Courtroom fight over commission’s antics
Some coastal commissioners are accused of breaching ex parte meeting rules. But guess who’s footing the defense? Taxpayers
It was almost like old times. Everywhere I looked Tuesday in a downtown San Diego courthouse, I saw a former California Coastal commissioner whose conduct is under scrutiny.
Former Commissioners Wendy Mitchell, Martha McClure and Steve Kinsey were all there, with current Commissioners Erik Howell and Mark Vargas expected to join the party soon.
The reason for the reunion is that they’re all being sued. A group called Spotlight on Coastal Corruption accuses the five commissioners of hundreds of violations of rules involving private communications with parties engaged in project applications before the commission.
So it felt as if it were 2015 all over
again — the year when crowds of protesters turned out to monthly Coastal Commission showdowns that played like a traveling circus. I miss those times. I miss Mitchell questioning the science on a vernal pool that looked to her like a ditch, and then trying to explain how she happened to vote on a project involving a client.
I miss Kinsey having to recuse himself on a project after a Times expose about his failure to follow the rules in disclosing his meetings with the developer.
And I miss McClure cussing me out like a sailor when I asked why she stayed at the home of a lobbyist who does business before the commission.
Their antics were so preposterous, public outcries and intense media scrutiny forced a housecleaning, and the operation is substantially improved today, with several new commissioners in place.
But let’s get back to the lawsuit. The private meetings in question are referred to as ex parte communications, and they’re legal when you play by the rules (although they should be banned altogether to avoid the stink of impropriety). The lawsuit alleges that on 590 occasions over a twoyear period, commissioners either failed to report such meetings, turned in reports late, or failed to provide the required full accounts of the substance of the private conversations.
They were extremely sloppy, in other words, or acted in outright defiance, one could argue. A crack Times reporting staff dug up solid evidence that the majority of ex partes were with developers, project applicants and their lobbyists, and that commissioners often rubber-stamped ex parte disclosures written for them. By whom? Hold your nose. By the lobbyists. I’ll never forget Commissioner Vargas clamming up when I asked him why he met in Ireland with a U2 rocker a few days before voting in his favor on a massive Malibu project and then writing an ex parte report that could have fit on the back of a stamp. I gradually raised my voice, thinking Vargas might have a hearing problem, but he pretended I wasn’t there. I guess I should’ve been grateful, because this is the same schnook who screamed F-bombs at spectators who tried to ask a question at a meeting.
If the allegations against the commissioners are proved, each could face several millions of dollars in fines. And I thought you’d like to know a couple of details about how that might work.
The commissioners, let’s not forget, are the ones who got sued. Not the Coastal Commission, a state agency made up of the appointed commissioners and several dozen staffers whose job is to review proposed coastal projects, protect the state’s treasured shore and defend the right of public access.
But in defending against the lawsuit, the five commissioners got themselves a pretty good deal. Instead of having to hire their own lawyers, they’re being represented by the state attorney general’s office. On the public dime. No telling what that’s costing you. But if you’ve already broken out in hives, you’ll love this addendum:
Last week, Deputy Atty. Gen. Joel Jacobs, on behalf of his boss, Xavier Becerra, offered a settlement deal. Let’s call the whole thing off, the AG’s office said in its pitch to Spotlight’s lawyer, offering to pay the plaintiffs $250,000 to make the case go away.
And who would pay the quarter of a million dollars?
“Payment is contingent upon appropriation by the Legislature and governor,” said the settlement offer.
Unless I’m interpreting incorrectly, that means you and I would pay.
“I have to tell you that this offer is one of the most outrageous things I have ever heard,” said Kathryn Burton, president of Spotlight.
“Taxpayers don’t pay for public officials’ speeding tickets,” Spotlight lawyer Cory Briggs said in a statement. “Why should the taxpayers pay any other fine imposed on a public official when he or she breaks the law? And why is Xavier Becerra defending them for free and trying to protect their personal pocketbooks?”
These questions are almost as interesting as the case itself. If the state offered to pay a $250,000 settlement covered by taxpayers, does that mean it would expect taxpayers to fork over millions if the commissioners lose this case?
It was clear from his opening statement Tuesday that Briggs will try to convince Superior Court Judge Timothy Taylor that commissioners didn’t just repeatedly break the rules, but that “they knew what they were doing.”
It’s one thing if, in the performance of your duty as a public official, you make a mistake. But if you knowingly and repeatedly ignore the rules, why should the public be on the hook for the penalties when you get caught?
In court Tuesday, Jacobs, the deputy AG, suggested I direct my questions to the press office, which I intend to do.
In his opening statement of a trial expected to last a couple of weeks, Jacobs characterized his clients as hardworking, unpaid public servants whose decisions earned them no financial gain.
There was no corruption, he said, and if the commissioners did not always strictly comply with ex parte rules, they substantially complied, and it would be unfair to fine them millions of dollars.
Briggs opened with a history of the inspired activism that led to the Coastal Act in the 1970s, making commissioners duty-bound to the ideal that the California coast is never saved; it’s always being saved from monied interests. And it’s owned not by the high and mighty but by the public.
He spent hours grilling Mitchell, the first witness, trying to establish that a failure by commissioners to honor the letter and spirit of ex parte rules put the public at a disadvantage.
The spectators included former San Diego County Supervisor Pam SlaterPrice, who joined several friends from Del Mar and Encinitas.
Slater-Price said she has a problem with the free defense for the commissioners, she was incensed by the $250,000 settlement offer, and she won’t stand for having to pay if the commissioners lose.
“They knew what they were doing,” she said.