SB 48, as introduced, Hill. Public Utilities Commission.
(1) The California Constitution establishes the Public Utilities Commission, with jurisdiction over all public utilities. The California Constitution grants the commission certain general powers over all public utilities, subject to control by the Legislature, and authorizes the Legislature, unlimited by the other provisions of the Constitution, to confer additional authority and jurisdiction upon the commission that is cognate and germane to the regulation of public utilities. Existing law requires the Governor to designate the president of the commission from among its members and requires the president to direct the executive director, the attorney, and other staff of the commission, except for the Office of Ratepayer Advocates. Existing law authorizes the executive director and the attorney to undertake certain actions if directed or authorized by the president, except as otherwise directed or authorized by vote of the commission.
This bill would repeal the requirement that the president direct the executive director, the attorney, and other commission staff. The bill would delete the authority of the president to direct or authorize the executive director and attorney to undertake certain actions, thereby requiring that they be directed or authorized to undertake those actions by the commission. The bill would require the commission to develop performance criteria for the commission and the executive director and to annually evaluate the performance of the executive director based on the criteria established in the previous year.
(2) The Public Utilities Act provides that the office of the commission be in the City and County of San Francisco, that the office always be open, legal holidays and nonjudicial days excepted, that the commission hold its sessions at least once in each calendar month in the City and County of San Francisco, and authorizes the commission to also meet at those other times and places as may be expedient and necessary for the proper performance of its duties.
This bill would require that the commission hold its sessions at least once in each calendar month in the City and County of San Francisco or the City of Sacramento and would require that the commission hold no less than 6 sessions each year in the City of Sacramento.
(3) The California Constitution authorizes the commission to establish its own procedures, subject to statutory limitations or directions and constitutional requirements of due process. Existing law requires the commission to determine whether a proceeding requires a hearing and, if so, to determine whether the matter requires a quasi-legislative, an adjudication, or a ratesetting hearing. For these purposes, quasi-legislative cases are cases that establish policy rulemakings and investigations which may establish rules affecting an entire industry, adjudication cases are enforcement cases and complaints except those challenging the reasonableness of any rates or charges, and ratesetting cases are cases in which rates are established for a specific company, including general rate cases, performance-based ratemaking, and other ratesetting mechanisms.
This bill would make the Administrative Adjudication Code of Ethics applicable to adjudication hearings of the commission.
(4) Existing law requires the commission, upon initiating a hearing, to assign one or more commissioners to oversee the case and an administrative law judge, where appropriate. Existing law requires the assigned commissioner to prepare and issue, by order or ruling, a scoping memo that describes the issues to be considered and the applicable timetable for resolution. Existing law requires the commission, to adopt procedures on the disqualification of administrative law judges due to bias or prejudice similar to those of other state agencies and superior courts.
This bill would require the commission to additionally adopt procedures on the disqualification of commissioners due to bias or prejudice similar to those of other state agencies and superior courts.
(5) The Public Utilities Act requires the commission to develop, publish, and annually update an annual workplan that does all the following: (a) describes in clear detail the scheduled ratemaking proceedings and other decisions that may be considered by the commission during the calendar year, (b) include information on how members of the public and ratepayers can gain access to the commission’s ratemaking process and information regarding the specific matters to be decided, (c) include information on the operation of the office of the public adviser and identify the names and telephone numbers of those contact persons responsible for specific cases and matters to be decided, and (d) include a statement that specifies activities that the commission proposes to reduce the costs of, and rates for, energy, including electricity, and for improving the competitive opportunities for state agriculture and other rural energy consumers. The act requires the commission to submit the workplan to the Governor and Legislature by February 1 of each year.
This bill would expand the requirement that the workplan describe in clear detail the scheduled proceedings that may be considered by the commission during the calendar year to include all proceedings and not just ratemaking proceedings. The bill would additionally require that the workplan include performance criteria for the commission and executive director and evaluate the performance of the executive director during the previous year based on the criteria established in the prior year’s workplan.
(6) The Public Utilities Act requires the commission to create, and annually submit to the Governor and Legislature by February 1, a report on the number of cases where resolution exceeded the time periods prescribed in scoping memos and the days that commissioners presided in hearings.
