Tuesday, January 3, 2017

Who should pay fines if coastal commissioners are found guilty of breaking rules? Them or taxpayers?

Who should pay fines if coastal commissioners are found guilty of breaking rules? Them or taxpayers?

The California Coastal Commission listens to comments during a hearing to decide on the Newport Banning Ranch development at Newport City Hall on Sept. 7, 2016. (Allen J. Schaben / Los Angeles Times)
Steve Lopez

Just when you thought it might not be possible, the California Coastal Commission story has gotten a little more interesting.

As reported by my colleague Dan Weikel, five commissioners have been sued by a San Diego nonprofit called Spotlight on Coastal Corruption.

And people accuse us of never covering good news.

Slapped with a lawsuit were Commissioners Steve Kinsey, the chairman, Wendy Mitchell, Erik Howell, Martha McClure and Mark Vargas.

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They have been accused of collectively violating disclosure laws not a few times, nor a few dozen times.

But 590 times over the last two years.

F-I-V-E H-U-N-D-R-E-D N-I-N-E-T-Y.

Lawsuit seeks millions in fines from 5 coastal commissioners, alleging 590 transparency violations

According to the claim, the commissioners repeatedly failed to file complete, comprehensive, timely reports on their private conversations — known as ex parte communications — with developers and others before voting on projects.

And here’s where it gets really interesting.

The suit was not filed against the California Coastal Commission, which is made up of 12 politically appointed commissioners and more than 100 staff members. It was filed against individual commissioners. If the court rules that there were violations, each could be fined a small fortune, ranging from hundreds of thousands of dollars to more than $1 million.

This raises more than a few questions, among them:

Who should pay for commissioners’ legal defense, and if fines are levied against them, who should pick up the tab — the commissioners or the taxpayer-funded Coastal Commission?

Kathryn Burton is one of the San Diego coast watchers who formed Spotlight on Coastal Corruption earlier this year, and she didn’t hesitate for an instant when I put those questions to her Tuesday afternoon.

“Oh, absolutely, the commissioners,” she said. “The public shouldn’t be picking up their legal bills or their fines when they weren’t following the law.”

Burton, a retired city attorney, said there could be no greater deterrent to rule-breaking in the future than to have commissioners on notice that misdeeds will cost them. And if the sued commissioners are found liable, it’s the commission itself — understaffed and underfunded for years — that would receive the fines as dictated by the Coastal Act.

“It’s a win-win,” Burton said.

Let me be clear that no wrongdoing has been proved, and even if it is, civil fines are not mandatory. Weikel reported that commissioners either refused to comment on the lawsuit or could not be reached. A Coastal Commission spokesperson said the matter is being reviewed by the state attorney general’s office.

Burton told me that she has kept an eye on coastal protection issues for years, but stepped up her scrutiny in February. That’s when commissioners whacked Executive Director Charles Lester, a man whose many supporters saw him as a defender of coastal protection rather than a pushover for developers.

Then came the L.A. Times investigations suggesting that some commissioners did not appear to be following the rules on ex parte communications.

Many of their reports on those meetings were only a couple of sentences long, despite the required comprehensive accounts. In one case, Vargas filed the briefest of reports on a meeting with U2 guitarist David Evans in Dublin before voting in favor of Evans’ massive five-mansion compound in Malibu.

When I began asking Vargas for more details about his meeting, he didn’t just refuse to answer. He refused to acknowledge that I was standing two feet away from him, asking questions.

In some cases, rather than write their own reports, commissioners turned in accounts provided by lobbyists. And in other cases, they missed filing deadlines by up to eight months.

“It was pretty eye-opening. They were just not following the law,” said Burton, whose nonprofit hired San Diego lawyer Cory Briggs. He used Times data and additional research to come up with the tallies.
I think they somehow just think they’re bigger than life.— Kathryn Burton, San Diego coast watcher

The lawsuit alleges that Vargas violated reporting requirements 150 times, followed by Kinsey (140), Mitchell (120), Howell (96) and McClure (82).

And those numbers are all based on known meetings. It’s not known whether commissioners failed to report additional meetings, but if this case goes to trial, those kinds of questions are sure to be asked.

“There’s a certain arrogance to it,” Burton said of the commissioners. “I think they somehow just think they’re bigger than life.”

Some commissioners did follow the law, Burton noted. Others, in her opinion, tried to “circumvent the law.”

So Burton and some like-minded San Diegans, including Gerald Sodomka and Susan Turney, formed their nonprofit. The purpose, she said, is to do whatever is possible to bring more transparency to the commission and protect the coast for future generations.

“Corruption might be a strong word,” Burton said, “but if the shoe fits, wear it.”

This lawsuit follows four others that were filed to challenge projects that got approved despite disclosure violations. If the San Diego group prevails on its lawsuit, there’s no telling how many others might follow.

Meanwhile, a minor stir was created this week involving the search for a new executive director. Activists complained that a draft copy of the job posting — subject to change — did not adequately address the need for the new executive director to maintain staff independence from commissioners, so as to base decisions on science and law, not political pressure.

Coast watchers also took issue with a line about how the new boss should have the ability to “instill a culture of customer service within the organization.”

“This is highly objectionable,” former Coastal Commissioner Sara Wan wrote to the staff, arguing that the commission does not have “customers,” and the agency’s job is not to facilitate developers.

The mission, she said, is to make sure any development is consistent with the law, to represent the public’s interest and to protect the coast.

I couldn’t have said it any better.

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