Bill Text: CA SB215 | 2015-2016 | Regular Session | Chaptered
Bill Title: Public Utilities Commission.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2016-09-29 - Chaptered by Secretary of State. Chapter 807, Statutes of 2016. [SB215 Detail]
Download: California-2015-SB215-Chaptered.html
BILL NUMBER: SB 215 CHAPTERED
BILL TEXT
CHAPTER 807
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2016
APPROVED BY GOVERNOR SEPTEMBER 29, 2016
PASSED THE SENATE AUGUST 25, 2016
PASSED THE ASSEMBLY AUGUST 22, 2016
AMENDED IN ASSEMBLY AUGUST 18, 2016
AMENDED IN ASSEMBLY AUGUST 3, 2016
AMENDED IN ASSEMBLY AUGUST 1, 2016
AMENDED IN ASSEMBLY JUNE 20, 2016
AMENDED IN ASSEMBLY MAY 23, 2016
AMENDED IN SENATE JANUARY 4, 2016
AMENDED IN SENATE APRIL 15, 2015
INTRODUCED BY Senators Leno and Hueso
FEBRUARY 12, 2015
An act to amend Sections 309.6, 1701.1, 1701.2, 1701.3, 1701.4,
and 1701.5 of, and to add Sections 1701.6 and 1701.7 to, the Public
Utilities Code, relating to the Public Utilities Commission.
LEGISLATIVE COUNSEL'S DIGEST
SB 215, 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.
Existing law requires the commission, upon initiating a hearing, to
assign one or more commissioners to oversee the case and an
administrative law judge, when appropriate. 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. For ratesetting or adjudicatory proceedings, the bill would
require a commissioner or an administrative law judge to be
disqualified for bias or prejudice based on specified criteria. The
bill would prohibit commission procedures from authorizing a
commissioner or administrative law judge to rule on a motion made by
a party to a proceeding to disqualify the commissioner or
administrative law judge due to bias or prejudice.
(2) 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, adjudication, or
ratesetting hearing. Existing law regulates communications in matters
before the commission and defines an "ex parte communication" as 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 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 and ratesetting cases, with certain
exceptions. The act requires that ex parte communications be
permitted in quasi-legislative cases, without any restrictions.
This bill would recast the laws relating to ex parte
communications in regard to commission proceedings.
(3) The Political Reform Act of 1974 (PRA) provides for the
regulation of the lobbying industry, including defining the term
"lobbyist" and regulating the conduct of lobbyists.
This bill would state that it is the intent of the Legislature
that the commission, and any entity or person seeking to influence
actions taken by the commission, be subject to all applicable ethical
standards, including any applicable obligations under the PRA,
including applicable lobbying obligations.
(4) 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.
(5) 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 for
bias or prejudice based on either of the following:
(A) Actions taken during the proceeding that demonstrate bias or
prejudice.
(B) Actions taken outside the public record of a proceeding
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 bias or
prejudice pursuant to paragraph (1).
(c) The commission procedures shall not authorize a commissioner
or administrative law judge to rule 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. 2. Section 1701.1 of the Public Utilities Code is amended to
read:
1701.1. (a) The commission shall determine whether each
proceeding is a quasi-legislative, an adjudication, or a ratesetting
proceeding and, consistent with due process, public policy, and
statutory requirements, determine whether the proceeding requires a
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 or of any subsequent ruling that expands the
scope of the proceeding. 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 an adjudication proceeding or
ratesetting proceeding, shall assign one or more commissioners to
oversee the case and an administrative law judge when 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. The administrative law judge
shall either preside over and conduct, or assist the assigned
commissioner or commissioners in presiding over and conducting, any
evidentiary or adjudication hearing that may be required.
(c) The commission, upon initiating a quasi-legislative
proceeding, shall assign one or more commissioners to oversee the
case and an administrative law judge, when appropriate, who may be
assisted by a technical advisory staff member in conducting the
proceeding. 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.
(d) (1) Quasi-legislative cases, for purposes of this article, are
cases that establish policy, including, but not limited to,
rulemakings and investigations that 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.
(e) (1) (A) "Ex parte communication," for purposes of this
article, means any oral or written communication between a
decisionmaker and an interested person concerning any matter before
the commission that the commission has not specified in its Rules of
Practice and Procedure as being a procedural matter 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 in its Rules of Practice and Procedure,
enacted by rulemaking, the types of issues considered procedural
matters under this article.
(B) "Interested person," for purposes of this article, means any
of the following:
(i) 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.
(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, 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 invest in the shares or operations of any
party to a proceeding is a person with a financial interest.