This bill would delete the requirement that the report include the number of cases where resolution exceeded the time periods prescribed in scoping memos and instead would require the report to describe the commission’s timeliness in resolving cases and include information on the disposition of applications for rehearings. The bill would require that the report include the number of scoping memos issued in each proceeding and to include the number of orders issued extending the statutory deadlines for all adjudication, ratesetting, and quasi-legislative cases.
(7) Existing law regulates communications in hearings before the commission and defines “ex parte communication” to mean any oral or written communication between a decisionmaker and a person with an interest in a matter before the commission concerning substantive, but not procedural, issues that does not occur in a public hearing, workshop, or other public proceeding, or on the official record of the proceeding on the matter. Existing law requires the commission, by regulation, to adopt and publish a definition of the terms “decisionmaker” and “persons” for those purposes, along with any requirements for written reporting of ex parte communications and appropriate sanctions for noncompliance with any rule proscribing ex parte communications. Existing law requires the commission to permit ex parte communications in quasi-legislative cases without restriction.
This bill would revise the definition of an “ex parte communication” to include communication between a decisionmaker and a representative of the financial industry, even if the representative does not have an interest in the matter. The bill would require that the commission’s definition of who is a “decisionmaker” include commissioners, the executive director of the commission, and the attorney of the commission. The bill would permit ex parte communications in quasi-legislative proceedings only in the following circumstances: (A) for oral ex parte communications if all interested parties are invited and given not less than 3 days’ notice, (B) for written ex parte communications if copies of the communication are transmitted to all parties on the same day, and (C) if an ex parte communication meeting is granted to any party, all other parties are required to be granted individual ex parte meetings of a substantially equal period of time and not less than 3 days’ notice would be required to be sent of this right at the time that the request is granted. The bill would make a violation of the ex parte communications requirements punishable by a fine of not more than $50,000 or by imprisonment for not more than one year in the county jail, or by both fine and imprisonment. By creating a new crime, the bill would impose a state-mandated local program. The bill would require the commission to post all prepared written testimony submitted in its formal proceedings on the commission’s Internet Web site.
(8) The California Constitution provides that the Legislature has plenary power to establish the manner and scope of review of commission action in a court of record. Existing law provides that only the Supreme Court and the court of appeal have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties.
This bill would authorize an action to enforce the requirements of the Bagley-Keene Open Meeting Act or the California Public Records Act to be brought against the commission in the superior court.
(9) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
(a) The Legislature finds and declares all of the
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 against the Public Utilities Commission must
7do so by filing a petition for writ of mandamus in the Supreme
8Court or the Court of Appeal and may not do so by filing an action
9for injunctive relief in the superior court.
10(2) The intent of the Bagley-Keene Open Meeting Act is that
11actions of state agencies be taken openly and that their deliberation
12be conducted openly.
13(3) The people’s right to remain informed so that they may
14retain control over the instruments of government that they have
15created is not less of a right for some agencies than for other
16agencies, nor shall the people’s ability to enforce the Bagley-Keene
17Open Meeting Act be more hampered for some agencies than for
19(4) The duties, responsibilities, and actions of the Public Utilities
20Commission affect the well-being of current and future generations
21and the public interest and principles of fundamental fairness and
22due process of law require that the commission conduct its affairs
23in an open, objective, and impartial manner, free of undue influence
24and the abuse of power and authority.
P6 1(b) It is the intent of the Legislature that the Public Utilities
2Commission should be subject to the judicial review provisions
3of the Bagley-Keene Open Meeting Act.
Section 305 of the Public Utilities Code is amended
The Governor shall designate a president of the
7commission from among the members of the commission. The
begin delete direct the executive director, the attorney, and other preside at all meetings and sessions of the commission.
