BILL NUMBER: AB 825 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 4, 2015
AMENDED IN SENATE SEPTEMBER 1, 2015
AMENDED IN SENATE JULY 16, 2015
AMENDED IN SENATE JULY 8, 2015
AMENDED IN SENATE JUNE 18, 2015
AMENDED IN ASSEMBLY JUNE 1, 2015
AMENDED IN ASSEMBLY MAY 14, 2015
AMENDED IN ASSEMBLY APRIL 20, 2015
INTRODUCED BY Assembly Members Rendon and Mark Stone
FEBRUARY 26, 2015
An act to add Article 5 (commencing with Section 8548.9.1) to
Chapter 6.5 of Division 1 of Title 2 of the Government Code, and to
amend Sections 311.5, 314.5, 583, 1701.1, and 1701.2 of, to
amend and renumber Section 309.1 1701, 1706, and 1710
of, to add Section 468 to, and to add Article 1.5 (commencing
with Section 720) to Chapter 4 of Part 1 of Division 1 of, the Public
Utilities Code, relating to the Public Utilities Commission.
LEGISLATIVE COUNSEL'S DIGEST
AB 825, as amended, Rendon. Public Utilities Commission.
(1) Under existing law, the Public Utilities Commission has
regulatory authority over public utilities, including electrical
corporations, gas corporations, heat corporations, telegraph
corporations, telephone corporations, and water corporations. The
California Constitution authorizes the commission to establish rules,
examine records, and prescribe a uniform system of accounts for all
public utilities. The Public Utilities Act requires the commission to
inspect and audit the books and records of electrical corporations,
gas corporations, heat corporations, telegraph corporations,
telephone corporations, and water corporations for regulatory and tax
purposes. An inspection and audit is required to be done at least
every 3 years if the utility has over 1,000 customers and at least
every 5 years if the utility has 1,000 or fewer customers. The act
requires that reports of the inspections and audit and other
pertinent information be furnished to the State Board of Equalization
for use in the assessment of the public utilities.
This bill would delete the requirement that the reports of the
inspections and audit and other pertinent information be furnished to
the State Board of Equalization for use in the assessment of the
public utilities and instead require that the inspections and audit
and other pertinent information be posted on the commission's
Internet Web site.
(2) Existing law authorizes the commission to fix the rates and
charges for every public utility and requires that those rates and
charges be just and reasonable. Existing law, with certain
exceptions, prohibits a public utility from changing any rate, except
upon a showing before the commission and a finding by the commission
that the new rate is justified. With certain exceptions, whenever
any electrical, gas, heat, telephone, water, or sewer system
corporation files an application to change any rate for the services
or commodities furnished by it, existing law requires that the
corporation furnish its customers notice of its application to the
commission for approval of the new rate. This notice requirement does
not apply to any rate change proposed by a corporation pursuant to
an advice letter submitted to the commission filed pursuant to
commission-established procedures for advice letters.
This bill would require each public utility that submits an
application to change its rates to include in its application a
summary of the application that can be understood by the utility's
ratepayers. The bill would require that this summary and the
application be posted on the commission's Internet Web site and, if
the utility has an Internet Web site, to be posted on the utility's
Internet Web site. Each public utility that maintains an Internet Web
site would additionally be required to include on that site contact
information for a utility official who can discuss the nature of the
rate application.
(3) Every public utility is required by existing law to furnish
such reports as the commission may require. No information furnished
to the commission by a public utility, except those matters
specifically required to be open to public inspection, are open to
public inspection or made public except by order of the commission or
a commissioner in the course of a hearing or proceeding. Any present
or former officer or employee of the commission who divulges any
information in violation of these provisions is guilty of a
misdemeanor.
This bill would provide that if in a proceeding before the
commission, a public utility, or subsidiary, affiliate, or holding
company, files a pleading, report, or other document with the
commission that is claimed to contain confidential information, it
would be required to concurrently file a public version of the
pleading, report, or other document with the commission that contains
sufficient information for any other party to the proceeding to
understand the nature of its contents. The bill would authorize any
party to the proceeding to file a motion to make public a pleading,
report, or other document filed under a claim of confidentiality. The
bill would require an administrative law judge assigned to the
proceeding or the assigned commissioner to hold a hearing on the
motion and determine whether the pleading, report, or other document
should be made public. The bill would authorize any party to seek
review of the ruling or order of the administrative law judge or
assigned commissioner on the motion by filing a motion for rehearing
de novo before the full commission within 30 days of the date the
ruling or order on the motion was issued.
