Why bother having public-facing commissions if they can’t deal with the public?

A century-old hallmark of the Progressive Era, quasi-independent boards and commissions wield broad executive powers implementing and enforcing laws, permitting business operations and land development, and punishing wrongdoers within their jurisdictions. Some of the most powerful in California are the Public Utilities Commission, Air Resources Board and Coastal Commission.

The Progressives believed these public bodies to be a check on the political branches. They achieved this by delegating some legislative power to commissions and other “experts” they thought less susceptible to corruption and more accountable to the public than traditional political institutions.

In the intervening decades, California doubled-down on the side of public disclosure, debate and engagement. Note just for starters the Brown and Bagley-Keene Acts, Administrative Procedures Act, Environmental Quality Act, and Public Records Act. Stretching back to the 1950s, these laws require elected and appointed officials to open the doors to deliberations, make records and proceedings available, and provide opportunity for applicants, permittees, regulated businesses and the public to make their cases to decision makers.

But apparently there can be too much of a good thing. Lawmakers are considering a proposal to limit the flow of information to top officials in one of the most sensitive of all state agencies: the Coastal Commission.

What began as a flap over a change in the Commission’s staff leadership has morphed into Senate Bill 1190, which would accrete to the staff even more power than they have today.

At issue are “ex parte” communications, which are meetings between a commissioner and a private citizen (usually an interested party in a decision) outside of the commission’s scheduled public meetings. The private citizen can be a project proponent, opponent, neighbor, concerned citizen, or local elected official.

Under the current rules of the commission, all ex parte communications must be reported by commissioners within seven days of the meeting, along with logistical and substantive details of the meeting, including the identity of the participants and any materials used in the meeting. This disclosure becomes part of the public record, and failure to disclose results freezes that commissioner from participating in any matter related to the ex parte meeting.

Under current practice, Commissioners may not have ex parte contacts on enforcement matters.

The goal of this transparency is to give the public the benefit of the same information obtained by a commissioner, as well as alert opposing sides (or, say, the media) that certain arguments are being brought forth by one side or another.

The advantage of permitting the ex parte meetings is to allow more in-depth briefing and discussion of issues that may suffer under time-constrained public meeting agendas. It provides the opportunity for a commissioner to directly challenge and learn from (or take the measure of) any and all interested parties.

Prohibiting ex parte contacts removes commissioners to a bubble, insulated from debate except in structured and rushed public hearings, and prevented from challenging either applicants or opponents in an unfettered small group setting.

By design, the prohibition of ex parte meetings enhances the power of the professional staff to gather and synthesize information, contextualize the issue, and present to commissioners the options and preferred outcomes.

But this isn’t even the worst of it.

The legislation not only isolates commissioners from the public, it attempts to isolate them from their own staff.

The measure would prohibit commissioners from influencing “the contents of a commission staff report” prior to a public hearing, under threat of being “forever disqualified from holding any position at the commission.”