9staff of the commission, except for the staff of the division
10described in Section 309.5, in the performance of their duties, in
11accordance with commission policies and guidelines. The president
Section 306 of the Public Utilities Code is amended
(a) The office of the commission shall be in the City and
16County of San Francisco. The office shall always be open, legal
17holidays and nonjudicial days excepted. The commission shall
18hold its sessions at least once in each calendar month in the City
19and County of San Francisco. The
20commission may also meet at such other times and in such other
21places as may be expedient and necessary for the proper
22performance of its duties, and for that purpose may rent quarters
25(b) The meetings of the commission shall be open and public
26in accordance with the provisions of Article 9 (commencing with
27Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
28the Government Code.
29In addition to the requirements of Section 11125 of the
30Government Code, the commission shall include in its notice of
31meetings the agenda of business to be transacted, and no item of
32business shall be added to the agenda subsequent to the notice in
33the absence of an unforeseen emergency situation. A rate increase
34shall not constitute an unforeseen emergency situation. As used
35in this subdivision, “meeting” shall include all investigations,
36proceedings, and showings required by law to be open and public.
37(c) The commission shall have a seal, bearing the inscription
38“Public Utilities Commission State of California.” The seal shall
39be affixed to all writs and authentications of copies of records and
40to such other instruments as the commission shall direct.
P7 1(d) The commission may procure all necessary books, maps,
2charts, stationery, instruments, office furniture, apparatus, and
Section 307 of the Public Utilities Code is amended
(a) The commission may appoint as attorney to the
7commission an attorney at law of this state, who shall hold office
8during the pleasure of the commission.
9(b) The attorney shall represent and appear for the people of the
10State of California and the commission in all actions and
11proceedings involving any question under this part or under any
12order or act of the commission. If directed to do so by the
begin delete president, commission, the
13except as otherwise directed by vote of theend delete
14attorney shall intervene, if possible, in any action or proceeding
15in which any such question is involved.
16(c) The attorney shall commence, prosecute, and expedite the
17final determination of all actions and proceedings directed or
begin delete the president, except as otherwise directed or the commission, advise the commission and
19authorized by vote ofend delete
20each commissioner, when so requested, in regard to all matters in
21connection with the powers and duties of the commission and the
22members thereof, and generally perform all duties and services as
23attorney to the commission that
begin delete the president, or vote ofend delete the
begin delete,end delete may require of begin delete him.end delete
Section 308 of the Public Utilities Code is amended
(a) The commission shall appoint an executive director,
28who shall hold office during its pleasure. The executive director
29shall be responsible for the commission’s executive and
30administrative duties and shall organize, coordinate, supervise,
31and direct the operations and affairs of the commission and
32expedite all matters within the commission’s jurisdiction.
33(b) The executive director shall keep a full and true record of
34all proceedings of the commission, issue all necessary process,
35writs, warrants, and notices, and perform
begin delete suchend delete
other duties begin delete as
36the president, or vote of the commission,end delete
37 prescribes. The
begin delete presidentend delete may authorize the executive
38director to dismiss complaints or applications when all parties are
39in agreement thereto, in accordance with rules that the commission
P8 1(c) The commission may appoint assistant executive directors
2who may serve warrants and other process in any county or city
3and county of this state.
Section 309.6 of the Public Utilities Code is amended
(a) The commission shall adopt procedures on the
11disqualification of administrative law judges
12due to bias or prejudice similar to those of other state agencies and
14(b) The commission shall develop the procedures with the
15opportunity for public review and comment.
Section 321.6 of the Public Utilities Code is amended
(a) The commission shall do all of the following:
19(1) Develop, publish, and annually update an annual workplan
20that describes in clear detail the scheduled
begin delete ratemakingend delete proceedings
21and other decisions that may be considered by the commission
22during the calendar year. The plan shall include, but is not limited
23to, information on how members of the public and ratepayers can
24gain access to the commission’s ratemaking process and
25information regarding the specific matters to be decided. The plan
26shall also include information on the operation of the office of the
27public adviser and identify the names and telephone numbers of
28those contact persons responsible for specific cases and matters
29 to be decided. The plan shall also include a statement that specifies
30activities that the commission proposes to reduce the costs of, and
31rates for, energy, including electricity, and for improving the
32competitive opportunities for state agriculture and other rural
33energy consumers. The
37commission shall post the plan under the Official Documents area
38of its Internet Web site and shall develop a program to disseminate
39the information in the plan utilizing computer mailing lists to
P9 1provide regular updates on the information to those members of
2the public and organizations which request that information.
