SB 48, as amended, 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.
begin delete 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.end delete
(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. Except for in adjudication cases, the bill would require the commission, before instituting an investigation or proceeding on its own motion, where feasible and appropriate, to seek the views of those who are likely to be affected by a decision in the investigation or proceeding, including those who are likely to benefit from, and those who are potentially subject to, a decision in that investigation or proceeding.
(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.end delete
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.end delete
The Public Utilities Act requires the commission to develop, publish, and annually update an annual workplan that does all the following:
begin delete (a)end delete describes in clear detail the scheduled ratemaking proceedings and other decisions that may be considered by the commission during the calendar year, begin delete (b)end delete 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, begin delete (c)end delete 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 begin delete (d)end delete 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.
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.end delete
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 delete the provision that an ex parte communication concerns a substantive, but not a procedural matter, and instead would provide that an ex parte communication concerns any matter that the commission has not specified as being a procedural matter that is an appropriate subject for ex parte communication. The bill would require the commission to specify those procedural matter that are appropriate subjects for ex parte communications in its Rules of Practice and Procedure. 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 require that any decisionmaker who makes or receives a prohibited ex parte communication, or who learns that a permissible ex parte communication was not reported, to disclose the content of the communication and give all parties an opportunity to address the communication. The bill would make a knowing and willful 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.end delete
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.end delete
This bill would provide that no reimbursement is required by this act for a specified reason.end delete
Fiscal committee: yes.
State-mandated local program:
begin deleteyes end delete.
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 do so by filing
9a petition for writ of mandamus in the Supreme Court or the
begin delete Court and may not do so by filing an action
10of Appealend delete
11for injunctive relief in the superior court.
12(2) The intent of the Bagley-Keene Open Meeting Act is that
13actions of state agencies be taken openly and that their deliberation
14be conducted openly.
15(3) The people’s right to remain informed so that they may
16retain control over the instruments of government that they have
17created is not less of a right for some agencies than for other
18agencies, nor shall the people’s ability to enforce the Bagley-Keene
19Open Meeting Act be more hampered for some agencies than for
21(4) The duties, responsibilities, and actions of the Public
22Commission affect the well-being of current and future generations
23and the public interest and principles of fundamental fairness and
24due process of law require that the commission conduct its affairs
25in an open, objective, and impartial manner, free of undue influence
26and the abuse of power and authority.
27(b) It is the intent of the Legislature that the Public Utilities
28Commission should be subject to the judicial review provisions
29of the Bagley-Keene Open Meeting Act.
Section 305 of the Public Utilities Code is amended
The Governor shall designate a president of the
33commission from among the members of the commission. The
34president shall preside at all meetings and sessions of the
Section 306 of the Public Utilities Code is amended
(a) The office of the commission shall be in the City and
2County of San Francisco. The office shall always be open, legal
3holidays and nonjudicial days excepted. The commission shall
4hold its sessions at least once in each calendar month in the City
5and County of San Francisco or the City of Sacramento. The
6commission may also meet at such other times and in such other
7places as may be expedient and necessary for the proper
8performance of its duties, and for that purpose may rent quarters
9or offices. The commission shall hold no less than six sessions
10each year in the City of Sacramento.
11(b) The meetings of the commission shall be open and public
12in accordance with the provisions of Article 9 (commencing with
13Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
14the Government Code.
15In addition to the requirements of Section 11125 of the
16Government Code, the commission shall include in its notice of
17meetings the agenda of business to be transacted, and no item of
18business shall be added to the agenda subsequent to the notice in
19the absence of an unforeseen emergency situation. A rate increase
20shall not constitute an unforeseen emergency situation. As used
21in this subdivision, “meeting” shall include all investigations,
22proceedings, and showings required by law to be open and public.
23(c) The commission shall have a seal, bearing the inscription
24“Public Utilities Commission State of California.” The seal shall
25be affixed to all writs and authentications of copies of records and
26to such other instruments as the commission shall direct.
27(d) The commission may procure all necessary books, maps,
28charts, stationery, instruments, office furniture, apparatus, and
Section 307 of the Public Utilities Code is amended
(a) The commission may appoint as attorney to the
33commission an attorney at law of this state, who shall hold office
34during the pleasure of the commission.
35(b) The attorney shall represent and appear for the people of the
36State of California and the commission in all actions and
37proceedings involving any question under this part or under any
38order or act of the commission. If directed to do so by the
39commission, the attorney shall intervene, if possible, in any action
40or proceeding in which any such question is involved.
