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AB-2063 Ex parte communications.(2011-2012)

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AB2063:v96#DOCUMENT

Amended  IN  Senate  June 18, 2012
Amended  IN  Assembly  April 30, 2012
Amended  IN  Assembly  March 29, 2012

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 2063


Introduced  by  Assembly Member Alejo

February 23, 2012


An act to add Section 13294 to the Water Code, relating to water quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 2063, as amended, Alejo. Ex parte communications.
Under existing law, the Porter-Cologne Water Quality Control Act, the State Water Resources Control Board and the 9 California regional water quality control boards are the principal state agencies with responsibility for the coordination and control of water quality in the state. The act requires the state board to formulate and adopt state policies for water quality control, and authorizes the state board to hold any hearings and conduct any investigations in any part of the state necessary to carry out the powers vested in the state board, as specified. The act also requires the regional boards to adopt regional water quality control plans in compliance with the state policies. Existing law requires each regional board to conduct certain proceedings, including, but not limited to, holding at least 6 regular meetings each calendar year.
Existing law, the Administrative Procedure Act, provides for the conduct of administrative adjudication proceedings of state agencies. Existing law generally prohibits ex parte communication including communication during a pending proceeding, regarding any issue in the proceeding, to the presiding officer by an employee or representative of an agency that is a party to the proceeding without notice and opportunity for all parties to participate, except as specified.
This bill would prohibit a state board member, a regional board member, or any interested person, as defined, from engaging in a communication that would be considered ex parte under the Administrative Procedure Act. The bill would provide that a communication is not ex parte if the communication is between a state or regional board staff member acting in his or her official capacity and any of the following: a state board member, regional board member, or any interested person. The bill would also provide that a communication is not ex parte if the communication is limited entirely to procedure or practice, as specified. The bill would provide that an otherwise prohibited ex parte communication is permissible if the state or regional board member fully discloses the communication, and the communication is in regard to waste discharge requirements, water quality certifications, or conditional waivers of waste discharge requirements, as specified. The bill would also provide that an otherwise prohibited ex parte communication is permissible if a regional board member fully discloses the communication, and the communication is in regard to a municipal separate storm sewer permit, as defined.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 13294 is added to the Water Code, to read:

13294.
 (a) For the purposes of this section, the following terms have the following meanings:
(1) “Interested person” means any of the following:
(A) A participant in the proceeding regarding a matter before a board, or an agent, employee, or a person receiving consideration for representing that participant.
(B) A 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 before a board, or an agent or employee of the person with a financial interest, or a person receiving consideration for representing the person with a financial interest.
(C) A representative acting on behalf of a civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a board member on a matter before the board.
(2) “Ex parte communication” is an oral or written communication between a member of a board and an interested person, about a matter within the board’s jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or on the official record of the proceeding on the matter.
(b) A board member, or any interested person, shall not engage in an ex parte communication that would be subject to the ex parte communication provisions of the Administrative Procedure Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code), except as provided by this section. The following communications are not ex parte communications: The following communications shall not constitute ex parte communications:
(1) A communication between a regional or state board staff member acting in his or her official capacity as an advisor to a state board or regional board, and a member of that board.
(2) A regional or state board staff member acting in his or her official capacity and any interested person.

(1)A communication between a regional or state board staff member acting in his or her official capacity and any of the following: a state board member, a regional board member, or any interested person.

(2)A communication limited entirely to a procedure or practice, that is not in controversy, including a request for a continuance.

(b)

(c) An ex parte communication that would otherwise be prohibited shall be allowed if paragraphs (1) and (2) apply:
(1) The subject and content of the ex parte communication is initiated by an interested party and is directed to either of the following:
(A) A state board member or a regional board member regarding the adoption, modification, or rescission of one or more of the following: waste discharge requirements pursuant to Section 13263 or 13377, the conditions of water quality certification pursuant to Section 13160, or conditional waiver of waste discharge requirements pursuant to Section 13269, where, in any case, the state board or regional board action does not identify specific persons as dischargers, but instead allows persons to enroll or file an authorization to discharge under the action.
(B) A regional board member regarding a municipal separate storm sewer permit under Section 402(p)(3) of the federal Clean Water Act (33 U.S.C. Sec. 1344 et seq.).
(2) The state or regional board member fully discloses and makes public the ex parte communication by providing a full report of the communication to the board on the record of the proceeding at the first hearing that occurs after ex parte within seven days after the communication occurs, or, if the communication occurs within seven days of the next board hearing, to the board on the record of the proceeding at that hearing.

(c)

(d) (1) The state board Office of Administrative Law shall adopt, and provide to the regional board for adoption, standard disclosure forms for reporting ex parte communications which shall include, but not be limited to, all of the following information:
(A) The date, time, and location of the communication, and whether it was oral, written, or both.
(B) The identity identities of each board member involved, the person or persons initiating the communication, and the person or persons receiving, any persons present during the communication.
(C) A complete description of the content of the communication, including:
(i) If the communication is written, the writing and any written response to the communication.
(ii) If the communication is oral, a memorandum stating the substance of the communication, any response made, and the identity of each person from whom the board member received the communication.
(iii) A copy of any written, audiovisual, or other material used for or during the communication, which shall be attached to this description.
(2) The state or regional board shall place in the public record any report of an ex parte communication involving a member of that board.

(d)

(e) The presiding officer shall notify the parties to the proceeding and all other parties subscribed to the notification list kept by the state or regional board by electronic mail in a timely manner that a communication described in this section has been made a part of the record.

(e)

(f) If a party requests an opportunity to address the communication within 10 days after the receipt of notice of the communication:, the party shall be allowed to comment on the communication.

(1)The party shall be allowed to comment on the communication.

(2)The state or regional board has discretion to allow the party to present evidence concerning the subject of the communication, including discretion to reopen the hearing that has been concluded.

(f)

(g) 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 1 of Division 3 of Title 2 of the Government Code) do not apply to a communication that meets the requirements of this section.