The California Coastal Act of 1976 establishes the California Coastal Commission, and prescribes the membership and functions and duties of the commission. For purposes of the act, an ex parte communication is defined as any oral or written communication between a member of the commission and an interested person, as defined, about a matter within the commissions jurisdiction, as defined, that does not occur in a public hearing, workshop, or other official proceeding or on the official record of the proceeding on the matter, excluding certain communications, including communications between a staff member acting in his or her official capacity and any commission member or interested person, as prescribed. The act prohibits a commission member and an interested person from conducting an ex parte communication unless the member fully discloses and makes public the ex parte communication by providing a full report of the communication to the executive director of the commission 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, as of July 1, 2018, delete the requirement that the commission member provide a full report of the communication to the executive director of the commission 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 bill would instead prohibit ex parte communication unless the commission member complies with specified requirements, including verbally disclosing at the hearing all ex parte communications that occurred on any given item to be heard at the hearing, including the identity of the person or persons engaging in the communication, prior to that item being heard at the hearing.

This bill would additionally require the commission, no later than July 1, 2018, to develop, implement, and maintain a publicly searchable database for the online reporting of ex parte communications required to be disclosed pursuant to these provisions. The bill would require that the database be regularly updated to include all information pertaining to an ex parte communication between a commission member and an interested person, and that any disclosure of an ex parte communication be made available to the public on the online database within 7 days from the date the communication takes place. The bill would require that, for ex parte communications that take place less than 7 days prior to the hearing on the matter, the disclosure be posted on the online database prior to the beginning of the meeting hearing at which the matter to which the communication pertains will be discussed. The bill would require the commission member to be personally responsible for ensuring the database is updated with their ex parte communications, as prescribed.

The California Coastal Act of 1976 establishes the California Coastal Commission, and prescribes the membership and functions and duties of the commission. For purposes of the act, an ex parte communication is defined as any oral or written communication between a member of the commission and an interested person, as defined, about a matter within the commissions jurisdiction, as defined, that does not occur in a public hearing, workshop, or other official proceeding or on the official record of the proceeding on the matter, excluding certain communications, including communications between a staff member acting in his or her official capacity and any commission member or interested person, as prescribed. The act prohibits a commission member and an interested person from conducting an ex parte communication unless the member fully discloses and makes public the ex parte communication by providing a full report of the communication to the executive director of the commission 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, as of July 1, 2018, delete the requirement that the commission member provide a full report of the communication to the executive director of the commission 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 bill would instead prohibit ex parte communication unless the commission member complies with specified requirements, including verbally disclosing at the hearing all ex parte communications that occurred on any given item to be heard at the hearing, including the identity of the person or persons engaging in the communication, prior to that item being heard at the hearing.

This bill would additionally require the commission, no later than July 1, 2018, to develop, implement, and maintain a publicly searchable database for the online reporting of ex parte communications required to be disclosed pursuant to these provisions. The bill would require that the database be regularly updated to include all information pertaining to an ex parte communication between a commission member and an interested person, and that any disclosure of an ex parte communication be made available to the public on the online database within 7 days from the date the communication takes place. The bill would require that, for ex parte communications that take place less than 7 days prior to the hearing on the matter, the disclosure be posted on the online database prior to the beginning of the meeting at which the matter to which the communication pertains will be discussed. The bill would require the commission member to be personally responsible for directly updating ensuring the database is updated with their ex parte communications. communications, as prescribed.

