BILL NUMBER: SB 611 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hill
FEBRUARY 22, 2013
An act to amend Sections 305, 307, 308, 309.6, 1701.2, and 1701.3
of the Public Utilities Code, relating to the Public Utilities
Commission.
LEGISLATIVE COUNSEL'S DIGEST
SB 611, as introduced, Hill. Public Utilities Commission:
organization: proceedings.
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 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.
The bill would repeal the requirement that the president direct
the executive director, attorney, and other staff of the commission.
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.
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 California Constitution authorizes the commission to establish
its own procedures, subject to statutory limitations or directions
and constitutional requirements of due process. 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.
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.
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 direct the executive director, the attorney, and other staff of
the commission, except for the staff of the division described in
Section 309.5, in the performance of their duties, in accordance with
commission policies and guidelines. 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.
(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 president,
except as otherwise directed by vote of the commission, the
attorney shall intervene, if possible, in any action or proceeding
in which any such question is involved.
(c) The 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 president, except as otherwise
directed or authorized by vote of 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
president, or vote of the commission, may require of him.
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 president, or vote of the commission,
prescribes. The president 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. 5. 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 regulation 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 regulation 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, an
adjudication case, 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 may
perform only one of those functions in any adjudication case, or
factually related proceeding.
(b)
(c) Ex parte communications shall be prohibited in
adjudication cases.
(c)
(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.
(d)
(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.
(e)
(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. 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 regulation
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.