of Harbors, Beaches, and Parks (prior version)

Hispanic Access Foundation (prior version)

Humboldt Baykeeper (prior version)

IDARE Sustainable Leadership (prior version)

Inland Empire Waterkeeper (prior version)

Klamath Riverkeeper (prior version)

Los Angeles Waterkeeper (prior version)

Los Cerritos Wetlands Land Trust (prior version)

Monterey Coastkeeper & Otter Project (prior version)

National Parks Conservation Association (prior version)

The Nature Conservancy (prior version)

Orange County Coastkeeper (prior version)

Petaluma River Council (prior version)

Preserve Rural Sonoma County (prior version)

Russian Riverkeeper (prior version)

San Diego Coastkeeper (prior version)

San Francisco Baykeeper (prior version)

San Luis Obispo Channelkeeper (prior version)

Santa Barbara Channelkeeper (prior version)

Sierra Club California (prior version)

Smith River Alliance (prior version)

Sonoma County Conservation Action (prior version)

Surfrider Foundation (prior version)

Turtle Island Restoration Network (prior version)

Ventura Coastkeeper (prior version)

WILDCOAST (prior version)

Wishtoyo Chumash Foundation (prior version)

One individual (prior version)

Opposition

American Planning Association, California Chapter (unless amended; prior version)

California Apartment Association (prior version)

California Association of Realtors (prior version)

California Business Properties Association (prior version)

California Chamber of Commerce (prior version)

California Independent Petroleum Association (prior version)

Analysis Prepared by: Ethan Jones / E. & R. / (916) 319-2094