Amended in Senate September 4, 2015

Amended in Senate September 1, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 895


Introduced by Assembly Member Rendon

February 26, 2015


An act to amend Sections 16428.3 and 16428.5 of, and to add Section 16428.25 to, the Government Code, and to amendbegin delete Sectionend deletebegin insert Sectionsend insert 453.5begin insert and 1759end insert of the Public Utilities Code, relating tobegin delete utility rates.end deletebegin insert public utilities.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 895, as amended, Rendon. Utility rate refunds: energy crisisbegin delete litigation.end deletebegin insert litigation: Public Utilities Commission: judicial review.end insert

Under existing law, the Public Utilities Commission has regulatory authority over public utilities. 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. When the commission orders rate refunds to be distributed, existing law requires the commission to require the public utility to pay refunds to all current utility customers, and, when practicable, to prior customers, on an equitable pro rata basis without regard as to whether or not the customer is classifiable as a residential or commercial tenant, landlord, homeowner, business, industrial, educational, governmental, nonprofit, agricultural, or any other type of entity.

Existing law establishes the Ratepayer Relief Fund in the State Treasury to benefit electricity and natural gas ratepayers and to fund investigation and litigation costs of the state in pursuing allegations of overcharges and unfair business practices against generators, suppliers, or marketers of electricity or natural gas arising from the energy crisis of 2000-02. Existing law requires that any energy settlement agreement, as defined, entered into by the Attorney General, after reimbursing the Attorney General’s litigation and investigation expenses, direct settlement funds to the following purposes in priority order: (1) to reduce ratepayer costs of those utility ratepayers harmed by the actions of the settling parties; and (2) for deposit in the Ratepayer Relief Fund. Existing law authorizes the moneys deposited in the Ratepayer Relief Fund to be appropriated for certain purposes for the benefit of ratepayers.

This bill would require the Attorney General or the Public Utilities Commission to enter into an energy settlement agreement solely on a monetary basis and would prohibit the agreement from including nonmonetary compensation in lieu of monetary compensation. The bill would prohibit the commission from distributing or expending the proceeds of claims in any litigation or settlement to obtain ratepayer recovery for the effects of the 2000-02 energy crisis and would require that the proceeds, after reimbursing the commission’s litigation and investigation expenses, be deposited into the Ratepayer Relief Fund. The bill would require the moneys in the fund to be appropriated for those purposes for the benefit of ratepayers.

begin insert

The California Constitution provides that the Legislature has plenary power to establish the manner and scope of review of commission action in a court of record. Existing law provides that only the Supreme Court and the court of appeal have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties.

end insert
begin insert

This bill would authorize an action to enforce the requirements of the Bagley-Keene Open Meeting Act or the California Public Records Act to be brought against the commission in the superior court.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 16428.25 is added to the Government
2Code
, immediately following Section 16428.2, to read:

3

16428.25.  

(a) The Attorney General or the Public Utilities
4Commission shall enter into an energy settlement agreement solely
P3    1on a monetary basis. The energy settlement agreement shall not
2include any nonmonetary compensation in lieu of monetary
3compensation.

4(b) The section does not apply to a settlement agreement entered
5into before January 1, 2016.

6

SEC. 2.  

Section 16428.3 of the Government Code is amended
7to read:

8

16428.3.  

Any energy settlement agreement entered into by the
9Attorney General, after reimbursing the Attorney General’s
10litigation and investigation expenses, to the maximum extent
11possible, shall direct settlement funds to the following purposes
12in priority order:

13(a) To reduce ratepayer costs of those utility ratepayers harmed
14by the actions of the settling parties. To the extent the ratepayers
15of the investor-owned utilities were harmed, the settlement funds
16shall be directed to reduce their costs, to the maximum extent
17possible, through reduction of rates or the reduction of ratepayer
18debt obligations incurred as a result of the energy crisis.

19(b) For deposit in the fund.

20

SEC. 3.  

Section 16428.5 of the Government Code is amended
21to read:

22

16428.5.  

Moneys in the fund shall be expended upon
23appropriation by the Legislature, for the benefit of ratepayers.
24Moneys in the fund shall be appropriated for the following
25purposes:

26(a) To reduce rates for customers in the affected service areas
27of electrical utilities and gas utilities.

28(b) To reduce the debt service on bonds issued pursuant to
29Division 27 (commencing with Section 80000) of the Water Code.

30

SEC. 4.  

Section 453.5 of the Public Utilities Code is amended
31to read:

32

453.5.  

(a) (1) If the commission orders rate refunds to be
33distributed, the commission shall require public utilities to pay
34refunds to all current utility customers, and, when practicable, to
35prior customers, on an equitable pro rata basis without regard as
36to whether or not the customer is classifiable as a residential or
37commercial tenant, landlord, homeowner, business, industrial,
38educational, governmental, nonprofit, agricultural, or any other
39type of entity.

P4    1(2) For the purposes of this section, “equitable pro rata basis”
2means in proportion to the amount originally paid for the utility
3service involved, or in proportion to the amount of the utility
4service actually received.