The California Coastal Act of 1976 establishes the California Coastal Commission, and prescribes the membership and functions and duties of the commission. For purposes of the act, an ex parte communication is defined as any oral or written communication between a member of the commission and an interested person, as defined, about a matter within the commissions jurisdiction, as defined, that does not occur in a public hearing, workshop, or other official proceeding or on the official record of the proceeding on the matter, excluding certain communications, including communications between a staff member acting in his or her official capacity and any commission member or interested person, as prescribed. The act prohibits a commission member and an interested person from conducting an ex parte communication unless the member fully discloses and makes public the ex parte communication by providing a full report of the communication to the executive director of the commission 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, as of July 1, 2018, delete the requirement that the commission member provide a full report of the communication to the executive director of the commission 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 bill would instead prohibit ex parte communication unless the commission member complies with specified requirements, including verbally disclosing at the hearing all ex parte communications that occurred on any given item to be heard at the hearing, including the identity of the person or persons engaging in the communication, prior to that item being heard at the hearing.

This bill would additionally require the commission, no later than July 1, 2018, to develop and develop, implement, and maintain a publicly searchable database for the online reporting of ex parte communications required to be disclosed pursuant to these provisions. The bill would require that the database be regularly updated to include all information pertaining to an ex parte communication between a commission member and an interested person, and that any disclosure of an ex parte communication be made available to the public on the online database within 7 days from the date the communication takes place. The bill would require that, for ex parte communications that take place less than 7 days prior to the hearing on the matter, the disclosure be posted on the online database prior to the beginning of the meeting at which the matter to which the communication pertains will be discussed. The bill would require the commission member to be personally responsible for directly updating the database with their ex parte communications.

The California Coastal Act of 1976 establishes the California Coastal Commission, and prescribes the membership and functions and duties of the commission. For purposes of the act, an ex parte communication is defined as any oral or written communication between a member of the commission and an interested person, as defined, about a matter within the commissions jurisdiction, as defined, that does not occur in a public hearing, workshop, or other official proceeding or on the official record of the proceeding on the matter, but excluded from that definition are excluding certain communications, including communications between a staff member acting in his or her official capacity and any commission member or interested person, as prescribed. The act prohibits a commission member and an interested person from conducting an ex parte communication unless the member fully discloses and makes public the ex parte communication by providing a full report of the communication to the executive director of the commission 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 act requires the commission to adopt standard disclosure forms for reporting ex parte communications, including specified information, and requires the executive director to place in the public record any report of an ex parte communication.

This bill would additionally require the commission, no later than July 1, 2018, to develop and implement a database for the online reporting of ex parte communications required to be disclosed pursuant to these provisions. The bill would require that the database be regularly updated to include all information pertaining to an ex parte communications communication between a commission member and an interested person, and that any disclosure of an ex parte communication be made available to the public on the online database prior to the beginning of the meeting at which the matter to which the communication pertains will be discussed. The bill would require the commission member to be personally responsible for updating the database with their ex parte communications.

The California Coastal Act of 1976 establishes the California Coastal Commission, and prescribes the membership and functions and duties of the commission. For purposes of the act, an ex parte communication is defined as any oral or written communication between a member of the commission and an interested person, as defined, about a matter within the commissions jurisdiction, as defined, that does not occur in a public hearing, workshop, or other official proceeding or on the official record of the proceeding on the matter, but excluded from that definition are certain communications, including communications between a staff member acting in his or her official capacity and any commission member or interested person, as prescribed. The act prohibits a commission member and an interested person from conducting an ex parte communication unless the member fully discloses and makes public the ex parte communication by providing a full report of the communication to the executive director of the commission 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 act requires the commission to adopt standard disclosure forms for reporting ex parte communications, including specified information, and requires the executive director to place in the public record any report of an ex parte communication.

This bill would additionally require the commission, no later than July 1, 2018, to develop and implement a database for the online reporting of ex parte communications required to be disclosed pursuant to these provisions. The bill would require that the database be regularly updated to include all information pertaining to an ex parte communications between a commission member and an interested person, and that any disclosure of an ex parte communication be made available to the public on the online database prior to the beginning of the meeting at which the matter to which the communication pertains will be discussed.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 684 (Mark Stone) - California Coastal Commission: ex parte communications: database

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

Bill Summary:

AB 684 requires the Coastal Commission (Commission) to develop a searchable database for disclosing ex parte communications, and specifies requirements related to disclosure.