(4) Existing law requires the commission to publish and maintain
certain documents and information, including making available on the
commission's Internet Web site, the commission's annual work plan,
general orders, and Rules of Practice and Procedure, the proposed and
alternate proposed decisions and resolutions, the agenda, agenda
item documents, rulings of the commission, and adopted decisions and
resolutions of the commission. Included in the materials that the
commission is required to publish and maintain on its Internet Web
site are docket cards that list by title and date of filing or
issuance all documents filed and all decisions or rulings issued in
those proceedings.
This bill would require that each document that the commission
distributes to any service-of-process list be docketed and identified
on the commission's Internet Web site. The bill would require
the commission to adopt rules providing for posting on its
Internet Web site of all comments, workshop reports, hearing
exhibits, including the exhibit number assigned and whether the
exhibit has been offered and received in evidence, hearing
transcripts, and other documentary information included in the record
of its proceedings.
(5) Existing law requires the commission to establish an office of
the public advisor and to appoint a public advisor. Existing law
requires the office of the public advisor to assist members of the
public and ratepayers who desire to testify before or present
information to the commission in any hearing or proceeding of the
commission.
This bill would add legislative findings and declarations relative
to improving the transparency of commission regulatory activities.
The bill would require the public advisor to be responsible for
ensuring that the activities of the commission are as
transparent to the public consistent with these legislative
findings and directions, the California Public Records Act, the
Bagley-Keene Open Meeting Act, and other specified matter.
as reasonably possible and consistent with law. The bill
would require the public advisor to have independent
responsibility for overseeing the commission's Internet Web site and
work with all divisions of the commission to ensure
that the commission's Internet Web site provides adequate
transparency in the information provided to the public. The bill
would require the commission to post on its Internet Web site a
summary, as specified, of all electricity procurement contracts
entered into by an electrical corporation during the previous 3
years, the expenses of which the commission has approved as being
just and reasonable, a list of all proceedings involving public
utilities then pending before the commission with information, in
summary form, as to the amount of any rate increase being sought,
both in cumulative amount and by unit or other means billed to
ratepayers, transcripts and available summaries of documents,
evidence, testimony and proceedings before the commission or its
administration law judges that are not subject to confidentiality, a
list of all requests submitted to the commission pursuant to the
California Public Records Act, and all advice
letters approved by the commission.
commission, and the calendars of each commissioner. The bill
would require the public advisor to update, maintain, and post the
commission's service-of-process lists on the commission's Internet
Web site in an electronic form that may be used by any party to
complete service of process. The bill would require the commission to
open a proceeding to reexamine a specified decision relative to
confidentiality of electric procurement data and to modify the
commission's confidentiality practices and procedures consistent with
specified requirements. The bill would establish the Inspector
General for the Public Utilities Commission within the California
State Auditor's Office to conduct oversight review and assess, audit,
investigate, and report on the policies, practices, and procedures
of the commission under the guidance, direction, supervision, and
authority of the State Auditor.
(6) 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. Upon initiating a hearing, the commission is
required to assign one or more commissioners to oversee the case and
an administrative law judge where appropriate. Existing law requires
the assigned commissioner to schedule a prehearing conference and to
issue, by order or ruling, a scoping memo that describes the issues
to be considered and the applicable timetable for resolution.
This bill would would, in matters the
commission has determined require a hearing, require the commission
to use all-party conferences as a tool for listening to the parties'
perspectives on the most important issues and to facilitate public
discussion between and among parties and commissi oners.
The bill would require that discussions at an all-party conference
not rely on evidence outside the evidentiary record existing at the
time of the all-party conference. The bill would require the
assigned commissioner to convene an all-parties meeting
conference as soon as practicable after the
parties in a proceeding are known prehearing
conference, and before completing the scoping memo,
to discuss the substantive matter to be decided in the proceeding and
prospects for resolving issues that would otherwise be litigated.
The bill would require an assigned commissioner to attend
all hearings in a proceeding. the
commission to hold an all-party conference before a quorum of
commissioners, after a proposed decision is issued in all contested
cases, unless all parties waive this requirement and a majority of
commissioners concur with that waiver. The bill would require that a
transcript be kept for each all-party conference and that
the transcript be made a part of the record of the proceeding.
