This month in San Diego, after a six-day court trial, a superior court judge found that several present and former commissioners of the California Coastal Commission had violated the law in their failure to timely and properly report their ex parte contacts (contacts outside of the hearings, which are legal if reported properly) with people who came before the Coastal Commission.
The law requires they report their contacts in a timely and complete fashion and, after an exhaustive inquiry under oath, he found, in many cases, they hadn’t. He indicated preliminarily that he found violations and intended to fine the five present and past commissioners a total of roughly $61,000 in the lawsuit brought by a citizens’ group called Spotlight on Coastal Corruption (Spotlight) represented by San Diego Attorney Cory Briggs. (First a bit of personal disclosure: Cory Briggs is my wife, Publisher Karen York’s cousin, and typically we see him at family gatherings several times a year. Cory is a smart guy, a good lawyer and thoroughly enjoys being a bomb thrower.)
Of course, Spotlight had been asking for a total of $22,125,000 in fines from the commissioners—so you get a sense of what the judge might have thought about the size of requested fines. The judge reviewed fines statutorily set in the criminal justice system for purposes of comparison to decide what constituted a reasonable fine. But the most interesting part of the case and the judge’s findings were about the relationship between Coastal Commission staff and the appointed coastal commissioners. Rather than try to paraphrase it I’m going to quote directly from parts of what the judge said in his opinion—pertaining directly to Commissioners Erik Howell and Mark Vargas and former Commissioners Steve Kinsey, Martha McClure and Wendy Mitchell, but really an overall indictment of the current workings of the commission’s office.
Judge Timothy Taylor of San Diego Superior Court said the following in his opinion:
Before addressing the claims against each of the five defendants, the court makes some overall observations about what the evidence has shown in this case.
It is abundantly clear to the court that the legislature needs to consider the current and future viability of the commission as it is presently constituted. Specifically, 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 part-time, unpaid volunteer board that meets only three days a month at scattered locations. The testimony was overwhelming that commissioners try to jam the important work of the commission into their already full schedules as teachers (McClure), local government officials (McClure, Kinsey and Howell), consultants (Mitchell), single mothers (Mitchell), investors (Vargas), attorneys (Howell), etc. They receive only nominal per diem and travel expenses, receive minimal if any dedicated staff support, and are provided with no office or dedicated computer or other “back office” or tech support. They only recently got commission email addresses. They are presented a few days before hearings with literally thousands of pages of dense documents, which they must access on the commission’s website, read and consider. These staff reports and addenda are often supplemented at or shortly before the hearings with hundreds of pages of additional material jammed under their hotel room doors the night before a hearing or stacked on the dais at the hearing. Some defendants were candid in acknowledging they cannot read every page; others claimed they did, but given the volume described, the court observes that this must have been, at most, a cursory review. The court, having read numerous administrative records in its career, suggests that anyone who thinks that all commissioners are actually studying all of the voluminous materials presented is simply fooling herself/himself. This problem is exacerbated by the clear testimony that commission meetings often last 12-16 hours per day. There are 5.5 hours per day of testimony/evidence in an average Superior Court trial, and jurors (and even judges) sometimes have a hard time attending for even this period of time. Woe is the lot of applicants or opponents in Coastal Commission hearings when they fall in the second half of a 12 to 16 hour agenda. This is not justice.
Beyond the impositions on the individual commissioner as well as on the applicants for commission approval and the opponents in those matters, the current practice also places undue power and control in the hands of commission staff—who are neither elected by the people nor appointed by anyone elected by the people. Because commissioners cannot reasonably be expected to read and consider all of the detailed materials they are presented with every month, the “staff recommendation” no doubt takes on an outsized role. This in turn exacerbates the problems critics of ex parte communications have identified, and undoubtedly affects the commissioners’ independence, which the drafters of the Coastal Act were seeking to achieve.
It is equally clear to the court that prior to August of 2016, the commission had essentially no process for tracking the processing of written disclosure forms, and either no process, or at best an inadequate process, for insuring that commissioners were trained in, understood and complied with their disclosure obligations. Disclosures require written material to be attached, yet this requirement was not enforced by staff. Staff support was inadequate, leading to delays of up to a month in processing written disclosures (which in many cases completely defeated the purpose of disclosure). Staff vigilance was almost wholly lacking, as it seems to the court it was the role of the full time, well-paid staff leadership (not the unpaid part-time commissioners) to inculcate the entire commission—from clerical staff to commissioner—with an ethos of strict adherence to the disclosure rules. Much of what plaintiff established were the institutional failures of a non-party (the commission), not personal failures of individual commissioners. Much, but not all.
Since August of 2016, the process has gotten much better. The court finds, however, that the post-August 2016 process still has room for improvement.
The court has invited the legislature to take at look at how the Coastal Commission operates. Whether the legislature will pick up the suggestions and hold some hearings, or some legislation will be introduced remains to be seen.