BILL NUMBER: SB 611 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Hill
FEBRUARY 22, 2013
An act to amend Sections 305, 307, 308, 309.6,
309.5, 309.7, 321.6, 958.5, 1701.1, 1701.2, and
1701.3 , 1731, 1756, 590 0, and 7661
of , and to add Section 854.5 to, the Public Utilities
Code, relating to the Public Utilities Commission.
LEGISLATIVE COUNSEL'S DIGEST
SB 611, as amended, Hill. Public Utilities Commission:
organization: proceedings.
The
(1) The California Constitution
establishes the Public Utilities Commission, with jurisdiction over
all public utilities, as defined. The California Constitution grants
the commission certain general powers over all public utilities,
subject to control by the Legislature, and authorizes the
Legislature, unlimited by the other provisions of the California
Constitution, to confer additional authority and jurisdiction upon
the commission, that is cognate and germane to the regulation of
public utilities. Existing law establishes the Division of
Ratepayer Advocates within the commission to represent the interests
of public utility customers and subscribers, with the goal of
obtaining the lowest possible rate for service consistent with
reliable and safe service levels. Existing law requires the Director
of the Division of Ratepayer Advocates to submit an annual budget to
the commission for final approval. Existing law requires the
Governor to designate the president of the commission from among its
members and requires the president to direct the executive director,
the attorney, and other staff of the commission, except for the
Division of Ratepayer Advocates, in accordance with commission
policies and guidelines. Existing law directs the consumer
protection and safety division of the commission to undertake certain
railroad safety and gas pipeline safety functions.
The bill would repeal the requirement that the president direct
the executive director, attorney, and other staff of the commission.
The bill would rename the Division of Ratepayer Advocates the
Office of Ratepayer Advocates, would authorize the office to seek
rehearings and judicial review of commission decisions, and would
require that the director of the office develop a budget for the
office that would be submitted to the Department of Finance for final
approval. The bill would change current statutory references from
the division of consumer protection and safety to the division of
safety and enforcement.
Existing
(2) Existing law authorizes the
attorney for the commission, if directed to do so by the president,
except as otherwise directed by vote of the commission, to intervene,
if possible, in any action or proceeding involving any question
arising pursuant to the Public Utilities Act. Existing law requires
the attorney for the commission to commence, prosecute, and expedite
the final determination of all actions and proceedings, and to
generally perform all duties and services as attorney to the
commission, as directed or authorized by the president, except as
otherwise directed or authorized by vote of the commission.
This bill would authorize the attorney for the commission, if
directed to do so by the commission, to intervene, if possible, in
any action or proceeding involving any question arising pursuant to
the Public Utilities Act. This bill would require the attorney for
the commission to commence, prosecute, and expedite the final
determination of all actions and proceedings, and to generally
perform all duties and services as attorney to the commission, as
directed or authorized by the commission. The bill would provide
that in carrying out his or her functions and duties, the attorney
is subject to the State Bar Act and the Rules of Professional Conduct
of the State Bar of California.
Existing
(3) Existing law requires the
executive director for the commission to keep a full and true record
of all proceedings of the commission, issue all necessary process,
writs, warrants, and notices, and perform such other duties as the
president, or vote of the commission, prescribes. Existing law
provides that the president may authorize the executive director to
dismiss complaints or applications when all parties are in agreement
thereto, in accordance with rules that the commission may prescribe.
This bill would require the executive director to keep a full and
true record of all proceedings of the commission, issue all necessary
process, writs, warrants, and notices, and perform the other duties
the commission prescribes. The bill would provide that the commission
may authorize the executive director to dismiss complaints or
applications when all parties are in agreement thereto, in accordance
with rules that the commission may prescribe.
The
(4) The California Constitution
authorizes the commission to establish its own procedures, subject to
statutory limitations or directions and constitutional requirements
of due process , and to establish rules for all public utilities
. Existing law provides for the appointment of
administrative law judges and the assigning of commissioners to
preside over cases before the commission and requires the commission,
to adopt procedures on the disqualification of administrative law
judges due to bias or prejudice similar to those of other state
agencies and superior courts.
This bill would require the commission to additionally
adopt procedures on the disqualification of commissioners due to bias
or prejudice similar to those of other state agencies and superior
courts. correct certain statutory references from the
commission adopting regulations to the commission adopting rules.
(5) Existing law requires the commission, by January 10 of each
year, to report to the Joint Legislative Budget Committee and
appropriate fiscal and policy committees of the Legislature on all
sources and amounts of funding and actual and proposed expenditures,
including any costs to ratepayers, related to specified entities or
programs established by the commission by order, decision, motion,
settlement, or other action, including, but not limited to, the
California Clean Energy Fund, the California Emerging Technology
Fund, and the Pacific Forest and Watershed Lands Stewardship Council,
and any entities or programs, other than those expressly authorized
by statute, that are established by the commission under specified
statutes.
This bill would prohibit the Public Utilities Commission, by
order, decision, motion, settlement, or other action from
establishing a nonstate entity, as defined. The bill would prohibit
the commission from entering into a contract with any nonstate entity
in which a person serves as an owner, director, or officer while
serving as a commissioner. The bill would provide that any contract
between the commission and a nonstate entity is void and ceases to
exist by operation of law, if a person who was a commissioner at the
time the contract was awarded, entered into, or extended, on or after
January 1, 2014, becomes an owner, director, or officer of the
nonstate entity while serving as a commissioner.
