By Chad Nelsen | Published 2014/09/04
In August, the Coastal Commission was briefed by their lawyers on why state law prohibits private talks between Coastal Act violators and individual Commissioners. The key point of the briefing was to remind Commissioners that enforcement cases are unique and different from other matters where the Commission takes action (e.g. project permits, federal consistency reviews, etc.) In enforcement matters, the Commission acts as a whole as a “judge”, while the violator appears as a “defendant.” So for enforcement cases, the legal standard is much higher and requires that all talks between “judges” and “defendants” be conducted in public.
This law has served the Commission well for over 20 years. So it helped that new commissioners learned how state law allows private talks (called Ex Parte Communications) for project applicants but not for enforcement cases. It appeared that most commissioners understood and accepted the briefing. Some asked for further clarification in “hybrid” cases where an applicant also has a pending enforcement case.
And yet a few Commissioners, especially Commissioner Mitchell questioned the legal advice, suggested that it presented “new” policy and argued for the right to have private meetings with some alleged coastal law violators.
The briefing packet (.pdf) included a letter from the state Attorney General’s Office advising against private talks between Commissioners and land owners with an ongoing enforcement case. The packet also included a letter from the Commission’s legal counsel providing a “question tree” on when to decline such ex parte communication. It was later noted any Commissioner who violated the law could face fines up to $7,500.
A bit of history – Due to historic legal and budget limits the Commission has a backlog of around 2,000 enforcement cases. For the first time in 40 years, the Commission has been given the legal authority to issue fines to help enforce the law (but only for coastal access violations).
Last year, soon after meeting with two Commissioners, a freshman Assemblymember urged that the law be changed to allow Commissioners to have private meetings on enforcement cases. Public reaction was harsh and he quickly and quietly dropped the idea.
Back then, we asked the advice of three prominent legal experts. They all strongly rejected the concept. Their comments were provided to the Commission. These experts included the Commission’s legal counsel for 20 years and two Stanford law professors, one who served as a Commission chair and the other who wrote the case book on California Administrative law. All three said the proposed law was an awful idea and bad policy for many ethical, legal and practical reasons.
Commissioner Mitchell Objects - Warner Chabot presented their advice to the Commission last year, urging the Commission to oppose the proposed law. Commissioner Mitchell emailed Chabot from the dais (and cc’d the full Commission) to sharply criticize the presentation. At the August meeting, Chabot again presented the exact same arguments from the same three experts. Again, Commissioner Mitchell recoiled, saying she “Took great offense at some of the statements in the letter”, from the three experts.
Ms. Mitchell reasoned that the advice of the Commission’s legal counsel of 20 years was ”an accusation that the reason a commissioner would have ex parte communications would be to seek a campaign contribution.” She then stated “This is why people hate government today.”
Commissioner Mitchell then concluded that the AG’s advice on hybrid situations constituted a new “change in the advice we’re getting” and as a result of the letter “we would never have an ex-parte.” She then argued for more discretion for Commissioners to meet privately with alleged Coastal Act violators. Her remarks appeared to be in direct conflict with the Attorney General’s legal advice and the opinions of three major legal experts. Finally, Ms. Mitchell called for additional legal opinions on the matter.
The Bottom Line – While some Commissioners requested further clarifications, the majority seemed to accept the A.G.’s advice that the place for the Commission to discuss Coastal Act violations is in public, not behind closed doors. It will be worth watching to see if Commissioner Mitchell’s campaign to change 20+ years of state policy gains any traction.