BILL NUMBER: SB 660 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 7, 2015
AMENDED IN SENATE MAY 6, 2015
AMENDED IN SENATE APRIL 15, 2015
INTRODUCED BY Senators Leno and Hueso
FEBRUARY 27, 2015
An act to amend Sections 305, 307, 308, 309.6, 311,
1701.1, 1701.2, 1701.3, and 1701.4 of, and to add Sections
305.5 and 1701.6 305.5, 1701.6, and 1701.7 to,
the Public Utilities Code, relating to the Public Utilities
Commission.
LEGISLATIVE COUNSEL'S DIGEST
SB 660, as amended, Leno. Public Utilities Commission.
(1) The California Constitution establishes the Public Utilities
Commission, with jurisdiction over all public utilities. 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 Office of
Ratepayer Advocates. Existing law authorizes the executive director
and the attorney to undertake certain actions if directed or
authorized by the president, except as otherwise directed or
authorized by vote of the commission.
This bill would repeal the requirement that the president direct
the executive director, the attorney, and other commission staff. The
bill would delete the authority of the president to direct or
authorize the executive director and attorney to undertake certain
actions, and would instead require that they be directed or
authorized to undertake those actions by the commission. The bill
would authorize the commission to delegate specific management and
internal oversight functions to committees composed of 2
commissioners. The bill would require the commission to vote in an
open meeting on the assignment or reassignment of proceeding to one
or more commissioners.
(2) Existing law requires the commission, upon initiating a
hearing, to assign one or more commissioners to oversee the case and
an administrative law judge, where appropriate. Existing law requires
the assigned commissioner to prepare and issue, by order or ruling,
a scoping memo that describes the issues to be considered and the
applicable timetable for resolution. Existing law requires the
commission, 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 disqualification of commissioners due to bias or
prejudice similar to those of other state agencies and superior
courts. For ratesetting or adjudicatory proceedings, the bill would
require a commissioner or an administrative law judge to be
disqualified if there is an appearance of bias or prejudice based on
specified criteria. The bill would prohibit
require that the commission procedures from
authorizing prohibit a commissioner or
administrative law judge from ruling on a motion made by a party to a
proceeding to disqualify the commissioner or administrative law
judge due to bias or prejudice.
(3) The Public Utilities Act requires the commission to determine
whether a proceeding requires a hearing and, if so, to determine
whether the matter requires a quasi-legislative, an adjudication, or
a ratesetting hearing. For these purposes, quasi-legislative cases
are cases that establish policy rulemakings and investigations, which
may establish rules affecting an entire industry, adjudication cases
are enforcement cases and complaints, except those challenging the
reasonableness of any rates or charges, and ratesetting cases are
cases in which rates are established for a specific company,
including general rate cases, performance-based ratemaking, and other
ratesetting mechanisms. The act regulates communications in hearings
before the commission and defines "ex parte communication" to mean
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. Existing law defines
"person with an interest" to mean, among other things, a person with
a financial interest 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. Existing law requires the commission, by regulation, to
adopt and publish a definition of the terms "decisionmaker" and
"persons" for those purposes, along with any requirements for written
reporting of ex parte communications and appropriate sanctions for
noncompliance with any rule proscribing ex parte communications. The
act provides that ex parte communications are prohibited in
adjudication cases and are prohibited in ratesetting cases, with
certain exceptions. The act requires that ex parte communications be
permitted in quasi-legislative cases, without any restrictions. The
commission's Rules of Practice and Procedure define a "decisionmaker"
as any commissioner, the Chief Administrative Law Judge, any
Assistant Chief Administrative Law Judge, the assigned administrative
law judge, or the Law and Motion Administrative Law Judge. The Rules
of Practice and Procedure provide that communications with a
commissioners' commissioner's personal
advisors are subject to all of the restrictions on, and reporting
requirements applicable to, ex parte communications, except that oral
communications with an advisor in ratesetting proceedings are
permitted without the restrictions.
