An Orange County judge who is deciding whether to halt a controversial Laguna Beach housing project has raised questions about private communications that the developer’s representatives held with members of the California Coastal Commission, according to court records reviewed by the Los Angeles Times.
During a trial in a lawsuit challenging the commission’s approval of the project, Superior Court Judge Kim G. Dunning said that six of 10 commissioners did not publicly disclose their so-called ex parte communications as required by state law.
Their reports, the judge said, were incomplete, unsigned, undated and lacked official time stamps to show when they were turned into the commission.
Four commissioners, Dunning noted, apparently disclosed their private confabs weeks after the required deadline.
The judge made the remarks earlier this month in a pending case brought by Friends of the Canyon, an environmental group. The organization has asked the judge to throw out a January 2015 decision by the Coastal Commission to approve 30 residential units for artists in scenic Laguna Canyon.
Most of the behind-the-scenes discussions about the project occurred at the upscale Portola Hotel and Spa in Monterey, where commissioners held their monthly meeting.
The California attorney general’s office, which represents the commission, contends that “technical deficiencies” and untimely disclosures do not justify overturning the project’s approval because there is no indication the contacts swayed decision-makers.
After presiding over a one-day trial on July 12, Dunning took the matter under submission. The Times obtained a copy of the trial transcript.
The Friends of the Canyon case is one of at least four lawsuits that contend, among other things, that improper contacts and disclosures are grounds to overturn project approvals by the commission.
The cases are part of an ongoing controversy about ex parte communications that began with the Coastal Commission’s firing of Executive Director Charles Lester in February.
Ex partes are private written or spoken communications between one or more commissioners and interested parties that could influence decisions by the powerful land use agency, which oversees development along 1,100 miles of California coastline.
By law, commissioners must publicly disclose in writing any ex parte contact within seven days. Private communications that occur within seven days of the subject being considered at a commission meeting must be reported orally at the hearing.
Ex parte contacts can include telephone calls, meetings, emails, or other written communications.
Those who fail to meet the deadlines and other reporting requirements face fines of up to $7,500 and may be prohibited from voting on the matter that was discussed.
The required disclosures are designed to let the public and interested parties know about the private communications that take place with commissioners about a pending decision.
During the trial, Dunning said he was concerned that improper disclosures of ex parte communications might interfere with the fairness of the commission’s decision-making process.
The judge said that Commissioner Turnbull-Sanders’ written disclosure form did not have an official time stamp and was not filed in the commission’s administrative record of the Laguna Beach project, which is public.
The official time stamp also was missing from Commissioner Vargas’ disclosure form, which, Dunning noted, had the exact same wording as the disclosure form of another commissioner.
“The text in the body was absolutely identical,” Dunning said. “It looked like they were printed off and the names were changed. Mr. Vargas doesn’t have the file stamp, so that wouldn’t appear to work.”
According to the transcripts, the judge pointed out that Commissioner Cox did not report his ex parte communications with developer representatives within the required seven days.
The court also said McClure and Kinsey should have filed written disclosures instead of reporting their December ex parte contacts orally at the January 2015 hearing. Dunning said no disclosure forms from them were in the commission’s file.
Those records turned up two days after the trial, but they were incomplete and there is no indication they were filed on time.
Finally, the judge said, Commissioner Howell had an ex parte contact with the developer’s consultants on Dec. 10, 2014. But, according to the official time stamp, his disclosure form was not received by the commission until Jan. 26, 2015, more than a month later and two weeks after the hearing.
The judge noted that Howell did not sign or date the form.
Deputy Atty. Gen. Jennifer Rosenfeld defended the commissioners’ ex parte disclosures. All were eventually reported, either orally or in writing, she said, and were made part of the administrative record for the project.
But the judge fired back, saying, “If they’re not file stamped and they’re not signed and dated, you’ve been a lawyer long enough to know that’s a problem.”
Dunning later chided Rosenfeld for downplaying the significance of failing to meet disclosure deadlines, which she called technical and unsubstantial violations of the requirements.
The judge said the dates of the ex parte communications in question required written disclosures, not oral reports at the hearing.
“Frankly, the more you are arguing,” the judge told her, “the deeper the court’s concern is getting that you seem to be taking the position that you basically throw what the statute says out the window as long as you say at the hearing, sure, I had a communication six weeks ago ...”
Rosenfeld contended that the decision-making process was fair because project opponents were aware at the time of the vote of at least one ex parte contact as well as the arguments in favor of the development raised by proponents.
She later argued that Friends of the Canyon must show that the failures to properly disclose ex partes may have affected the decision to approve the project. Extensive public hearings were held on the project, she said, and the commission’s vote was unanimous.
“It is well supported by the evidence in the record that says no, this decision was not affected by these lack of disclosures,” Rosenfeld said
Two days after the trial, she filed court papers stating that the written disclosure forms for Kinsey and McClure had been found.
Rosenfeld stated that the forms had been misplaced or lost by the commission and now should be admitted as evidence. In January 2015, when the project was approved, both McClure and Kinsey said during the hearing that their forms were on file. She added, however, that the disclosures never made it into commission files.
Copies of the forms show they are unsigned, undated, do not have commission time stamps and contain identical language.
Consultants have said that they sometimes prepare these statements for commissioners.
Christopher Pederson, the commission’s chief counsel, confirmed that the agency had misplaced the two disclosure forms, but declined to say whether they were filed on time.
Julie Hamilton, the attorney for Friends of the Canyon, lodged a response in court that questioned the sudden appearance of the written disclosures. She contends there is no indication the forms were filed within the required time period.
Hamilton also opposes admitting the forms as evidence because they were not accompanied by sworn statements from Kinsey and McClure.
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