(7) Existing law prohibits 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 from
participating in the decision of the case or in the decision of any
factually related adjudicatory proceeding. Existing law permits 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 to participate in reaching a
settlement of the case, but prohibits the officer, employee, or agent
from participating in the decision of the commission to accept or
reject the settlement, except as a witness or counsel in an open
hearing or a specified closed hearing.
This bill would prohibit an attorney that is prosecuting
a matter or other staff member who has served as a
prosecutor or advocate at any stage of an adjudicatory proceeding
before the commission from meeting with any commissioner
regarding the matter that the attorney is prosecuting
in which the attorney or staff member has served
unless all parties are present.
(8) This bill would require the commission to adopt rules
providing for comments from the public, including comments made at
noticed public participation hearings of the commission, to be
included in the record of its proceedings and would require that the
assigned commissioner, or a quorum of the commission, convene and
attend each public participation proceeding.
(9) This bill would incorporate additional changes in Sections
311.5 and 1701 of the Public Utilities Code, proposed by SB 48, to be
operative only if SB 48 and this bill are both chaptered and become
effective on or before January 1, 2016, and this bill is chaptered
last.
(8)
(10) 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 certain 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 creating a new 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. Article 5 (commencing with Section 8548.9.1) is added
to Chapter 6.5 of Division 1 of Title 2 of the Government Code, to
read:
Article 5. Inspector General: Public Utilities
8548.9.1. (a) There is hereby established, within the California
State Auditor's Office, the Inspector General for the Public
Utilities Commission.
(b) For purposes of this article, "inspector general" means the
Inspector General for the Public Utilities Commission and "commission"
means the Public Utilities Commission.
(c) The inspector general shall be appointed by the State Auditor.
8548.9.2. The inspector general shall, at the direction of the
State Auditor, conduct oversight review and assess, audit,
investigate, and report on the policies, practices, and procedures of
the commission. Subject to the approval of the State Auditor, the
inspector general may maintain a permanent office at a commission
location, provided by the commission, and shall be provided with
sufficient staff and support by the State Auditor to carry out the
duties of the position.
8548.9.3. (a) The inspector general shall conduct his or her
duties under the guidance, direction, supervision, and authority of
the State Auditor. In conducting his or her work, the inspector
general is subject to all of the requirements of this chapter,
including, but not limited to, the access and confidentiality
provisions specified in Sections 8545 and 8545.1 and the Government
Auditing Standards published by the Comptroller General of the United
States, as specified in Section 8546.1. However, the inspector
general may decide, without further approval except from the State
Auditor, to audit or investigate and report on commission matters
based on his or her preliminary assessment that commission activities
require his or her investigation.
(b) For any stage of a review, assessment, audit, or
investigation, the inspector general may utilize all of the authority
granted under this chapter, including, but not limited to, the
authority to examine and reproduce records pursuant to Section
8545.2, the authority to administer oaths, certify official acts, and
issue subpoenas pursuant to Section 8545.4, and the authority to
receive confidential reports of improper governmental activities
pursuant to Article 3 (commencing with Section 8547).
8548.9.4. Notwithstanding Section 8544.5, upon appropriation by
the Legislature, the California State Auditor shall recover the costs
for the inspector general's activities from reimbursement fees paid
pursuant to Chapter 2.5 (commencing with Section 401) of Part 1 of
Division 1 of the Public Utilities Code.
SEC. 2. Section 309.1 of the Public Utilities
Code is amended and renumbered to read:
305.5. The Governor may appoint one adviser for each member of
the commission upon the request of the commission member. Each
adviser shall receive a salary fixed by the commission with the
approval of the Department of Human Resources. The total number of
advisers exempt from civil service shall not exceed five.
SEC. 3. SEC. 2. Section 311.5 of the
Public Utilities Code is amended to read:
311.5. (a) (1) Prior to commencement of any meeting at which
commissioners vote on items on the public agenda
agenda, the commission shall make available to the public
copies of the agenda, and upon request, any agenda item documents
that are proposed to be considered by the commission for action or
decision at a commission meeting.
(2) In addition, the commission shall publish the agenda, agenda
item documents, and adopted decisions in a manner that makes copies
of them easily available to the public, including publishing those
documents on the Internet. Publication of the agenda and agenda item
documents shall occur on the Internet at the same time as the written
agenda and agenda item documents are made available to the public.
(b) The commission shall publish and maintain the following
documents on the Internet:
(1) Each of the commission's proposed and alternate proposed
decisions and resolutions, until the decision or resolution is
adopted and published.