The California Constitution provides that the Legislature may
remove a commissioner of the Public Utilities Commission for
incompetence, neglect of duty, or corruption, 2/3 of the membership
of each house concurring.
This bill would provide that a commissioner who acts as an owner,
director, or officer of a nonstate entity that was established prior
to January 1, 2014, as a result of an order, decision, motion,
settlement, or other action by the commission in which the
commissioner participated, is negligent of his or her duty and may be
removed pursuant to the California Constitution.
Existing
(6) Existing law establishes
certain procedures that are applicable to adjudication, rulemaking
and ratesetting cases. Existing law requires the commission,
by regulation, to provide for peremptory challenges and challenges
for cause of an assigned administrative law judge in adjudication and
ratesetting cases and entitles parties to unlimited peremptory
challenges in any case in which the administrative law judge has,
within the previous 12 months, served in any capacity in an advocacy
position at the commission, been employed by a regulated public
utility, or has represented a party or has been a party of interest
in the case.
This bill would require the commission, by rule, to
provide for peremptory challenges and challenges for cause of an
assigned administrative law judge or assigned commissioner in
adjudication and ratesetting cases and entitles parties to unlimited
peremptory challenges in any case in which the administrative law
judge or assigned commissioner has, within the previous 12 months,
served in any capacity in an advocacy position at the commission,
been employed by a regulated public utility, or has represented a
party or has been a party of interest in the case. The bill would
prohibit an officer, employee, or agent of the commission
that is assigned to assist in the prosecution of, or to testify in,
an adjudication case, from participating in the decision of the case,
or in the decision of any factually related proceeding. The bill
would permit an officer, employee, or agent of the commission that is
assigned to assist in the prosecution of an adjudication case to
participate in reaching a settlement of the case, but would prohibit
the officer, employee, or agent from participating in the decision of
the commission to accept or reject the settlement, except as a
witness or counsel in an open hearing or a specified closed hearing.
(7) Existing law requires the commission to submit an annual
report on the number of cases where resolution exceeded the time
periods prescribed in scoping memos and the days that commissioners
presided in hearings.
This bill would additionally require the commission to include
data on the disposition of applications for rehearing in that report.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 305 of the Public Utilities Code is amended to
read:
305. The Governor shall designate a president of the commission
from among the members of the commission. The president shall preside
at all meetings and sessions of the commission.
SEC. 2. Section 307 of the Public Utilities Code is amended to
read:
307. (a) The commission may appoint as attorney to the commission
an attorney at law of this state, who shall hold office during the
pleasure of the commission. In carrying out his or her functions
and duties, the attorney shall be subject to the State Bar Act and
the Rules of Professional Conduct of the State Bar of California.
(b) The attorney shall represent and appear for the people of the
State of California and the commission in all actions and proceedings
involving any question under this part or under any order or act of
the commission. If directed to do so by the commission, the attorney
shall intervene, if possible, in any action or proceeding in which
any such question is involved.
(c) Except as provided in Section 1701.2, the attorney shall
commence, prosecute, and expedite the final determination of all
actions and proceedings directed or authorized by the commission,
advise the commission and each commissioner, when so requested, in
regard to all matters in connection with the powers and duties of the
commission and the members thereof, and generally perform all duties
and services as attorney to the commission that the
commission, commission may require of him
or her .
SEC. 3. Section 308 of the Public Utilities Code is amended to
read:
308. (a) The commission shall appoint an executive director, who
shall hold office during its pleasure. The executive director shall
be responsible for the commission's executive and administrative
duties and shall organize, coordinate, supervise, and direct the
operations and affairs of the commission and expedite all matters
within the commission's jurisdiction.
(b) The executive director shall keep a full and true record of
all proceedings of the commission, issue all necessary process,
writs, warrants, and notices, and perform such other duties as the
commission, prescribes. The commission may authorize the executive
director to dismiss complaints or applications when all parties are
in agreement thereto, in accordance with rules that the commission
may prescribe.
(c) The commission may appoint assistant executive directors who
may serve warrants and other process in any county or city and county
of this state.
SEC. 4. Section 309.6 of the Public Utilities
Code is amended to read:
309.6. (a) The commission shall adopt procedures on the
disqualification of administrative law judges and commissioners due
to bias or prejudice similar to those of other state agencies and
superior courts.
(b) The commission shall develop the procedures with the
opportunity for public review and comment.
SEC. 4. Section 309.5 of the Public
Utilities Code is amended to read:
309.5. (a) There is within the commission a Division
an Office of Ratepayer Advocates to represent
and advocate on behalf of the interests of public utility customers
and subscribers within the jurisdiction of the commission. The goal
of the division office shall be to
obtain the lowest possible rate for service consistent with reliable
and safe service levels. For revenue allocation and rate design
matters, the division office shall
primarily consider the interests of residential and small commercial
customers. The office may seek rehearing and judicial review of
commission decisions pursuant to Article 2 (commencing with Section
1731) and Article 3 (commencing with Section 1756) of Chapter 9.