3(2) Produce a complete accounting of its transactions and
4proceedings for the preceding year, together with other facts,
5suggestions, and recommendations that it deems of value to the
6people of the state and a statement that specifies the activities and
7achievements of the commission in reducing the costs of, and rates
8for, energy, including electricity, for state agriculture and other
9rural energy consumers.
10(3) Create a report
begin delete on the number of cases where resolution and the days that
11exceeded the time periods prescribed in scoping memosend delete
14commissioners presided in hearings.
20(4) Submit annually the plan, accounting, and report required
21by paragraphs (1), (2), and (3) to the Governor and Legislature no
22later than February 1 of each year.
23(b) The president of the commission shall annually appear before
24the appropriate policy committees of the Senate and Assembly to
25report on the annual workplan access guide of the commission
26required pursuant to this section.
27(c) The president of the commission shall annually appear before
28the appropriate policy committees of the Senate and Assembly to
29report on the annual report of the commission on the
begin delete number of and
30cases where resolution exceeded the time periods prescribed in
31scoping memosend delete
32the days that commissioners presided in
begin delete hearings, pursuant to
33Section 13 of Chapter 856 of the Statutes of 1996.end delete
Section 1701 of the Public Utilities Code is amended
(a) All hearings, investigations, and proceedings shall
37be governed by this part and by rules of practice and procedure
38adopted by the commission, and in the conduct thereof the technical
39rules of evidence need not be applied. No informality in any
40hearing, investigation, or proceeding or in the manner of taking
P10 1testimony shall invalidate any order, decision or rule made,
2approved, or confirmed by the commission.
3(b) Notwithstanding Section 11425.10 of the Government Code,
4 Chapter 4.5 (commencing with
5Section 11400) of Part 1 of Division 3 of Title 2 of the Government
begin delete doesend delete not apply to a hearing by the commission under this
Section 1701.1 of the Public Utilities Code is amended
(a) The commission, consistent with due process,
13public policy, and statutory requirements, shall determine whether
14a proceeding requires a hearing. The commission shall determine
15whether the matter requires a quasi-legislative, an adjudication,
16or a ratesetting hearing. The commission’s decision as to the nature
17of the proceeding shall be subject to a request for rehearing within
1810 days of the date of that decision. If that decision is not appealed
19to the commission within that time period it shall not be
20subsequently subject to judicial review. Only those parties who
21have requested a rehearing within that time period shall
22subsequently have standing for judicial review and that review
23shall only be available at the conclusion of the proceeding. The
24commission shall render its decision regarding the rehearing within
2530 days. The commission shall establish regulations regarding ex
26parte communication on case categorization issues.
27(b) The commission upon initiating a hearing shall assign one
28or more commissioners to oversee the case and an administrative
29law judge where appropriate. The assigned commissioner shall
30schedule a prehearing conference. The assigned commissioner
31shall prepare and issue by order or ruling a scoping memo that
32describes the issues to be considered and the applicable timetable
34(c) (1) Quasi-legislative cases, for purposes of this article, are
35cases that establish policy, including, but not limited to,
36rulemakings and investigations which may establish rules affecting
37an entire industry.
38(2) Adjudication cases, for purposes of this
39enforcement cases and complaints except those challenging the
40reasonableness of any rates or charges as specified in Section 1702.
P11 1(3) Ratesetting cases, for purposes of this article, are cases in
2which rates are established for a specific company, including, but
3not limited to, general rate cases, performance-based ratemaking,
4and other ratesetting mechanisms.