(2) Each of the commission's adopted decisions and resolutions.
The publication shall occur within 10 days of the adoption of each
decision or resolution by the commission.
(3) The then-current version of the commission's general orders
and Rules of Practice and Procedure.
(4) Each of the commission's rulings. The commission shall
maintain those rulings on its Internet Web site until final
disposition, including disposition of any judicial appeals, of the
respective proceedings in which the rulings were issued.
(5) A docket card that lists, by title and date of filing or
issuance, all documents filed and all decisions or rulings issued in
those proceedings. The commission shall maintain the docket card
until final disposition, including disposition of any judicial
appeals, of the corresponding proceedings. Each document that the
commission distributes to any service-of-process list shall be
docketed and identified on the commission's Internet Web site.
SEC. 2.5. Section 311.5 of the Public
Utilities Code is amended to read:
311.5. (a) (1) Prior to commencement of any meeting at which
commissioners vote on items on the public agenda
agenda, the commission shall make available to the public
copies of the agenda, and upon request, any agenda item documents
that are proposed to be considered by the commission for action or
decision at a commission meeting.
(2) In addition, the commission shall publish the agenda, agenda
item documents, and adopted decisions in a manner that makes copies
of them easily available to the public, including publishing those
documents on the Internet. Publication of the agenda and agenda item
documents shall occur on the Internet at the same time as the written
agenda and agenda item documents are made available to the public.
(b) The commission shall publish and maintain the following
documents on the Internet:
(1) Each of the commission's proposed and alternate proposed
decisions and resolutions, until the decision or resolution is
adopted and published.
(2) Each of the commission's adopted decisions and resolutions.
The publication shall occur within 10 days of the adoption of each
decision or resolution by the commission.
(3) The then-current version of the commission's general orders
and Rules of Practice and Procedure.
(4) Each of the commission's rulings. The commission shall
maintain those rulings on its Internet Web site until final
disposition, including disposition of any judicial appeals, of the
respective proceedings in which the rulings were issued.
(5) A docket card that lists, by title and date of filing or
issuance, all documents filed and all decisions or rulings issued in
those proceedings. proceedings, including the
public versions of all prepared written testimony and advice letter
filings, protests, and responses. The commission shall maintain
the docket card until final disposition, including disposition of
any judicial appeals, of the corresponding proceedings. Each
document that the commission distributes to any service-of-process
list shall be docketed and identified on the commission's Internet
Web site.
(c) The commission shall make the following information available
on the Internet:
(1) Information on how members of the public and ratepayers can
gain access to the commission's ratemaking process and to information
regarding the specific matters to be decided.
(2) Information on the operation of the office of the public
advisor established in Section 321 and how the public advisor can
connect members of the public to persons responsible for specific
cases and matters to be decided.
SEC. 4. SEC. 3. Section 314.5 of the
Public Utilities Code is amended to read:
314.5. The commission shall inspect and audit the books and
records for regulatory and tax purposes (a) at least once in every
three years in the case of every electrical, gas, heat, telegraph,
telephone, and water corporation serving over 1,000 customers, and
(b) at least once in every five years in the case of every
electrical, gas, heat, telegraph, telephone, and water corporation
serving 1,000 or fewer customers. An audit conducted in connection
with a rate proceeding shall be deemed to fulfill the requirements of
this section. Reports of the inspections and audits and other
pertinent information shall be posted on the commission's Internet
Web site.
SEC. 5. SEC. 4. Section 468 is added
to the Public Utilities Code, to read:
468. (a) Each public utility that submits an application to
change its rates shall include in its application a summary of the
application that can be understood by the utility's ratepayers. This
summary and the application shall be posted on the commission's
Internet Web site and, if the utility has an Internet Web site, shall
be posted on the utility's Internet Web site.
(b) Each public utility that maintains an Internet Web site shall
include on that site contact information for a utility official who
can discuss the nature of the rate application. If the rate
application includes different rates depending upon the utility's
service territory, the contact information shall identify a utility
official who can discuss the nature of the rate application for each
separate service territory. The utility official shall also be
qualified to discuss, in general terms, the operation of the utility
in each service territory.