(b) The director of the division office
shall be appointed by, and serve at the pleasure of, the
Governor, subject to confirmation by the Senate.
The director shall annually appear before the appropriate policy
committees of the Assembly and the Senate to report on the activities
of the division.
(c) The director shall develop a budget for the division
office which shall be subject to final approval
of the commission. In accordance with the approved budget,
the commission shall, by rule or order, provide for the assignment of
personnel to, and the functioning of, the division. The division may
employ experts necessary to carry out its functions. Personnel
Department of Finance. As authorized in the approved
budget, the office shall employ personnel and resources,
including attorneys and other legal support , shall be
provided by the commission to the division staff
at a level sufficient to ensure that customer and subscriber
interests are effectively represented in all significant proceedings.
The office may employ experts necessary to carry out its
functions. The director may appoint a lead attorney who shall
represent the division, office, and
shall report to and serve at the pleasure of the director. All
attorneys assigned by the commission to perform
performing services for the division
office shall report to and be directed by the lead
attorney appointed by the director.
(d) The commission shall develop appropriate procedures to ensure
that the existence of the division office
does not create a conflict of roles for any employee. The
procedures shall include, but shall not be limited to, the
development of a code of conduct and procedures for ensuring that
advocates and their representatives on a particular case or
proceeding are not advising decisionmakers on the same case or
proceeding.
(e) The division office may compel
the production or disclosure of any information it deems necessary to
perform its duties from any entity regulated by the commission,
provided that any objections to any request for information shall be
decided in writing by the assigned commissioner or by the
president of the commission, if there is no assigned
commissioner. The office shall have access, upon request, to all
information provided to the commission, a commissioner, or an
officer or person employed by the commission pursuant to Section 314.
(f) There is hereby created the Public Utilities Commission
Ratepayer Advocate Account in the General Fund. Moneys from the
Public Utilities Commission Utilities Reimbursement Account in the
General Fund shall be transferred in the annual Budget Act to the
Public Utilities Commission Ratepayer Advocate Account. The funds in
the Public Utilities Commission Ratepayer Advocate Account shall be
utilized exclusively by the division office
in the performance of its duties as determined by the director.
The director shall annually submit a staffing report containing a
comparison of the staffing levels for each five-year period.
(g) On or before January 10 of each year, the commission
office shall provide to the chairperson of the
fiscal committee of each house of the Legislature and to the Joint
Legislative Budget Committee all of the following information:
(1) The number of personnel years assigned to the
Division utilized during the prior year by the Office
of Ratepayer Advocates.
(2) The total dollars expended by the Division
Office of Ratepayer Advocates in the prior year, the
estimated total dollars expended in the current year, and the total
dollars proposed for appropriation in the following budget year.
(3) Workload standards and measures for the Division
Office of Ratepayer Advocates.
(h) The division office shall meet
and confer in an informal setting with a regulated entity prior to
issuing a report or pleading to the commission regarding alleged
misconduct, or a violation of a law or a commission rule or order,
raised by the division office in a
complaint. The meet and confer process shall be utilized in good
faith to reach agreement on issues raised by the division
office regarding any regulated entity in the
complaint proceeding.
SEC. 5. Section 309.7 of the Public
Utilities Code is amended to read:
309.7. (a) The division of the commission responsible for
consumer protection and safety and
enforcement shall be responsible for inspection, surveillance,
and investigation of the rights-of-way, facilities, equipment, and
operations of railroads and public mass transit guideways, and for
enforcing state and federal laws, regulations, orders, and directives
relating to transportation of persons or commodities, or both, of
any nature or description by rail. The consumer protection
and safety and enforcement division shall advise
the commission on all matters relating to rail safety, and shall
propose to the commission rules, regulations,
orders, and other measures necessary to reduce the dangers caused by
unsafe conditions on the railroads of the state. The delegation of
enforcement responsibility to the consumer protection and
safety and enforcement division shall not
diminish the power of other agencies of state government to enforce
laws relating to employee or environmental safety, pollution
prevention, or public health and safety.
(b) In performing its duties, the consumer protection and
safety and enforcement division shall exercise
all powers of investigation granted to the commission, including
rights to enter upon land or facilities, inspect books and records,
and compel testimony. The commission shall employ sufficient
federally certified inspectors to ensure at the time of inspection
that railroad locomotives and equipment and facilities located in
class I railroad yards in California are inspected not less
frequently than every 180 days, and all main and branch line tracks
are inspected not less frequently than every 12 months. In performing
its duties, the safety and enforcement division shall
consult with representatives of railroad corporations, labor
organizations representing railroad employees, and the Federal
Railroad Administration.
(c) The general counsel shall assign to the consumer
protection and safety and enforcement division
the personnel and attorneys necessary to fully utilize the powers
granted to the commission by any state law, and by any federal law
relating to rail transportation, including, but not limited to, the
Federal Rail Safety Act (45 U.S.C. Sec. 421m, et seq.), to enforce
safety laws, rules, regulations, and orders, and to collect fines and
penalties resulting from the violation of any safety rule or
regulation.
