Bill Text: CA SB48 | 2015-2016 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Public Utilities Commission.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2016-04-25 - Last day to consider Governors veto pursuant to Joint Rule 58.5. [SB48 Detail]
Download: California-2015-SB48-Introduced.html
Bill Title: Public Utilities Commission.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2016-04-25 - Last day to consider Governors veto pursuant to Joint Rule 58.5. [SB48 Detail]
Download: California-2015-SB48-Introduced.html
BILL NUMBER: SB 48 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hill
DECEMBER 18, 2014
An act to amend Sections 305, 306, 307, 308, 309.6, 321.6, 1701,
1701.1, 1701.4, and 1759 of, and to add Section 1701.6 to, the Public
Utilities Code, relating to the Public Utilities Commission.
LEGISLATIVE COUNSEL'S DIGEST
SB 48, as introduced, Hill. 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
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, thereby requiring that they be directed or authorized to
undertake those actions by the commission. The bill would require the
commission to develop performance criteria for the commission and
the executive director and to annually evaluate the performance of
the executive director based on the criteria established in the
previous year.
(2) The Public Utilities Act provides that the office of the
commission be in the City and County of San Francisco, that the
office always be open, legal holidays and nonjudicial days excepted,
that the commission hold its sessions at least once in each calendar
month in the City and County of San Francisco, and authorizes the
commission to also meet at those other times and places as may be
expedient and necessary for the proper performance of its duties.
This bill would require that the commission hold its sessions at
least once in each calendar month in the City and County of San
Francisco or the City of Sacramento and would require that the
commission hold no less than 6 sessions each year in the City of
Sacramento.
(3) 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 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.
This bill would make the Administrative Adjudication Code of
Ethics applicable to adjudication hearings of the commission.
(4) 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, 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.
(5) The Public Utilities Act requires the commission to develop,
publish, and annually update an annual workplan that does all the
following: (a) describes in clear detail the scheduled ratemaking
proceedings and other decisions that may be considered by the
commission during the calendar year, (b) include 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, (c) 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, and (d) 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 act requires the commission to
submit the workplan to the Governor and Legislature by February 1 of
each year.
This bill would expand the requirement that the workplan describe
in clear detail the scheduled proceedings that may be considered by
the commission during the calendar year to include all proceedings
and not just ratemaking proceedings. The bill would additionally
require that the workplan include performance criteria for the
commission and executive director and evaluate the performance of the
executive director during the previous year based on the criteria
established in the prior year's workplan.
(6) The Public Utilities Act requires the commission to create,
and annually submit to the Governor and Legislature by February 1, a
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 delete the requirement that the report include the
number of cases where resolution exceeded the time periods
prescribed in scoping memos and instead would require the report to
describe the commission's timeliness in resolving cases and include
information on the disposition of applications for rehearings. The
bill would require that the report include the number of scoping
memos issued in each proceeding and to include the number of orders
issued extending the statutory deadlines for all adjudication,
ratesetting, and quasi-legislative cases.
(7) Existing law 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 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. Existing law requires the commission to permit
ex parte communications in quasi-legislative cases without
restriction.
This bill would revise the definition of an "ex parte
communication" to include communication between a decisionmaker and a
representative of the financial industry, even if the representative
does not have an interest in the matter. The bill would require that
the commission's definition of who is a "decisionmaker" include
commissioners, the executive director of the commission, and the
attorney of the commission. The bill would permit ex parte
communications in quasi-legislative proceedings only in the following
circumstances: (A) for oral ex parte communications if all
interested parties are invited and given not less than 3 days'
notice, (B) for written ex parte communications if copies of the
communication are transmitted to all parties on the same day, and (C)
if an ex parte communication meeting is granted to any party, all
other parties are required to be granted individual ex parte meetings
of a substantially equal period of time and not less than 3 days'
notice would be required to be sent of this right at the time that
the request is granted. The bill would make a violation of the ex
parte communications requirements punishable by a fine of not more
than $50,000 or by imprisonment for not more than one year in the
county jail, or by both fine and imprisonment. By creating a new
crime, the bill would impose a state-mandated local program. The bill
would require the commission to post all prepared written testimony
submitted in its formal proceedings on the commission's Internet Web
site.
(8) The California Constitution provides that the Legislature has
plenary power to establish the manner and scope of review of
commission action in a court of record. Existing law provides that
only the Supreme Court and the court of appeal have jurisdiction to
review, reverse, correct, or annul any order or decision of the
commission or to suspend or delay the execution or operation thereof,
or to enjoin, restrain, or interfere with the commission in the
performance of its official duties.
This bill would authorize an action to enforce the requirements of
the Bagley-Keene Open Meeting Act or the California Public Records
Act to be brought against the commission in the superior court.
(9) 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. (a) The Legislature finds and declares all of the
following:
(1) On June 3, 2014, California's Fourth District Court of Appeal,
in Disenhouse v. Peevey (2014) 226 Cal.App.4th 1096, held that an
interested person desiring to enforce the Bagley-Keene Open Meeting
Act against the Public Utilities Commission must do so by filing a
petition for writ of mandamus in the Supreme Court or the Court of
Appeal and may not do so by filing an action for injunctive relief in
the superior court.
(2) The intent of the Bagley-Keene Open Meeting Act is that
actions of state agencies be taken openly and that their deliberation
be conducted openly.
(3) The people's right to remain informed so that they may retain
control over the instruments of government that they have created is
not less of a right for some agencies than for other agencies, nor
shall the people's ability to enforce the Bagley-Keene Open Meeting
Act be more hampered for some agencies than for other agencies.