SEC. 6. SEC. 5. Section 583 of the
Public Utilities Code is amended to read:
583. (a) No information furnished to the commission by a public
utility, or any business that is a subsidiary or affiliate of a
public utility, or a corporation that holds a controlling interest in
a public utility, except those matters specifically required to be
open to public inspection by this part, shall be open to public
inspection or made public except on order of the commission, or by
the commission or a commissioner in the course of a hearing or
proceeding. Any present or former officer or employee of the
commission who divulges that information is guilty of a misdemeanor.
(b) If in a proceeding before the commission, a public utility, or
any business that is a subsidiary or affiliate of a public utility,
or a corporation that holds a controlling interest in a public
utility, files a pleading, report, or other document with the
commission that is claimed to contain confidential information, a
public version of the pleading, report, or other document that
contains sufficient information for any other party to the proceeding
to understand the nature of its contents shall be concurrently filed
with the commission. An administrative law judge assigned to the
proceeding, the assigned commissioner, or the commission may
determine the sufficiency of the information contained in the public
version of the pleading, report, or other document.
(c) Any party to a proceeding before the commission may file a
motion to make public a pleading, report, or other document filed by
a public utility, or any business that is a subsidiary or affiliate
of a public utility, or a corporation that holds a controlling
interest in a public utility, under a claim of confidentiality. An
administrative law judge assigned to the proceeding or the assigned
commissioner shall hold a hearing on the motion and determine whether
the pleading, report, or other document should be made public. In
determining the motion, the administrative law judge or assigned
commissioner shall make written findings and conclusions.
(d) At any public hearing, an assigned administrative law judge
may provide direction to the parties in a proceeding as to what types
of information may be filed with the commission under a claim of
confidentiality.
(e) No ruling or order entered pursuant to subdivision (c) shall
be considered a ruling or order of the commission or a commissioner
unless it reflects an examination of the specific information or
documents to be made public or opened to public inspection. Any party
may seek review of a ruling or order issued pursuant to subdivision
(c) to the full commission by filing a motion for rehearing de novo
by the full commission within 30 days of the date the ruling or order
on the motion was issued, and the pleading, report, or other
document shall remain confidential while the motion for rehearing is
pending. When a motion for rehearing de novo is filed, the full
commission shall make the final determination of the motion to make
public a pleading, report, or other document filed under claim of
confidentiality.
SEC. 7. SEC. 6. Article 1.5
(commencing with Section 720) is added to Chapter 4 of Part 1 of
Division 1 of the Public Utilities Code, to read:
Article 1.5. Transparency of Commission Regulatory Activities
720. The Legislature finds and declares all of the following:
(a) Transparency in how the commission operates and makes its
decisions is critical to gaining and retaining the confidence of the
public at large and serving the public utility ratepayers affected by
the commission's decisions.
(b) The activities of private entities that provide essential
services to the public and that have dedicated their property to the
service of the public are defined as public utilities in the
California Constitution, subject to the control by the Legislature.
(c) The services provided by public utilities are essential to the
proper operation of our economy and fundamentally affect every
California family and business.
(d) Under the California Constitution, the commission is granted
authority to establish its own procedures subject to statute and due
process and to establish rules for public utilities, and the
Legislature has plenary authority to confer additional authority and
jurisdiction upon the commission and to establish the manner and
scope of review of commission action in a court of record.
(e) Because the California Constitution provides special
consideration to public utilities and to the commission that
regulates those public utilities, it is essential to give the public
the ability to monitor the functioning of the commission and its
actions.
(f) The greater and more unfettered the public official's power,
the greater the public's interest in monitoring the exercise of that
power.
(g) Access to information concerning the conduct of the public's
business by the commission is a fundamental and necessary right for
every person in the state.
(h) Information concerning services provided by public utilities
is of the highest public interest, including information about
quality and reliability of service to the public and information
about costs and profits.
(i) While confidentiality of information submitted by a public
utility may be necessary in some cases, as provided in Section 583,
the activities and decisions of the commission should remain as
transparent as reasonably possible.
721. The commission shall open a proceeding to reexamine Decision
06-06-066 (June 29, 2006) Interim Opinion Implementing Senate Bill
1488, Relating to Confidentiality of Electric Procurement Data
Submitted to the Commission, as modified by Decision 07-05-032 (May
3, 2007), Order Modifying Decision (D.) 06-06-066 and Denying
Rehearing of the Decision, as Modified, and shall modify the
commission's confidentiality practices and procedures consistent with
the requirements of Section 724.
722. (a) The public advisor of the commission, appointed pursuant
to Section 321, shall have responsibility for ensuring that the
activities of the commission are as transparent to the
public as provided by law, including, but not limited to,
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code), 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), and this article. reasonably
possible and consistent with law.
