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Posted on Freedom Advocates on October 9th 2007
The Coastal Commission skims legal and ethical practices to obtain results in processing appeals of development decisions. Commissioners pre-sign forms for acceptance of appeals. The practice has lead the Commission to shop for Commissioners sympathetic to land use restrictions. This process also results in increased power to staff.
As Lord Acton famously stated: “Power tends to corrupt, and absolute power corrupts absolutely.” Accordingly, our nation’s founding fathers instituted a system of checks and balances in framing our federal government. The executive, judicial and legislative branches were each made subject to certain restraints by the others and so were accountable for their actions. This principle, known as the separation of powers, was preserved through our Constitution as a permanent safeguard against government bodies obtaining too much power and using it to abuse their citizens. Unfortunately, this concept retains but a frail foothold in the state of California.
The California Coastal Commission is one of the most independent administrative agencies in the state with little, if any, oversight. Under the California Coastal Act of 1976 (Public Resources Code section 30000 et seq.), the Commission has nearly unlimited power over all property in the Coastal zone. The Commission is the final authority in land use decisions affecting such property, and its vast resources make it a formidable opponent to any private property owner who may be wronged in the course of its activities.
Though the Coastal Act grants broad powers to the Commission, it does provide for some land use oversight by local governments. Nevertheless, most local government decisions may be appealed to the Commission. Public Resources Code section 30625(a) provides: “[A]ny appealable action on a coastal development permit or claim of exemption for any development by a local government … may be appealed to the commission by an applicant, any aggrieved person, or any two members of the commission.” Thus, the law allows for internally generated appeals only upon the concurrence of at least two commissioners. This requirement was no doubt intended as a check on commissioners’ powers, to ensure that no one commissioner could single-handedly create difficulties for an unlucky permit applicant. However, in practice, the Commission’s current procedures do not provide such a safeguard. In fact, commissioners are not the ones who actually initiate appeals in most cases.
Jerome Kern, a City Council member for the City of Oceanside, attended a conference this past summer hosted by the League of California Cities. At that conference, a former commissioner gave a presentation in which he discussed, among other things, the internal, administrative appeals process of the Commission. The former commissioner revealed that, upon appointment to the Commission, commissioners are requested to sign blank appeal forms, which forms are then provided to Commission staff. This facilitates the speedy and convenient filing of appeals without the hassle of obtaining commissioners’ signatures.
Understandably troubled by the ethical implications of such a practice, Council Member Kern submitted a letter and a Public Records Act request to Peter Douglas, the Executive Director of the California Coastal Commission. Kern opined that the practice of using presigned appeal forms was “questionable, highly unethical and totally unacceptable.” Among other things, Kern expressed concern that the commissioners were delegating their discretionary responsibilities to staff.
Within a few days of receiving Kern’s letter, Peter Douglas responded with a four-page letter of his own. Douglas readily admitted that the practice of requesting and maintaining presigned appeal forms was “longstanding” and ongoing. He provided the following explanation:
“… [T]he Commission’s initial practice was for staff to … identify permit actions that perhaps should be appealed and reviewed by the Commission. The period to file an appeal is 10 days …. When an action appropriate for appeal was identified, staff would call individual commissioners to discuss the project and to request that the commissioner authorize an appeal. If the commissioner agreed to appeal the project, staff had to expend an inordinate amount of time to physically travel considerable distances to find and connect with individual commissioners to obtain their signature on the appeal forms. The impracticability of this process and cost to the taxpayers of lost staff productivity was compounded by the fact the commissioner living in closest proximity to the Commission’s district office may have been unavailable or unwilling to appeal the project, which then required contacting another commissioner located in a more remote part of the State. … Given the physical distance between commissioners’ homes and places of work and Commission offices, given that part-time commissioners have busy schedules of their own, and in light of the very short appeal period (10 days) it became necessary to rethink and revise the practice of processing commissioner-authorized appeals.”
Douglas stated that staff must still obtain commissioner approval before using one of the presigned forms. However, his rationalization raises concerns. The plain language of the Coastal Act confers the discretion to appeal a project upon commissioners, not upon staff. Such discretionary duties cannot properly be delegated. As stated in Martin v. City and County of San Francisco, “[p]owers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization.” (Emphasis added.) Thus, the practice of allowing staff to identify and pursue appealable matters, or decide not to appeal, is questionable in the first instance.
Moreover, the continued utility of the practice is debatable. The Coastal Act does not appear to require original signatures on appeal forms. Even if it did, it is disingenuous to suggest that, in today’s technologically advanced world, Commission staff is still in danger of wasting inordinate amounts of time obtaining commissioner signatures. The need for presigned appeal forms is obviated by the evolution of e-mail, facsimile and overnight delivery systems.
In addition, the current system motivates Commission staff to “shop” for commissioners—not on the basis of their qualifications or familiarity with the project, but on their likelihood of approving an appeal. After all, if a staffer believes a project should be appealed, it would be tempting to simply go to the commissioner who most routinely approves appeals, rather than the commissioner for the locale in question. Indeed, the documentation suggests that this is occurring. After reviewing the public records provided to him by the Commission, Council Member Kern noted that there were 112 presigned appeal forms submitted over a two and a half year period. There are only 12 voting members of the Commission. One commissioner alone was responsible for signing over 30 percent of these appeal forms, while four other commissioners were collectively responsible for 65 percent of the forms. Thus, 95 percent of the presigned appeal forms submitted were generated by fewer than half of the commissioners.
Finally, and perhaps most significantly, Commission staff’s practice of contacting successive commissioners to gain approval for an appeal may violate the Bagley-Keene Open Meeting Act. That Act prohibits serial meetings between an intermediary and members of a state agency with the design of obtaining a collective concurrence on a particular matter of business. If a staffer is going from commissioner to commissioner regarding a proposed project appeal, it is conceivable that he or she could “meet” with a majority of the Commission with the design of getting each commissioner to approve the appeal. In the context of the Brown Act, which is the local agency counterpart to the Bagley-Keene Act, the California Attorney General has stated that substantive conversations between an intermediary and a majority of a legislative body are serial meetings, whether or not a collective concurrence actually results.
Several of these and other concerns were duly noted by Council Member Kern in his responsive letter to Douglas, where he continued to question the Commission’s appeal practices. As yet, Kern’s second letter has received no reply. Only time will tell whether the Commission will reevaluate its practices and eliminate the use of presigned appeal forms. However, as Edmund Burke said, “[t]hose who have been once intoxicated with power, and have derived any kind of emolument from it … can never willingly abandon it.” Thus, it may fall to the “check and balance” of the California Legislature and/or judiciary to effect any reform of the Commission’s appeal system.
“California Coastal Commission’s Preapproved Appeals: Convenience or Constitutional Concern?” by Ronald A. Zumbrun
Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. Angela C. Thompson, Associate Attorney with The Zumbrun Law Firm, assisted in preparing this article. You can learn more about The Zumbrun Law Firm at www.zumbrunlaw.com.
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