Bill Text: FL S0172 | 2012 | Regular Session | Introduced
Bill Title: Public Service Commission
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2012-03-09 - Died in Communications, Energy, and Public Utilities [S0172 Detail]
Download: Florida-2012-S0172-Introduced.html
Florida Senate - 2012 SB 172 By Senator Fasano 11-00096-12 2012172__ 1 A bill to be entitled 2 An act relating to the Public Service Commission; 3 amending s. 350.041, F.S.; revising the standards of 4 conduct for commissioners of the Public Service 5 Commission; requiring that commissioners observe and 6 abide by the Code of Judicial Conduct while conducting 7 docketed proceedings; providing for statutory 8 preemption; providing for penalties; amending s. 9 350.042, F.S.; deleting references to “ex parte 10 communications” and replacing such references with 11 “prohibited communications”; providing definitions; 12 prohibiting a commissioner or the commissioner’s 13 direct reporting staff from initiating, engaging in, 14 or considering prohibited communications in any 15 proceeding other than an undocketed workshop or an 16 internal affairs meeting; prohibiting any individual 17 from discussing any matter with a commissioner or the 18 commissioner’s direct reporting staff which the 19 individual reasonably foresees will be filed with the 20 commission; requiring that any communication between a 21 commissioner or the commissioner’s direct reporting 22 staff and a representative of a utility be made 23 available to the public; requiring that any 24 communication be posted on the commission’s website 25 within a specified time after the communication is 26 made or received; requiring that the commission post 27 on its website a copy of written communications 28 received by the commission; requiring that the 29 commission prepare a written summary of certain 30 communications and post such summary on its website 31 within a specified time after the communication is 32 made or received; requiring that notice be posted on 33 the commission’s website a minimum number of hours 34 before the occurrence of any meeting, telephone 35 conference call, or written communication between a 36 commissioner or the commissioner’s direct reporting 37 staff; authorizing the Office of Public Counsel to 38 participate in such communications for limited 39 purposes; providing an exception for certain 40 commission staff or industry representatives; 41 providing that the restrictions on prohibited 42 communications apply to communications made to or from 43 the Governor, a member of the Cabinet, or a member of 44 the Legislature; providing penalties for commissioners 45 or members of a commissioner’s direct reporting staff 46 who fail to report certain communications; providing 47 that a civil penalty may be assessed against the 48 regulated entity represented by a person who makes a 49 prohibited communication; amending s. 350.0605, F.S.; 50 prohibiting former commissioners and members of a 51 commissioner’s direct reporting staff from lobbying 52 the legislative or executive branch of state 53 government on behalf of any client or industry 54 regulated by the commission for 4 years after 55 termination of service or employment with the 56 commission; defining the term “commissioner’s direct 57 reporting staff”; prohibiting any former 58 commissioner’s direct reporting staff from appearing 59 before the commission representing any client or 60 industry regulated by the commission for 4 years after 61 termination of employment with the commission; 62 providing that such prohibitions apply to 63 commissioners and their direct reporting staff who are 64 appointed or reappointed to or who terminate their 65 employment with the commission on or after a specified 66 date; prohibiting a former commissioner or member of a 67 commissioner’s direct reporting staff from accepting 68 employment by or compensation from certain entities 69 regulated by the commission for a period of 4 years 70 after termination of service or employment with the 71 commission; providing that the prohibition applies to 72 former commissioners and members of a commissioner’s 73 direct reporting staff who are appointed or 74 reappointed to or hired with the commission on or 75 after a specified date; amending s. 350.061, F.S.; 76 extending reconfirmation intervals for the Public 77 Counsel from biennially to every 4 years; providing an 78 effective date. 79 80 Be It Enacted by the Legislature of the State of Florida: 81 82 Section 1. Paragraph (j) is added to subsection (2) of 83 section 350.041, Florida Statutes, to read: 84 350.041 Commissioners; standards of conduct.— 85 (2) STANDARDS OF CONDUCT.— 86 (j) Each commissioner shall observe and abide by the Code 87 of Judicial Conduct as adopted by the Supreme Court in docketed 88 proceedings before the Public Service Commission. If any canon 89 of the Code of Judicial Conduct is in direct conflict with a 90 statutory provision that applies to the commissioners or the 91 commission, the statutory provision controls. A commissioner who 92 materially violates the Code of Judicial Conduct, excluding any 93 canon preempted by a conflicting statutory provision, may be 94 suspended or removed by the Governor. 