By Andrew Christie, Chapter Director
As the L.A. Times reported last month, the Coastal Commission is facing a welter of lawsuits that all have one thing in common: a challenge to Commission decisions “on the grounds that its members have had improper private contacts with permit applicants – so-called ex-parte communications” with developers or their representatives prior to voting on those permits.
The lawyers claim the charges are groundless and that the commissioners duly reported their ex parte (literally “one sided”) communications as the law requires, and a judge will decide the question of whether the law was followed. And there’s the rub: the charge could only be brought because the practice of ex parte communication with California Coastal Commissioners is somehow legal.
It’s not supposed to be. The Coastal Commission is a “quasi-judicial” body. Normally, you don’t get to take the judge out for drinks to tell him how you think he should decide your case.
In 1992, a bill was introduced in the state assembly to put some teeth in the de facto but penalty-free prohibition of ex parte communications on items before the Coastal Commission. As passed, AB 3459 contained language to protect commissioners from accidental ex parte violations, such as opening and beginning to read a letter or e-mail before realizing what its about. If that happened, that communication – or a full and detailed report of any oral communication – was to be entered into the administrative record for that item, and the commissioner who did it was to abandon any thought of voting on that item.
It didn’t work out that way. Instead of strengthening the prohibition of ex parte communications, the bill wound up creating an ex parte industry in which unregistered agents of developers have enjoyed unfettered access to Coastal Commissioners. The ensuing years have seen the flowering of many beautiful friendships and impressive bar tabs, all supposedly perfectly okey dokey so long as commissioners make a perfunctory report of all their little chats.
It was an odd outcome for a bill that the legislature and governor Pete Wilson thought was going to finally close the door on rampant ex partes, and which was created for that purpose because of the corruption of due process that ex parte communications were creating on the Commission. The bill was supposed to halt that corruption, not institutionalize it.
When Terry Friedman, the author of the bill that wound up doing the opposite of what he intended, asked Governor Wilson to sign his bill, he prophetically wrote that “the Attorney General’s office continues to face the time consuming and costly task of defending the Commission against lawsuits seeking to overturn Commission decisions based upon commissioners’ alleged ex parte communications.”
AB 3459, Assemblyman Friedman told Governor Wilson, “will ensure that Commission proceedings are conducted fairly, without undue private influence, and will restore the Commission’s image as an independent and impartial arbiter of the people’s interest.”
Wilson agreed, and signed the bill into law.
Since then, Friedman became incredibly well suited to be the judge of when ex parte communication is and is not appropriate. After he left the legislature, he became a superior court judge, gaining an even better understanding of the difference between legislative and judicial proceedings.
Hence, no one but former Assemblyman Friedman could have been more interested in this year’s introduction and progress of SB 1190, Senator Hannah-Beth Jackson’s latter-day attempt to finally get it right, 24 years after ex parte communications by Coastal Commissioners were supposed to have been prohibited by law.
In May, Friedman wrote to Jackson expressing his support for SB 1190, recounting the peculiar history of his own attempt to do the same thing and concluding “it is evident that my objective to ensure that important decisions about coastal development are made in public, not behind closed doors, has been thwarted by a proliferation of unregistered and unregulated lobbyists, and evasive, boilerplate disclosures that hide the content of secret communications that likely influence Commission decisions.”
This time around, it looks like everybody gets it – largely because of the object lesson provided by seven Coastal Commissioners who this year finally delivered on the long-cherished dream of coastal developers, successfully firing the Commission’s executive director after decades of failed attempts against his predecessor. No sentient observers failed to notice the close correlation of the commissioners with the worst anti-coastal voting records on the Commission, the roll-call of the commissioners who voted to discharge the ED, and their close relationships with coastal lobbyists.
In 1992, the Commission opposed AB 3459. Today, it supports SB 1190 – with the exception of five commissioners who want to keep the ex parte party going. Unsurprisingly, most of those opposing commissioners, including Pismo Beach City Councilman Erik Howell, also voted to fire the Commission’s executive director. Howell, who has become something of a poster child for what’s wrong with the Coastal Commission, is also the subject of one of those ex parte lawsuits and the target of a Fair Political Practices Commission investigation.
It is not overstating the case to say that the salvation of the California Coastal Commission and the California coast depends on the departure of some incorrigible commissioners -- said departures being the province of voters in the cities and counties where those commissioners hold elected office -- and the success of SB 1190, which passed the Senate in May and is awaiting a vote in the Assembly.
Unlike the last one, this bill is not subject to misinterpretation. But it is subject to delay and legislative legerdemain. SB 1190 is now languishing on hold while legislators ponder the non-issue of its potential fiscal impact.
Per the Aug. 1 L.A. Times, “A new report by the Assembly Appropriations Committee stated that the financial impact of Jackson’s bill was unknown. However, the analysis stated that there might be cost pressures, possibly in the hundreds of thousands of dollars, to hire extra staff to gather information from interested parties for commissioners.”
But “Supporters of the ban dispute the agency’s findings, noting that at least four other studies by the Coastal Commission and legislative committees indicate the bill would have no financial impact. The Coastal Commission and the Senate Appropriations Committee both studied Jackson’s bill and saw no major costs — and in some cases found there could be savings. “
A decision must be made on the bill’s fiscal impact or lack of same by August 11.
“Lots of sunshine has been put on this issue,” Senator Jackson told the Times. “I will keep fighting.”
Times columnist Steve Lopez notes that something is rotten in Sacramento. Lopez urges his readers “if you support Sen. Jackson's ban, call or write the governor and your legislators before a final decision, which could be made in the next week or so. Tell them you care about the coast, and this thing stinks from Oregon to Mexico. Shoot a message to committee Chair Lorena Gonzalez (D-San Diego) on her website or call (916) 319-2080. Or you can tweet her @LorenaAD80 with #saveyourcoast. And ping the governor at @JerryBrownGov."