Pismo Councilman Erik Howell fined for transparency violations

Pismo Beach City Councilman and Coastal Commissioner Erik Howell was one of five current and former commissioners fined in a judge’s ruling last month for violations of transparency rules.

San Diego County Superior Court Judge Timothy Taylor’s decision to fine Howell $3,500 on July 12 comes after a two-year battle over a lawsuit filed by Spotlight on Coastal Corruption (SOCC).

He and other commissioners were accused of failing to disclose “ex parte” communications and influencing matters in which they knowingly failed to disclose communication with people involved in projects before the commission.

The fine was only a fraction of what Howell potentially faced.

The SOCC initially sought millions of dollars in fines, with Howell alone paying $3,600,000 for committing “crimes against democracy.”

SOCC, a nonprofit organization formed to protect the California coast, filed the lawsuit Aug. 17, 2016, against Commissioners Howell, Martha McClure, Wendy Mitchell, Mark Vargas and Steve Kinsey.

The lawsuit charged that Howell violated Public Resources Code requirements at least 96 times, Kinsey 140 times, McClure 82 times, Mitchell 120 times and Vargas 150 times. In the end, the commissioners had to pay $3,500, $30,300, $2,600, 7,100 and 13,000, respectively.

The funds will go into the Coastal Conservancy Fund’s “violation remediation account.” Howell could not be reached for comment.

“What happened at the Coastal Commission between 2013 and 2016, while imperfect, was not (a crime against democracy). ‘Infractions against administrative law,’ maybe, but not ‘crimes against democracy,’” Taylor said. “Fines are meant to serve both as punishment and to make an example of the offender ... they are not meant to cripple the violator financially.”

The California attorney general’s office, representing the commissioners, argued that the alleged violations were little more than clerical errors, the Los Angeles Times reported. However, SOCC’s lawyer, Corry Briggs argued otherwise.

“The way you best protect the coast is to protect government. ... You can’t have effective long-term coastal protection that also respect property rights if the public does not know what’s going on,” Briggs said.

The state attorney general’s office offered SOCC a $250,000 settlement to pay fines and attorneys’ fees. However, they rejected the offer because they did not want the violations to be paid for with taxpayer money.

Some of the allegations against Howell involved undated or unsigned written disclosures of ex parte communications and not attaching documents such as biological or archeological reports to projects, but he was mostly found in violation of turning in disclosures past the seven-day deadline.

Ex Parte Communications

Ex parte communications can involve telephone calls, face-to-face meetings, emails or other written material related to a pending matter outside official public hearings.

Under the code, commissioners are required to report communications in writing within seven days of the interaction. Failure to do so can result in a maximum fine of $7,500 each time.

All reports must include a date, time, location and type of meeting. The report must also include the identities of everyone who initiated the communication and participated in it and a comprehensive description of the communication, including texts.

The report must be made available to the public on the commission’s official record.

The code also prohibits commissioners who participated in ex parte communications and knowingly fail to report the interaction from influencing a decision relating to the matter.

Howell was cleared of all but eight violations because of statue of limitations, lack of proof and the plaintiff dropping a number of allegations.

The judge in his decision questioned the Coastal Commission’s makeup, saying it’s “clear to the court that Legislature needs to consider the current and future viability of the Commission as it is presently constituted. Specifically, the court sincerely questions whether the mandates of the Coastal Act — the protection of natural resources with due respect for property rights — can be efficiently carried out with transparency and participatory openness using a part-time unpaid volunteer board that meets three days a month.”

Past investigations

Howell has faced accusations of political wrongdoing before.

He was under investigation in 2017 by the California Fair Political Practices Commission for allegedly violating the Political Reform Act because he voted on an issue within a year of receiving a donation from someone involved with the project.

However, he was not found in violation.

Suspicion was raised because Howell had voted against a Pismo Beach project when it was brought before the city board, but later changed his mind when the same project was brought before the Coastal Commission. His vote came two months after he received a $1,000 donation from Antoinette DeVargas, the domestic partner of Susan McCabe, who was involved in the project.

At the time of the donation, Howell was not aware that DeVargas was McCabe’s partner, he said, adding that McCabe was not involved with the Pismo Beach project when he received the donation.

In the end, the FPPC noted that its investigation showed the funds did not come from McCabe or her company and therefore Howell was not in violation.

This story was originally published July 19, 2018 at 6:10 PM.