BILL ANALYSIS Ó
SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS
Senator Ben Hueso, Chair
2015 - 2016 Regular
Bill No: AB 1023 Hearing Date: 7/13/2015
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|Author: |Rendon |
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|Version: |4/20/2015 As Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Nidia Bautista |
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SUBJECT: Public Utilities Commission: proceedings: ex parte
communications
DIGEST: This bill requires the California Public Utilities
Commission to establish and maintain a weekly log that
summarizes all ex parte communications between decisionmakers,
as defined, and persons with an interest.
ANALYSIS:
Existing law:
1)Establishes the California Public Utilities Commission (CPUC)
with five members appointed by the governor and confirmed by
the Senate and empowers it to regulate privately-owned public
utilities in California. Specifies that the Legislature may
prescribe that additional classes of private corporations or
other persons are public utilities. (Article XII of the
California Constitution; Public Utilities Code §301 et seq.)
2)Requires the CPUC to determine whether a proceeding requires a
hearing and whether it is quasi-legislative, adjudication or
ratesetting. Provides rules governing each type of
proceeding, including prohibiting any substantive
communication between a decision maker and a party in
adjudicative cases. (Public Utilities Code §§1701.1 and
1701.2)
This bill:
1)Requires the CPUC to establish and maintain a weekly
AB 1023 (Rendon) Page 2 of ?
communications log summarizing all oral or written ex parte
communications for quasi-legislative, rate-setting and
adjudicative proceedings.
2)Requires the communications log to include a summary of oral
and written ex parte communications between a person with an
interest in a matter before the CPUC and a commissioner,
advisor to a commissioner, the executive director of the CPUC,
a deputy executive director, director of a division not acting
as a party, or an administrative law judge.
3)Requires that each communication log entry include the date of
each communication, the persons involved, and any proceedings
that were subject of each communication.
4)Requires the CPUC to make the log available on its website.
Background
Ex parte communications. Substantive communication outside of
the public record that occurs between a decisionmaker and a
party with an interest in a CPUC proceeding are known as "ex
parte" communications. Statute recognizes that ex parte
communications can conflict with the need for public decision at
the CPUC. Current law directs the CPUC to adopt regulations
requiring reporting of ex parte communications. The regulations
are to require the interested party to report the communication
within three working days of the communication and include:
The date, time, and location of the communication, and
whether it was oral, written, or a combination.
The identity of the recipient and the person initiating
the communication, as well as the identity of any persons
present during the communication.
A description of the party's, but not the
decisionmaker's, communication and its content.
Statute does not require a CPUC decisionmaker to report ex parte
communication with an interested party.
Statute directs CPUC to identify each of its proceedings
according to one of three categories - adjudicatory,
quasi-legislative, and ratesetting - and provides ex parte rules
AB 1023 (Rendon) Page 3 of ?
applicable to each type of proceeding. The types of proceedings
and the statutory ex parte rules applicable to each are:
Adjudication cases - enforcement cases and complaints,
except those challenging the reasonableness of rates or
charges. Statute expressly prohibits ex parte
communication related to an adjudicatory proceeding.
Quasi-legislative cases - those that establish policy,
including, but not limited to, rulemakings and
investigations which may establish rules affecting an
entire industry. Statute expressly allows for ex parte
communication without restriction in these types of
proceedings.
Ratesetting cases - cases in which rates are established
for a specific company. Statute expressly prohibits ex
parte communication related to ratesetting cases. However,
despite the prohibition, statute provides circumstances in
which ex parte communication is permitted and procedures
for reporting and managing such communication.
The CPUC has adopted regulations regarding ex parte
communications. The regulations define ex parte communication
as oral or written communication that: (1) concerns any
substantive issue in a formal proceeding, (2) takes place
between an interested person and a decisionmaker, and (3) does
not occur in a public hearing, workshop, or other public forum
noticed by ruling or order in the proceeding, or on the record
of the proceeding. The regulations define "decisionmaker" as
any commissioner, the chief administrative law judge, any
assistant chief administrative law judge, the assigned
administrative law judge, or the law and motion administrative
law judge. The ex parte regulations applicable to
decisionmakers are also applicable to commissioners' "personal
advisors," with certain exceptions regarding ratesetting
proceedings.
There are inconsistencies between the reference in statute noted
in this bill stating one advisor per commissioner and the actual
number of personal advisors per commissioner, which is four and
five for the president. The author and committee may wish to
amend the bill language related to advisors of the commissioners
by striking reference to Section 309.1and adding language
specifying the policy advisors for each commissioner.
AB 1023 (Rendon) Page 4 of ?
Prior/Related Legislation
AB 825 (Rendon, 2015) proposes a suite of reforms of the CPUC
largely directed at increased transparency of the activities of
the agency, including expanding the roles and responsibilities
of the public advisor, specifying additional requirements of
commissioners, increased transparency of electric utilities'
procurement, among others. The bill is waiting to be heard by
the Senate Committee on Appropriations.
SB 48 (Hill, 2015) proposes a suite of reforms of the CPUC,
including modifying the role of the president, meeting location
requirements, and other reforms. The bill is scheduled to be
heard July 15th in the Assembly Committee on Appropriations.
SB 215 (Leno, 2015) proposes a suite of reforms of the CPUC
related to governance and operations, including disqualifying
commissioners from proceedings, modifying the role of the
president, modifying ex parte rules, and other reforms. The
bill was held in this committee after merging much of its
contents with SB 660.
SB 660 (Leno/Hueso, 2015) proposes a suite of reforms of the
CPUC focused on ex parte communications rules, addressing the
disqualification of commissioners in proceedings, modifying the
powers of the president, and others. The bill is scheduled to
be heard July 13th in the Assembly Committee on Utilities and
Commerce.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: No
ASSEMBLY VOTES:
Assembly Floor (74-0)
Assembly Appropriations Committee (17-0)
Assembly Utilities and Commerce Committee (15-0)
SUPPORT:
Sierra Club California
AB 1023 (Rendon) Page 5 of ?
OPPOSITION:
None received
ARGUMENTS IN SUPPORT: In recent months, revelations have shown
a pattern of informal and private contacts by CPUC members with
regulated entities. On October 18, 2014, the CPUC's executive
director established a policy that requires high-level CPUC
personnel and asks commissioners, advisors, and the chief
administrative law judge to provide a communication log
summarizing oral and written communications that occur between
CPUC personnel and interested parties in adjudicatory and rate
setting proceedings. AB 1023 codifies this new CPUC policy.
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