SAN DIEGO (CN) – Attorneys sparred in a San Diego courtroom Wednesday morning over whether five current and former Coastal Commission members violated the Coastal Act in failing to disclose private meetings and if they should face hundreds of thousands of dollars in civil penalties.
Superior Court Judge Timothy Taylor warned Spotlight on Coastal Corruption Attorney Cory Briggs and Deputy Attorney General Joel Jacobs he would frequently interrupt them during their closing arguments in the bench trial but that “it’s nothing personal.” The hearing, which went on all morning and spilled into the afternoon, at times felt more like a debate between the attorneys and Taylor than argument.
Spotlight on Coastal Corruption sued five current and former Coastal Commission members individually over allegations the commissioners failed to disclose private meetings and discussions – known as ex parte communications – within seven days of the communications taking place. Commissioners frequently take meetings with developers and groups lobbying for their respective causes prior to a commission vote, but are obligated to publicly report the communication.
The attorneys argued Wednesday over whether the nonprofit group, formed a few months before the lawsuit was filed, has standing to sue the commissioners.
Briggs said Spotlight was formed to ensure the Coastal Act is followed. He said the state authorities which could penalize the commissioners for failing to comply with the Coastal Act, namely the Attorney General’s Office, have not sued the commissioners because “the likely agency to do so is defending them.”
“If ever there were a public duty in complying with the Coastal Act, ex parte rules would be it,” Briggs said.
Jacobs, defending current and former Coastal Commissioners Steve Kinsey, Martha McClure, Wendy Mitchell, Mark Vargas and Erik Howell said there is no actual corruption in the case and no evidence has shown the commissioners were trying to hide anything from anyone in filing ex parte disclosures weeks, and sometimes months, late.
“One thing I think we can all agree on is that actual corruption should be rooted out and punished,” Jacobs said. “There’s zero evidence of any corruption in this case.”
Jacobs suggested in order to cure untimely disclosures of ex parte communications, the public could “call out” discrepancies in reported disclosures at commission meetings. He said hearings on impacted agenda items could be delayed or commissioners could be recused from participating in a vote.
But Taylor questioned “where’s the justice in that,” noting that postponing an important hearing or having a commissioner recused from a hearing “are not good outcomes” and that the recusal of one commissioner could “change the vote” where the “collective wisdom of the commission” is necessary.
Jacobs said punishing the commissioners monetarily “would not correct defects in ex parte reporting procedures and practices.” He said the commission took steps in August 2016, before the lawsuit was filed, to correct ex parte problems raised by media reports on undisclosed meetings.
The attorney suggested issuing civil penalties will deter public service for future commissioners “who fear financial ruin.” He also said commissioners could “take a message” from being forced to recuse themselves from a vote as Kinsey did when he failed to report ex parte communications on the contentious Newport Banning Ranch project in Orange County.
“It is embarrassing – having to recuse oneself for not having complied with the law,” Jacobs said.
Taylor commented Kinsey “was chagrin” when he testified in the trial Tuesday about having to recuse himself from the Newport Banning Ranch vote.
But Briggs said issuing civil penalties will prevent future noncompliance with the Coastal Act.
“Civil fines play a role in preventing future bad conduct. Few things sharpen a mind like a fine,” Briggs said.
Briggs said exhaustion of remedies does not apply in the case because the public “can’t complain about something that’s a secret.”
“Only they [Coastal Commissioners] would know what they didn’t disclose. That information only comes courtesy of a lawsuit when they have to sit for a deposition. It’s not information they volunteered,” Briggs said.
He said the failure to disclose ex parte communications was “not a stumbling block, but a border wall to good government and transparency.”
“The defendants claimed they didn’t really know what to do with the disclosures. If they don’t know, how is the public supposed to know?” Briggs said.
Taylor said he expects to issue a tentative decision by Friday on whether the nonprofit has standing to sue the individual Coastal Commissioners. If he finds the suit can move forward, the parties will submit briefs on what civil penalties they believe Taylor should or should not impose.