5(4) “Ex parte communication,” for purposes of this article,
6means any oral or written communication between a decisionmaker
7and a person with an interest in a matter before the commission
8 concerning substantive,
9but not procedural issues, that does not occur in a public hearing,
10workshop, or other public proceeding, or on the official record of
11the proceeding on the matter. “Person with an interest,” for
12purposes of this article, means any of the following:
13(A) Any applicant, an agent or an employee of the applicant,
14or a person receiving consideration for representing the applicant,
15or a participant in the proceeding on any matter before the
17(B) Any person with a financial interest, as described in Article
181 (commencing with Section 87100) of Chapter 7 of Title 9 of the
19Government Code, in a matter before the commission, or an agent
20or employee of the person with a financial interest, or a person
21receiving consideration for representing the person with a financial
23(C) A representative acting on behalf of any civic,
24environmental, neighborhood, business, labor, trade, or similar
25organization who intends to influence the decision of a commission
26 member on a matter before the commission.
27The commission shall by regulation adopt and publish a
28definition of decisionmakers and persons for purposes of this
29section, along with any requirements
31for written reporting of ex parte communications and appropriate
33noncompliance with any rule proscribing ex parte communications.
34The regulation shall provide that reportable communications shall
35be reported by the
begin delete party,end delete whether
36the communication was initiated by the party or the decisionmaker.
37Communications shall be reported within three
38working days of the communication by filing a “Notice of Ex Parte
39Communication” with the commission in accordance with the
P12 1procedures established by the commission for the service of that
2notice. The notice shall include the following information:
3(i) The date, time, and location of the communication, and
4whether it was oral, written, or a combination.
5(ii) The identity of the recipient and the person initiating the
6communication, as well as the identity of any persons present
7during the communication.
8(iii) A description of the party’s,
but not the decisionmaker’s,
9communication and its content, to which shall be attached a copy
10of any written material or text used during the communication.
Section 1701.4 of the Public Utilities Code is
14amended to read:
(a) If the commission pursuant to Section 1701.1 has
16determined that a quasi-legislative case requires a hearing, the
17procedures prescribed by this section shall be applicable. The
18assigned administrative law judge shall act as an assistant to the
19assigned commissioner in quasi-legislative cases. The assigned
20commissioner shall be present for formal hearings. The assigned
21commissioner shall prepare the proposed rule or order with the
22assistance of the administrative law judge. The assigned
23commissioner shall present the proposed rule or order to the full
24commission in a public meeting. The report shall include the
25number of days of hearing and the number of days that the
26commissioner was present.
27(b) Ex parte communications
shall be permitted
begin delete without any
P13 1(c) Any party has the right to present a final oral argument of
2its case before the commission. Those requests shall be scheduled
3in a timely manner. A quorum of the commission shall be present
4for the final oral arguments.
5(d) The commission may, in issuing its rule or order, adopt,
6modify, or set aside the proposed decision or any part of the rule
7or order. The final rule or order of the commission shall be issued
8not later than 60 days after the issuance of the proposed rule or
9order. Under extraordinary circumstances the commission may
10extend this date for a reasonable period. The 60-day period shall
11be extended for 30 days if any alternate rule or order is proposed
12pursuant to Section 311.
Section 1701.6 is added to the Public Utilities Code,
A violation of the ex parte communications
16requirements of this article by any person is punishable by a fine
17of not more than fifty thousand dollars ($50,000) or by
18imprisonment for not more than one year in a county jail, or by
19both that fine and imprisonment.
Section 1759 of the Public Utilities Code is amended
(a) No court of this state, except the Supreme Court and
23the court of appeal, to the extent specified in this article, shall have
24jurisdiction to review, reverse, correct, or annul any order or
25decision of the commission or to suspend or delay the execution
26or operation thereof, or to enjoin, restrain, or interfere with the
27commission in the performance of its official duties, as provided
28by law and the rules of court.
29(b) The writ of mandamus shall lie from the Supreme Court and
30from the court of appeal to the commission in all proper cases as
31prescribed in Section 1085 of the Code of Civil Procedure.
No reimbursement is required by this act pursuant to
2Section 6 of Article XIII B of the California Constitution because
3the only costs that may be incurred by a local agency or school
4district will be incurred because this act creates a new crime or
5infraction, eliminates a crime or infraction, or changes the penalty
6for a crime or infraction, within the meaning of Section 17556 of
7the Government Code, or changes the definition of a crime within
8the meaning of Section 6 of Article XIII B of the California