Fiscal Impact:

• One-time costs of approximately $500,000 to $600,000 (special fund) for the Commission to develop the database.
• Ongoing costs of $125,000 annually (special fund) for a staff position to maintain the database.

Background:

The Coastal Commission. The Commission has voting members and 3 non-voting members. Of the voting members, 6 are "public members," and 6 are local elected officials who come from specific coastal districts. All voting members are appointed either by the Governor, Senate Rules Committee, or the Speaker of the Assembly; each appoints 4 commissioners, 2 public members and 2 elected officials. Each commissioner may appoint an alternate to serve in his or her absence. The Secretaries of the Resources Agency, the Business and Transportation Agency, and the Chair of the State Lands Commission serve as non-voting members and may appoint a designee to serve in their place.

Existing Ex Parte Communication Laws. The California Coastal Act of 1976 prohibits, with specified exceptions, ex parte communications between a member of the Commission and an interested person about a matter within the jurisdiction of the Commission. Such communications, by definition, do not occur in a public hearing or other official proceeding or on the record.

When proper disclosure of such communications is made, ex parte communications are lawful. Existing law also prohibits commissioners or alternates from trying to influence a Commission decision in circumstances in which an ex parte communication has not been reported. A civil fine of up to $7,500 may be imposed, plus attorney's fees, and the Commission action may be revoked.

The Commission's jurisdiction for matters that are subject to the prohibition on ex parte communications and the disclosure requirements include any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, categorical or other exclusions from coastal development permit requirements, or any other quasi-judicial matter requiring Commission action, for which an application has been submitted to the Commission.

Commissioners must disclose to the public an ex parte communication on the prescribed form within seven days of the communication. If the communication occurs within seven days of the next Commission meeting, the disclosure must be made on the record of the proceeding in that hearing.

According to the Natural Resources Agency, the California Attorney General has opined that Commissioners may not engage in ex parte communications in the context of enforcement proceedings because enforcement proceedings are not expressly called out in the law. This advice letter does not have the effect of law.

Proposed Law:

This bill:

• Prohibits a commissioner or any interested person to conduct an ex parte communication unless the commissioner fully discloses and makes public the ex parte communication pursuant to the requirements of this section.
• Requires the commission to, no later than July 1, 2018, develop, implement, and maintain a publicly searchable database for the online reporting of ex parte communications, as specified
• Requires that the database is regularly updated to include all information pertaining to ex parte communications between commissioners and interested persons, and any disclosure of an ex parte communication is made available to the public on the online database prior to the beginning of the hearing at which the matter to which the ex parte communication pertains will be discussed.
• Requires commissioners to verbally disclose at the hearing all ex parte communications that occurred on any given item to be heard at the hearing, including the identity of the person or persons engaging in the communication, prior to that item being heard at the hearing.
• Requires the commission to adopt standard disclosure forms for reporting ex parte communications that includes all of the following information:
  • The date, time, and location of the communication.
  • The identity of the person or persons initiating and the person or persons receiving the communication.
  • The identity of the person on whose behalf the communication was made.
  • The identity of all persons present during the communication.
  • 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.
• Requires communications to cease to be ex parte communications when fully disclosed and placed in the commission’s official record.
• Requires ex parte communications that take place less than seven days prior to the hearing on the matter to be posted on the online database prior to the beginning of the hearing at which the matter to which the ex parte communication pertains will be discussed.
• Specifies that commissioners are personally responsible for ensuring the database is updated with their ex parte communications.
• Requires the commission to provide training and technical support to a commissioner, upon request.
• Outlines a disclosure process if a commissioner is unable to post ex parte communication due to a problem with the server on which the database is managed.

Related Legislation:

AB 1642 (Caballero, 2017) requires the executive director to place on the Commission’s Internet Web site and in the official public record any written report of an ex parte communication. This bill is pending in the Assembly Natural Resources Committee.