(d) The activities of the consumer protection and
safety and enforcement division that relate to
safe operation of common carriers by rail, other than those relating
to grade crossing protection, shall also be supported by the fees
paid by railroad corporations, if any, pursuant to Sections 421 to
424, inclusive. The activities of the consumer protection
and safety and enforcement division that relate
to grade crossing protection shall be supported by funds appropriated
therefor from the State Highway Account in the State Transportation
Fund. On or before November 30 of each year, the commission shall
report to the Legislature on the activities of the safety and
enforcement division, and shall fully document in the report
all expenditures of those funds in the audit report provided in
subdivision (f) of Section 421.
SEC. 6. Section 321.6 of the Public
Utilities Code is amended to read:
321.6. (a) The commission shall do all of the following:
(1) Develop, publish, and annually update an annual workplan that
describes in clear detail the scheduled ratemaking proceedings and
other decisions that may be considered by the commission during the
calendar year. The plan shall include, but is not limited to,
information on how members of the public and ratepayers can gain
access to the commission's ratemaking process and information
regarding the specific matters to be decided. The plan shall also
include information on the operation of the office of the public
adviser and identify the names and telephone numbers of those contact
persons responsible for specific cases and matters to be decided.
The plan shall also include a statement that specifies activities
that the commission proposes to reduce the costs of, and rates for,
energy, including electricity, and for improving the competitive
opportunities for state agriculture and other rural energy consumers.
The commission shall post the plan under the Official Documents area
of its Internet Web site and shall develop a program to disseminate
the information in the plan utilizing computer mailing lists to
provide regular updates on the information to those members of the
public and organizations which request that information.
(2) Produce a complete accounting of its transactions and
proceedings for the preceding year, together with other facts,
suggestions, and recommendations that it deems of value to the people
of the state and a statement that specifies the activities and
achievements of the commission in reducing the costs of, and rates
for, energy, including electricity, for state agriculture and other
rural energy consumers.
(3) Create a report on the number of cases where resolution
exceeded the time periods prescribed in scoping memos ,
information on the disposition of applications for rehearings,
and the days that commissioners presided in hearings.
(4) Submit annually the plan, accounting, and report required by
paragraphs (1), (2), and (3) to the Governor and Legislature no later
than February 1 of each year.
(b) The president of the commission shall annually appear before
the appropriate policy committees of the Senate and Assembly to
report on the annual workplan access guide of the commission required
pursuant to this section.
(c) The president of the commission shall annually appear before
the appropriate policy committees of the Senate and Assembly to
report on the annual report of the commission on the number of cases
where resolution exceeded the time periods prescribed in scoping
memos and the days that commissioners presided in hearings, pursuant
to Section 13 of Chapter 856 of the Statutes of 1996.
SEC. 7. Section 854.5 is added to the
Public Utilities Code , to read:
854.5. (a) For purposes of this section, a "nonstate entity"
means a company, corporation, partnership, firm, or other entity or
group of entities, whether organized for profit or not for profit.
(b) The commission, by order, decision, motion, settlement, or
other action shall not establish a nonstate entity. This subdivision
does not limit the authority of the commission to form an advisory
committee or other body whose budget is subject to oversight by the
commission and the Department of Finance.
(c) The commission shall not enter into a contract with a nonstate
entity in which a person serves as an owner, director, or officer
while serving as a commissioner. Any contract between the commission
and a nonstate entity shall be void and cease to exist by operation
of law, if a commissioner, who was a commissioner at the time the
contract was awarded, entered into, or extended, becomes, on or after
January 1, 2014, an owner, director, or officer of the nonstate
entity while serving as a commissioner.
(d) A commissioner who acts as an owner, director, or officer of a
nonstate entity that was established prior to January 1, 2014, as a
result of an order, decision, motion, settlement, or other action by
the commission in which the commissioner participated, is negligent
of his or her duty pursuant to Section 1 of Article XII of the
California Constitution, for which the commissioner may be removed
pursuant to that section.
SEC. 8. Section 958.5 of the Public
Utilities Code is amended to read:
958.5. (a) Twice a year, or as determined by the commission, each
gas corporation shall file with the commission's consumer
protection safety and enforcement division a gas
transmission and storage safety report. The consumer
protection safety and enforcement division shall
review the reports to monitor each gas corporation's storage and
pipeline-related activities to assess whether the projects that have
been identified as high risk are being carried out, and to track
whether the gas corporation is spending its allocated funds on these
storage and pipeline-related safety, reliability, and integrity
activities for which they have received approval from the commission.
(b) The gas transmission and storage safety report shall include a
thorough description and explanation of the strategic planning and
decisionmaking approach used to determine and rank the gas storage
projects, intrastate transmission line safety, integrity, and
reliability, operation and maintenance activities, and inspections of
its intrastate transmission lines. If there has been no change in
the gas corporation's approach for determining and ranking which
projects and activities are prioritized since the previous gas
transmission and storage safety report, the subsequent report may
reference the immediately preceding report.
(c) If the commission's consumer protection
safety and enforcement division determines that there is a
deficiency in a gas corporation's prioritization or administration
of the storage or pipeline capital projects or operation and
maintenance activities, the division shall bring the problems to the
commission's immediate attention.
