BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 825


                                                                    Page  1





          Date of Hearing:   April 28, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 825  
          Rendon - As Amended: April 20, 2015


          SUBJECT:  Public Utilities Commission


          KEY ISSUES: 


          1)Should the Public Utilities Commission make more documents  
            accessible to the public, including by posting  
            non-confidential documents (or public versions of confidential  
            documents) on an internet website? 


          2)Should a party aggrieved by a decision of the Public Utilities  
            Commission be allowed to bring an action challenging that  
            decision in the superior courts of Los Angeles or San  
            Francisco, as opposed to existing law that only permits  
            petitioning an appellate court? 


                                      SYNOPSIS


          Most provisions in this bill seek greater transparency in the  
          decision-making process of the California Public Utilities  
          Commission (PUC) by, among other things, requiring the PUC to  
          post various filings, reports, procurement contracts, and other  








                                                                     AB 825


                                                                    Page  2





          documents on an Internet Web site and otherwise increase citizen  
          access to information concerning PUC decisions.  No doubt this  
          bill reflects recent controversies surrounding former PUC  
          President Michael Peevey, his ties to Pacific Gas & Electric and  
          Southern California Edison, and how those ties allegedly  
          affected PUC decisions relating to the San Bruno tragedy and the  
          failed San Onofre nuclear plant.  These controversies have  
          raised questions about the PUC decision-making process and its  
          relationship to the entities that it is charged with regulating.  
           Many of the bill's transparency requirements were addressed in  
          the analysis of the Assembly Committee on Utilities and  
          Commerce, which approved the bill by a 14-0 vote.  The bill was  
          referred to this Committee because, as most recently amended, it  
          changes the process of judicial review of PUC decisions.   
          Although the state constitution gives the Legislature plenary  
          authority to establish a process of judicial review of PUC  
          decisions, statutes have long required petitions challenging PUC  
          decisions to be directed to California Supreme Court or (since  
          1999) one of the California Courts of Appeal.  What kinds of  
          "decisions" must be challenged in an appellate court is open to  
          debate; however, a California Court of Appeal recently suggested  
          that a challenge to any decision of PUC would need to go to an  
          appellate court. In that case, the court held that an action  
          alleging that PUC violated the Bagley-Keene Open Meeting Act  
          could not be brought in superior court.  Prior to recent  
          amendments, this bill responded to that decision by providing  
          that a person could bring an action alleging a violation of  
          either the Bagley-Keene Act or the California Public Records Act  
          in superior court.   As recently amended, however, the bill goes  
          much further: it eliminates the long-standing requirement that  
          challenges go to an appellate court and instead permits any  
          party aggrieved by a decision of the PUC to obtain a review in  
          the superior courts of either of San Francisco or Los Angeles.  
          The bill is supported by labor, consumer, and environmental  
          groups.


          SUMMARY:  Imposes new requirements aimed at increasing the  
          transparency of the decision-making of the California Public  








                                                                     AB 825


                                                                    Page  3





          Utilities Commission (PUC) and fundamentally changes the process  
          of judicial review of PUC decisions.   Specifically, this bill:   



          1)Prohibits the commission from reassigning any staff member  
            from a duty or activity authorized by statute to another duty  
            or activity unless the Legislature has authorized personnel  
            for that duty or activity. The bill would require the  
            commission's internal auditor to report directly to the  
            commission.


          2)Deletes a requirement 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 and instead require that the inspections and  
            audit and other pertinent information be posted on the  
            commission's Internet Web site.


          3)Requires 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, require the 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 along with the name and contact information of an  
            utility official who can discuss the nature of the rate  
            application.


          4)Provides that if in a proceeding before the commission, a  
            public utility, or subsidiary, affiliate, or holding company,  
            seeks to file a pleading, report, or other document with the  
            commission that preserves the confidentiality of information  
            contained therein, it would be required to file a public  
            version of the pleading, report, or other document that  
            contains sufficient information for any other party to the  








                                                                     AB 825


                                                                    Page  4





            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.