This bill would delete the provision that an ex parte
communication concerns a substantive, but not a procedural matter,
and instead would provide that an ex parte communication concerns any
matter that the commission has not specified in its Rules of
Practice and Procedure as being a procedural matter
that is an appropriate subject for ex parte communication. The bill
would require the commission to specify those procedural matters that
are appropriate subjects for ex parte communications in its Rules of
Practice and Procedure. matter. The bill would
prohibit the commission from considering as a procedural matter
communications between an interested person and a decisionmaker
regarding which commissioner or administrative law judge may be
assigned to a matter before the commission. The bill would
define a person involved in issuing credit ratings or advising
entities or persons who may invest in the shares or operations of any
party to a proceeding as a person with a financial
interest. an interested person. The bill would
require that the commission, by rule, adopt and publish a definition
of decisionmakers, that would be required to include each
commissioner, the attorney for the commission, the executive director
of the commission, the personal staff of each commissioner,
including each advisor to a commissioner, the administrative law
judge assigned to the proceeding, the director of the Energy
Division, the director of the Communications Division, the director
of the Water and Audits Division, and the director of the Safety and
Enforcement Division. certain individuals in the
commission. The bill would require communications
between a person with an interest who is not a party to a commission
proceeding and a decisionmaker to be reported by the decisionmaker
but would not require the communications to be reported by the person
with an interest who is not a party to a commission proceeding.
decisionmakers to periodically report summary logs of
ex parte communications with interested persons in compliance with
rules established by the commission, and included in the commission's
Rules of Practice and Procedure, and would require the commission to
post those summary logs on its Internet Web site.
This bill would require that a decisionmaker
decisionmaker, in an adjudication or ratesetting case, who
makes or receives a prohibited ex parte communication, or who
learns that a permissible receives an
ex parte communication that was not reported as
required, timely reported, to disclose
the content of certain information regarding the
communication in the record of the proceeding.
proceeding before the commission takes a vote on the matter.
The bill would require the commission to establish
rules for how to handle prohibited ex parte communications, including
rules requiring reporting the person initiating the communication
and whether the person persisted in continuing the communication
after being advised that the communication was prohibited.
The bill would require the commission to render decisions based
upon the record in a cas e and would provide that an
ex parte communication not be part of the record of any
proceeding and not be considered, or relied upon, for purposes of the
commission's resolution of contested issues. the
proceeding.
This bill would provide that ex parte communications are permitted
in quasi-legislative proceedings, but would require that they be
reported within 3 working days of the communication by filing a
"Notice of Ex Parte Communication" with the commission in accordance
with procedures established by the commission for the service of that
notice. notice and containing specified
information.
This bill would require the commission to additionally prohibit
communications concerning procedural issues in adjudication cases
between parties or persons with an interest and decisionmakers,
except for the assigned administrative law judge.
The
Under existing law, the exceptions to the prohibition
upon ex parte communications in ratesetting proceedings authorize a
commissioner to permit oral ex parte communications if all interested
parties are invited and given not less than 3 days' notice. If an ex
parte communication meeting is granted to any party, it is required
that all other parties also be granted individual ex parte meetings
of a substantially equal period of time and that all parties be sent
a notice of that authorization at the time the request is granted, at
least 3 days prior to the meeting. The exceptions authorize a
commissioner to permit written ex parte communications by any party
provided that copies of the communication are transmitted to all
parties.
This bill would delete the requirement that if an ex parte
communication meeting is granted to any party in a ratesetting
proceeding, that all other parties also be granted individual ex
parte meetings of a substantially equal period of time and that all
parties be sent a notice of that authorization at the time the
request is granted, at least 3 days prior to the meeting. The bill
would prohibit oral communications concerning procedural
issues matters in ratesetting cases between
parties or persons with an interest and decisionmakers other than the
assigned administrative law judge, except that a commissioner would
be authorized to permit an oral communication relative to procedural
issues matters if all interested
parties are invited and given not less than 3 days' notice. The bill
would prohibit written ex parte communications concerning procedural
issues matters in ratesetting cases
between parties or persons with an interest and decisionmakers other
than the assigned administrative law judge, except that a
commissioner would be authorized to permit a written communication
relative to procedural issues by any party provided that copies of
the communication are transmitted to all parties on the same day.