(b) The public advisor shall develop and make available
easy-to-understand guides for the public to participate in commission
proceedings.
(c) The public advisor shall update, maintain, and post the
commission's service-of-process lists on the commission's Internet
Web site in an electronic form that may be used by any party to
complete service of process.
723. (a) The public advisor of the commission shall have
independent responsibility for overseeing work with
all divisions to ensure that the commission's Internet Web
site, in order to ensure site provides
adequate transparency in the information provided to the public.
(b) The commission shall make available to the public on its
Internet Web site all of the following information:
(1) A summary of all electricity procurement contracts entered
into by an electrical corporation during the previous three years,
the expenses of which the commission, if applicable, has approved as
being just and reasonable. The summary shall include information as
to the name of the generating facility, its location, the electricity
or electricity products procured, the fuel or energy source used to
generate the electricity, the estimated total expense that the
electrical corporation will incur pursuant to the contract, the
estimated cost by unit of energy that the electrical corporation will
incur pursuant to the contract, when, if applicable, the contract
was approved by the commission, and, if applicable, the decision or
resolution approving the contract. Information on costs and expenses
of the contract shall not be posted until the later of when the
electrical corporation has completed the legal transactions required
to acquire the electricity or electricity products, or one year after
the commission approves the contract, if applicable.
(2) A list of all proceedings involving public utilities then
pending before the commission with information, in summary form, as
to the amount of any rate increase being sought, both in cumulative
amount and by unit or other means billed to ratepayers.
(3) Transcripts and available summaries of documents, evidence,
testimony, and proceedings before the commission or its
administrative law judges that are not subject to confidentiality
pursuant to Section 583, or with confidential portions redacted,
consistent with Section 1706.
(4) A list of all requests submitted to the commission pursuant to
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).
(5) Advice letters approved by the commission.
(6) Calendars of each commissioner.
724. (a) In matters requiring a hearing pursuant to Section
1701.1, the commission shall use all-party conferences as a tool for
listening to the parties' perspectives on the most important issues
and to facilitate public discussion between and among parties and
commissioners. Discussion at all-party conferences may rely on
evidence in the record and shall not rely on evidence outside the
evidentiary record existing at the time of the all-party conference.
(b) The assigned commissioner, and not the assigned administrative
law judge, shall convene an all-party conference as soon as
practicable after the prehearing conference, and before completing
the scoping memo, to discuss the substantive matter to be decided in
the proceeding and prospects for resolving issues that would
otherwise be litigated. This requirement may be satisfied by a
pre-hearing conference convened by the assigned commissioner.
(c) The commission shall hold an all-party conference on the
record before a quorum of commissioners, after the proposed decision
is issued in all contested cases, unless all parties waive this
requirement and a majority of commissioners concur with that waiver.
An all-party conference held pursuant to Section 1701.2 may satisfy
the requirement of this subdivision.
(d) A transcript shall be kept for each all-party conference and
made a part of the record of the proceeding.
(e) The commission shall establish rules providing for all-party
conferences. The rules shall provide for the broadest participation
by parties to the proceeding that the commission can reasonably
accommodate, consistent with the commission's other duties and
responsibilities.
725. An attorney or other staff member who has served as a
prosecutor or advocate at any stage of an adjudicatory proceeding
before the commission shall not meet with any commissioner regarding
the matter in which the attorney or staff member has served unless
all parties are present.
SEC. 7. 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
(b) 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.
(c) The commission shall adopt rules providing for comments from
the public, including comments made at noticed public participation
hearings of the commission, to be included in the evidentiary record
of its proceedings. The assigned commissioner, or a quorum of the
commission, shall convene and attend each public participation
proceeding. The rules, consistent with due process, shall provide for
the submission of comments from the public prior to submission of
the issues to be decided to the commission for its decision and
permit consideration by the commission of the public comments in
reaching its decisions. The rules shall provide for the parties to
the proceeding to have one opportunity to respond to any public
comments included in the record of proceedings.
(d) Upon request of a local elected official in the region
affected by a contested matter, the commission shall convene a public
participation hearing in that region.
(b)
(e) Notwithstanding Section 11425.10 of the Government
Code, Chapter 4.5 (commencing with Section 11400) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to a
hearing by the commission under this code.
SEC. 7.5. 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
(b) 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.
