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Ex Parte Communications

CVFPB Meeting January 11, 2013. Ex Parte Communications. Deborah Smith, Deputy Attorney General. Definition. What is an ex parte communication? Any oral or written communication outside of a noticed board meeting regarding: Submitted application deemed complete ;

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Ex Parte Communications

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  1. CVFPB Meeting January 11, 2013 Ex Parte Communications Deborah Smith, Deputy Attorney General

  2. Definition What is an ex parte communication? • Any oral or written communication outside of a noticed board meeting regarding: • Submitted application deemed complete; • An enforcement action*; or • Any other quasi-judicial matter after placed on agenda and publicly noticed

  3. “Quasi-judicial” • Definition - Any decision in which the Board applies individual facts to law • Motions for reconsideration • Awarding a contract • 408 letter approvals • “Quasi-judicial” does not include: • legislative acts (ie. adoption of regulations) • policy and informational matters not the subject of a pending application (ie. CVFPP)

  4. Ex Parte Communications Water Code § 8578 and Title 23 § 5.1: Basic prohibition: • Board members shall not participate in ex parte communications with any person or organization, or their representative, with an interest in Board decisions who intends to influence the decision

  5. Exceptions Prohibition does not apply to: • Communications with staff members* • Purely procedural matters (i.e. scheduling, location) • Communications related to litigation filed against the Board, including settlement discussions * Special rules for enforcement actions (due process and APA require separation of Board and enforcement staff)

  6. Examples (1 of 2) Example #1 • SAFCA would like to give Boardmember Countryman a sneak peek at their application for a levee degrade. SAFCA has not yet submitted the application to staff. • May Boardmember Countryman meet with SAFCA to discuss? • Yes, the application has not yet been deemed complete, so the ex parte prohibition does not attach.

  7. Examples (2 of 2) Example #2 • TRLIA has requested the Board send a 408 letter to the Corps on its behalf. The item is on the agenda for the next Board meeting. The agenda has been drafted, but it has not been posted. • Can Board President Edgar call TRLIA’s general manager to ask a question about the project? • Yes, approving a 408 request is a quasi-judicial matter, but the ex parte prohibition does not attach until the agenda is posted.

  8. Field Trips • If ex parte rules attach, must allow public opportunity to attend if applicant or applicant’s representative will be present. • Must give 10-day Bagley Keene notice • Applies even if less than quorum attends

  9. Ex Parte Prohibition Timeframe • Prohibition expires after 30 day timeframe to file petition for reconsideration, if no petition is filed. • If petition for reconsideration filed, prohibition attaches until decision is final

  10. Inadvertent Ex Parte Communications What happens if a Board member inadvertently participates in an ex parte communication? Procedures for disclosing ex parte communications: • Communications cease to be ex parte when the Board member: • Fully discloses the communication; and • Requests in writing that it be placed in the Board’s official records

  11. Disclosure Procedure Caveats • Only applies to inadvertent ex parte communications • Disclosure must be made before the Board hears the matter that is the subject of the communication • Board member must inform party making ex parte communication that full disclosure will be made • Board member or Executive Officer must state any ex parte communications on the record prior to vote • Public shall have opportunity to review & provide public comment prior to vote

  12. Written Ex Parte Disclosure • Board member provides copy to Executive Officer for inclusion into the record of the matter that was the subject of the ex parte communication

  13. Oral Ex Parte Disclosure • Board member or person making the ex parte communication sends written request to Executive Officer to include the communication in the record • Written request may be e-mail or other means • Request shall include: • The substance of the communication • Any response by the recipient Board member • The identity of each person receiving the communication

  14. Summary • All ex parte communications are prohibited • The ex parte prohibition generally attaches after an application for a specific project has been formally received by the Board • The ex parte rules do not apply to legislative and policy matters • If ex parte communication is inadvertently received, it must be forwarded to the Executive Officer in writing for inclusion in the record before the hearing • The communication must also be disclosed on the record at the hearing before the vote

  15. Ex Parte Communications Questions?

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