SEC. 9. Section 1701.1 of the Public
Utilities Code is amended to read:
1701.1. (a) The commission, consistent with due process, public
policy, and statutory requirements, shall determine whether a
proceeding requires a hearing. The commission shall determine whether
the matter requires a quasi-legislative, an adjudication, or a
ratesetting hearing. The commission's decision as to the nature of
the proceeding shall be subject to a request for rehearing within 10
days of the date of that decision. If that decision is not appealed
to the commission within that time period it shall not be
subsequently subject to judicial review. Only those parties who have
requested a rehearing within that time period shall subsequently have
standing for judicial review and that review shall only be available
at the conclusion of the proceeding. The commission shall render its
decision regarding the rehearing within 30 days. The commission
shall establish regulations rules
regarding ex parte communication on case categorization issues.
(b) The commission upon initiating a hearing shall assign one or
more commissioners to oversee the case and an administrative law
judge where appropriate. The assigned commissioner shall schedule a
prehearing conference. The assigned commissioner shall prepare and
issue by order or ruling a scoping memo that describes the issues to
be considered and the applicable timetable for resolution.
(c) (1) Quasi-legislative cases, for purposes of this article, are
cases that establish policy, including, but not limited to,
rulemakings and investigations which may establish rules affecting an
entire industry.
(2) Adjudication cases, for purposes of this article, are
enforcement cases and complaints except those challenging the
reasonableness of any rates or charges as specified in Section 1702.
(3) Ratesetting cases, for purposes of this article, are cases in
which rates are established for a specific company, including, but
not limited to, general rate cases, performance-based ratemaking, and
other ratesetting mechanisms.
(4) "Ex parte communication," for purposes of this article, means
any oral or written communication between a decisionmaker and a
person with an interest in a matter before the commission concerning
substantive, but not procedural issues, that does not occur in a
public hearing, workshop, or other public proceeding, or on the
official record of the proceeding on the matter. "Person with an
interest," for purposes of this article, means any of the following:
(A) Any applicant, 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 commission.
(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 commission, 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 a commission member on a matter
before the commission.
The commission shall by regulation rule
adopt and publish a definition of decisionmakers and persons
for purposes of this section, along with any requirements for written
reporting of ex parte communications and appropriate sanctions for
noncompliance with any rule proscribing ex parte communications. The
regulation rule shall provide that
reportable communications shall be reported by the party, whether the
communication was initiated by the party or the decisionmaker.
Communications shall be reported within three working days of the
communication by filing a "Notice of Ex Parte Communication" with the
commission in accordance with the procedures established by the
commission for the service of that notice. The notice shall include
the following information:
(i) The date, time, and location of the communication, and whether
it was oral, written, or a combination.
(ii) The identity of the recipient and the person initiating the
communication, as well as the identity of any persons present during
the communication.
(iii) A description of the party's, but not the decisionmaker's,
communication and its content, to which shall be attached a copy of
any written material or text used during the communication.
SEC. 5. SEC. 10. Section 1701.2 of
the Public Utilities Code is amended to read:
1701.2. (a) If the commission pursuant to Section 1701.1 has
determined that an adjudication case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned commissioner or the assigned administrative law judge shall
hear the case in the manner described in the scoping memo. The
scoping memo shall designate whether the assigned commissioner or the
assigned administrative law judge shall preside in the case. The
commission shall provide by rule for peremptory challenges and
challenges for cause of the administrative law judge or
assigned commissioner . Challenges for cause shall include,
but not be limited to, financial interests and prejudice. The rule
shall provide that all parties are entitled to one peremptory
challenge of the assignment of the administrative law judge
and one peremptory challenge of the assigned commissioner
in all cases. All parties are entitled to unlimited peremptory
challenges in any case in which the administrative law judge
or the assigned commissioner has within the previous 12
months served in any capacity in an advocacy position at the
commission, been employed by a regulated public utility, or has
represented a party or has been a party of interest in the case. The
assigned commissioner or the administrative law judge shall prepare
and file a decision setting forth recommendations, findings, and
conclusions. The decision shall be filed with the commission and
served upon all parties to the action or proceeding without undue
delay, not later than 60 days after the matter has been submitted for
decision. The decision of the assigned commissioner or the
administrative law judge shall become the decision of the commission
if no further action is taken within 30 days. Any interested party
may appeal the decision to the commission, provided that the appeal
is made within 30 days of the issuance of the decision. The
commission may itself initiate a review of the proposed decision on
any grounds. The commission decision shall be based on the record
developed by the assigned commissioner or the administrative law
judge. A decision different from that of the assigned commissioner or
the administrative law judge shall be accompanied by a written
explanation of each of the changes made to the decision.
(b) No officer, employee, or agent of the commission that is
assigned to assist in the prosecution of, or to
testify in, or to supervise the prosecution of an
adjudication case before the commission , shall
participate in the decision of the case, or in the decision of any
factually related proceeding, including participation in or advising
the commission as to findings of fact, conclusions of law, or orders.
An officer, employee, or agent of the commission that is assigned to
assist in the prosecution of an adjudication case may participate in
reaching a settlement of the case, but shall not participate in the
decision of the commission to accept or reject the settlement, except
as a witness or counsel in an open hearing or a hearing closed
pursuant to subdivision (d). The Legislature finds that the
commission performs both prosecutorial and adjudicatory functions in
an adjudication case and declares its intent that an officer,
employee, or agent of the commission , including its attorneys,
may perform only one of those functions in any adjudication
case, or factually related proceeding.