This bill would make any violation of the ex parte
communications requirements by any person punishable by an
unspecified fine or by imprisonment, or by both that fine and
imprisonment, thereby imposing a state-mandated local program by
creating new crimes. authorize the commission to
impose civil sanctions, including civil penalties, on any entity or
person, other than a decisionmaker or employee of the commission,
that violates ex parte communication requirements. The bill would
authorize the Attorney General to bring an enforcement action in the
Superior Court of the City and County of San Francisco against a
decisionmaker or employee of the commission who violates the ex parte
communication requirements.
Under existing law, a violation of the Public Utilities Act or any
order, decision, rule, direction, demand, or requirement of the
commission is a crime.
Because the provisions of this bill would be a part of the act and
because a violation of an order or decision of the commission
implementing its requirements would be a crime, the bill would impose
a state-mandated local program by expanding the application of a
crime.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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 305.5 is added to the Public Utilities Code, to
read:
305.5. (a) The commission shall direct the executive director,
the attorney, and other staff of the commission, except for the staff
of the Office of Ratepayer Advocates described in Section 309.5, in
performance of their duties.
(b) The commission may delegate specific management and internal
oversight functions to committees composed of two commissioners.
Committees shall meet regularly with staff and shall report to the
commission for additional guidance or approval of decisions
pertaining to the operations of the commission.
(c) The commission shall vote in an open meeting on the assignment
or reassignment of any proceeding to one or more commissioners.
SEC. 3. 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 commission, the attorney
shall intervene, if possible, in any action or proceeding in which
any such question is involved.
(c) 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 may require of him or her.
SEC. 4. 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 any 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. 5. Section 309.6 of the Public Utilities Code is amended to
read:
309.6. (a) The commission shall adopt procedures on the
disqualification of commissioners and administrative law judges due
to bias or prejudice similar to those of other state agencies and
superior courts.
(b) (1) For ratesetting and adjudicatory proceedings, a
commissioner or administrative law judge shall be disqualified if
there is an appearance of bias or prejudice based on any of the
following:
(A) Actions taken during the proceeding.
(B) Private communications before the commencement of the
proceeding to influence the request for relief sought by any party to
the proceeding.
(C) Actions demonstrating any commitment to provide relief to a
party.
(2) Past work experience by the commissioner or administrative law
judge shall not be a sufficient basis for demonstrating an
appearance of bias or prejudice pursuant to paragraph (1).
(c) The commission procedures shall not authorize
prohibit a commissioner or administrative law
judge to rule from ruling on a motion
made by a party to a proceeding to disqualify the commissioner or
administrative law judge due to bias or prejudice.
(d) The commission shall develop the procedures with the
opportunity for public review and comment.
SEC. 6. Section 311 of the Public
Utilities Code is amended to read:
311. (a) The commission, each commissioner, the executive
director, and the assistant executive directors may administer oaths,
certify to all official acts, and issue subpoenas for the attendance
of witnesses and the production of papers, waybills, books,
accounts, documents, and testimony in any inquiry, investigation,
hearing, or proceeding in any part of the state.
(b) The administrative law judges may administer oaths, examine
witnesses, issue subpoenas, and receive evidence, under rules that
the commission adopts.
(c) The evidence in any hearing shall be taken by the commissioner
or the administrative law judge designated for that purpose. The
commissioner or the administrative law judge may receive and exclude
evidence offered in the hearing in accordance with the rules of
practice and procedure of the commission.
