HomeMy WebLinkAbout2012-05-22 - AGENDA REPORTS - SB 965 (2)Agenda Item: 3
CITY OF SANTA CLAI2ITA
AGENDA REPORT
CONSENT CALENDAR City Manager Approval
Item to be presented by:
DATE: May 22, 2012
SUBJECT: STATE LEGISLATION: SB 965
DEPARTMENT: City Manager's Office
RECOMMENDED ACTION
Michael P. Murphy
City Council adopt the recommendation of the City Council Legislative Committee and adopt a
"support" position for Senate Bill 965 (Wright) and transmit letters of support to Senator Wright,
Santa Clarita's state legislative delegation, appropriate legislative committees, Governor Brown,
and the League of California Cities.
BACKGROUND
SB 965 was introduced by Senator Rod Wright (D -25 -Los Angeles) on January 11, 2012. Under
existing law, the State Water Resources Control Board and the California regional water quality
control boards implement the Federal Water Pollution Control Act and the California
Porter -Cologne Water Quality Control Act by prescribing waste discharge requirements for
discharges to the waters of the state, as specified. Existing law authorizes the state board and
regional,boards to hold hearings necessary for carrying out their duties.
Currently, there are no state laws governing ex parte communications regarding proceedings of
the State Water Resources Control Board or regional water quality control boards.. Ex parte
contacts are defined under the federal Administrative Procedures Act as "oral or written
communications not on the public record with respect to which reasonable prior notice to all
parties is given." In simple terms, it is the act of communicating with a decision maker outside
the formal decision making meeting.
Various state boards and agencies use differing rules regarding ex parte communications. The
purpose of establishing such rules is to enable additional access by all parties to decision makers,
APPROVED
while at the same time ensuring full transparency by requiring disclosure of the communications.
From a City perspective, participation in ex parte communications with regional water quality
control board members may afford the opportunity to provide more in-depth information and
facilitate a broader discussion of ideas than can be accomplished during the allotted time limits
of a more formal board meeting.
Amendments made to SB 965 -by the Senate Environmental Quality Committee on May 2, 2012
are modeling the ex parte communications for the State Water Resources Control Board and
regional water quality control boards on those currently used by the California Public Utilities
Commission. These proposed rules provide very specific disclosure requirements designed to
ensure that all parties have the opportunity to know about and either participate in meetings with
decision makers or have equal time access to those decision makers. Rules may also be
established governing time frames in which communications may occur to ensure that parties are
not conducting ex parte communications with decision makers within a 14 day period prior to the
formal meeting at which a discussed item may be considered.
On May 8, 2012, the City Council Legislative Committee met and voted to recommend a
"support" position to the full City Council. The League of California Cites is in support of SB
965.
ALTERNATIVE ACTIONS
1. Adopt an 'oppose" position on SB 965.
2. Take no position on SB 965.
3. Other direction as determined by the City Council.
FISCAL IMPACT
No fiscal impact by this action.
ATTACHMENTS
SB 965 - Wright
AMENDED IN SENATE MAY 2, 2012
AMENDED IN SENATE MARCH 28. 2012
AMENDED IN SENATE MARCH 8, 2012
SENATE BILL No. 965
Introduced by Senator Wright
(Coauthor: Senator Blakeslee)
January 11, 2012
An act to add Section 13293 to the Water Code, relating to water
quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 965, as amended, Wright. State Water Resources Control Board
and California regional water quality control boards: ex parte
communications.
Under existing law, the State Water Resources Control Board (state
board) and the California regional water quality control boards (regional
boards) implement the Federal Water Pollution Control Act and the
Porter -Cologne Water Quality Control Act by prescribing waste
discharge requirements for discharges to the waters of the state, as
specified. Existing law authorizes the state board and regional boards
to hold hearings necessary for carrying out their duties, as specified.
The Administrative Procedure Act establishes the conduct of
administrative adjudicative proceedings, which are defined as
evidentiary hearings for determination of facts pursuant to which a state
agency formulates and issues a decision. Existing law defines a decision
as an agency action of specific application that determines a legal right,
duty, privilege, immunity, or other legal interest of a particular person.
The act prohibits, as an ex parte communication, while an adjudication
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is pending, any communication, direct or indirect, regarding any issue
in the proceeding, to the presiding officer, as defined, from an employee
or representative of an agency that is a party or from an interested person
outside the agency, without notice and opportunity for all parties to
participate in the communication. The act provides that if the above
prohibition is violated, the presiding officer shall promptly disclose the
content of the communication on record and give all parties an
opportunity to address the communication, as specified. The act also
provides that a violation of that prohibition may be grounds for
disqualification of the officer who engaged in the ex parte
communication.