(c) Ex parte communications shall be prohibited in adjudication
cases.
(d) Notwithstanding any other provision of law, the commission may
meet in a closed hearing to consider the decision that is being
appealed. The vote on the appeal shall be in a public meeting and
shall be accompanied with an explanation of the appeal decision.
(e) Adjudication cases shall be resolved within 12 months of
initiation unless the commission makes findings why that deadline
cannot be met and issues an order extending that deadline. In the
event that a rehearing of an adjudication case is granted the parties
shall have an opportunity for final oral argument.
(f)
(1) The commission may determine that the respondent lacks, or may
lack, the ability to pay potential penalties or fines or to pay
restitution that may be ordered by the commission.
(2) If the commission determines that a respondent lacks, or may
lack, the ability to pay, the commission may order the respondent to
demonstrate, to the satisfaction of the commission, sufficient
ability to pay potential penalties, fines, or restitution that may be
ordered by the commission. The respondent shall demonstrate the
ability to pay, or make other financial arrangements satisfactory to
the commission, within seven days of the commission commencing an
adjudication case. The commission may delegate to the attorney to the
commission the determination of whether a sufficient showing has
been made by the respondent of an ability to pay.
(3) Within seven days of the commission's determination of the
respondent's ability to pay potential penalties, fines, or
restitution, the respondent shall be entitled to an impartial review
by an administrative law judge, of the sufficiency of the showing
made by the respondent of the respondent's ability to pay. The review
by an administrative law judge of the ability of the respondent to
pay shall become part of the record of the adjudication and is
subject to the commission's consideration in its order resolving the
adjudication case. The administrative law judge may enter temporary
orders modifying any financial requirement made of the respondent
pending the review by the administrative law judge.
(4) A respondent that is a public utility regulated under a rate
of return or rate of margin regulatory structure or that has gross
annual revenues of more than one hundred million dollars
($100,000,000) generated within California is presumed to be able to
pay potential penalties or fines or to pay restitution that may be
ordered by the commission, and, therefore, paragraphs (1) to (3),
inclusive, do not apply to that respondent.
SEC. 6. SEC. 11. Section 1701.3 of
the Public Utilities Code is amended to read:
1701.3. (a) If the commission pursuant to Section 1701.1 has
determined that a ratesetting case requires a hearing, the procedures
prescribed by this section shall be applicable. The assigned
commissioner shall determine prior to the first hearing whether the
commissioner or the assigned administrative law judge shall be
designated as the principal hearing officer. The principal hearing
officer shall be present for more than one-half of the hearing days.
The decision of the principal hearing officer shall be the proposed
decision. An alternate decision may be issued by the assigned
commissioner or the assigned administrative law judge who is not the
principal hearing officer. The commission shall establish a procedure
for any party to request the presence of a commissioner at a
hearing. The assigned commissioner shall be present at the closing
arguments of the case. The principal hearing officer shall present
the proposed decision to the full commission in a public meeting. The
alternate decision, if any, shall also be presented to the full
commission at that public meeting. The alternate decision shall be
filed with the commission and shall be served on all parties
simultaneously with the proposed decision.
The presentation to the full commission shall contain a record of
the number of days of the hearing, the number of days that each
commissioner was present, and whether the decision was completed on
time.
(b) The commission shall provide by rule for peremptory challenges
and challenges for cause of the administrative law judge or
the assigned commissioner . Challenges for cause shall
include, but not be limited to, financial interests and prejudice.
All parties shall be entitled to unlimited peremptory challenges in
any case in which the administrative law judge or assigned
commissioner has, within the previous 12 months, served in
any capacity in an advocacy position at the commission, been employed
by a regulated public utility, or has represented a party or has
been a party of interest in the case.
(c) Ex parte communications are prohibited in ratesetting cases.
However, oral ex parte communications may be permitted at any time by
any commissioner if all interested parties are invited and given not
less than three days' notice. Written ex parte communications may be
permitted by any party provided that copies of the communication are
transmitted to all parties on the same day. If an ex parte
communication meeting is granted to any party, all other parties
shall also be granted individual ex parte meetings of a substantially
equal period of time and shall be sent a notice of that
authorization at the time that the request is granted. In no event
shall that notice be less than three days. The commission may
establish a period during which no oral or written ex parte
communications shall be permitted and may meet in closed session
during that period, which shall not in any circumstance exceed 14
days. If the commission holds the decision, it may permit ex parte
communications during the first half of the interval between the hold
date and the date that the decision is calendared for final
decision. The commission may meet in closed session for the second
half of that interval.
(d) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
(e) The commission may, in issuing its decision, adopt, modify, or
set aside the proposed decision or any part of the decision based on
evidence in the record. The final decision of the commission shall
be issued not later than 60 days after the issuance of the proposed
decision. Under extraordinary circumstances the commission may extend
this date for a reasonable period. The 60-day period shall be
extended for 30 days if any alternate decision is proposed pursuant
to Section 311.
SEC. 12. Section 1731 of the Public
Utilities Code is amended to read:
1731. (a) The commission shall set an effective date when issuing
an order or decision. The commission may set the effective date of
an order or decision prior to the date of issuance of the order or
decision.