(d) Consistent with the procedures contained in Sections 1701.1,
1701.2, 1701.3, and 1701.4, the assigned commissioner or the
administrative law judge shall prepare and file an opinion setting
forth recommendations, findings, and conclusions. The opinion of the
assigned commissioner or the administrative law judge is the proposed
decision and a part of the public record in the proceeding. The
proposed decision of the assigned commissioner or the administrative
law judge shall be filed with the commission and served upon all
parties to the action or proceeding without undue delay, not later
than 90 days after the matter has been submitted for decision. The
commission shall issue its decision not sooner than 30 days following
filing and service of the proposed decision by the assigned
commissioner or the administrative law judge, except that the 30-day
period may be reduced or waived by the commission in an unforeseen
emergency situation or upon the stipulation of all parties to the
proceeding or as otherwise provided by law. The commission may, in
issuing its decision, adopt, modify, or set aside the proposed
decision or any part of the decision. Where the modification is of a
decision in an adjudicatory hearing it shall be based upon the
evidence in the record. Every finding, opinion, and order made in the
proposed decision and approved or confirmed by the commission shall,
upon that approval or confirmation, be the finding, opinion, and
order of the commission.
(e) (1) Any item appearing on the commission'
s public agenda as an alternate item to a proposed decision or to a
decision subject to subdivision (g) shall be served upon all parties
to the proceeding without undue delay and shall be subject to public
review and comment before it may be voted upon. For purposes of this
subdivision, "alternate" means either a substantive revision to a
proposed decision that materially changes the resolution of a
contested issue or any substantive addition to the findings of fact,
conclusions of law, or ordering paragraphs. The commission shall
adopt rules that provide for the time and manner of review and
comment and the rescheduling of the item on a subsequent public
agenda, except that the item may not be rescheduled for consideration
sooner than 30 days following service of the alternative item upon
all parties. The alternate item shall be accompanied by a digest that
clearly explains the substantive revisions to the proposed decision.
The commission's rules may provide that the time and manner of
review and comment on an alternate item may be reduced or waived by
the commission in an unforeseen emergency situation.
(2) In a proceeding in which both a proposed decision and an
alternate have been served upon the parties and comments have been
received on the proposed decision or alternate, or both, if
substantive revisions are made to the proposed decision or alternate
that was previously served upon the parties and made available for
comment, the substantively revised proposed decision or substantively
revised alternate shall be served upon all parties to the proceeding
and shall be made publicly available on the commission's Internet
Web site, noted on the docket sheet for the proceeding, for not less
than five full working days prior to it being acted upon by the
commission. Any party to the proceeding or interested member of the
public may file comments with the commission addressing any
substantively revised aspect of the proposed decision or alternate
prior to it being acted upon by the commission.
(f) The commission may specify that the administrative law judge
assigned to a proceeding involving an electrical, gas, telephone,
railroad, or water corporation, or a highway carrier, initiated by
customer or subscriber complaint need not prepare, file, and serve an
opinion, unless the commission finds that to do so is required in
the public interest in a particular case.
(g) (1) Prior to voting on any commission decision not subject to
subdivision (d), the decision shall be served on parties and subject
to at least 30 days public review and comment. Any alternate to any
commission decision shall be subject to the same requirements as
provided for alternate decisions under subdivision (e). For purposes
of this subdivision, "decision" also includes resolutions, including
resolutions on advice letter filings.
(2) The 30-day period may be reduced or waived in an unforeseen
emergency situation, upon the stipulation of all parties in the
proceeding, for an uncontested matter in which the decision grants
the relief requested, or for an order seeking temporary injunctive
relief.
(3) This subdivision does not apply to uncontested matters that
pertain solely to water corporations, or to orders instituting
investigations or rulemakings, categorization resolutions under
Sections 1701.1 to 1701.4, inclusive, or orders authorized by law to
be considered in executive session. Consistent with regulatory
efficiency and the need for adequate prior notice and comment on
commission decisions, the commission may adopt rules, after notice
and comment, establishing additional categories of decisions subject
to waiver or reduction of the time period in this section.
(h) Notwithstanding any other provision of law, amendments,
revisions, or modifications by the commission of its Rules of
Practice and Procedure, shall be submitted to the Office of
Administrative Law for prior review in accordance with Sections
11349, 11349.3, 11349.4, 11349.5, 11349.6, and 11350.3 of, and
subdivisions (a) and (b) of Section 11349.1 of, the Government Code.