5(3) This section shall not prevent the commission from
6authorizing refunds to residential and other small customers to be
7based on current usage.

8(b) (1) The commission shall not distribute or expend the
9proceeds of claims in any litigation or settlement to obtain ratepayer
10recovery for the effects of the 2000-02 energy crisis.

11(2) Proceeds of any claims recovered by the commission arising
12out of the energy crisis of 2000-02, after reimbursing the
13commission’s litigation and investigation expenses, to the
14maximum extent possible, shall be deposited into the Ratepayer
15Relief Fund established pursuant to Section 16428.15 of the
16Government Code and expended, upon appropriation, for purposes
17set forth in Section 16428.5 of the Government Code.

18begin insert

begin insertSEC. 5.end insert  

end insert

begin insertSection 1759 of the end insertbegin insertPublic Utilities Codeend insertbegin insert is amended
19to read:end insert

20

1759.  

(a) No court of this state, except the Supreme Court and
21the court of appeal, to the extent specified in this article, shall have
22jurisdiction to review, reverse, correct, or annulbegin delete anyend deletebegin insert anend insert order or
23decision of the commission or to suspend or delay the execution
24or operation thereof, or to enjoin, restrain, or interfere with the
25commission in the performance of its official duties, as provided
26by law and the rules of court.

27(b) The writ of mandamus shall lie from the Supreme Court and
28from the court of appeal to the commission in all proper cases as
29prescribed in Section 1085 of the Code of Civil Procedure.

begin insert

30(c) This section does not apply to the following actions, which
31may be brought in superior court:

end insert
begin insert

32(1) An action brought against the commission to enforce the
33requirements of the Bagley-Keene Open Meeting Act (Article 9
34(commencing with Section 11120) of Chapter 1 of Part 1 of
35Division 3 of Title 2 of the Government Code).

end insert
begin insert

36(2) An action arising from the California Public Records Act
37(Chapter 3.5 (commencing with Section 6250) of Division 7 of
38Title 1 of the Government Code) or to review a determination made
39under subdivision (c) of Section 6253 of the Government Code.

end insert
P5    1begin insert

begin insertSEC. 6.end insert  

end insert
begin insert

(a) With regard to Section 5 of this act, the Legislature
2finds and declares all of the following:

end insert
begin insert

3(1) On June 3, 2014, California’s Fourth District Court of
4Appeal, in Disenhouse v. Peevey (2014) 226 Cal.App.4th 1096,
5held that an interested person desiring to enforce the Bagley-Keene
6Open Meeting Act (Article 9 (commencing with Section 11120) of
7Chapter 1 of Part 1 of Division 3 of Title 2 of the Government
8Code) against the Public Utilities Commission must do so by filing
9a petition for writ of mandamus in the Supreme Court or the court
10of appeal and may not do so by filing an action for injunctive relief
11in the superior court.

end insert
begin insert

12(2) Also in 2014, the Public Utilities Commission argued in the
13Superior Court of San Francisco that Section 1759 of the Public
14Utilities Code prevents the superior court from ordering the
15commission to provide the City of San Bruno, pursuant to the
16California Public Records Act (Chapter 3.5 (commencing with
17Section 6250) of Division 7 of Title 1 of the Government Code),
18with emails documenting improper communications between
19commissioners and utility executives.

end insert
begin insert

20(3) The Public Utilities Commission continues to maintain the
21position that the superior court does not have jurisdiction to hear
22actions arising out of the California Public Records Act, and has
23cited the Disenhouse case defending this position.

end insert
begin insert

24(4) The intent of the Bagley-Keene Open Meeting Act is that
25actions of state agencies be taken openly and that their deliberation
26be conducted openly.

end insert
begin insert

27(5) The intent of the California Public Records Act is to protect
28the fundamental right of every person in this state to access
29information concerning the conduct of the people’s business.

end insert
begin insert

30(6) The people’s right to remain informed so that they may
31retain control over the instruments of government that they have
32created is not less of a right for some agencies than for other
33agencies, nor shall the people’s ability to enforce the Bagley-Keene
34Open Meeting Act and the California Public Records Act be more
35hampered for some agencies than for other agencies.

end insert
begin insert

36(7) The duties, responsibilities, and actions of the Public Utilities
37Commission affect the well-being of current and future generations,
38and the public interest and principles of fundamental fairness and
39due process of law require that the commission conduct its affairs
P6    1in an open, objective, and impartial manner, free of undue
2influence and the abuse of power and authority.

end insert
begin insert

3(b) It is the intent of the Legislature that the Public Utilities
4Commission should be subject to the judicial review provisions of
5the Bagley-Keene Open Meeting Act and the California Public
6Records Act.

end insert
begin delete
7

SEC. 5.  

This act does

end delete
8begin insert

begin insertSEC. 7.end insert  

end insert

begin insertSections 1, 2, 3, and 4 of this act do end insertnot apply to any
9claims brought by an electrical corporation, as defined in Section
10218 of the Public Utilities Code, that arise from the energy crisis
11of 2000-02.



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