P8 1(c) The attorney shall commence, prosecute, and expedite the
2final determination of all actions and proceedings directed or
3authorized by the commission, advise the commission and each
4commissioner, when so requested, in regard to all matters in
5connection with the powers and duties of the commission and the
6members thereof, and generally perform all duties and services as
7attorney to the commission that the commission may require of
8him or her.
Section 308 of the Public Utilities Code is amended
(a) The commission shall appoint an executive director,
12who shall hold office during its pleasure. The executive director
13shall be responsible for the commission’s executive and
14administrative duties and shall organize, coordinate, supervise,
15and direct the operations and affairs of the commission and
16expedite all matters within the commission’s jurisdiction.
17(b) The executive director shall keep a full and true record of
18all proceedings of the commission, issue all necessary process,
19writs, warrants, and notices, and perform any other duties the
20commission prescribes. The commission may authorize the
21executive director to dismiss complaints or applications when all
22parties are in agreement thereto, in accordance with rules that the
23commission may prescribe.
24(c) The commission may appoint assistant executive directors
25who may serve warrants and other process in any county or city
26and county of this state.
27(d) The commission shall develop performance criteria for the
28commission and the executive director and shall annually evaluate
29the performance of the executive director based on the criteria
30 established in the previous year.
Section 309.6 of the Public Utilities Code is amended
(a) The commission shall adopt procedures on the
34disqualification of commissioners and administrative law judges
35due to bias or prejudice similar to those of other state agencies and
37(b) The commission shall develop the procedures with the
38opportunity for public review and comment.
Section 321.6 of the Public Utilities Code is amended
(a) The commission shall do all of the following:
6(1) Develop, publish, and annually update an annual workplan
7that describes in clear detail the scheduled proceedings and other
8decisions that may be considered by the commission during the
9calendar year. The plan shall include, but is not limited to,
10information on how members of the public and ratepayers can gain
11access to the commission’s ratemaking process and information
12regarding the specific matters to be decided. The plan shall also
13include information on the operation of the office of the public
begin delete adviserend delete and identify the names and telephone numbers of
15those contact persons responsible for specific cases and matters
16to be decided. The plan shall also include a statement that specifies
17activities that the commission proposes to reduce the costs of, and
18rates for, energy, including electricity, and for improving the
19competitive opportunities for state agriculture and other rural
20energy consumers. The plan shall also include performance criteria
21for the commission and executive director and shall evaluate the
22performance of the executive director during the previous year
23based on the criteria established in the prior year’s workplan. The
24commission shall post the plan under the Official Documents area
25of its Internet Web site and shall develop a program to disseminate
26the information in the plan utilizing computer mailing lists to
27provide regular updates on the information to those members of
28the public and organizations which request that information.
29(2) Produce a complete accounting of its transactions and
30proceedings for the preceding year, together with other facts,
31suggestions, and recommendations that it deems of value to the
32people of the state and a statement that specifies the activities and
33achievements of the commission in reducing the costs of, and rates
34for, energy, including electricity, for state agriculture and other
35rural energy consumers.
36(3) Create a report describing the commission’s timeliness in
37resolving cases, information on the disposition of applications for
38rehearings, and the days that commissioners presided in hearings.
39The report shall include the number of scoping memos issued in
40each proceeding and the number of orders issued extending the
P10 1statutory deadlines pursuant to subdivision (d) of Section 1701.2,
2for all adjudication cases, and pursuant to subdivision (a) of Section
31701.5, for all ratesetting or quasi-legislative cases.
4(4) Submit annually the plan, accounting, and report required
5by paragraphs (1), (2), and (3) to the Governor and Legislature no
6later than February 1 of each year.
7(b) The president of the commission shall annually appear before
8the appropriate policy committees of the Senate and Assembly to
9report on the annual workplan access guide of the commission
10required pursuant to this section.
11(c) The president of the commission shall annually appear before
12the appropriate policy committees of the Senate and Assembly to
13report on the annual report of the commission on the commission’s
14timeliness in resolving cases and the days that commissioners
15presided in hearings.
Section 1701 of the Public Utilities Code is amended
(a) All hearings, investigations, and proceedings shall
19be governed by this part and by rules of practice and procedure
20adopted by the commission, and in the conduct thereof the technical
21rules of evidence need not be applied. No informality in any
22hearing, investigation, or proceeding or in the manner of taking
23testimony shall invalidate any order, decision or rule made,
24approved, or confirmed by the commission.