If the commission adopts an emergency revision to its Rules of
Practice and Procedure based upon a finding that the revision is
necessary for the preservation of the public peace, health and
safety, or general welfare, this emergency revision shall only be
reviewed by the Office of Administrative Law in accordance with
subdivisions (b) to (d), inclusive, of Section 11349.6 of the
Government Code. The emergency revision shall become effective upon
filing with the Secretary of State and shall remain in effect for no
more than 120 days. A petition for writ of review pursuant to Section
1756 of a commission decision amending, revising, or modifying its
Rules of Practice and Procedure shall not be filed until the
regulation has been approved by the Office of Administrative Law, the
Governor, or a court pursuant to Section 11350.3 of the Government
Code. If the period for filing the petition for writ of review would
otherwise have already commenced under Section 1733 or 1756 at the
time of that approval, then the period for filing the petition for
writ of review shall continue until 30 days after the date of that
approval. Nothing in this subdivision shall require the commission to
comply with Article 5 (commencing with Section 11346) of Chapter 3.5
of Part 1 of Division 3 of Title 2 of the Government Code. This
subdivision is only intended to provide for the Office of
Administrative Law review of procedural commission decisions relating
to commission Rules of Practice and Procedure, and not general
orders, resolutions, or other substantive regulations.
(i) The commission shall immediately notify the Legislature
whenever the commission reduces or waives the time period for public
review and comment due to an unforseen emergency situation, as
provided in subdivision (d), (e), or (g).
SEC. 6. SEC. 7. 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 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.
(d) (1) (A) "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 an interested person
concerning any matter that the commission has not specified
in its Rules of Practice and Procedure as being a
procedural matter that is an appropriate subject for ex
parte communication, and that does not occur in
a public hearing, workshop, or other public proceeding, or on the
official record of the proceeding on the matter. The commission shall
specify those procedural matters that are appropriate
subjects for ex parte communications in its Rules of
Practice and Procedure. "Person with an interest,"
Procedure, enacted by rulemaking, the types of communications
considered procedural matters under this article. Any communication
between an interested person and a decisionmaker regarding which
commissioner or administrative law judge may be assigned to a matter
before the commission s hall not be deemed to be a
procedural matter and shall be an ex parte communication subject to
this article.
(B) "Interested person," for
purposes of this article, means any of the following:
(A)
(i) Any applicant, an agent or an employee of the
applicant, or a person receiving consideration for representing the
applicant, or a participant in party to
the proceeding on any matter before the commission.
(B)
(ii) 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. A person involved in issuing credit ratings or
advising entities or persons who may invest in the shares or
operations of any party to a proceeding is a person with a financial
interest.
(C)
(iii) 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.
(iv) Other categories of individuals deemed by the commission, by
rule, to be an interested person.
(2) The commission shall by rule adopt and publish a definition of
decisionmakers and interested 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 definition of
decisionmakers shall include, but is not limited to, each
commissioner, commissioner; the attorney for the
commission, commission; the executive
director of the commission, commission;
the personal staff of each commissioner, including each
advisor to a commissioner, a commissioner if the staff
is acting in a policy or legal advisory capacity; the Chief
Administrative Law Judge of the commission; the administrative
law judge assigned to the proceeding,
proceeding; and the director of the Energy Division, the
director of the Communications Division, the director of the Water
and Audits Division, and the director of the Safety and Enforcement
Division. The Division, where those directors
are acting in an advisory capacity in the proceeding.
(3) For quasi-legislative cases, the
rules shall provide that reportable ex
parte communications that are required to be reported
shall be reported by the party,
interested person, whether the communication was initiated by
the party interested person or the
decisionmaker. However, communications between a person with
an interest who is not a party to a commission proceeding and a
decisionmaker shall be reported by the decisionmaker in accordance
with procedures established pursuant to this section and shall not be
required to be reported by the person with an interest who is not a
party to a commission proceeding. Communications
(4) For quasi-legislative cases, ex
parte communications shall be reported by an interested
person 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:
(A) The date, time, and location of the communication, whether it
was oral, written, or a combination, and the communications medium
utilized.