(b) (1) After any order or decision has been made by the
commission, any party to the action or proceeding, including the
Office of Ratepayer Advocates, or any stockholder or
bondholder or other party pecuniarily interested in the public
utility affected, may apply for a rehearing in respect to any matters
determined in the action or proceeding and specified in the
application for rehearing. The commission may grant and hold a
rehearing on those matters, if in its judgment sufficient reason is
made to appear. No cause of action arising out of any order or
decision of the commission shall accrue in any court to any
corporation or person unless the corporation or person has filed an
application to the commission for a rehearing within 30 days after
the date of issuance or within 10 days after the date of issuance in
the case of an order issued pursuant to either Article 5 (commencing
with Section 816) or Article 6 (commencing with Section 851) of
Chapter 4 relating to security transactions and the transfer or
encumbrance of utility property.
(2) The commission shall notify the parties of the issuance of an
order or decision by either mail or electronic transmission.
Notification of the parties may be accomplished by one of the
following methods:
(A) Mailing the order or decision to the parties to the action or
proceeding.
(B) If a party to an action or proceeding consents in advance to
receive notice of any order or decision related to the action or
proceeding by electronic mail address, notification of the party may
be accomplished by transmitting an electronic copy of the official
version of the order or decision to the party if the party has
provided an electronic mail address to the commission.
(C) If a party to an action or proceeding consents in advance to
receive notice of any order or decision related to the action or
proceeding by electronic mail address, notification of the party may
be accomplished by transmitting a link to an Internet Web site where
the official version of the order or decision is readily available to
the party if the party has provided an electronic mail address to
the commission.
(3) For the purposes of this article, "date of issuance" means the
mailing or electronic transmission date that is stamped on the
official version of the order or decision
(c) No cause of action arising out of any order or decision of the
commission construing, applying, or implementing the provisions of
Chapter 4 of the Statutes of the 2001-02 First Extraordinary Session
that (1) relates to the determination or implementation of the
department's revenue requirements, or the establishment or
implementation of bond or power charges necessary to recover those
revenue requirements, or (2) in the sole determination of the
Department of Water Resources, the expedited review of order or
decision of the commission is necessary or desirable, for the
maintenance of any credit ratings on any bonds or notes of the
department issued pursuant to Division 27 (commencing with Section
80000) of the Water Code or for the department to meet its
obligations with respect to any bonds or notes pursuant to that
division, shall accrue in any court to any corporation or person
unless the corporation or person has filed an application with the
commission for a rehearing within 10 days after the date of issuance
of the order or decision. The Department of Water Resources shall
notify the commission of any determination pursuant to paragraph (2)
of this subdivision prior to the issuance by the commission of any
order or decision construing, applying, or implementing the
provisions of Chapter 4 of the Statutes of the 2001-02 First
Extraordinary Session. The commission shall issue its decision and
order on rehearing within 20 days after the filing of the
application.
SEC. 13. Section 1756 of the Public
Utilities Code is amended to read:
1756. (a) Within 30 days after the commission issues its decision
denying the application for a rehearing, or, if the application was
granted, then within 30 days after the commission issues its decision
on rehearing, or at least 120 days after the application is granted
if no decision on rehearing has been issued, any aggrieved party
, including the Office of Ratepayer Advocates, may petition
for a writ of review in the court of appeal or the Supreme Court for
the purpose of having the lawfulness of the original order or
decision or of the order or decision on rehearing inquired into and
determined. If the writ issues, it shall be made returnable at a time
and place specified by court order and shall direct the commission
to certify its record in the case to the court within the time
specified.
(b) The petition for review shall be served upon the executive
director and the general counsel of the commission either personally
or by service at the office of the commission.
(c) For purposes of this section, the issuance of a decision or
the granting of an application shall be construed to have occurred on
the date of issuance, as defined in paragraph (4)
(3) of subdivision (b) of Section 1731.
(d) The venue of a petition filed in the court of appeal pursuant
to this section shall be in the judicial district in which the
petitioner resides. If the petitioner is a business, venue shall be
in the judicial district in which the petitioner has its principal
place of business in California.
(e) Any party may seek from the Supreme Court, pursuant to
California Rules of Court, an order transferring related actions to a
single appellate district.
(f) For purposes of this section, review of decisions pertaining
solely to water corporations shall only be by petition for writ of
review in the Supreme Court, except that review of complaint or
enforcement proceedings may be in the court of appeal or the Supreme
Court.
(g) No order or decision arising out of a commission proceeding
under Section 854 shall be reviewable in the court of appeal pursuant
to subdivision (a) if the application for commission authority to
complete the merger or acquisition was filed on or before December
31, 1998, by two telecommunications-related corporations including at
least one which provides local telecommunications service to over
one million California customers. These orders or decisions shall be
reviewed pursuant to the Public Utilities Code in existence on
December 31, 1998.
SEC. 14. Section 5900 of the Public
Utilities Code is amended to read:
5900. (a) The holder of a state franchise shall comply with the
provisions of Sections 53055, 53055.1, 53055.2, and 53088.2 of the
Government Code, and any other customer service standards pertaining
to the provision of video service established by federal law or
regulation or adopted by subsequent enactment of the Legislature. All
customer service and consumer protection standards under this
section shall be interpreted and applied to accommodate newer or
different technologies while meeting or exceeding the goals of the
standards.