95 Section 2. Section 350.042, Florida Statutes, is amended to 96 read: 97 350.042 ProhibitedEx partecommunications; communications 98 with a commissioner or a commissioner’s direct reporting staff.— 99 (1) For the purposes of this section, the term: 100 (a) “Commissioner’s direct reporting staff” means a 101 commissioner’s chief advisor and executive assistant. 102 (b) “Legally interested person” means a party or his or her 103 representative to a proceeding or a proceeding pending before 104 the commission. The term also includes a corporation, 105 partnership, limited liability company, elected or appointed 106 official of state government, or other public or elected 107 official who directly or indirectly has an interest in the 108 commission’s decision in the proceeding. 109 (c) “Prohibited communication” means any communication made 110 by or directed to a commissioner or his or her direct reporting 111 staff regarding a docketed matter or a proceeding pending before 112 the commission which, if written, is not served on all the 113 parties in the docketed matter, and if oral, is made without 114 adequate notice to the parties and an opportunity for them to be 115 present and heard when the communication is made. 116 (2) Proceedings before the commission shall be fair and its 117 decisions may not be influenced by prohibited communications 118 between commissioners and legally interested persons. 119 (a) The commission shall afford to every legally interested 120 person in a proceeding or in a proceeding pending before the 121 commission the full right to be heard according to law except as 122 otherwise prohibited in this section. 123 (b)(1)A commissioner or the commissioner’s direct 124 reporting staff may notshould accord to every person who is125legally interested in a proceeding, or the person’s lawyer, full126right to be heard according to law, and, except as authorized by127law, shall neitherinitiate, engage in, ornorconsider 128 prohibitedex partecommunicationsconcerning the merits,129threat, or offer of rewardin any proceeding other than an 130 undocketed workshopa proceeding under s.120.54or s.120.565,131workshops,or an internal affairs meetingmeetings.No132individual shall discuss ex parte with a commissioner the merits133of any issue that he or she knows will be filed with the134commission within 90 days.The provisions of this subsection do 135shallnot apply to commission staff unless otherwise provided 136 for in this section. 137 (c) An individual may not discuss any matter with a 138 commissioner or the commissioner’s direct reporting staff which 139 the individual reasonably foresees will be filed with the 140 commission. 141 (d) The restrictions on prohibited communications as 142 provided in this section apply to communications made by or 143 directed to a commissioner and the commissioner’s direct 144 reporting staff to or from the Governor, a member of the 145 Cabinet, or a member of the Legislature. Any written or oral 146 communication from the Governor, a member of the Cabinet, or a 147 member of the Legislature which is only a status inquiry and 148 does not address the merits of a proceeding is not a prohibited 149 communication. 150 (3)(a) Any oral or written communication, not otherwise 151 prohibited under subsection (1), between a commissioner or the 152 commissioner’s direct reporting staff and a representative of an 153 entity regulated by the commission must be made available to the 154 public. Such oral or written communication must be posted to the 155 commission’s website within 72 hours after the communication is 156 made or received. 157 (b) The commission shall post on its website a copy of any 158 written communication by the close of the next business day 159 after the communication is received by the commission. 160 (c) The commission shall prepare a written summary of any 161 communication related to a documented emergency or a 162 communication related to a brief, unscheduled follow-up to a 163 previously scheduled meeting or previously scheduled telephone 164 conference call. The commission shall post the written summary 165 on its website within 72 hours after the communication is made 166 or received. 167 (d) The commission shall post notice on the commission’s 168 website at least 72 hours before the occurrence of any meeting, 169 telephone conference call, or written communication between a 170 commissioner or the commissioner’s direct reporting staff and a 171 representative of a regulated entity. The Public Counsel may 172 participate in the meeting, telephone conference call, or 173 written communication for the purpose of questioning or directly 174 responding to the communication. 175 (e) This subsection does not apply to commission staff or 176 representatives of a regulated entity who are required to 177 initiate or receive brief, unscheduled communications for the 178 purpose of obtaining additional information that is needed after 179 the completion of an audit. 