          5)Requires the commission to post on its Internet Web site a  
            summary 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, and a list of all public utilities with  
            rates-setting cases 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.


          6)Permits any party aggrieved by a decision or order issued by  
            the PUC to obtain a review of the order in the superior court  
            for the City and County of San Francisco or the County of Los  
            Angeles, by filing in the court, within 60 days after the  
            decision or order of the PUC upon the application of  
            rehearing, a written petition praying that the order of the  
            PUC be modified or set aside in whole or part.   Specifies the  
            following:


             a)    No objection shall be considered by the court unless  
               the objection had been urged upon the PUC in the  
               application for rehearing. 


             b)   Requires that a copy of the petition be transmitted by  
               the clerk of the court to the PUC and the PUC, upon receipt  
               of the petition, shall file with the court the record upon  








                                                                     AB 825


                                                                    Page  5





               which the decision or order complained of was entered. 


             c)   Specifies that until the record in the proceeding has  
               been filed in the court, the PUC may at any time, upon  
               reasonable notice and in any manner it determines is  
               proper, modify or set aside, in whole or in part, any  
               finding or order made or issued by it. 


             d)   Permits a party to apply to the court for leave to  
               produce additional evidence, if the party shows that the  
               additional evidence is material and there were reasonable  
               grounds for failure to produce the evidence in the  
               proceeding before the PUC, the court may authorize  
               additional evidence in a manner and upon terms that the  
               court deems proper. 


          EXISTING LAW:    



          1)Requires the CPUC to adopt procedures to ensure  
            confidentiality of market sensitive information submitted in  
            an electrical corporation's proposed procurement plan or  
            resulting from or related to its approved procurement plan,  
            including, but not limited to, proposed or executed power  
            purchase agreements, data request responses, or consultant  
            reports, or any combination, provided that the Office of  
            Ratepayer Advocates and other consumer groups that are  
            nonmarket participants shall be provided access to this  
            information under confidentiality procedures authorized by the  
            CPUC. (Public Utilities Code 454.5 (g))



          2)Requires every public utility to provide information to the  
            CPUC including specific answers to all questions posed by the  








                                                                     AB 825


                                                                    Page  6





            CPUC. (Public Utilities Code 581)



          3)Requires every public utility to deliver copies of any or all  
            maps, profiles, contracts, agreements, franchises, reports,  
            books, accounts, papers, and records in its possession or in  
            any way relating to its property or affecting its business,  
            and also a complete inventory of all its property (Public  
            Utilities Code 582)



          4)Provides that no information provided to the CPUC by a public  
            utility or its subsidiary or affiliate shall be open to the  
            public except on the order of the CPUC or a commissioner in  
            the course of a hearing or proceeding. Also provides that any  
            present or former officer or employee of the CPUC who divulges  
            information is guilty of a misdemeanor. (Public Utilities Code  
            583)


          5)Requires public utilities to furnish reports periodically,  
            special, or both concerning any matter about which the CPUC is  
            authorized to inquire or keep itself informed or which it is  
            required to enforce. (Public Utilities Code 584)


          6)Requires the public utilities to provide access to all  
            computer models used by the public utility, in any rate  
            proceeding, or any proceeding that may influence a rate, to  
            the CPUC. (Public Utilities Code 585)


          7)Provides that a public utility may provide personal customer  
            information requested to a district attorney but that customer  
            usages of services can only be provided pursuant to a court  
            order or subpoena. (Public Utilities Code 588)









                                                                     AB 825


                                                                    Page  7







          8)Establishes an annual reporting requirement for the CPUC to  
            disclose power purchase contract costs in an aggregated form  
            categorized according to the year the procurement transaction  
            was approved, the eligible renewable energy resource type,  
            including bundled renewable energy credits, the average  
            executed contract price, and average actual recorded costs for  
            each kilowatt hour of production. (Public Utilities Code 911)



          9)Allows an aggrieved party to a CPUC decision to petition for a  
            writ of review in the court of appeal or the Supreme Court  
            within 30 days of the CPUC's denying an application for  
            rehearing. (Public Utilities Code 1756)