(b) The holder of a state franchise shall comply with provisions
of Section 637.5 of the Penal Code and the privacy standards
contained in Section 551 et seq. of Title 47 of the United States
Code.
(c) The local entity shall enforce all of the customer service and
protection standards of this section with respect to complaints
received from residents within the local entity's jurisdiction, but
it may not adopt or seek to enforce any additional or different
customer service or other performance standards under Section 53055.3
or subdivision (q), (r), or (s) of Section 53088.2 of the Government
Code, or any other authority or provision of law.
(d) The local entity shall, by ordinance or resolution, provide a
schedule of penalties for any material breach by a holder of a state
franchise of this section. No monetary penalties shall be assessed
for a material breach if it is out of the reasonable control of the
holder. Further, no monetary penalties may be imposed prior to
January 1, 2007. Any schedule of monetary penalties adopted pursuant
to this section shall in no event exceed five hundred dollars ($500)
for each day of each material breach, not to exceed one thousand five
hundred dollars ($1,500) for each occurrence of a material breach.
However, if a material breach of this section has occurred, and the
local entity has provided notice and a fine or penalty has been
assessed, and if a subsequent material breach of the same nature
occurs within 12 months, the penalties may be increased by the local
entity to a maximum of one thousand dollars ($1,000) for each day of
each material breach, not to exceed three thousand dollars ($3,000)
for each occurrence of the material breach. If a third or further
material breach of the same nature occurs within those same 12
months, and the local entity has provided notice and a fine or
penalty has been assessed, the penalties may be increased to a
maximum of two thousand five hundred dollars ($2,500) for each day of
each material breach, not to exceed seven thousand five hundred
dollars ($7,500) for each occurrence of the material breach. With
respect to video providers subject to a franchise or license, any
monetary penalties assessed under this section shall be reduced
dollar-for-dollar to the extent any liquidated damage or penalty
provision of a current cable television ordinance, franchise
contract, or license agreement imposes a monetary obligation upon a
video provider for the same customer service failures, and no other
monetary damages may be assessed.
(e) The local entity shall give the video service provider written
notice of any alleged material breach of the customer service
standards of this division and allow the video provider at least 30
days from receipt of the notice to remedy the specified material
breach.
(f) A material breach for the purposes of assessing penalties
shall be deemed to have occurred for each day within the jurisdiction
of each local entity, following the expiration of the period
specified in subdivision (e), that any material breach has not been
remedied by the video service provider, irrespective of the number of
customers or subscribers affected.
(g) Any penalty assessed pursuant to this section shall be
remitted to the local entity, which shall submit one-half of the
penalty to the Digital Divide Account established in Section 280.5.
(h) Any interested person may seek judicial review of a decision
of the local entity in a court of appropriate jurisdiction. For this
purpose, a court of law shall conduct a de novo review of any issues
presented.
(i) This section shall not preclude a party affected by this
section from utilizing any judicial remedy available to that party
without regard to this section. Actions taken by a local legislative
body, including a local franchising entity, pursuant to this section
shall not be binding upon a court of law. For this purpose, a court
of law shall conduct de novo review of any issues presented.
(j) For purposes of this section, "material breach" means any
substantial and repeated failure of a video service provider to
comply with service quality and other standards specified in
subdivision (a).
(k) The Division Office of Ratepayer
Advocates shall have authority to advocate on behalf of video
subscribers regarding renewal of a state-issued franchise and
enforcement of this section, and Sections 5890 and 5950. For this
purpose, the division office shall have
access to any information in the possession of the commission
subject to all restrictions on disclosure of that information that
are applicable to the commission.
SEC. 15. Section 7661 of the Public
Utilities Code is amended to read:
7661. (a) The commission shall require every railroad corporation
operating in this state to develop, within 90 days of the effective
date of the act adding this section, in consultation with, and with
the approval of, the California Emergency Management Agency
Office of Emergency Services , a protocol for
rapid communications with the agency, the Department of the
California Highway Patrol, and designated county public safety
agencies in an endangered area if there is a runaway train or any
other uncontrolled train movement that threatens public health and
safety.
(b) A railroad corporation shall promptly notify the
California Emergency Management Agency Office of
Emergency Services , the Department of the California Highway
Patrol, and designated county public safety agencies, through a
communication to the Warning Center of the California
Emergency Management Agency Office of Emergency
Services , if there is a runaway train or any other
uncontrolled train movement that threatens public health and safety,
in accordance with the railroad corporation's communications protocol
developed pursuant to subdivision (a).
(c) The notification required pursuant to subdivision (b) shall
include the following information, whether or not an accident or
spill occurs:
(1) The information required by subdivision (c) of Section 7673.
(2) In the event of a runaway train, a train list.
(3) In the event of an uncontrolled train movement or uncontrolled
movement of railcars, a track list or other inventory document if
available.
(d) The consumer protection and safety and
enforcement division shall investigate any incident that
results in a notification required pursuant to subdivision (b), and
shall report its findings concerning the cause or causes to the
commission. The commission shall include the division's report in its
report to the Legislature pursuant to Section 7711.