(B) The identity of the recipient and the
person initiating the communication, as well as the identity
of including a decisionmaker, when applicable, and
the identity of the recipient and any persons present during
the communication.
(C) A complete and comprehensive description of the
party's, but not the decisionmaker's,
interested person's and the decisionmaker's communication and
its content, to which shall be attached a copy of any written
material or text used during the communication.
(3) Any decisionmaker who makes or receives a prohibited ex parte
communication, or who learns that a permissible ex parte
communication was not reported pursuant to paragraph (2), shall
disclose the content of the communication in the record of the
proceeding. The commission shall establish rules for how to handle
prohibited ex parte communications, including rules requiring
reporting the person initiating the communication and whether the
person persisted in continuing the communication after being advised
that the communication was prohibited.
(4) An ex parte communication shall not be part of the record of
any proceeding and shall not be considered, or relied upon, for
purposes of the commission's resolution of contested issues.
(5) For adjudication and ratesetting cases, the rules shall
provide that if a prohibited ex parte communication occurs, whether
initiated by a decisionmaker or an interested person, all of the
following shall be required:
(A) The interested person participating in the communication shall
report the communication within one working day of the communication
by filing a Notice of Prohibited 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 information required by paragraph (4).
(B) A decisionmaker who participated in the prohibited
communication shall comply with both of the following:
(i) If the interested person who participated in the communication
has not timely submitted the Notice of Prohibited Ex Parte
Communication required by subparagraph (A), the decisionmaker shall
promptly prepare and file a "Decisionmaker's Notice of Prohibited 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 information required by
paragraph (4).
(ii) If the interested person has timely submitted the Notice of
Prohibited Ex Parte Communication required by subparagraph (A), the
decisionmaker shall review the interested person's submitted notice.
If the decisionmaker believes that the interested person's submitted
notice is not accurate or does not meet the requirements of paragraph
(4), the decisionmaker shall promptly file a notice that corrects or
supplements the interested person's submitted notice in accordance
with the procedures established by the commission for the service of
that notice. If the decisionmaker believes that the interested person'
s submitted notice is accurate and meets the requirements of
paragraph (4), the decisionmaker shall promptly file a notice that
indicates his or her concurrence with the interested person's
submitted notice in accordance with the procedures established by the
commission.
(6) The commission shall not take any vote on a matter to which a
prohibited ex parte communication is known to have occurred until the
notices required by this subdivision have been made and all parties
to the proceeding have been provided a reasonable opportunity to
respond to the prohibited ex parte communication.
(7) If the prohibited ex parte communication is not disclosed as
required by this subdivision until after the commission has issued a
decision on the matter to which the prohibited communication
pertained, the commission shall provide a reasonable time for a party
to file a petition to rescind or modify the decision. The commission
shall process the petition in accordance with the commission's
procedures for petitions for modification and shall issue a decision
on the petition no later than 180 days after the filing of the
petition.
(8) A decisionmaker shall periodically report summary logs of ex
parte communications with interested persons in compliance with rules
established by the commission to be included in its Rules of
Practice and Procedure. The commission shall post the summary logs on
its Internet Web site. A summary log, at a minimum, shall include
information required in paragraph (3) and in subparagraphs (A) and
(B) of paragraph (4) and the relevant proceedings discussed. If a
decisionmaker believes that a Notice of Ex Parte Communication
submitted by an interested person in a quasi-legislative case is
inaccurate or fails to meet the requirements of paragraphs (3) and
(4), the decisionmaker may include corrected or supplemental
information in the summary log and shall also provide notice of any
corrected or supplemental information in the proceeding to which it
pertains in accordance with the procedures established by the
commission for the service of that information. The commission shall
enable the posting of summary logs on its Internet Web site not later
than July 1, 2016.
(9) (A) Ex parte communications that occur at conferences,
including open session communications, shall be governed by the
provisions of this article and any rules adopted by the commission
pursuant to this article.
(B) Notwithstanding subparagraph (A), the commission may adopt
rules for inclusion in the commission's Rules of Practice and
Procedure specific to open session communications if the rules do
both of the following:
(i) Open session communications relating to a pending adjudication
case or a pending ratesetting case shall be prohibited.