180 (f) A written communication from the Governor, a member of 181 the Cabinet, or a member of the Legislature which attaches or 182 forwards a constituent’s correspondence concerning the merits of 183 a docketed proceeding shall be placed in the commission’s docket 184 files. 185 (4)(2)The provisions ofThis section doesshallnot 186 prohibit an individualresidentialratepayer from communicating 187 with a commissioner or the commissioner’s direct reporting staff 188 if, provided thatthe ratepayer is representing only himself or 189 herself,without compensation. 190 (5)(3)This section doesshallnot apply to oral 191 communications or discussions in scheduled and noticed open 192 public meetings of educational programs or of a conference or 193 other meeting of an association of regulatory agencies. This 194 exemption does not authorize a commissioner or the 195 commissioner’s direct reporting staff to discuss matters with 196 any party to a proceeding or legally interested person. 197 (6)(4)If a commissioner or the commissioner’s direct 198 reporting staff knowingly receives a prohibitedan ex parte199 communication as provided in subsection (1) which is related 200relativeto a proceedingother than as set forth in subsection201(1),to which the commissionerhe or sheis assigned, he or she 202 must place on the record of the proceeding copies of all written 203 communications received, all written responses to the 204 communications, and a memorandum stating the substance of all 205 oral communications received and all oral responses made. The 206 commissioner or the commissioner’s direct reporting staff, and207 shall give written notice to all parties to the communication 208 that such matters have been placed on the record. Any party who 209 desires to respond to a prohibitedan ex partecommunication may 210 do so. The response must be received by the commission within 10 211 days after receiving notice that the prohibitedex parte212 communication has been placed on the record. The commissioner 213 may, if he or she deems it necessary to eliminate the effect of 214 a prohibitedan ex partecommunication received by him or her, 215 withdraw from the proceeding, in which case the chair shall 216 substitute another commissioner for the proceeding. 217 (7)(5)Any individual who makes a prohibitedan ex parte218 communication shall submit to the commission a written statement 219 describing the nature of thesuchcommunication and including,220to includethe name of the person making the communication, the 221 name of eachthecommissioner or member of the commissioner’s 222 direct reporting staffor commissionersreceiving the 223 communication, copies of all written communications made, all 224 written responses to such communications, and a memorandum 225 stating the substance of all oral communications received and 226 all oral responses made. The commission shall place on the 227 record of a proceeding all such communications. 228 (8)(6)Any commissioner or member of the commissioner’s 229 direct reporting staff who knowingly fails to place on the 230 record any such communications, in violation of thisthe231 section, within 15 days afterofthe date of thesuch232 communication is subject to removal or dismissal and may be 233 assessed a civil penalty not to exceed $5,000. 234 (9)(7)(a) It isshall bethe duty of the Commission on 235 Ethics to receive and investigate sworn complaints of violations 236 of this section pursuant to the procedures contained in ss. 237 112.322-112.3241. 238 (b) If the Commission on Ethics finds that there has been a 239 violation of this section by apublic servicecommissioner or 240 the commissioner’s direct reporting staff, it shall provide the 241 Governor and the Florida Public Service Commission Nominating 242 Council with a report of its findings and recommendations. The 243 Governor mayis authorized toenforce the findings and 244 recommendations of the Commission on Ethics, pursuant to part 245 III of chapter 112. 246 (c) If a commissioner or the commissioner’s direct 247 reporting staff fails or refuses to pay the Commission on Ethics 248 any civil penalties assessed pursuant to the provisions of this 249 section, the Commission on Ethics may bring an action in any 250 circuit court to enforce such penalty. 251 (d) If, during the course of an investigation by the 252 Commission on Ethics into an alleged violation of this section, 253 allegations are made as to the identity of the person who 254 participated in the prohibitedex partecommunication, that 255 person must be given notice and an opportunity to participate in 256 the investigation and relevant proceedings to present a defense. 257 If the Commission on Ethics determines that the person 258 participated in the prohibitedex partecommunication, the 259 person may not appear before the commission or otherwise 260 represent anyone before the commission for a period of 2 years 261 and may be assessed a civil penalty not to exceed $5,000. The 262 regulated entity represented by the person, if applicable, may 263 also be assessed a penalty of up to 0.001 percent of the 264 entity’s annual operating revenue for the most recent calendar 265 year. 266 Section 3. Section 350.0605, Florida Statutes, is amended 267 to read: 268 350.0605 Former commissioners and employees; representation 269 of clients or industry before commission; lobbying the 270 legislative or executive branch.