          10)Allows an aggrieved party to a CPUC decision to petition for  
            a writ of review in the court of appeal or the Supreme Court  
            within 30 days of a CPUC decision following the grant of an  
            application for rehearing. (Public Utilities Code 1756)



          11)Prevents superior court from reviewing, reversing,  
            correcting, or annulling any order or decision of the  
            commission or suspending or delaying the execution or  
            operation thereof, or enjoining, restraining, or interfering  
            with the CPUC in the performance of its "official duties."  
            (Public Utilities Code 1759)



          12)States the public policy of this state that public agencies  
            exist to aid in the conduct of the people's business and the  
            proceedings of public agencies be conducted openly so that the  
            public may remain informed. (Government Code 11120)








                                                                     AB 825


                                                                    Page  8







          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  According to the author, recent media reports on the  
          California Public Utilities Commission have lessened the  
          public's trust in the Commission, in part, by showing that the  
          Commission's decision-making process "lacked transparency, with  
          some deals done in private meetings with investor-owned utility  
          representatives."  No doubt this bill reflects recent  
          controversies surrounding former PUC President Michael Peevey,  
          his ties to Pacific Gas & Electric and Southern California  
          Edison, and how those ties allegedly affected PUC decisions  
          relating to the San Bruno tragedy and the failed but costly San  
          Onofre nuclear plant.  These controversies have raised questions  
          about the PUC decision-making process and its relationships with  
          the entities that it is charged with regulating.  However, in  
          addition to these higher profile issues, the author also  
          contends that since deregulation and the 2000 energy crisis the  
          PUC has tended to designate more information as "confidential"  
          and thus shielded from public scrutiny. The author believes that  
          AB 825 will improve transparency and increase public trust.  





          Transparency and Confidentiality Provisions: The transparency  
          provisions of this bill fall roughly into two categories.   
          First, the bill requires the PUC to post on its Website certain  
          documents pertaining to, or submitted by, regulated entities.   
          For example, existing law requires the PUC to periodically  
          inspect and audit the books of regulated entities and submit  
          reports of these investigations to the State Board of  
          Equalization (BOE).  This bill would instead require these  
          reports to be posted on the PUC Website.  This bill also  
          provides that when a regulated entity submits an application for  
          a rate change, the application shall be reduced to a  








                                                                     AB 825


                                                                    Page  9





          plain-language summary and posted on the PUC Website.  Second,  
          the bill alters existing rules on documents submitted to the PUC  
          under claims of confidentiality.  For example, under this the  
          bill, if a regulated entity seeks to preserve the  
          confidentiality of a document, it must also file a "public  
          version" of the document that contains sufficient information  
          for any other party to understand the contents of the document.   
           In addition, this measure allows any party to file a motion to  
          make public any document filed under claim of confidentiality.   
          An administrative law judge or commissioner considering the  
          motion would hold a hearing and determine whether the document  
          should be made public.  Finally, the bill makes certain kinds of  
          information presumptively public and not subject to  
          confidentiality restrictions.  These presumptively public  
          documents would include contracts for goods and services  
          executed by the PUC and information submitted by a government  
          entity that is available to the public from that entity. 





          Judicial Review Provisions:  Of greatest interest to this  
          committee is the bill's fundamental alteration of the manner in  
          which a person may challenge an order or decision of the PUC.   
          Existing law (Public Utilities Code Sections 1731-1768) sets  
          forth the process of obtaining a review of PUC decisions and the  
          grounds for, and scope of, that review.   Before any review is  
          sought in a court, a party that wishes to challenge a PUC  
          decision must first ask the PUC for a rehearing.  If, after the  
          rehearing process is exhausted, the PUC decides to reverse or  
          modify its decision, the challenging party may file a petition  
          for a writ of review in either the Court of Appeal or the  
          Supreme Court (but not in a superior court).   The party filing  
          the petition must file a record sufficient to allow the court to  
          decide whether or not to grant a review.  In other words, while  
          the appellate court is not required to grant a review - that is,  
          there is not appeal or review as a matter of right - it must at  
          least consider the record and exhibits attached to the petition.  








