Section 5.1 - Ex Parte Communications(a) Board members shall not participate in ex parte communications with any person or organization with an interest in board decisions who intends to influence the decision of a board member on a matter before the board, nor such person's or organization's representative, except that communications with a staff member of the board acting in his or her official capacity are excluded from this prohibition. If, however, an ex parte communication occurs, the board member shall notify the interested party that a full disclosure of the ex parte communication shall be entered in the board's record, as provided herein. "Interested party," for purposes of this section, shall mean the person making the ex parte communication.(b) "Ex parte communication" means any oral or written communication outside of a noticed board meeting concerning matters, other than purely procedural matters, regarding any of the following: (1) An application for a permit that has been submitted to the board and has been determined to be complete by the Executive Officer;(2) Enforcement actions, after the Executive Officer issues a notice of violation; and(3) Any other quasi-judicial matter for which board action is required and after the matter has been placed on the board's agenda and notice of the meeting has been provided pursuant to Section 11125 of the Government Code. It shall not mean quasi-legislative actions, including topics of general concern which are not related to a specific application, such as the adoption of an overall policy regarding flood protection or general policy concerns which may be raised at task force, subcommittee, or other meetings. After the board votes on a matter listed in this subsection and the thirty (30) calendar day time period for reconsideration pursuant to section 28 of these regulations has expired and no petition for reconsideration has been submitted, communications regarding the matter are no longer "ex parte communications." "Ex parte communication" shall also not include communications related to lawsuits filed against the board, including, but not limited to, settlement discussions.
(c) "Procedural matters" include, but are not limited to, communications regarding the schedule, location, or format for hearings, filing dates, identity of parties, and other such non-substantive information.(d) When the ex parte rules of this section attach, a board member may only take a field trip with a party to the matter or that party's representative to the site of a proposed project or a pending enforcement action if ten (10) calendar days' advance public notice is given stating the time, location, and intended scope of the field trip.(e) If disclosure of an ex parte communication is required, such disclosure shall be made as follows: (1) Any required disclosure under this section shall occur prior to the time that the board hears the matter that is the subject of the ex parte communication. If any disclosures have been made, either the board member receiving the ex parte communication or the Executive Officer shall state on the record prior to the board's vote on the matter that ex parte communications have been received. Upon request, the public shall be given an opportunity to review any such disclosure and provide public testimony regarding the disclosure prior to the board's vote.(2) Compliance with the disclosure requirement regarding the receipt of a written ex parte communication shall be accomplished by having the recipient board member or the person who engaged in the communication with the board member send a copy of the written communication and any response to the communication to the Executive Officer for inclusion into the record of the matter that is the subject of the ex parte communication. "Written ex parte communication" shall mean a communication in any written form, including but not limited to electronic mail, handwritten note, or type-written document.(3) Compliance with the disclosure requirement regarding the receipt of an oral ex parte communication shall be accomplished by having the recipient board member or the person who engaged in the communication with the board member submit a written request to the Executive Officer for inclusion of the communication into the record of the matter that is the subject of the ex parte communication. The written request to the Executive Officer may be by any written means, including, but not limited to, electronic mail. The oral summary and written request shall include the substance of the communication, any response by the recipient board member, and the identity of each person from whom the recipient board member received the communication.(f) Once paragraph (e) is complied with, the communication ceases to be an ex parte communication.Cal. Code Regs. Tit. 23, § 5.1
1. New article 2.5 (section 5.1) and section filed 12-1-2009; operative 12-31-2009 (Register 2009, No. 49).
2. Amendment filed 2-15-2012; operative 2-15-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 7). Note: Authority cited: Section 8571, Water Code. Reference: Section 8578, Water Code.
1. New article 2.5 (section 5.1) and section filed 12-1-2009; operative 12-31-2009 (Register 2009, No. 49).
2. Amendment filed 2-15-2012; operative 2-15-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 7).