(c) The commission shall adopt rules providing for comments from
the public, including comments made at noticed public participation
hearings of the commission, to be included in the record of its
proceedings. The assigned commissioner, or a quorum of the
commission, shall convene and attend each public participation
proceeding. The rules, consistent with due process, shall provide for
the submission of comments from the public prior to submission of
the issues to be decided to the commission for its decision and
permit consideration by the commission of the public comments in
reaching its decisions. The rules shall provide for the parties to
the proceeding to have one opportunity to respond to any public
comments included in the record of proceedings.
(d) Upon request of a local elected official in the region
affected by a contested matter, the commission shall convene a public
participation hearing in that region.
(b)
(e) 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 of Part 1 of Division 3 of Title 2
of the Government Code) shall apply to administrative law judges of
the commission.
SEC. 8. 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) (1) 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.
(2) The assigned commissioner shall convene an all-parties meeting
as soon as practicable after the parties in the proceeding are known
to discuss the substantive matter to be decided in the proceeding
and prospects for resolving issues that would otherwise be litigated.
(3) The assigned commissioner shall attend all hearings in a
proceeding.
(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 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, along
with any requirements for written reporting of ex parte
communications and appropriate sanctions for noncompliance with any
rule proscribing ex parte communications. The regulation shall
provide that reportable communications shall be reported by the
party, whether the communication was initiated by the party or the
decisionmaker. Communications shall be reported 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.
SEC. 9. 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
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) (1) 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.
(2) An attorney that is prosecuting a matter before the commission
shall not meet with any commissioner regarding the matter that the
attorney is prosecuting unless all parties are present.
(c) Ex parte communications shall be prohibited in adjudication
cases.
(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. Section 1706 of the Public
Utilities Code is amended to read:
1706. (a) A complete record of all
proceedings and testimony before the commission or any commissioner
on any formal hearing shall be taken down by a reporter appointed by
the commission, and the parties shall be entitled to be heard in
person or by attorney. In The commission
shall adopt rules providing for posting on its Internet Web site of
all comments, workshop reports, hearing exhibits, including the
exhibit number assigned and whether the exhibit has been offered and
received in evidence, hearing transcripts, and other
documentary information included in the record of its proceedings.
(b) In case of an action to review
any order or decision of the commission, a transcript of that
testimony, together with all exhibits or copies thereof introduced,
and of the pleadings, record, and proceedings in the cause, shall
constitute the record of the commission, but if the petitioner and
the commission stipulate that certain questions alone and a specified
portion only of the evidence shall be certified to the Supreme Court
or the court of appeal for its judgment, the stipulation and the
questions and the evidence therein specified shall constitute the
record on review. The provisions of this section shall not apply to
hearings held pursuant to Section 1702.1.
SEC. 9. Section 1710 of the Public
Utilities Code is amended to read:
1710. No (a) Except
as otherwise provided for by Section 1701, no documents or
records of a public utility or person or corporation which purport to
be statements of fact shall be admitted into evidence or shall serve
as any basis for the testimony of any witness, unless the documents
or records have been certified under penalty of perjury by the person
preparing or in charge of preparing them as being true and correct.
If the person preparing them is dead or has been declared
incompetent, any other person having knowledge of such statements of
fact may certify the records. If certification pursuant to this
section is not possible for any reason, the documents or records
shall not be admitted into evidence unless admissible under the
Evidence Code.
This
(b) This section shall not apply
to any documents not prepared, directly or indirectly, by, or under
the supervision or direction of, the public utility or person or
corporation offering the documents into evidence.
SEC. 10. Section 2.5 of this bill incorporates
amendments to Section 311.5 of the Public Utilities Code proposed by
both this bill and Senate Bill 48. It shall only become operative if
(1) both bills are enacted and become effective on or before January
1, 2016, (2) each bill amends Section 311.5 of the Public Utilities
Code, and (3) this bill is enacted after Senate Bill 48, in which
case Section 2 of this bill shall not become operative.
SEC. 11. Section 7.5 of this bill incorporates
amendments to Section 1701 of the Public Utilities Code proposed by
both this bill and Senate Bill 48. It shall only become operative if
(1) both bills are enacted and become effective on or before January
1, 2016, (2) each bill amends Section 1701 of the Public Utilities
Code, and (3) this bill is enacted after Senate Bill 48, in which
case Section 7 of this bill shall not become operative.
SEC. 10. SEC. 12. 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.