(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 article,
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; the personal staff of a commissioner if the staff is
acting in a policy or legal advisory capacity; the chief
administrative law judge of the commission; and the administrative
law judge assigned to the proceeding. The commission shall, by rule,
explicitly ban both of the following:
(A) The practice of one-way ex parte communications from a
decisionmaker to an interested person.
(B) 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.
(3) For adjudication cases, the rules shall provide that ex parte
communications shall be prohibited, as required by this article. The
rules shall provide that if an ex parte communication occurs that is
prohibited by this article, or if an ex parte communication occurs in
a ratesetting case, whether initiated by a decisionmaker or an
interested person, all of the following shall be required:
(A) The interested person shall report the communication within
three working days of the communication by filing a notice with the
commission that includes all the following:
(i) The date, time, and location of the communication, whether the
communication was oral or written, or a combination of both, and the
communication medium used.
(ii) The identity of the decisionmaker, the identity of the person
initiating the communication, and the identities of any other
persons present.
(iii) The topic of the communication, including applicable
proceeding numbers.
(iv) A substantive description of the interested person's
communication and its content.
(v) A copy of any written material or text used during the
communication.
(B) Any decisionmaker who participated in the communication shall
promptly log the ex parte communication by filing a notice that
includes all the following:
(i) The date, time, and location of the communication, whether the
communication was oral or written, or a combination of both, and the
communication medium used.
(ii) The identity of the interested person, the identity of the
person initiating the communication, and the identities of any other
persons present.
(iii) The topic of the communication, including any applicable
proceeding numbers.
(iv) A brief description of the communication.
(C) If the interested person who participated in the communication
has not timely submitted the notice required by subparagraph (A),
the decisionmaker shall refer the matter to the attorney for the
commission, and an assigned commissioner, by ruling, shall order the
interested person to submit the required notice. The interested
person shall be subject to any applicable penalties for the initial
violation and, if the interested person does not submit the required
notice within the time period specified in the assigned commissioner'
s ruling, the interested person shall be subject to continuing
violations pursuant to Section 2108.
(4) The requirements of paragraph (3) shall not apply to any oral
ex parte communication occurring at a meeting if all parties are
invited to participate and given not less than three working days'
notice.
(5) The commission shall not take any vote on a matter in which a
notice of a prohibited ex parte communication has been filed pursuant
to subparagraph (A) or (B) of paragraph (3) until all parties to the
proceeding have been provided a reasonable opportunity to respond to
the communication.
(6) If an 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 communication pertained, a party not
participating in the communication may file a petition to rescind or
modify the decision. The party may seek a finding that the ex parte
communication significantly influenced the decision's process or
outcome as part of any 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.
(7) (A) Ex parte communications that occur at conferences and that
are within the scope of an adjudication or ratesetting proceeding
shall be subject to the requirements of this article.
(B) Ex parte communications that occur at conferences and that are
within the scope of a quasi-legislative proceeding shall be governed
by the ex parte communication disclosure requirements developed by
the commission.
(C) For purposes of this section, "ex parte communications that
occur at conferences" includes, but is not limited to, communications
in a private setting or during meals, entertainment events, and
tours, and informal discussions among conference attendees.
(8) The commission shall render its decisions based on the law and
on the evidence in the record. Ex parte communications shall not be
a part of the evidentiary record of the proceedings.
(f) The commission may meet in a closed session to discuss
administrative matters so long as no collective consensus is reached
or vote taken on any matter requiring a vote of the commissioners.
The commission shall, by rule, adopt and publish a definition of
"administrative matters" for purposes of this section.
(g) The commission shall permit written comments received from the
public to be included in the record of its proceedings, but the
comments shall not be treated as evidence. The commission shall
provide parties to the proceeding a reasonable opportunity to respond
to any public comments included in the record of proceedings.
(h) It is the intent of the Legislature that the commission, and
any entity or person seeking to influence actions taken by the
commission, shall be subject to all applicable ethical standards,
including any applicable obligations under the Political Reform Act
of 1974 (Title 9 (commencing with Section 81000) of the Government
Code), including, but not limited to, any applicable lobbying
obligations.
SEC. 3. Section 1701.2 of the Public Utilities Code is amended to
read:
1701.2. (a) This section shall apply to adjudication cases only.
(b) If the commission pursuant to subdivision (a) of Section
1701.1 has determined that an adjudication case requires a hearing,
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.
(c) 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 an interested
person in the case.
(d) 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 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.
(e) The commission's decision shall be supported by findings of
fact on all issues material to the decision, and the findings of fact
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.
(f) 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 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 (h). 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.
(g) (1) Ex parte communications shall be prohibited in
adjudication cases.