— 271 (1)(a) Any former commissioner of the Public Service 272 Commission is prohibited from appearing before the commission 273 representing any client or any industry regulated by the Public 274 Service Commission for a period of 42years following his or 275 her termination of service on the commission. 276 (b) Any former commissioner of the Public Service 277 Commission is prohibited from lobbying the legislative or 278 executive branch of state government on behalf of any client or 279 any industry regulated by the commission for a period of 4 years 280 after his or her termination of service on the commission. This 281 subsection applies only to commissioners who are appointed or 282 reappointed on or after July 1, 2012. 283 (2) Any former member of the commissioner’s direct 284 reporting staff is prohibited from appearing before the 285 commission representing any client or industry regulated by the 286 Public Service Commission, or from lobbying the legislative or 287 executive branch of state government on behalf of any client or 288 any industry regulated by the commission, for a period of 4 289 years after his or her termination of employment with the 290 commission. This subsection applies only to a member of the 291 commissioner’s direct reporting staff who is hired with the 292 commission on or after July 1, 2012. For purposes of this 293 section, the term “commissioner’s direct reporting staff” means 294 a commissioner’s chief advisor and executive assistant. Any 295 former employee of the commission is prohibited from appearing 296 before the commission representing any client regulated by the 297 Public Service Commission on any matter thatwhichwas pending 298 at the time of termination and in which such former employee had 299 participated. 300 (3) For a period of 4 years after termination of service on 301 the commission or employment with the commission, a former 302 commissioner or former member of the commissioner’s direct 303 reporting staff may not accept employment by or compensation 304 from a business entity that, directly or indirectly, owns or 305 controls a public utility regulated by the commission; from a 306 public utility regulated by the commission; from a business 307 entity that, directly or indirectly, is an affiliate or 308 subsidiary of a public utility regulated by the commission or is 309 an actual business competitor of a local exchange company or 310 public utility regulated by the commission and that is otherwise 311 exempt from regulation by the commission under ss. 364.02(14) 312 and 366.02(1); or from a business entity or trade association 313 that has been a party to a commission proceeding within the 4 314 years preceding the former commissioner’s termination of service 315 or the former commissioner’s direct reporting staff member’s 316 termination of employment with the commission. This subsection 317 applies only to former commissioners and members of the 318 commissioner’s direct reporting staff who are appointed or 319 reappointed to or hired with the commission on or after July 1, 320 2012. 321(3) For a period of 2 years following termination of322service on the commission, a former member may not accept323employment by or compensation from a business entity which,324directly or indirectly, owns or controls a public utility325regulated by the commission, from a public utility regulated by326the commission, from a business entity which, directly or327indirectly, is an affiliate or subsidiary of a public utility328regulated by the commission or is an actual business competitor329of a local exchange company or public utility regulated by the330commission and is otherwise exempt from regulation by the331commission under ss.364.02(13) and366.02(1), or from a332business entity or trade association that has been a party to a333commission proceeding within the 2 years preceding the member’s334termination of service on the commission. This subsection335applies only to members of the Florida Public Service Commission336who are appointed or reappointed after May 10, 1993.337 Section 4. Subsection (1) of section 350.061, Florida 338 Statutes, is amended to read: 339 350.061 Public Counsel; appointment; oath; restrictions on 340 Public Counsel and his or her employees.— 341 (1) The committee designated by joint rule of the 342 Legislature or by agreement between the President of the Senate 343 and the Speaker of the House of Representatives as the Committee 344 on Public Counsel Oversight shall appoint a Public Counsel to 345 represent the general public of Florida before the Florida 346 Public Service Commission. The Public Counsel mustshallbe an 347 attorney admitted to practice before the Florida Supreme Court 348 and shall serve at the pleasure of the Committee on Public 349 Counsel Oversight, subject tobiennialreconfirmation every 4 350 years by the committee. The Public Counsel shall perform his or 351 her duties independently. Vacancies in the office shall be 352 filled in the same manner as the original appointment. 353 Section 5. This act shall take effect July 1, 2012.