Bill Text: CA AB2323 | 2021-2022 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Insurance: covered communications.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-04-20 - In committee: Set, first hearing. Held without recommendation. [AB2323 Detail]
Download: California-2021-AB2323-Introduced.html
Bill Title: Insurance: covered communications.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-04-20 - In committee: Set, first hearing. Held without recommendation. [AB2323 Detail]
Download: California-2021-AB2323-Introduced.html
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Assembly Bill
No. 2323
| Introduced by Assembly Member Levine |
February 16, 2022 |
An act to add Article 2.5 (commencing with Section 12945.01) to Chapter 2 of Division 3 of the Insurance Code, relating to insurance.
LEGISLATIVE COUNSEL'S DIGEST
AB 2323, as introduced, Levine.
Insurance: ex parte communications.
Existing law establishes the Department of Insurance, an independent department, headed by the Insurance Commissioner. Existing law requires the commissioner to perform all duties imposed by the Insurance Code and other laws regulating the business of insurance. Existing law provides that communications to the commissioner or a person in the commissioner’s office concerning the holder of, or applicant for, a certificate or license issued under the Insurance Code are made to the commissioner in official confidence. Existing law requires the commissioner to receive complaints and inquiries, investigate complaints, and prosecute insurers or production agencies, when appropriate. Existing law allows the commissioner to meet with persons or entities interested in the enforcement of insurance laws and the dissemination of information regarding insurance laws to the public.
This bill would prohibit an “ex parte communication,” as defined, between the commissioner, a deputy commissioner, or a department attorney and an “interested party,” as defined, unless the ex parte communication is fully disclosed and made public, as specified, with a report to be published on the department’s website. The bill would prohibit the commissioner, a deputy commissioner, or a department attorney from making, or using their official position to influence, a decision, in which an ex parte communication has not been disclosed, as specified, and would make a violation subject to a $7,500 civil fine and other costs. The bill would authorize an aggrieved person to seek a writ of mandate from a court requiring the department to revoke its action. The bill would authorize any person to request department staff to conduct a workshop on any matter before, and subject useful to, the commissioner. The bill would make related findings and a
declaration.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Article 2.5 (commencing with Section 12945.01) is added to Chapter 2 of Division 3 of the Insurance Code, to read:Article 2.5. Ethics and Transparency Act
12945.01.
(a) The people of California find and declare that the duties, responsibilities, and quasi-judicial actions of the insurance commissioner and staff of the department are sensitive and extremely important for the well-being of current and future generations and that the public interest and principles of fundamental fairness and due process of law require that the Insurance Commissioner and department staff conduct their affairs in an open, objective, and impartial manner free of undue influence and the abuse of power and authority. It is further found that, to be effective, California’s regulation of the business of insurance requires public awareness, understanding, support, participation, and confidence in the commissioner, department staff, and their practices and procedures. Accordingly, this article is necessary to preserve the public’s welfare and the integrity of, and to maintain the public’s trust in the commissioner and department staff.(b) The people of California further find that in a democracy, due process, fairness, and the responsible exercise of authority are all essential elements of good government which require that the public’s business be conducted in public meetings, with limited exceptions for sensitive personnel matters and litigation, and on the official record. Reasonable restrictions are necessary and proper to prevent future abuses and misuse of governmental power so long as all members of the public are given adequate opportunities to present their views and opinions to the commission through written or oral communications on the official record either before or during the public hearing on any matter before the department.
12945.02.
For purposes of this article, “a matter within the commissioner’s jurisdiction” means any action, program, plan, review, investigation, exam, contact, communication, or any other administrative, quasi-judicial, judicial, or regulatory matter set forth in the Insurance Code.12945.03.
(a) For purposes of this article, except as provided in subdivision (b), an “ex parte communication” is any oral or written communication between the commissioner, a deputy commissioner, or a department attorney and an interested person, about a matter within the commissioner’s jurisdiction, which does not occur in a public hearing, or other official proceeding, or on the official record of the proceeding on the matter.(b) The following communications are not ex parte communications:
(1) Any communication between a department staff member acting in their official capacity and another department staff.
(2) Any
communication limited entirely to procedural issues, including, but not limited to, the hearing schedule, location, format, or filing date.
(3) Any communication which takes place on the record during an official proceeding of a state, regional, or local agency that involves the commissioner, a deputy commissioner, or a department attorney.
(4) Any communication between the commissioner, a deputy commissioner, or a department attorney, with regard to any action of another state agency , and any other official or employee of that agency, including any person who is acting as an attorney for the agency.
(5) Any communication between the commissioner, a deputy commissioner, or a department attorney and a staff member of a state agency where both the commissioner, deputy commissioner, or department attorney and the staff
member of a state agency are acting in an official capacity.
(6) Any communication to the commissioner, a deputy commissioner, or a department attorney relating to an action pending before the commissioner or department, either through written or verbal communication, on or off the record.
12945.04.
For purposes of this article, an “interested person” is any of the following:(a) Any individual or entity licensed pursuant to the Insurance Code, any individual or entity applying for a license pursuant to the Insurance Code, an agent or an employee of the applicant, or a person receiving consideration for representing the applicant, or a participant in the proceeding on any matter before the department.
(b) Any person with a financial interest, as described in Article 1 (commencing with Section 87100) of Chapter 7 of Title 9 of the Government Code, in a matter before the department, or an agent or employee of the person with a financial interest, or a person receiving consideration for
representing the person with a financial interest.
(c) A representative acting on behalf of any civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of the commissioner, a deputy commmissioner, or a department attorney on a matter before the department.
12945.05.
(a) The commissioner, a deputy commissioner, a department attorney, or any interested person, shall not conduct an ex parte communication unless the commissioner, a deputy commissioner, or a department attorney fully discloses and makes public the ex parte communication by providing a full report of the communication to the general counsel, within seven days after the communication, to be published quarterly on the department website.(b) (1) The department shall adopt standard disclosure forms for reporting ex parte communications which shall include, but not be limited to, all of the following information:
(A) The date, time, and location of the
communication.
(B) (i) The identity of the person or persons initiating and the person or persons receiving the communication.
(ii) The identity of the person on whose behalf the communication was made.
(iii) The identity of all persons present during the communication.
(C) A complete, comprehensive description of the content of the ex parte communication, including any text and graphic material that was part of the communication.
(2) The general counsel shall place on the department website any report of an ex parte communication.
(c) Communications shall cease to be ex parte communications when fully
disclosed and placed on the department’s website.
12945.06.
(a) The commissioner, a deputy commissioner, or a department attorney shall not make, participate in making, or any other way attempt to use their official position to influence a decision about which the commissioner, a deputy commissioner, or a department attorney has knowingly had an ex parte communication that has not been reported pursuant to Section 12945.05.(b) In addition to any other applicable penalty, the commissioner, a deputy commissioner, or a department attorney who knowingly violates this section shall be subject to a civil fine, not to exceed seven thousand five hundred dollars ($7,500). Notwithstanding any law to the contrary, the court may award attorney’s fees and costs to the prevailing
party.
12945.07.
If a violation of this article occurs and a decision by the department may have been affected by the violation, an aggrieved person, as described in Section 12945.08, may seek a writ of mandate from a court requiring the department to revoke its action and rehear the matter.12945.08.
Any aggrieved person shall have a right to judicial review of any decision or action of the commission by filing a petition for a writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure, within 60 days after the decision or action has become final.For purposes of this section, an “aggrieved person” means any person who, in person or through a representative, appeared before the department in connection with the decision or action appealed.
