TURNING THE TIDE ON PRIVACY
Power could shift with ban on ex-parte communication
Legislation to ban members of the California Coastal Commission from meeting privately with developers, environmentalists, lobbyists and others promises to change the way the panel has operated since its inception 40 years ago — some for the better and some for the worse.
Commission observers warn that a ban would dry up valuable sources of information for commissioners about development projects on their agenda. Others say it would deny the public access to individual commissioners and predict that the panel’s meetings, which already stretch across three days each month, would become unbearably long.
The trade-off, say commissioners and long-time participants in the coastal planning process, is that the agency’s proceedings will become more public, protecting the fairness of its decision-making process at a time when some panel members are being criticized for coziness with developers.
Ultimately, legal experts say that banning so-called ex-parte contact would spur the 12-member commission to act more like the transparent “quasi-judicial” panel it was intended to be.
The agency’s role has been likened to an open court in which a judge applies the law and decides a case after hearing the facts or evidence from both sides. At the commission, the issues involve public access, environmental protection, development projects and proposed uses of marine resources along 1,100 miles of California coastline.
“If you have proceedings where people are effectively acting as judges based on the information that is presented to them, it should be done in public,” said Ralph Faust, the commission’s general counsel from 1986 to 2006. “If that means it takes more time for a hearing, so be it.”
Ex-parte communications are verbal and written communications between individual commissioners and a party with an interest in a pending decision.
Commissioners must disclose those private contacts on a public document filed with the agency within seven days. If the communication occurs fewer than seven days before a commission meeting at which the subject matter is on the agenda, it must be revealed orally at the public hearing.
A Times review of ex-parte records found that most participants are development interests and their agents, but the ranks include environmentalists, government officials and members of the general public. The review also discovered instances in which a few commissioners failed to either disclose or properly report their private contacts.
Ex-parte meetings have become an issue since the commission fired Executive Director Charles Lester in February with little public explanation and despite overwhelming opposition from the public, former coastal commissioners, commission staff and elected officials. Critics saw the move as an attempt to make the agency friendlier to developers.
A few days after his ouster, state Sen. Hannah-Beth Jackson (D-Santa Barbara) introduced legislation that would prohibit ex-parte communications, saying it would eliminate the potential for backroom deal-making and help restore public trust in the Coastal Commission. The measure, which had been endorsed by the commission, is set for a vote next week in the Senate.
Sara Wan, a longtime Malibu resident and environmental activist who served on the commission from 1996 to 2011, said a ban on ex-parte communications is long overdue.
“To me, this bill is critically needed to sort of clean things up, calm things down and set things in the right direction,” she said.
Several former and current commissioners say that ending ex-parte communications would likely result in more public comment, longer public hearings and more workshops, where project representatives and opponents alike would get plenty of time to present information and their views about a proposed development.
The longer hearings and extra workshops would probably be reserved for the most complex projects, as is true today. Written submissions also could be made to the entire commission and distributed to interested parties.
“This would make sure everything behind our decisions is available to the public,” Commissioner Mary Shallenberger said during a recent commission discussion of Jackson’s bill. “We should do everything before the public and with respect for the public.”
Lobbyist Susan McCabe, a prolific practitioner of exparte communications, said in a recent interview that such meetings afford all interested parties equal access to commissioners.
Existing rules to disclose such meetings and conversations about projects are “robust” enough that developers’ agents, environmentalists and property owners already operate on “a level playing field,” McCabe said.
Doing away with ex-parte meetings would not only diminish valuable communication, but crimp commissioners’ ability to eyeball projects, she said.
Attorney Stanley Lamport, who has represented developers and project opponents before the commission, agreed. He contends that without ex-parte conversation, fairness issues can arise. Such meetings “help people perceive they are getting heard,” Lamport said. “Unless you rethink the hearing process and open up the time frame for a presentation two to three hours, it can affect the fairness of the proceeding.”
But supporters of the ban contend the current system allowing ex-parte communications favors those who can afford to hire expensive consultants to lobby commissioners privately.
“What happens now is, you’ve got developers who are having private conversations with commissioners,” Faust said. “We don’t know whether what they’re saying in those private conversations is what they’re saying in public. Presumably it’s all information that they think is important. And if it’s important, why not say it in public?”
Despite the intentions of Jackson’s bill, there are concerns the measure will not automatically improve transparency because exparte discussions will continue in some form.
Several current and former commissioners believe that many private contacts will continue to go unreported as they are now, including text messaging by lobbyists to commissioners.
“The fact of the matter is, of course, that you have a lot of nonverbal, nonreported communication going on anyway,” said Mel Nutter, a Long Beach attorney and former Coastal Commission chairman.
“If you’re somebody who is very close to a commissioner, you can wink or pull on your ear lobe,” he said. “Or you can just wine and dine folks, and take them on shopping trips, as some agents have done, and just not communicate at all about the substance of a particular matter before the commission.”
Still, Nutter favors the ban, limitations and all.