AB 2002 (Stone, 2016) provided 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. This bill also prohibited an ex parte communication with Commissioners regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing. This bill failed passage on the Senate Floor.

SB 1190 (Jackson, 2016) prohibited, with some exceptions, Commissioners from conducting ex parte communications on matters within the Commission's jurisdiction. This bill failed passage on the Assembly Floor.

Staff Comments:

According to the Commission, the Commission will have to contract out for the construction of a custom data base. Based on a similar project currently underway to make all permit-tracking data publically available online, the Commission estimates that the cost to build the database required under the bill will be between $500,000 and $600,000, in addition to the cost for one position ($125,000 annually) to maintain, curate, and trouble-shoot the system, and provide technical assistance to commissioners.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Robert Hertzberg, Chair

2017 - 2018 Regular

Bill No: AB 684 Hearing Date: July 11, 2017

Subject: California Coastal Commission: ex parte communications: database

BACKGROUND AND EXISTING LAW

1. Permits, pursuant to the Coastal Act, any person to testify at a hearing, workshop, or other official proceeding, or submit written comments for the record on a matter before the California Coastal Commission (CCC).
2. Requires any person who applies to the CCC for approval of a development permit to provide it with the names and addresses of all persons who, for compensation, will be communicating with the CCC 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 CCC prior to any such communication.
3. Defines an "ex parte communication," for the purposes of communications related to actions of the CCC, as any oral or written communication between a commissioner and an interested person about a matter within the CCC 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.
4. Prohibits an ex parte communication unless the commissioner fully discloses the communication.
5. 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 CCC hearing, to the CCC on the record of the proceeding at that hearing.
6. Requires the CCC to adopt standard disclosure forms for reporting ex parte communications, which shall include:
   1. The date, time, and location;
   2. Identity of the person who made the communication and the people who were present during the communication; and,
   3. A complete, comprehensive description of the content of the communication, including all material that was part of the communication.
7. Defines an "interested person" as a) any applicant, applicant's agent or representative, or participant in a CCC proceeding, b) any person with a financial interest in a matter before the CCC, 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.
8. All the above provisions sunset on January 1, 2019.
9. Prohibits, in a separate provision of the Coastal Act, 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 CCC 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 CCC to revoke its action and rehear the matter.

PROPOSED LAW

This bill:

1. Prohibits any ex parte communication unless the commissioner has fully disclosed the ex parte communication, including updating the database with the information on the ex parte communication and verbally disclosing the ex parte at the hearing.
2. Requires, no later than July 1, 2018, the CCC to develop, implement and maintain a database for the online reporting of ex parte communications that includes the information in the standard disclosure form.
3. Requires the data base shall be regularly updated to include all information pertaining to ex parte communications between commissioners and interested persons.
4. Provides that ex parte communications that occur within 7 days of a meeting shall be posted online prior to the beginning of the meeting.
5. Provides that the database is updated with ex parte communication disclosures, and provides that the commission shall provide commissioners with training and technical support, upon request.
6. Provides a mechanism to publicly disclose an ex parte communication in the event of a technical problem with the database.
7. Provides that this section shall become operative on July 1, 2018.

ARGUMENTS IN SUPPORT

According to the author, information about ex parte communications between commissioners and individuals are not easily available to the public. Also, communications that occur with 7 days of a meeting are not currently included in the reports provided at a hearing. This results in less transparency for the public.

This sentiment of the author is supported by the others identified below.

ARGUMENTS IN OPPOSITION

All of the former opposition is now neutral on the bill.

COMMENTS

As a technical amendment, there is a remaining place in the bill where the word “meeting” needs to be changed to “hearing.” (Amendment 1).

SUGGESTED AMENDMENTS

AMENDMENT 1

Page 3, Line 36 strike “meeting” and insert “hearing”.