25(b) Notwithstanding Section 11425.10 of the Government Code,
26Articles 1 through 15, inclusive, of Chapter 4.5 (commencing with
27Section 11400) of Part 1 of Division 3 of Title 2 of the Government
28Code do not apply to a hearing by the commission under this code.
29The Administrative Adjudication Code of Ethics (Article 16
30(commencing with Section 11475) of Chapter
begin delete 4.5)end delete shall apply to
32adjudication proceedings of the commission.
Section 1701.1 of the Public Utilities Code is amended
(a) The commission, consistent with due process,
36public policy, and statutory requirements, shall determine whether
37a proceeding requires a hearing. The commission shall determine
38whether the matter requires a quasi-legislative, an adjudication,
39or a ratesetting hearing. The commission’s decision as to the nature
40of the proceeding shall be subject to a request for rehearing within
P11 110 days of the date of that decision. If that decision is not appealed
2to the commission within that time period it shall not be
3subsequently subject to judicial review. Only those parties who
4have requested a rehearing within that time period shall
5subsequently have standing for judicial review and that review
6shall only be available at the conclusion of the proceeding. The
7commission shall render its decision regarding the rehearing within
830 days. The commission shall establish regulations regarding ex
9parte communication on case categorization issues.
10(b) The commission upon initiating a hearing shall assign one
11or more commissioners to oversee the case and an administrative
12law judge where appropriate. The assigned commissioner shall
13schedule a prehearing conference. The assigned commissioner
14shall prepare and issue by order or ruling a scoping memo that
15describes the issues to be considered and the applicable timetable
17(c) (1) Quasi-legislative cases, for purposes of this article, are
18cases that establish policy, including, but not limited to,
19rulemakings and investigations which may establish rules affecting
20an entire industry.
21(2) Adjudication cases, for purposes of this article, are
22enforcement cases and complaints except those challenging the
23reasonableness of any rates or charges as specified in Section 1702.
24(3) Ratesetting cases, for purposes of this article, are cases in
25which rates are established for a specific company, including, but
26not limited to, general rate cases, performance-based ratemaking,
27and other ratesetting mechanisms.
28(d) (1) “Ex parte communication,” for purposes of this article,
29means any oral or written communication between a decisionmaker
30and a person with an interest in a matter before the commission
31or a representative of the financial industry concerning any matter
32that the commission has not specified as being a procedural matter
33that is an appropriate subject for ex parte communication, that does
34not occur in a public hearing, workshop, or other public proceeding,
35or on the official record of the proceeding on the matter. The
36commission shall specify those procedural matter that are
37appropriate subjects for ex parte communications in its Rules of
38Practice and Procedure. “Person with an interest,” for purposes of
39this article, means any of the following:
P12 1(A) Any applicant, an agent or an employee of the applicant,
2or a person receiving consideration for representing the applicant,
3or a participant in the proceeding on any matter before the
5(B) Any person with a financial interest, as described in Article
61 (commencing with Section 87100) of Chapter 7 of Title 9 of the
7Government Code, in a matter before the commission, or an agent
8or employee of the person with a financial interest, or a person
9receiving consideration for representing the person with a financial
11(C) A representative acting on behalf of any civic,
12environmental, neighborhood, business, labor, trade, or similar
13organization who intends to influence the decision of a commission
14 member on a matter before the commission.
15(2) The commission shall by regulation adopt and publish a
16definition of decisionmakers and persons for purposes of this
17section, which shall include commissioners, the executive director,
18and the attorney to the commission, along with any requirements
19for written reporting of ex parte communications and appropriate
20sanctions, in addition to those described in Section 1701.6, for
21noncompliance with any rule proscribing ex parte communications.
22The regulation shall provide that reportable communications shall
23be reported by the party and the decisionmaker pursuant to
24paragraphs (3) and (4), whether the communication was initiated
25by the party or the decisionmaker.
26(3) The communication shall be reported by the party within
27three working days of the communication by filing a “Notice of
28Ex Parte Communication” with the commission in accordance
29with the procedures established by the commission for the service
30of that notice. The notice shall include the following information:
31(A) The date, time, and location of the communication, and
32whether it was oral, written, or a combination.
33(B) The identity of the recipient and the person initiating the
34communication, as well as the identity of any persons present
35during the communication.
