A laughable defense for ex parte excuses
say you have a favorite beach in California and you find out that someone has applied to build a restaurant nearby or add a wing onto the seaside house. Maybe the project will affect access or views, and you’re convinced there’s going to be a negative impact on the environment.
And then you find out that the permit applicant has hired a big-name advocate who makes a handsome living by persuading members of the California Coastal Commission to approve projects. An advocate who routinely meets privately with voting commissioners and occasionally shares a cocktail with them.
You’re not entirely helpless. You can hire your own advocate, if you’ve got a trust fund or you just hit the lottery. Or you can try to arrange your own private meeting to argue your point of view. But even if you get a commissioner’s ear, can you compete with a lobbyist?
These are not hypothetical questions. These issues have come into play thousands of times in California, and they’re at the center of the trial underway in San Diego, where two current and three former commissioners have been accused of violating the rules of private communications on hundreds of occasions.
In its defense of the commissioners, who are being sued by Spotlight on Coastal Corruption, the state attorney general’s office has argued that it’s all nonsense — there was no corruption.
Deputy Atty. Gen. Joel Jacobs argued on the first day of trial, which I atLet’s
tended, that the accused commissioners are in substantial compliance with the rules on what are known as ex parte communications. He also said that in the late filing of paperwork on such contacts, the blame in some instances should go to an inefficiently run agency rather than to the commissioners.
As I’ve already said, this is cuckoo. Isn’t it a conflict of interest for the attorney general’s office to defend commissioners in part by blaming any misdeeds on the staff of an agency the attorney general normally represents? If commissioners are found liable, fines could run into the millions, with taxpayers on the hook.
In a tentative decision a little over a week ago, San Diego County Superior Court Judge Timothy Taylor did not give commissioners a free pass. In the next phase of the trial, in a couple of weeks, he’ll decide whether to levy fines against them. But he also seemed somewhat sympathetic to arguments offered in defense of the accused commissioners.
“The court sincerely questions whether the mandates of the Coastal Act — the protection of natural resources with due respect for property rights — can be efficiently carried out with transparency and participatory openness using a parttime, unpaid volunteer board that meets only 3 days a month at scattered locations,” Taylor wrote.
I beg to differ. The system has worked reasonably well for 40 years, with a few exceptions.
Taylor also wrote that commissioners have an impossible amount of preparation to do for each meeting, including large volumes of material to review.
“The defendants were candid in acknowledging they cannot read every page,” Taylor wrote, adding that “anyone who thinks that commissioners are actually studying all of the voluminous materials presented is fooling herself/ himself.”
The judge is right about the workload, but I’m not reaching for a hanky.
These are coveted and powerful posts, and nobody is forced to become a commissioner. If they do — out of a commitment to the cause, or to be closer to some of the state’s most powerful people and wealthy donors, or all of the above — their solemn duty is to do all of the work, not part of it.
“I read every single word of every single page that came to me, and I would frequently ask for additional information,” said former Commissioner Sara Wan. “It’s possible to do if you’re committed to it.”
It’s also possible — and pretty easy — to be in total compliance, not substantial compliance, with ex parte rules. The ex parte disclosure form is not a brain buster. It asks for the commissioner’s name, the name of the project, the date, time and location of the communication, the identity of those present, a few other minor details and a “complete, comprehensive description of communication content.”
A sixth-grade education should be enough to get anyone through it.
If the system for filing ex partes on time was not as efficient as it should have been, as one agency staffer testified on the stand, that’s certainly a problem.
But this case isn’t just about late filings. It’s also about ex parte disclosures that weren’t even written by the commissioners themselves. All they did was rubber-stamp accounts written for them by the paid advocates.
The case is also about failing to file disclosure forms altogether, as former Commissioner Steve Kinsey admitted to doing initially on two occasions involving the massive and controversial Newport Banning Ranch proposal.
And it’s about disclosure forms skimpy on what was discussed. As in the case of fanboy and current Commissioner Mark Vargas and his “meeting” with U2 guitarist David Evans, in the dressing room before a concert in Ireland, days before Vargas voted to approve Evans’ massive and controversial Malibu project.
None of these things can be blamed on the staff.
Taylor also wrote that before August 2016, the agency had “no process or at best an inadequate process for [ensuring] that commissioners were trained in, understood and complied with their disclosure obligations.”
I can see how Taylor got that impression, especially after Kinsey testified that he recalled a group slide presentation on ex partes at a public hearing but got “no coaching, no counseling, no calling me out in any way on ex parte matters.” Interesting. “Did we get training? Yes, we got training,” said former Commissioner Mary Shallenberger, who served with Kinsey. “Every new commissioner is briefed by the chief legal counsel, the executive director and others about ex partes and the responsibilities of being a commissioner, and they get a big binder that includes all of that information.”
At the Aug. 15, 2014, commission meeting, which was chaired by Kinsey, a 35minute ex parte refresher with the aforementioned slide presentation was conducted by the agency’s legal counsel and executive director. The agenda for that meeting included a 20-page tutorial on ex partes.
I watched the meeting. I read the report. None of it was hard to follow.
Cory Briggs, the lawyer for Spotlight, told me he will have a chance to argue some of these points to Taylor in the next round of briefings on the case.
So stay tuned. In the meantime, take solace in knowing the current crop of commissioners is more professional than some in the past, at least so far.
And why not help them stay above the fray?
This trial wouldn’t be happening if ex partes — which are rare for quasijudicial bodies — were banned. In such a case, interested parties could make written arguments for or against projects, and those could be posted on the agency website for all to see. Or they could speak up at public hearings, rather than having private contact with commissioners.
A proposed ban on ex partes died in the Legislature two years ago, but for lovers and defenders of the coast, is it time to ride that wave again?