(2) Any oral or written communications concerning procedural
matters in adjudication cases between interested persons and
decisionmakers, except the assigned administrative law judge, shall
be prohibited.
(h) 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.
(i) 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.
(j) (1) The commission may determine that the respondent lacks, or
may lack, the ability to pay potential penalties, fines, or
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, fines, or restitution that may be ordered by
the commission, and, therefore, paragraphs (1) to (3), inclusive, do
not apply to that respondent.
SEC. 4. Section 1701.3 of the Public Utilities Code is amended to
read:
1701.3. (a) This section shall apply only to ratesetting cases,
except, if the commission pursuant to Section 1701.1 has determined
that a ratesetting case does not require a hearing, the procedures
prescribed by subdivisions (b), (d), (f), and (i) shall not apply.
(b) 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.
(c) An alternate decision may be issued by the assigned
commissioner or the assigned administrative law judge who is not the
principal hearing officer. Any alternate decision may be filed with
the commission and served upon all parties to the proceeding any time
prior to issuance of a final decision by the commission, consistent
with the requirements of Section 311.
(d) 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 any closing arguments in the case.
(e) 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.
(f) 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.
(g) 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. 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 an interested person
in the case.
(h) (1) Ex parte communications in ratesetting cases are subject
to the disclosure requirements of this article. The commission, by
order or ruling, may prohibit ex parte communications in a
ratesetting case.
(2) Oral communications may be permitted by a decisionmaker if all
parties are given not less than three working days' notice. No
individual ex parte meetings shall be held during the three business
days before the commission's scheduled vote on the decision.
(3) (A) If an ex parte communication meeting is granted to any
party, all other parties, upon request, shall also be granted
individual ex parte meetings of a substantially equal period of time
and shall be sent a notice of that opportunity at the time the
request is granted.
(B) Subparagraph (A) shall not apply if the decisionmaker
participating in the ex parte communication meeting is a member of
the personal staff of a commissioner acting in a policy or legal
advisory capacity and no other decisionmaker to whom subparagraph (A)
applies is a participant.
(4) Written ex parte communications by any interested person may
be permitted if copies of the communication are transmitted to all
parties on the same day as the original communication.
(5) Written and oral ex parte communications shall not be part of
the evidentiary record of the proceeding.
(6) The commission may establish a period during which no oral or
written ex parte communications may be permitted and the commission
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.
(i) 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.
(j) 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. 5. Section 1701.4 of the Public Utilities Code is amended to
read:
1701.4. (a) This section shall apply only to quasi-legislative
cases, except, if the commission pursuant to Section 1701.1 has
determined that a quasi-legislative case does not require a hearing,
the procedures prescribed by subdivisions (b), (d), and (e) shall not
apply.
(b) The assigned administrative law judge and any assigned
technical advisory staff shall act as an assistant to the assigned
commissioner in quasi-legislative cases. The assigned commissioner
shall prepare the proposed rule or order with the assistance of the
administrative law judge and any assigned technical advisory staff.
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.
(c) Ex parte communications in quasi-legislative proceedings are
permitted and not subject to the disclosure requirements of this
article, except when the commission, by order or ruling, determines
either of the following:
(1) That ex parte communications are subject to the disclosure
requirements of this article.
(2) That ex parte communications are prohibited and subject to the
disclosure requirements of this article.
(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 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.
(f) No informality in the manner of taking testimony or evidence
shall invalidate any order, decision, or rule made, approved, or
confirmed by the commission in quasi-legislative cases.
SEC. 6. Section 1701.5 of the Public Utilities Code is amended to
read:
1701.5. (a) Except as specified in subdivision (b), in a
ratesetting or quasi-legislative case, the commission shall resolve
the issues raised in the scoping memo within 18 months of the date
the proceeding is initiated, unless the commission makes a written
determination that the deadline cannot be met, including findings as
to the reason, and issues an order extending the deadline.
(b) Notwithstanding subdivision (a), the commission may specify in
a scoping memo a resolution date later than 18 months from the date
the proceeding is initiated, if that scoping memo includes specific
reasons for the necessity of a later date and the commissioner
assigned to the case approves the date.
SEC. 7. 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 Chapter 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.
(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 into 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 and whether the entity or person knowingly violated the
ex parte communication requirements.
(3) The financial resources of the entity or person.
(4) The totality of the circumstances in furtherance of the public
interest.
SEC. 8. Section 1701.7 is added to the Public Utilities Code, to
read:
1701.7. (a) The Attorney General may bring an enforcement action
in superior court against a decisionmaker or employee of the
commission who knowingly and willfully 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.
(b) 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 as provided in Section 2111.
(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.
(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. 9. 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.