(ii) Open session communications relating to a pending
quasi-legislative case may be permitted if the commission's rules
require that permitted open session communications are promptly
disclosed in the proceeding to which the communication relates
and require that parties to the
proceeding are allowed a reasonable opportunity to respond to the
communication before the commission may vote on any matter to which
the communication pertained.
(C) For purposes of this section, "open session communication"
means an ex parte communication made in a speech, comment, or writing
delivered to all attendees of a noticed session of a conference. All
other ex parte communications at a conference, including, but not
limited to, communications in a private setting or during meals,
entertainment events, tours, and informal discussions among
conference attendees, are not included in the definition of open
session communication.
(10) The commission shall render its decisions based on the
evidence in the record. Ex parte communications shall not be a part
of the record of the proceedings.
SEC. 7. SEC. 8. 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. 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 in all cases. All parties are entitled 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 an interested person 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) Notwithstanding Section 307, an officer, employee, or agent
of the commission that is personally involved in the prosecution or
in the supervision of the prosecution of an adjudication case before
the commission shall not participate in the decision of the case, or
in the decision of any factually related adjudicatory 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 personally involved in the
prosecution or in the supervision of 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 adjudicatory proceeding.
(c) (1) Ex parte communications shall be prohibited in
adjudication cases.
(2) Any oral or written communications concerning procedural
issues matters in adjudication cases
between parties or persons with an interest
interested persons and decisionmakers, except the assigned
administrative law judge, shall be prohibited.
(d) Notwithstanding any other 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. 8. SEC. 9. 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 for peremptory
challenges and challenges for cause of the administrative law judge.
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 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 an interested person in the
case.
(c) (1) Ex parte communications are prohibited in ratesetting
cases. However, oral ex parte
(A) Oral communications may be
permitted without any reporting obligation at any time by
any commissioner decisionmaker if all
interested parties are invited and given not less
than three working days' notice. Written ex parte
(B) Written ex parte
communications by any interested person may be permitted
by any party without any reporting
requirement provided that copies of the communication are
transmitted to all parties on the same day.
day as the original communication. Written ex parte communications
shall not be part of the record of the proceeding.
(2) Oral communications concerning procedural issues
a procedural matter in ratesetting cases between
parties or persons with an interest
interested persons and decisionmakers, except the assigned
administrative law judge, are prohibited, except that an oral
communication may be permitted at any time by any
commissioner decisionmaker if all
interested parties are invited and given not less than
three working days' notice.
(3) Written communications concerning procedural issues
a procedural matter in ratesetting cases between
parties or persons with an interest
interested persons and decisionmakers, except the assigned
administrative law judge, are prohibited, except that a
commissioner decisionmaker may permit a written
communication by any party if copies of the communication are
transmitted to all parties on the same day.
(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. 9. SEC. 10. Section 1701.4 of
the Public Utilities Code is amended to read:
1701.4. (a) If the commission pursuant to Section 1701.1 has
determined that a quasi-legislative case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned administrative law judge shall act as an assistant to the
assigned commissioner in quasi-legislative cases. The assigned
commissioner shall be present for formal hearings. The assigned
commissioner shall prepare the proposed rule or order with the
assistance of the administrative law judge. The assigned commissioner
shall present the proposed rule or order to the full commission in a
public meeting. The report shall include the number of days of
hearing and the number of days that the commissioner was present.
(b) Ex parte communications shall be permitted. Any ex parte
communication shall be reported within three working days of
the communication by filing a "Notice of Ex Parte Communication"
with the commission by an interested person in
accordance with subdivision (d) of Section 1701.1 and the
procedures established by the commission for the service of that
notice. No reporting shall be required for written ex parte
communications that are transmitted to all parties on the same day as
the original communication.
(c) 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.
(d) The commission may, in issuing its rule or order, adopt,
modify, or set aside the proposed decision or any part of the rule or
order. The final rule or order of the commission shall be issued not
later than 60 days after the issuance of the proposed rule or order.
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 rule or order is proposed pursuant to
Section 311.