36(C) A description of the party’s, but not the decisionmaker’s,
37communication and its content, to which shall be attached a copy
38of any written material or text used during the communication.
39(4) Any decisionmaker who makes or receives a prohibited ex
40parte communication, or who learns that a permissible ex parte
P13 1communication was not reported pursuant to paragraph (3), shall
2disclose the content of the communication and give all parties an
3opportunity to address the communication.
4(e) The commission shall post all prepared written testimony
5submitted in its formal proceedings on its Internet Web site.
Section 1701.4 of the Public Utilities Code is
7amended to read:
(a) If the commission pursuant to Section 1701.1 has
9determined that a quasi-legislative case requires a hearing, the
10procedures prescribed by this section shall be applicable. The
11assigned administrative law judge shall act as an assistant to the
12assigned commissioner in quasi-legislative cases. The assigned
13commissioner shall be present for formal hearings. The assigned
14commissioner shall prepare the proposed rule or order with the
15assistance of the administrative law judge. The assigned
16commissioner shall present the proposed rule or order to the full
17commission in a public meeting. The report shall include the
18number of days of hearing and the number of days that the
19commissioner was present.
20(b) Ex parte communications shall be permitted
21quasi-legislative cases, subject to the following:
22(1) Oral ex parte communications may be permitted if all
23interested parties are invited and given not less than three days’
25(2) Written ex parte communications may be permitted if copies
26of the communication are transmitted to all parties on the same
28(3) If an ex parte communication meeting is granted to any
29party, all other parties shall also be granted individual ex parte
30meetings of a substantially equal period of time and shall be sent
31a notice of this right at the time that the request is granted. In no
32event shall that notice be less than three days.
party has the right to present a final oral argument of
34its case before the commission. Those requests shall be scheduled
35in a timely manner. A quorum of the commission shall be present
36for the final oral arguments.
37(d) The commission may, in issuing its rule or order, adopt,
38modify, or set aside the proposed decision or any part of the rule
39or order. The final rule or order of the commission shall be issued
40not later than 60 days after the issuance of the proposed rule or
P14 1order. Under extraordinary circumstances the commission may
2extend this date for a reasonable period. The 60-day period shall
3be extended for 30 days if any alternate rule or order is proposed
4pursuant to Section 311.
Section 1701.6 is added to the Public Utilities Code,
A knowing and willful violation of the ex parte
8communications requirements of this article by any person is
9punishable by a fine of not more than fifty thousand dollars
10($50,000) or by imprisonment for not more than one year in a
11county jail, or by both that fine and imprisonment.
Section 1711 is added to the Public Utilities Code, to
Where feasible and appropriate, except for adjudication
16cases, before instituting an investigation or proceeding on its own
17motion, the commission shall seek the views of those who are
18likely to be affected, including those who are likely to benefit from,
19and those who are potentially subject to, a decision in that
20investigation or proceeding. The commission shall demonstrate
21its efforts to comply with this section in the text of the order
22instituting the investigation or proceeding.
Section 1759 of the Public Utilities Code is amended
(a) No court of this state, except the Supreme Court and
27the court of appeal, to the extent specified in this article, shall have
28jurisdiction to review, reverse, correct, or annul any order or
29decision of the commission or to suspend or delay the execution
30or operation thereof, or to enjoin, restrain, or interfere with the
31commission in the performance of its official duties, as provided
32by law and the rules of court.
33(b) The writ of mandamus shall lie from the Supreme Court and
34from the court of appeal to the commission in all proper cases as
35prescribed in Section 1085 of the Code of Civil Procedure.
36(c) This section does not apply to an action brought against the
37commission to enforce the requirements of the Bagley-Keene Open
38Meeting Act (Article 9 (commencing with Section 11120) of
39Chapter 1 of Part 1 of Division 3 of Title 2 of the Government
40Code) or the California Public Records Act (Chapter 3.5
P15 1(commencing with Section 6250) of Division 7 of Title 1 of the
2Government Code), which action may be brought in the superior
No reimbursement is required by this act pursuant to
5Section 6 of Article XIII B of the California Constitution because
6the only costs that may be incurred by a local agency or school
7district will be incurred because this act creates a new crime or
8infraction, eliminates a crime or infraction, or changes the penalty
9for a crime or infraction, within the meaning of Section 17556 of
10the Government Code, or changes the definition of a crime within
11the meaning of Section 6 of Article XIII B of the California