SUPPORT

California Business Industry Association

Sierra Club California

The Nature Conservancy

OPPOSITION

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 684

Author:(Mark Stone)

As Amended Ver:April 17, 2017

Majority vote

SUMMARY: Requires, no later than July 1, 2018, the California Coastal Commission (Commission) to develop, implement and maintain a database for the online reporting of ex parte communications that includes the information in the standard disclosure form. Prohibits any ex parte communication unless the commissioner has fully disclosed the ex parte communication, including updating the database with the information on ex parte and verbally disclosing the ex parte at the hearing.

EXISTING LAW, pursuant to the Coastal Act:

1. 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.
2. 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.
3. Defines an "ex parte communication," for the purposes of communications related to actions of the Commission, as any oral or written communication between a commissioner 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.
4. Prohibits an ex parte communication unless the commissioner fully discloses the communication.
5. 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.
6. Requires the Commission to adopt standard disclosure forms for reporting ex parte communications, which shall include:
   1. The date, time, and location;
   2. Identity of the person who made the communication and the people who were present during the communication; and,
   3. A complete, comprehensive description of the content of the communication, including all material that was part of the communication.
7. 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, 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.
8. 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.

FISCAL EFFECT: According the Assembly Appropriations Committee:

1. Increased one-time costs of $500,000 to $600,000 General Fund (GF) for the Commission to develop the custom database to meet the requirements of the bill. If enacted, this bill would take effect January 1, 2018. It is unlikely the Commission would be able to meet the deadline of July 1, 2018, established in the bill even with additional resources, which would not be available without a future budget augmentation.
2. Minor ongoing administrative costs of less than $50,000 (GF or special fund).

COMMENTS: 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. Then Assembly Member Terry Friedman authored AB 3459, Chapter 1114, Statutes of 1992, and AB 909, Chapter 798, Statutes of 1993, to prohibit ex parte communications. These laws were interpreted as prohibiting ex parte communication unless they are fully disclosed.

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. Many of the ex parte communications submitted to this Committee are not comprehensive, and news accounts state some commissioners have not filed ex parte disclosure forms for their ex parte communications. There have been accounts of commissioners filing brief disclosure forms and then sending staff detailed e-mails about their ex parte communications creating a discrepancy in the public record. Commissioners also commonly disclose ex parte communications on the microphone at Commission meetings. The oral disclosures are usually an extremely short account of the communication. Finally, it is difficult for the public to have access to the ex parte communication disclosure forms.

The Commission voted 6-5 last year to support banning ex parte communications, and in a support letter for SB 1190 (Jackson) of 2016 they state, "Commissioners have expressed concerns that the practice lacks transparency, undermines due process, and erodes public trust in the Commission. Some have stated that they would prefer not to conduct ex partes, but feel pressured to do so because the practice is so widespread. The general conclusion is that the current process leads to an ‘uneven’ level of information available to the public." According to the Commission's Web site, five out of the 11 commissioners currently accept ex-parte communication. AB 684 would not prohibit ex-parte communication. Instead it would make ex-parte communication more transparent and available to the public.

Analysis Prepared by: Michael Jarred / NAT. RES. / (916) 319-2092 FN: 0000673

Date of Hearing: April 26, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 684

Author:(Mark Stone) – As Amended Ver:April 17, 2017

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

SUMMARY:

This bill requires the California Coastal Commission (Commission) to develop a database for online ex parte communication reporting and revises requirements. Specifically, this bill:

1. Requires the Commission to develop, implement and maintain a publicly searchable database for the online reporting of ex parte communications no later than July 1, 2018.
2. Requires Commissioners to verbally disclose all ex parte communications that occurred on any given item to be heard at the hearing prior to that item being heard.
3. On or after July 1, 2018, prohibits any ex parte communication unless the commissioner has fully disclosed the ex parte communication, including updating the database with the information on the ex parte communication and verbally disclosed the communication at the hearing.

FISCAL EFFECT:

1. Increased one-time costs of $500,000 to $600,000 (GF) for the Commission to develop the custom database to meet the requirements of the bill.