SEC. 10 Section 1701.6 is added to the Public
Utilities Code, to read:
1701.6. A violation of the ex parte communications requirements
of this article by any person is punishable by a fine not to exceed
____, or by imprisonment, or by both that fine and imprisonment.
SEC. 11. Section 1701.6 is added to the
Public Utilities Code , to read:
1701.6. (a) In addition to any penalty, fine, or other punishment
applicable pursuant to Article 11 (commencing with Section 2100),
the commission may assess civil sanctions upon any entity or person,
other than a decisionmaker or employee of the commission, who
violates, fails to comply with, or procures, aids, or abets any
violation of, the ex parte communication requirements of this article
or those adopted by the commission pursuant to this article. The
civil sanctions may include civil penalties, adverse consequences in
commission proceedings, or other appropriate commission orders
directed at the entity, person, or both the entity and person,
committing the violation.
(b) (1) Except as provided in paragraph (2), a civil penalty
assessed shall not exceed fifty thousand dollars ($50,000) per
violation. Each day of a continuing violation is a separate
violation. If the violation consists of engaging in a communication
that is prohibited by the ex parte communication requirements, each
day that the violation is not disclosed to the commission and to
parties of record in the formal proceeding in which the communication
occurred shall constitute a separate violation. If the violation
consists of failing to file a required notice of a permissible ex
parte communication or filing a notice of a permissible ex parte
communication that is inaccurate or incomplete, each day that the
violation is not remedied shall constitute a separate violation.
(2) If the entity or person may obtain, by violating the ex parte
communication requirements, financial benefits that exceed the
maximum amount of civil penalty allowable pursuant to paragraph (1),
the commission may impose a civil penalty up to the amount of those
financial benefits.
(c) Civil penalties assessed pursuant to subdivision (b) upon
entities whose rates are determined by the commission shall be in the
form of credits to the customers of that entity. Civil penalties
collected from other entities shall be deposited in the General Fund.
(d) In determining the appropriate civil sanctions, the commission
shall consider the following factors:
(1) The severity of the violation.
(2) The conduct of the entity or person, including the level of
experience of the entity or person in participating in commission
proceedings.
(3) The financial resources of the entity or person.
(4) The totality of the circumstances in furtherance of the public
interest.
SEC. 12. Section 1701.7 is added to the
Public Utilities Code , to read:
1701.7. (a) The Attorney General may bring an enforcement action
in the Superior Court for the City and County of San Francisco
against a decisionmaker or employee of the commission who violates,
fails to comply with, or procures, aids, or abets any violation of,
the ex parte communication requirements in this article or those
adopted by the commission pursuant to this article. The court shall
expedite its review of the action to provide effective and timely
relief.
(b) (1) Notwithstanding Section 1759, in an enforcement action
brought pursuant to this section, the court may grant appropriate
relief, including disqualification of the decisionmaker from one or
more proceedings and civil penalties not to exceed fifty thousand
dollars ($50,000) for each violation.
(2) If the decisionmaker or employee may obtain, by violating the
ex parte communication requirements, financial benefits that exceed
the civil penalties provided in paragraph (1), the court may impose a
civil penalty up to the amount of those financial benefits.
(c) In determining the appropriate relief, the court may consider
the following factors:
(1) The severity of the violation.
(2) The conduct of the decisionmaker or employee, including
whether the decisionmaker or employee knowingly violated the ex parte
communication requirements.
(3) The financial resources of the decisionmaker or employee.
(4) The totality of the circumstances in furtherance of the public
interest.
(d) The Attorney General may compromise the enforcement action
subject to approval by the court.
(e) Civil penalties collected pursuant to this section shall be
deposited into the Litigation Deposits Fund established pursuant to
Article 9 (commencing with Section 16425) of Chapter 2 of Part 2 of
Division 4 of Title 2 of the Government Code.
SEC. 11. SEC. 13. No reimbursement
is required by this act pursuant to Section 6 of Article XIII B of
the California Constitution because the only costs that may be
incurred by a local agency or school district will be incurred
because this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.