                                                                     AB 825


                                                                    Page  10





            If the court denies the petition, it is not required to write  
          an opinion. However, the "summary denial" of the writ should not  
          be confused with a "summary judgment" in a trial court.  In a  
          summary judgment, the case is dismissed without a consideration  
          of the merits.  However, a summary denial is, at least in  
          theory, based on the merits as revealed in the record and  
          exhibits submitted by the petitioner.  (See James B. v. Superior  
          Court (1995) 35 Cal. App. 4th 1014, 1018.)  If the petition for  
          review is accepted, the process is treated like any other appeal  
          with full oral arguments before the court.  A petitioner who  
          loses in the Court of Appeal may appeal to the California  
          Supreme Court, but such appeals are usually only accepted if  
          necessary to establish uniformity in decisions or settle a  
          disputed and important question of law. 





          By the author's own reckoning, this bill would initiate a  
          "fundamental change" in the long-standing judicial review  
          process for PUC decisions.  Instead of filing a petition with  
          the Court of Appeal or the Supreme Court, which may or may not  
          grant the petition of review, an aggrieved party could file a  
          petition in the superior courts of San Francisco or Los Angeles  
          asking the court to modify or set aside, in whole or in part,  
          the decision of the PUC.  The petition must be filed within 60  
          days of the challenged PUC decision.  The bill would prohibit  
          the court from considering, except as specified, any new issues  
          that were not raised with the PUC in the rehearing.  The PUC  
          could at any time prior to the filing of the record modify or  
          set aside the challenged decision. 





          General Concerns Expressed to the Committee:  Because the  
          amendments affecting judicial review were made relatively late,  








                                                                     AB 825


                                                                    Page  11





          and the change extensive, the Committee has not received formal  
          letters of opposition that relate to judicial review provisions.  
            However, while the Judicial Council has not taken a formal  
          position, it has raised general and specific concerns that the  
          Committee might wish to consider.  At the most general level,  
          the Committee should consider whether the existing system of  
          petition to the Court of Appeal, which has been in place since  
          1999, is inadequate - or more importantly, whether review by the  
          superior courts of San Francisco and Los Angeles will yield  
          better results (depending on how one defines "better") than the  
          existing process.  On the other hand, the mere fact that the  
          existing restriction on the superior courts hearing such matters  
          is of long-standing is not necessarily a good reason for keeping  
          it.  As Justice Oliver Wendell Holmes put it, "It is revolting  
          to have no better reason for a rule of law than that it was laid  
          down in the time of Henry IV." [Holmes, "The Path of Law,"  
          Harvard Law Review (1897)]  Surely the same could be said of a  
          rule laid down in 1998, or for that matter in 1911 when the PUC  
          was created.  Whether it is good or bad policy to continue the  
          existing method of judicial review, there is no question that  
          the California Constitution gives the Legislature plenary power  
          "to establish the manner and scope of review of commission  
          action in a court or record." (California Constitution Article  
          XII Section 5.) 





          Procedural concerns that should be considered by the Committee:   
          In addition to the larger substantive policy question, the  
          Committee should also note that the bill in print raises a  
          number of procedural questions as well.  For example, the bill  
          allows the aggrieved party may file a "written petition" to  
          obtain a "review of the order."    Existing law, Public  
          Utilities Code Section 1759(b), specifies that the appropriate  
          action is a "writ of mandamus" pursuant to Section 1085 of the  
          Code of Civil Procedure.   Also, existing Sections 1757 and  
          1757.1 set forth the scope of the appellate court's review.   In  








                                                                     AB 825


                                                                    Page  12





          short, if this bill moves forward, the author may wish to  
          address both the form of action and the scope of review with  
          greater specificity. 





