Former Del Norte County supervisor and California Coastal Commissioner Martha McClure will likely pay a fine in connection with a lawsuit accusing her and four other coastal commissioners of violating a multitude of rules involving private communications with project applicants before the commission.
It probably won’t be the hefty penalty sought by the plaintiff, according to a tentative decision by a San Diego County Superior Court judge. But the attorney for the plaintiff, nonprofit organization Spotlight on Coastal Corruption, says the case isn’t over yet.
“This is not the final ruling,” said attorney Cory Briggs, who filed the initial complaint on behalf of the plaintiff in August 2016. “My guess is we’re a month away.”
Briggs declined to elaborate, telling the Triplicate on Friday “there’s nothing to comment on.”
In its initial complaint, Spotlight on Coastal Corruption accused McClure, former commissioners Wendy Mitchell and Steve Kinsey and current commissioners Mark Vargas and Erik Howell of violating California Public Resources Code Section 30324 by conducting ex parte communications without fully disclosing them and making them public within the time limits prescribed by law. Spotlight on Coastal Corruption also accused McClure, Mitchell, Kinsey, Vargas and Howell of violating Public Resources Code Section 30327 by using their official position as Coastal Commissioners to influence a commission decision about which they “knowingly had at least one ex parte communication that was not reported.”
In its initial complaint, Spotlight on Coastal Corruption alleged the defendants received training on the regulations governing ex parte communications and noted that each violation is subject to a civil fine not to exceed $7,500 per statute or $15,000 for both statutes.
The plaintiff also alleged that McClure and Mitchell violated Public Resources Code section 30327.5 (b) by accepting illegal gifts. In McClure’s case, this was a stay at the home of Don Schmitz, who represents clients, including U2 lead guitarist David Evans, with land development projects on the coast.
In its complaint, Spotlight on Coastal Corruption alleges that McClure violated Public Resources Code Section 30324 and 30327 on “at least 42 occasions.”
Spotlight on Coastal Corruption sought a total of about $22 million in fines, with McClure receiving an individual fine of $3.15 million, according to the tentative order issued May 7, 2018 by Superior Court Judge Timothy B. Taylor. Taylor instead ordered the five commissioners to pay a total of $60,400 in fines. Taylor fined McClure $4,000, according to the tentative order.
“It’s been reduced dramatically,” said McClure, who served on the Coastal Commission from 2012 to 2016. “We presented information that primarily these were procedural issues within the system of ex parte reporting and that’s why you see the redemption in the charges (being) so minimal.”
According to her testimony during the trial, which began Feb. 27, 2018, McClure said she received all Coastal Commission material via its website “same way as the public does so.” She said she received training twice on ex parte disclosure at public meetings and knows the requirement to disclose such communications within seven days.
On Friday, McClure told the Triplicate she would give an oral report at Coastal Commission meetings on ex parte communications she received and would include extra information in the report she gave to staff. She said she may have turned in her ex parte reports a day late, which constitutes a $100 fine. In other cases, some reports were missing a signature or a date stamp, which is another $100 fine each, McClure said.
“I had a fine because my papers didn’t have a date stamp, but I don’t have a date stamp,” McClure said, adding that in one case an ex parte report she turned in to staff wasn’t recorded for about two weeks and was declared late. “I turn it into the staff and they are supposed to date-stamp it and add it to the record. So my ex parte was added to the record, but they forgot to do the date stamp.”
Briggs, McClure said, took every ex parte communication she had received during her tenure on the Coastal Commission and attempted to “identify everything that’s bad.”
“That’s how he had come to the millions of dollars he was suing for,” she said. “And it all boiled down to there was no corruption. There were sloppy procedures by both the commission and the commission staff on policy.”
Briggs also brought up McClure’s stay at Schmitz’s house. In 2016, McClure told the Triplicate that following a Friday meeting in Southern California, Schmitz invited her and her husband to dinner and his son’s football game. Following the game, Schmitz invited the McClures to spend the night at his Malibu home before they had to drive back to Crescent City.
McClure said she and her husband spent the night and returned home the following day.
In his decision, Taylor noted Coastal Commissioners, who have full-time jobs and are often local government officials, have to contend with hundreds of pages of staff reports and other materials before hearings and meetings that are often 12-16 hours long. Taylor stated commissioners receive nominal per diem and travel expenses, receive minimal if any dedicated staff support and are provided with no office or dedicated computer or other tech support. They only recently received Coastal Commission email addresses, the judge stated.
Taylor also commented on the role Coastal Commission staff plays in each decision, noting that since commissioners can’t be expected to read and consider all of the material they’re presented with, the staff recommendation “no doubt takes on an outsized role.”
Further, Taylor said it’s clear that before August 2016, the Coastal Commission didn’t have a process for tracking the processing of written disclosure forms as well as ensuring that commissioners were trained in, understood and complied with their disclosure obligations.
“The prescribed form for making disclosures requires written material to be attached, yet this requirement was not enforced by staff,” Taylor states. “Staff support was inadequate, leading to delays of up to a month in processing written disclosures (which in many cases completely defeated the purpose of disclosure)... Much of what the plaintiff established were the institutional failures of a non-party (the Commission), not personal failures of individual commissioners. Much, but not all.”
Taylor said that since August 2016, the Coastal Commission process for reporting ex parte communications has gotten better, but there is still room for improvement.
In the case of McClure’s stay with Schmitz, Taylor found that since her home was on the other end of the state, she was entitled to stay in Southern California at the public’s expense following a Coastal Commission meeting that ended late.
“It was not feasible for her to attempt same-night travel to Crescent City (which might as well be in Oregon and has only a part-time airport at best),” Taylor stated. “Her lodging would have cost her nothing and would have cost the taxpayers something. Her stay at Mr. Schmitz’s house cost her nothing. The end result: She received nothing of value and the state saved whatever the government rate was at the hotel for the one night in question.”
Taylor further stated that while he understood the “eyebrows raised” by McClure’s decision to stay with Schmitz, who had appeared as a consultant before the Coastal Commission, the plaintiff didn’t establish that Schmitz had appeared at the Coastal Commission meeting that had just ended. The plaintiff also didn’t prove that Schmitz paid for McClure’s ticket to his son’s high school football game or that the cost of admission exceeded $10, according to Taylor’s decision.
On Friday, McClure told the Triplicate that she thinks the Spotlight on Coastal Corruption lawsuit is a “weird revenge element” over the February 2016 ouster of Charles Lester as Coastal Commission executive director. The Coastal Commission didn’t fire Lester entirely, he was given a new job within the commission, but has since left, McClure said.
McClure said she clashed with staff because while she believed everyone should receive the same information, it didn’t happen. Once a month, Lester and other Coastal Commission staff would meet with an advocate on items that would be on the agenda, McClure said, but they wouldn’t include the applicant in the conversation.
“If It was a very difficult situation for people to get their voice heard by the commission if the staff were in opposition to that project,” McClure said.
However, McClure echoed Taylor’s comments that Coastal Commission administrative procedures have improved. In addition to assigning commissioners an email address, since the lawsuit Coastal Commission staff will issue a return receipt to anyone who submits material.
“I felt that Californians respected and loved the Coastal Commission, but the Coastal Commission process was so arduous that it made everybody an enemy instead of looking to this agency as a problem solver,” she said. “I would rather we’d been much closer to problem solving than litigating. That was my focus.”
Reach Jessica Cejnar at firstname.lastname@example.org .