This bill would provide that the ex parte communications provisions
of the Administrative Procedure Act do not apply to specified
proceedings of the state board or a regional board. -This The bill would,
instead, prohibit a -state board, regional board member, or a person,
other than a board staff fnernber aeting in Hs or her offieial eapaeity,
. define an
ex parte communication as an orator written communication with one
or more board members regarding those specified state or regional
board proceedings. The bill would permit oral ex parte communications
at any time by any board member if the board member involved in the
communication notfies, and provides for'the participation of, all parties,
as spec fled. The bill would permit written ex parte communications by
any party provided that the interested person, as defined, who makes
the communications provides copies ofthe communication to all parties,
as specified The bill would require that if an individual ex parte
communication meeting or call is granted to any interested party, all
other parties shall also be granted individual ex parte meetings of a
substantially equal period of time with the board member.
The bill would authorize a board to prohibit ex parte communications
,for a period beginning not more than 14 days before the day of the
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board meeting at which the decision in the proceeding is scheduled for
board action.
The bill would require that, in any case, all ex parte communications
be reported, as specified, by the interested person, regardless ofwhether
the communication was initiated by the interested person.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State -mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 13293 is added to the Water Code, to
2 read:
13293. (a) For the purposes of this section:
(1) "Ex parte communication" means an oral or written
communication with one or more board members concerning
matters, other than purely procedural matters, under the jurisdiction
ofthe state beard or et regional a board,
9 vvith Seetioti 13370): regarding an action ofthe board that salis
1 both of theJbIlowing.
11 (2) "Board" refers to both the State Water ._
Beard12
13 (b) A board member, or a pmon, other than a beard
16 beard, shall not eodiduet an ex Paite e
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oF the ether beard iiember or members whe reeeived the
eommunmeation and requests in writing that it be plaeed in the
(A) The action does not identify speck persons as dischargers,
but instead allows persons to enroll or file an authorization to
discharge under the action.
(B) The action is for adoption, modification, or rescission of
one or more of thefollowing:
(i) Waste discharge requirements pursuant to Section 13263 or
13377.
(ii) Conditions of water quality certification pursuant to Section
13160.
(iii) Conditional waiver of waste discharge requirements
pursuant to Section 13269.
(2) `Interested person "means any of the following.
(A) Any party to the proceeding or the agents or employees of
any party, including persons receiving consideration to represent
any of them.
(B) Any person with a financial interest, as described in Article
1 (commencing with Section 87100) of Chapter 7 of Title 9 of the
Government Code, in a matter at issue before a board, or that
person's agents or employees, including persons receiving
consideration to represent that person.
(C) Arepresentative acting onbehalfofanyformallyorganized
civic, environmental, neighborhood, business, labor, trade, or
similar association who intends to influence the decision of a board
member on a matter before the board even if that association is
not a party to the proceeding.
H
(b) Notwithstanding Section 11425.10 of the Government Code,
the ex parte communications provisions of the Administrative
Procedure Act (Article 7 (commencing with Section 11430.10) of
Chapter 4.5 of Part I of Division 3 of Title 2 of the Government
Code) do not apply to proeeedings efthe state a board or regienal
water quality eontrol board to whieh this seetion applies action
identified in paragraph (I) of subdivision (a). This section only
applies to those actions.
(c) For the purposes of this section, ex parte communications
regarding a board action identified in paragraph (1) ofsubdivision
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(a) shall be prohibited. Ex parte communications may be permitted
as follows:
(1) Oral ex parte communications may be permitted at any time
by any board member provided that the board member involved
in the communication does each of the following:
(A) Invites all parties to attend the meeting or sets up a
conference call in which all parties may participate.
(B) Gives notice of the meeting or call as soon as possible, but
no less than three days before the meeting or call.
(2) Written ex parte communications may be permitted by any
panty provided that the interested person making the
communication serves copies of the communication on all parties
on the same dory the communication is sent to a board member or
makes arrangements with the board staff to ensure that all
interested parties have been provided copies of the communication.
(3) If an individual ex parte communication meeting or call is
granted to any interested party, all other parties shall also be
granted individual ex parte meetings ofa substantially equal period
of time with the board member. The interested person requesting
the initial individual meeting shall nol i the parties that its request
has been granted, and shall file a certificate of service of this
notification at least three days before the meeting or call.
(d) Aboard may prohibit ex parte communications for a period
beginning not more than 14 days before the day of the board
meeting at which the decision in the proceeding is scheduled for
board action. If the board holds the decision, it may permit ex
parte communications during the first halfof the interval between
the hold date and the date that the decision is calendared for final
decision, and may prohibit these communications for the second
half of the period, provided that the period of'prohibition shall
begin not more than 14 days before the day of the board meeting
to which the decision is held.
(e) All exparte communications made regarding aboard action
identified in paragraph (1) of subdivision (a) shall be reported by
the interested person, regardless of whether the communication
was initiated by the interested person. A notice of ex parte
communication shall be filed with the board within three working
days of the communication. The notice may address multiple ex
parte communications in the same proceeding, provided that notice
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I of each communication identified therein is timely. The notice shall
2 include all of the following information.
3 (1) The date, time, and location of the communication, and
4 whether it was oral, written, or both.
5 (2) The identities of each board member involved, the person
6 initiating the communication, and any persons present during the
7 communication.
8 (3) A description of the interested person's communication and
9 the content of this communication. A copy of any written,
10 audiovisual, or other material used for or during the
I I communication shall be attached to this description.
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