If enacted, this bill would take effect January 1, 2018. It is unlikely the Commission would be able to meet the deadline of July 1, 2018, established in the bill even with additional resources, which would not be available without a future budget augmentation.

1. Minor ongoing administrative costs of less than $50,000 (GF or special fund).

COMMENTS:

1. Purpose. According to the author, currently, ex parte communications between Commissioners and individuals are not easily available to the public. Also, communications that happen within seven days of a meeting are not currently included in the reports provided at a hearing. This results in less transparency for the public when examining with whom commissioners are interacting.

This bill will make these communications more available to the public by allowing them to be searched on an online database, and also requiring that all communications are reported on this database prior to the hearing.

1. The Coastal Commission. The California Coastal Commission has voting members and 3 non-voting members. Of the voting members, 6 are "public members," and 6 are local elected officials who come from specific coastal districts. All voting members are appointed either by the Governor, Senate Rules Committee, or the Speaker of the Assembly; each appoints 4 commissioners, 2 public members and 2 elected officials. Each Commissioner may appoint an alternate to serve in his or her absence. The Secretaries of the Resources Agency, the Business and Transportation Agency, and the Chair of the State Lands Commission serve as non-voting members and may appoint a designee to serve in their place.
2. Existing Ex Parte Communication Laws. The California Coastal Act of 1976 prohibits, with specified exceptions, ex parte communications between a member of the Commission and an interested person about a matter within the jurisdiction of the Commission. Such communications, by definition, do not occur in a public hearing or other official proceeding or on the record.

When proper disclosure of such communications is made, ex parte communications are lawful. Existing law also prohibits commissioners or alternates from trying to influence a commission decision in circumstances in which an ex parte communication has not been reported. A civil fine of up to $7,500 may be imposed, plus attorney's fees, and the Commission action may be revoked.

The Commission's jurisdiction for matters that are subject to the prohibition on ex parte communications and the disclosure requirements include any permit action, federal consistency review, appeal, local coastal program, port master plan, public works plan, long-range development plan, categorical or other exclusions from coastal development permit requirements, or any other quasi-judicial matter requiring commission action, for which an application has been submitted to the commission.

Commissioners must disclose to the public an ex parte communication on the prescribed form within seven days of the communication. If the communication occurs within seven days of the next Commission meeting, the disclosure must be made on the record of the proceeding in that hearing.

According to the Natural Resources Agency, the California Attorney General has opined that Commissioners may not engage in ex parte communications in the context of enforcement proceedings because enforcement proceedings are not expressly called out in the law. This advice letter does not have the effect of law.

1. Prior Legislation and Related Legislation. AB 2002 (Stone) of the 2016-2017 Legislation Session, provided 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. This bill also prohibited an ex parte communication with Commissioners regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing. This bill failed passage on the Senate Floor.

SB 1190 (Jackson), of the 2016-2017 Legislation Session, prohibited, with some exceptions, Commissioners from conducting ex parte communications on matters within the Commission's jurisdiction. This bill failed passage on the Assembly Floor.

AB 1642 (Caballero) requires the executive director to place on the Commission’s Internet Web site and in the official public record any written report of an ex parte communication. This bill is pending in the Assembly Natural Resources Committee.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 3, 2017

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Cristina Garcia, Chair

ABPCA Bill Id:AB 684 (

Author:Mark Stone) – As Amended Ver:March 20, 2017

SUBJECT: California Coastal Commission: ex parte communications: database

SUMMARY: Requires, no later than July 1, 2018, the California Coastal Commission (Commission) to develop and implement a database for the online reporting of ex parte communications that includes the information in the standard disclosure form. Prohibits any ex parte communication unless the commissioner has fully disclosed the ex parte communication, including updating the database with the information on ex parte and verbally disclosing the ex parte at the hearing.

EXISTING LAW, pursuant to the Coastal Act:

1. 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.
   
