Ex parte communication

These guidelines for dealing with ex parte communications were developed after review of statutes and numerous cases interpreting the ex parte doctrine. The law is not at all clear as to whether, when or how ex parte restrictions apply to the Council. These guidelines are similar to those used during the development of the original Fish and Wildlife Program and Power Plan, and are designed to chart a safe, workable course through the many different standards developed in the case law.

SCOPE OF THESE GUIDELINES

These guidelines apply to Council members and Council staff, from the beginning of the public comment period regarding any amendment of the Plan or Program through the Council’s adoption of the final amendments.

PURPOSE OF THESE GUIDELINES

The purpose of these guidelines is to reduce the risk of legal challenge to the Council’s final amendments. While allowing Council members and staff to conduct their normal business, our concern is that a court could overturn the final amendments or require the Council to re-open its public comment period because the amendment process was tainted by ex parte communications. At the least, the Council could be embarrassed. An ex parte contact is not a cardinal sin. The courts, however, have developed restrictions on ex parte communications for two reasons. First, private communications with decision makers create an appearance of undue influence and favoritism and deprive others of their right to comment. Ex parte communications with agency decision makers create one process and record for the public and another secret process and record for those “in the know.” Second, ex parte communications are by definition outside the record, and consequently are unavailable to a reviewing court. A court cannot review the Council’s amendment process for compliance with the law unless it is confident that the official administrative record reflects the entire decision making process. As explained below, ex parte contacts are not prohibited. What is required is that they be revealed on the record.

HOW TO HANDLE EX PARTE COMMUNICATIONS

1. What is an ex parte communication?

• communications (telephone calls, conversations, letters, memoranda, etc.),
• that are “off the record” (i.e., not recorded in the Council’s official administrative record for amendment process. The administrative record includes testimony at public hearings, written comments filed with the central Council’s office, minutes of Council meetings, and records of open meetings of advisory committees and consultations with interested groups and individuals. Each document in the record is indexed by number, date, subject and source and is available for use by staff, Council and members of the public.),
• that relate to the merits of the Council’s proposed amendments, and
• that comes from outside the Council or Council staff. (“Council staff’ is defined narrowly to include only those necessary to the Council’s deliberative process. Accordingly, “Council staff” includes all members of the Council’s central and state staffs, but does not include any employees of state fish and wildlife agencies or any other state agencies that may from time to time work closely with the state Council offices. One purpose of the ex parte doctrine is to avoid giving advantages to some commenter’s that are not available to all commenter’s.)

The courts recognize that the definition of ex parte communications is subject to reasonable limits. Casual or social encounters, newspaper editorials or communications between Council members and Council staff, for example, are not treated as ex parte communications.

A few illustrations:

• A utility representative meets with a Council member to discuss the model conversation standards. During the meeting, the representative reminds the Council member of the utility’s arguments in opposition to certain proposed Fish and Wildlife Program amendments. This is clearly an ex parte communication, because it is off the record, on the merits and comes from outside the Council and staff.
• A representative of an environmental organization chats with a Council Fish and Wildlife Division staff member at a party. During the conversation, the representative makes several jokes about fish, the Council and various utility representatives. As long as these remarks are casual and unrelated to the merits of the amendments, they are not ex parte communications.
• A Bonneville employee makes extensive telephone inquiries of a Council staff member regarding the time and place of the Council’s amendment hearings, the Council’s rules for submitting public comments, and the Council’s procedures for responding to the public comments. These are not ex parte communications, because they relate not to the merits of the amendments, but only to the procedural details of the amendment process.
• During a public hearing on the proposed amendments, a Council member asks one of the persons testifying to provide the Council with supporting data. At the end of the hearing, the person hands the Council member a handwritten table of scientific data. The person does not formally submit that table for inclusion in the administrative record. Because it is off the record, on the merits and from the outside, it is an ex parte communication. It makes no difference that the Council member requested the data or that the person did not intend it to be a formal written comment.

2. What to do about ex parte communications.

1. During the public comment period, record any significant ex parte communications you receive. By providing the attached form to Information Coordinator, place in the official administrative record copies of letters and brief summaries of meetings or phone calls, along with any documents received. The Associate Counsel will periodically review all forms that are filed. Limiting this requirement to “significant” communications recognizes that off the record contacts are bound to occur during this period. An ex parte communication is significant if it:

• provides data or arguments not already in the official administrative record, or
• addresses a controversial subject, or
• is long, detailed, specific, or important, or
• comes from an important participant in the amendment process.

Basically, significant comments are those which the public should be aware of and to which interested parties may wish to respond. To provide the public with an opportunity to respond, significant communications should be logged in the record as soon as possible, and by all means before the close of the public comment period.

For example:

• During a telephone conversation, a biologist for an Indian tribe discusses with a Council staff member the tribe’s technical objections to a particular proposed amendment. This is probably significant because it comes from an important participant and focuses specifically on the pros and cons of a proposed amendment.
• At a cocktail party a utility executive remarks briefly to a Council member that the proposed amendments, if adopted will substantially increase electric rates. This argument has already been raised at the public hearings. Unless the executive launches into a long, detailed discussion of the issue, the comment should be treated as insignificant.

2. After the close of the comment period, all ex parte communications should be avoided. Even relatively minor ex parte communications are a problem at this point because, even if they are duly logged in the administrative record, the comment period is closed and other members of the public would have no opportunity to respond to or rebut the views or data contained in those communications. At the very least, such communications risk creating the appearance of impropriety. At worst, such communications create serious legal problems. Some courts have required agencies to formally reopen their public comment periods to provide interested persons with an opportunity to respond to ex parte communications received after the deadline for public comment. To comply with this guideline, Council meetings held between close of the comment period and final decision on amendments will not allow for public comment regarding the amendments. A similar practice was followed during final development of the power plan.

If in doubt, ask the legal division.

If you have any questions regarding these guidelines or a particular communication, please do not hesitate to contact the Legal Division.

EX PARTE COMMUNICATION RECORD

Please file this completed form with the information coordinator immediately after receiving an ex parte communication relate dto the proposed program amendments.

1. Your Name: ____________________________________

2. Source of Communication ______________________________

3. Type of Communication

_______ Telephone call ___________ Letter _____________Other

_______ In-Person Conversation

4. When communication received: ___________________________

5. Where communication received: __________________________

6. Today’s date: _____________________

7. If the communication was a telephone call or in-person conversation, please attach (or print below) a brief summary of the substance of the communication.

Latest revision approved by Executive Committee: August 21, 1984