Coastal Commission Watchdogs Come Back Swinging: Take Commissioners to Court

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THIS IS WHAT I KNOW--Earlier this month, I wrote in CityWatch about two bills that would have improved transparency at the Coastal Commission failed to pass, paving the way for more pay to play between commissioners, developers, business interests, labor unions, lobbyists, environmentalists and anyone that might benefit from the commission’s decisions.

Senate Bill 1190, sponsored by Sen. Hannah-Beth Jackson (D-Santa Barbara), would have banned ex-parte contacts between commissioners and developers, lobbyists, environmentalists and others with an interest in the commission’s decisions. 

Assembly Bill 2002, sponsored by Assembly Speaker Toni Atkins (D-San Diego) and Assemblyman Mark Stone (D-Monterey Bay), would have required anyone who lobbies the Coastal Commission to register with the state and to disclose clients with business before the commission. The bill would also have fast-tracked reporting of ex-parte meetings and made the disclosures more accessible to the public.

But the buck does not stop here. This past August, Spotlight on Coastal Corruption, a nonprofit formed to pursue allegations, filed a suit in San Diego County Superior Court against Commissioners Erik Howell, Martha McClure, Wendy Mitchell, Mark Vargas and chairman Steve Kinsey in what seems to be the new game plan for grassroots activists.

If the suit prevails, each of these five commissioners could be faced with millions in civil penalties for alleged transparency violations. The suit, served at the panel’s September 7 Newport Beach meeting, points fingers at the commissioners for 590 counts of violating disclosure laws for ex-parte communications. Yes, that’s right. 590 counts over the past two years.

This lawsuit is just one of at least four questioning coastal development permits charging commissioners failed to properly disclose their contacts in a timely manner or that the commissioners used communication to hold behind doors meetings prior to voting. Tsk Tsk.

Case in point. Chairman Kinsey withheld his vote on a controversial proposal that would permit hundreds of new homes on land overlooking the Newport and Huntington Beach coastline on September 7. The chairman had two ex-parte communications about the proposal. Commissioner Vargas consulted with the Commissions general counsel before voting in favor of development.

It would seem these communications should be verboten and in fact, they are. Communications that fall under ex-parte communications include phone calls, meetings, emails, and other written material concerning the issue at hand conducted outside of public hearings.

Here’s where it gets fun. Commissioners under state law must report these interactions in writing within seven days. If these private pow wows happen within a week before the topic at hand will be on the commission’s agenda, the commissioners are charged with disclosing the communication from the dais at the hearing.

The devil’s in the details. The commissioners must disclose the date, time, type and location, as well as who initiated in and participated in the ex-parte, as well as a comprehensive description, including text and any graphic material presented. And all of this must appear in the commission’s official record, which the public can review.

Believe it or not, the commissioners aren’t allowed to influence peddle by knowingly keeping ex-parte contacts off record. Each time a commission violates the disclosure requirement, he or she can face a maximum fine of $7,500. The Spotlight suit tags on additional fines of $30K for each violation, considered separate offenses under the Public Resources Code.

How did Spotlight choose which lucky commissioners to target? Spotlight’s attorney Cory Briggs says the group looked at all written and oral ex-parte reports from January 2015 through August of this year. The five defendants appeared to have the greatest number of violations with Vargas coming in at 150 violations; Kinsey,140 times; Mitchell, 120; Howell, 96; and McClure, 82.

Pending the outcome, here’s the tally of fines. Vargas, up to $5,625,000; Kinsey, up to $5,250,00; Mitchell, $4,500,00; Howell, $3,600,00; and McClue, $3,150,000, hardly chump change.

We applaud the efforts of the Spotlight’s lawsuit to reign in what is an out of control scenario in which the Coastal Commission serves special interests instead of the tasks they are charged with, which is protecting our coastline and serving Californians.

(Beth Cone Kramer is a Los Angeles writer and a columnist for CityWatch.)

-cw