BILL ANALYSIS 1
1
SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
DEBRA BOWEN, CHAIRWOMAN
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|SB 33 - Peace |Hearing Date:March 23, | S|
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|As Amended:March 17, 1999 |FISCAL | B|
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DESCRIPTION
Current law specifies that the president of the California
Public Utilities Commission (CPUC) shall be elected by its
members.
Current law permits the CPUC to appoint its own attorney
and executive director who perform at the direction of the
commission.
This bill provides that the Governor shall designate a
president of the CPUC from among its members and that the
president shall direct the CPUC's attorney, executive
director, and other staff.
Current law permits each commissioner to have one adviser
who is exempt from civil service.
This bill provides that each commissioner may instead have
up to four advisers who are exempt from civil service.
KEY QUESTIONS
1.Should the Governor be permitted to appoint the president
of the CPUC?
2.Should the president of the CPUC be permitted to direct
the work of the CPUC's executive director and general
counsel?
3.Should the CPUC commissioners be permitted to each have
up to four advisors who are exempt from civil service?
BACKGROUND
The basic structure of the CPUC was established early this
century in response to the dominance of railroad interests
into much of California's economic and political life.
Public exasperation was exemplified by the chaplain opening
the first session of the 1911 California Legislature with
the plea: "Give us a square deal for Christ's sake." As
part of Governor Hiram Johnson's reform movement, a series
of constitutional amendments were enacted, one of which
established Article XII creating the CPUC.
The CPUC has historically been afforded much independence,
in keeping with the turn of the century concerns about
undue influence by the railroads. Consequently,
commissioners were appointed for staggered six-year terms
to ensure that no single governor could appoint a majority
of commissioners within that governor's four-year term.
The governor has no power to remove a commissioner; only
the Legislature has that power. The CPUC has been given
broad latitude to set its own procedures and any review of
CPUC decisions has historically been limited to review only
by the Supreme Court.
Lately, some have viewed the CPUC's independence as less a
virtue and more of a vice. Rather than independent, the
CPUC has been seen to be lacking in accountability.
Supporters of this view cite the CPUC-initiated efforts to
restructure the electric and gas markets, which were
severely modified or curtailed after the Legislature found
that the CPUC proposals failed to find the proper balance
of the competing public interests.
Concurrent with the 1996 electric restructuring effort, a
series of procedural reforms were enacted. Central to
those reforms was an effort to improve the accountability
of individual commissioners by encouraging those
commissioners to spend more time in hearings and to take
"ownership" of draft decisions. Those efforts have been at
least partially successful in that commissioners are now
more involved in the cases. The limited judicial review of
CPUC decisions was also broadened to permit appellate court
review, rather than Supreme Court review.
This bill expands those reform efforts by doing two things.
First, it more explicitly centralizes accountability for
the functioning of the CPUC with its president by putting
the Commission's Executive Director and the General Counsel
directly under the control of the president. Second, it
makes the president more directly accountable to the
Governor because the Governor would appoint the president.
This bill also provides for a sizeable expansion in the
number of advisers each commissioner may have who are
exempt from civil service rules. Current law permits each
commissioner to have one advisor who is exempt from civil
service rules but does not limit the overall number of
advisors that each commissioner may have. Current practice
provides each commissioner with one additional advisor,
except for the president who has two additional advisors,
all of whom are subject to civil service rules. Under this
bill, each commissioner may, with the Governor's consent,
have up to four advisors who are exempt from civil service
rules. Consequently this bill increases the number of
commission advisors and allows those advisors to be chosen
from a broad talent pool.
COMMENTS
1.The organizational structure created in this bill is very
similar to that used in the California Energy Commission
(CEC) where the Governor designates a chair and
vice-chair and the chair directs the executive director
and other staff.
The CEC organizational structure is common but by no
means universal. For example, the Coastal Commission
elects its own chair and vice-chair and appoints its own
executive director, as does the Integrated Waste
Management Board. At the Air Resources Board the
Governor appoints the chair and the board appoints its
own executive officer.
Arguably the Governor has always had control over the
CPUC and its presidency, both in Republican and
Democratic administrations, because if the Governor had a
preference for the president then that preference was
honored. Under that theory, this bill simply makes
explicit the implicit control that has been historically
exercised. In the case of transitions, where a new
administration is assuming control, giving the Governor
the power to appoint a president would enhance the new
administration's influence within the CPUC. However, this
influence would not equate to control until the new
administration had appointed a majority of the
commissioners.
2.The third provision of the bill provides that the
president shall direct the executive director and the
general counsel. Current law says that the commission
appoints its executive director and general counsel, who
then perform their work at the direction of the
commission. Thus, it is reasonably clear that it is the
commission who hires, and fires, its executive director
and attorney, but it is not clear who directs their work.
The author may wish to consider amending Sections 307
and 308 of the Public Utilities Code to make them conform
with the provisions of this bill, thereby clarifying that
the president of the commission, and not the commission
as a whole, directs the work of the executive director
and attorney .
The bill also calls upon the president of the CPUC to
direct all staff of the commission in the performance of
their duties. Within the CPUC is an independent division
which represents the interests of consumers, known as the
Office of the Ratepayer Advocate (ORA). This division is
designed to be an advocate independent of the commission.
The author may wish to consider clarifying the bill to
ensure that the president of the CPUC does not direct the
ORA.
The Chief Administrative Law Judge, the Director of the
Strategic Planning Division, and the Public Advisor all
currently are directed by the commission and are
unaffected by this bill.
3.Increasing the number of commission advisors may be
justified because commissioners are stretched thinner as
a result of the recent reforms requiring greater
commissioner participation in hearings. Expanding the
commissioners' personal staffs should make the
commissioners less reliant on the professional staff at
the CPUC, thus making it possible for CPUC decisions to
reflect more of the values and judgements of the
commissioners and less of the professional staff.
While an increase in commission advisors may be
justified, it is difficult to judge whether four exempt
advisors is appropriate for the workload. For example,
each CEC commissioner has two advisors, as does each
member of the California Integrated Waste Management
Board. At the federal level, the commissioners of the
Federal Communications Commission and the Federal Energy
Regulatory Commission each have three advisors.
POSITIONS
Support:
American Federation of State, County
And Municipal Employees (AFSCME)
Coalition of California Utility Employees
Southern California Edison
Southern California Gas Workers Council
Oppose:
None reported to Committee.
Randy Chinn
SB 33 Analysis
Hearing Date: March 23, 1999