(4) The duties, responsibilities, and actions of the Public
Utilities Commission affect the well-being of current and future
generations and the public interest and principles of fundamental
fairness and due process of law require that the commission conduct
its affairs in an open, objective, and impartial manner, free of
undue influence and the abuse of power and authority.
(b) It is the intent of the Legislature that the Public Utilities
Commission should be subject to the judicial review provisions of the
Bagley-Keene Open Meeting Act.
SEC. 2. 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. 3. Section 306 of the Public Utilities Code is amended to
read:
306. (a) The office of the commission shall be in the City and
County of San Francisco. The office shall always be open, legal
holidays and nonjudicial days excepted. The commission shall hold its
sessions at least once in each calendar month in the City and County
of San Francisco or the City of Sacramento . The
commission may also meet at such other times and in such other places
as may be expedient and necessary for the proper performance of its
duties, and for that purpose may rent quarters or offices. The
commission shall hold no less than six sessions each year in the City
of Sacramento.
(b) The meetings of the commission shall be open and public in
accordance with the provisions of Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code.
In addition to the requirements of Section 11125 of the Government
Code, the commission shall include in its notice of meetings the
agenda of business to be transacted, and no item of business shall be
added to the agenda subsequent to the notice in the absence of an
unforeseen emergency situation. A rate increase shall not constitute
an unforeseen emergency situation. As used in this subdivision,
"meeting" shall include all investigations, proceedings, and showings
required by law to be open and public.
(c) The commission shall have a seal, bearing the inscription
"Public Utilities Commission State of California." The seal shall be
affixed to all writs and authentications of copies of records and to
such other instruments as the commission shall direct.
(d) The commission may procure all necessary books, maps, charts,
stationery, instruments, office furniture, apparatus, and appliances.
SEC. 4. 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 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. him or her.
SEC. 5. 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
any other duties as the president, or vote of the
commission, 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.
(d) The commission shall develop performance criteria for the
commission and the executive director and shall annually evaluate the
performance of the executive director based on the criteria
established in the previous year.
SEC. 6. Section 309.6 of the Public Utilities Code is amended to
read:
309.6. (a) The commission shall adopt procedures on the
disqualification of co mmissioners and
administrative law judges 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. 7. 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 plan shall also include performance
criteria for the commission and executive director and shall evaluate
the performance of the executive director during the previous year
based on the criteria established in the prior year's workplan.
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
describing the commission's timeliness in resol
ving cases, information on the disposition of applications for
rehearings, and the days that commissioners presided in
hearings. The report shall include the number of scoping memos
issued in each proceeding and the number of orders issued extending
the statutory deadlines pursuant to subdivision (d) of Section
1701.2, for all adjudication cases, and pursuant to subdivision (a)
of Section 1701.5, for all ratesetting or quasi-legislative cases.
(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 commission's timeliness in resolving
cases and the days that commissioners presided in
hearings, pursuant to Section 13 of Chapter 856 of the Statutes of
1996. hearings.
SEC. 8. Section 1701 of the Public Utilities Code is amended to
read:
1701. (a) All hearings, investigations, and proceedings shall be
governed by this part and by rules of practice and procedure adopted
by the commission, and in the conduct thereof the technical rules of
evidence need not be applied. No informality in any hearing,
investigation, or proceeding or in the manner of taking testimony
shall invalidate any order, decision or rule made, approved, or
confirmed by the commission.
(b) Notwithstanding Section 11425.10 of the Government Code,
Articles 1 through 15, inclusive, of Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of Title 2 of the
Government Code does do not apply to a
hearing by the commission under this code. The Administrative
Adjudication Code of Ethics (Article 16 (commencing with Section
11475) of Chapter 4.5) shall apply to adjudication proceedings of the
commission.
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 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 or a
representative of the financial industry 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 adopt and publish a definition
of decisionmakers and persons for purposes of this section,
which shall include commissioners, the executive director, and the
attorney to the commission, along with any requirements for
written reporting of ex parte communications and appropriate
sanctions , in addition to those described in Section 1701.6,
for noncompliance with any rule proscribing ex parte
communications. The regulation shall provide that reportable
communications shall be reported by the party,
party and the decisionmaker, whether the
communication was initiated by the party or the decisionmaker.
Communications shall be reported by the party 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.
(d) The commission shall post all prepared written testimony
submitted in its formal proceedings on its Internet Web site.
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 without
any restrictions. in quasi -legislative
cases, subject to the following:
(1) Oral ex parte communications may be permitted if all
interested parties are invited and given not less than three days'
notice.
(2) Written ex parte communications may be permitted if copies of
the communication are transmitted to all parties on the same day.
(3) 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
this right at the time that the request is granted. In no event
shall that notice be less than three days.
(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. 11. 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 of not more
than fifty thousand dollars ($50,000) or by imprisonment for not more
than one year in a county jail, or by both that fine and
imprisonment.
SEC. 12. Section 1759 of the Public Utilities Code is amended to
read:
1759. (a) No court of this state, except the Supreme Court and
the court of appeal, to the extent specified in this article, shall
have jurisdiction to review, reverse, correct, or annul any order or
decision of the commission or to suspend or delay the execution or
operation thereof, or to enjoin, restrain, or interfere with the
commission in the performance of its official duties, as provided by
law and the rules of court.
(b) The writ of mandamus shall lie from the Supreme Court and from
the court of appeal to the commission in all proper cases as
prescribed in Section 1085 of the Code of Civil Procedure.
(c) This section does not apply to an action brought against the
commission to enforce the requirements of the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2 of the Government Code) or the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code), which action
may be brought in the superior court.
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.