2. 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.
   
3. Defines an "ex parte communication," for the purposes of communications related to actions of the Commission, as any oral or written communication between a commissioner 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.
4. Prohibits an ex parte communication unless the commissioner fully discloses the communication.
   
5. 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.
6. Requires the Commission to adopt standard disclosure forms for reporting ex parte communications, which shall include:
   1. The date, time, and location;
   2. Identity of the person who made the communication and the people who were present during the communication; and,
   3. A complete, comprehensive description of the content of the communication, including all material that was part of the communication.
      
7. 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, 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.
   
8. 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. Requires, no later than July 1, 2018, the Commission to develop and implement a database for the online reporting of ex parte communications that include the information in the standard disclosure form.
2. Requires commissioners to verbally disclose prior to the hearing all ex parte communications that occurred on any given item to be heard at the hearing prior to that item being heard.
3. On or after July 1, 2018, prohibits any ex parte communication unless the commissioner has fully disclosed the ex parte communication, including updating the database with the information on the ex parte communication and verbally disclosing the ex parte.

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement:

Currently, ex parte communications between commissioners and individuals are not easily available to the public. Also, communications that happen within 7 days of a meeting are not currently included in the reports provided at a hearing. This results in less transparency for the public when examining who commissioners are interacting with. AB 684 will make these communications more available to the public by allowing them to be searched on an online database, and also requiring that all communications are reported on this database prior to the hearing.

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. Then Assemblymember Terry Friedman authored AB 3459, Chapter 1114, Statutes of 1992, and AB 909, Chapter 798, Statutes of 1993, to prohibit ex parte communications. These laws were interpreted as prohibiting ex parte communication unless they are fully disclosed.

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. Many of the ex parte communications submitted to this Committee are not comprehensive, and news accounts state some commissioners have not filed ex parte disclosure forms for their ex parte communications. There have been accounts of commissioners filing brief disclosure forms and then sending staff detailed e-mails about their ex parte communications creating a discrepancy in the public record. Commissioners also commonly disclose ex parte communications on the microphone at Commission meetings. The oral disclosures are usually an extremely short account of the communication. Finally, it is difficult for the public to have access to the ex parte communication disclosure forms.

The Commission voted 6-5 last year to support banning ex parte communications, and in a support letter for SB 1190 (Jackson, 2016) they state, “Commissioners have expressed concerns that the practice lacks transparency, undermines due process, and erodes public trust in the Commission. Some have stated that they would prefer not to conduct ex partes, but feel pressured to do so because the practice is so widespread. The general conclusion is that the current process leads to an ‘uneven’ level of information available to the public.” According to the Commission’s website, 5 out of the 11 commissioners currently accept ex-parte communication. AB 684 would not prohibit ex-parte communication. Instead it would make ex-parte communication more transparent and available to the public.

1. Suggested amendments. The author and committee may wish to consider amending the bill to do the following:
   
   1. Clarify that it is no longer the role of the executive director to place ex parte communication in the public record once the database is developed;
      
   2. Require the ex parte communication to be made available to the public within 7 days of the date of the communication unless the communication takes place less than 7 days prior to the hearing; and,
      
   3. Other technical and clarifying changes.
2. Related/Previous legislation.

AB 2002 (Stone, 2016) provided 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. Prohibited an ex parte communication with Commissioners regarding a matter during the 24 hours before that matter will be discussed at a Commission hearing. This bill failed passage on the Senate Floor.

SB 1190 (Jackson, 2016) prohibited, with some exceptions, commissioners from conducting ex parte communications on matters within the Commission's jurisdiction. This bill failed passage on the Assembly Floor.

AB 1642 (Caballero) requires that the executive director place on the Commission’s Internet Web site and in the official public record any written report of an ex parte communication. This bill is awaiting hearing in this committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Sierra Club California

Opposition

None on file

Analysis Prepared by: Michael Jarred / NAT. RES. /