          Another issue which the Committee may wish to consider is the  
          author's decision to restrict review to the superior courts of  
          Los Angeles and San Francisco.  The author's office has informed  
          the Committee that these two courts are the largest and will  
          most likely have judges with the expertise to hear these  
          matters.   However, the Judicial Council has expressed concern  
          to the Committee that limiting the review to just these two  
          courts may substantially increase the workload of each.  Also,  
          reliance on these two courts is more limited, geographically,  
          than the four district Courts of Appeal.   It is also unclear  
          whether the author intends the San Francisco and Los Angeles  
          Superior Courts to be the exclusive choice, or if a party  
          challenging a PUC decision could still file a petition directly  
          to one of the Courts of Appeal.  Because the bill eliminates  
          existing provisions setting forth the process for appealing to  
          the Court of Appeal and the Supreme Court, then under the bill  
          that would no longer be an option.  But it is not entirely clear  
          if that is the author's intent.  Presumably, a party could  
          appeal a superior court decision to the Court of Appeal, but the  
          bill in print does not expressly provide for that. 





          Author Indicates Willingness to Continue Working on Judicial  
          Review Process:  The author has informed the Committee that he  
          recognizes that the bill in print needs to be fleshed out with  
          more procedural details.  If the bill moves forward, the author  
          has indicated a willingness to continue working with the  
                                                           Judicial Council, this Committee, and other stakeholders. 








                                                                     AB 825


                                                                    Page  13










          ARGUMENTS IN SUPPORT:  According to the author, recent media  
          reports "have revealed a lack of transparency in decisions by  
          the California Public Utilities Commission. Transparency in how  
          public agencies make decisions remains a fundamental principle  
          in California law and government. Assembly Bill 825 seeks to  
          increase transparency in Commission decisions in regulating  
          public utilities."  The author believes that the bill achieves  
          this in three ways in particular.  First, the bill "makes  
          transparency a priority for commission activities, and gives the  
          'Public Advisor' responsibility for ensuring that transparency,  
          with tools such as the commission website. The website will  
          include certain summary information on energy procurement and  
          utility rate increase applications."  Second, the author will  
          require "the commission to re-examine its confidentiality  
          policies in light of the statutory priority for transparency. It  
          also recognizes that certain information that already is public  
          cannot be presumed confidential."  Third, the author argues that  
          "AB 825 accomplishes fundamental change in the way that courts  
          review commission decisions, by allowing lawsuits against the  
          commission in the Superior Court in either San Francisco or Los  
          Angeles, instead of just in appellate courts as the law now  
          provides."





          The bill is supported by labor, consumer, and environmental  
          groups for substantially the same reasons, though these bills  
          have not weighed in on the changes in the judicial review  
          process.   











                                                                     AB 825


                                                                    Page  14







          TURN (The Utility Reform Network) supports this bill for many of  
          the above reasons; however, it seeks an amendment that would  
          apply the confidentiality provisions to any party involved in  
          the electricity market or other utility service, not just the  
          regulated utilities. 





          Letter of Concern: Although the California Cable &  
          Telecommunications Association (CCTA) does not oppose this bill,  
          it has submitted a letter expressing concern and requesting  
          amendments.  In particular, CCTA believes that some of the  
          changes that this bill proposes as to how the PUC handles  
          confidential information is problematic, especially as to  
          "competitively sensitive" information that may be contained in  
          audit reports.   For example, CCTA argues that an Administrative  
          Law Judge or commissioner should not require, as this bill seems  
          to do, "a hearing on every motion for release of confidential  
          information if a review of the information clearly shows that  
          the information on its face is confidential."    CCTA argues  
          that the burden of proof should be on the person claiming that  
          the document shall not be maintained as confidential.  





          REGISTERED SUPPORT / OPPOSITION:




          Support










                                                                     AB 825


                                                                    Page  15





          California Teamsters Public Affairs Council 


          Citizens Oversights Projects 


          Engineers & Scientists of California


          IFPTE Local 20 AFL-CIO


          Utility Workers Union of America, AFL-CIO 


          Sierra Club 


          TURN (The Utility Reform Network) (If amended) 





          Concern





          California Cable & Telecommunications Association 




          Opposition


          None on file 








                                                                     AB 825


                                                                    Page  16









          Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334