BILL ANALYSIS Ó
SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS
Senator Ben Hueso, Chair
2015 - 2016 Regular
Bill No: SB 215 Hearing Date: 1/13/2016
-----------------------------------------------------------------
|Author: |Leno and Hueso |
|-----------+-----------------------------------------------------|
|Version: |1/4/2016 As Amended |
-----------------------------------------------------------------
------------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
------------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Nidia Bautista |
| | |
-----------------------------------------------------------------
SUBJECT: Public Utilities Commission
DIGEST: This bill proposes a suite of reforms of the rules,
operation and procedures of the California Public Utilities
Commission (CPUC) pertaining to the laws and rules related to ex
parte communications and criteria and process for
disqualification of commissioners to a proceeding.
ANALYSIS:
Existing law:
1)Establishes the CPUC with five members appointed by the
Governor and confirmed by the Senate and empowers the CPUC to
regulate privately owned public utilities in California.
(Article XII of the California Constitution; Public Utilities
Code §301 et seq.)
2)Requires the CPUC to adopt procedures on the disqualification
of administrative law judge (ALJ) due to bias or prejudice.
(Public Utilities Code §309.6)
3)Requires the CPUC to determine the nature of a proceeding,
specifically whether it is quasi-legislative, ratesetting, or
adjudicatory and establishes definitions and rules related to
each. (Public Utilities Code §1701 et seq)
4)Directs the CPUC to adopt rules, by regulation, to define
decisionmakers and persons of interest for purposes of
applying ex parte communication rules. (Public Utilities Code
§1701.1)
5)Provides that a proceeding is subject to request for rehearing
within 10 days of the date of a decision and if not appealed,
shall not be subject to judicial review. (Public Utilities
SB 215 (Leno) Page 2 of ?
Code §1701.1)
6)Prohibits ex parte communication in adjudication cases.
(Public Utilities Code §1701.2)
7)Prohibits ex parte communication in ratesetting cases, but
permits oral ex parte communication if (1) all parties are
invited with no less than three days notice (2) written ex
parte communication, provided copies are transmitted to all
parties, and (3) when an ex parte meeting is granted to a
party, all other parties are also granted individual ex parte
communication. (Public Utilities Code §1701.4)
8)Provides that ex parte communication in quasi-legislative
cases is permitted without restriction. (Public Utilities
Code §1701.4)
This bill:
1)Reforms and expands rules regarding ex parte communications in
proceedings, including prohibiting these communications in
ratesetting proceedings and allowing these communications in
quasi-legislative proceedings with disclosure requirements
established by the CPUC.
2)Requires the CPUC to adopt procedures on the disqualification
of commissioners due to bias or prejudice similar to those for
ALJs and specifies criteria for such action in ratesetting and
adjudicatory proceedings.
3)Requires the CPUC to define decisionmaker for the purposes of
ex parte communication rules to include commissioners, the
attorney for the CPUC, the executive director, personal staff
of a commissioner who are acting in a policy or legal advisory
capacity, the chief ALJ, and the ALJ assigned to the
proceeding.
4)Requires the CPUC to establish rules regarding the types of
issues considered procedural matters and specifies that
communication between an interested person and decision maker
regarding which commissioner or ALJ may be assigned to a
matter is not considered a procedural matter.
5)Requires the CPUC to establish rules for reporting ex parte
communication that has been prohibited in adjudication and
ratesetting proceedings, including at conferences.
6)Provides that the opportunity to request a rehearing of a
decision is expanded to include any subsequent ruling that
expands the scope of the proceeding.
7)Requires an ALJ to preside or assist in presiding on any
evidentiary or adjudication hearings that may be required as
SB 215 (Leno) Page 3 of ?
part of a proceeding.
8)Requires the CPUC to render its decisions based on the
evidence of the record and prohibits ex parte communication
from being part of the record of the proceedings.
9)Provides that the CPUC commissioners may meet in a closed
session to discuss administrative matters so long as no
collective consensus is reached or vote taken on any matter
requiring a vote of the commissioners and requires the CPUC to
adopt rules to define administrative matters.
10)Defines "all party conference" as a public hearing held on
the record before a quorum of commissioners at which parties
to a proceeding shall have the right to participate and
communicate their views regarding any factual, legal or policy
issue in the proceeding. Requires the CPUC to adopt rules for
implementing all-party conferences that ensure the broadest
participation by parties to a proceeding.
11)Deletes the provision for ratesetting and quasi-legislative
proceedings that limits an order to extend a deadline for
resolving the proceeding to no more than 60 days.
12)Requires the CPUC to establish and maintain a communications
log summarizing all ex parte communications.
13)Provides for penalties for violations of ex parte
communication rules, including allowing the CPUC to impose a
civil penalty where financial benefits exceed the maximum of
the $50,000 limit per violation.
14)Authorizes the Attorney General to bring an enforcement
action in the Superior Court for the City and County of San
Francisco against a decisionmaker or employee of the CPUC who
violates the ex parte communication rules.
Background
The CPUC quasi-independent, but still accountable to the
Legislature. The CPUC was established by constitutional
amendment as part of the sweep of progressive reforms in the
early 1900s. Article XII of the California Constitution grants
the CPUC authority to regulate public utilities "subject to
control of the Legislature" and grants the Legislature "plenary
power" to confer authority and jurisdiction upon the CPUC, with
the intent that the CPUC be accountable to the Legislature.
Emails demonstrate "Culture of Conversation." During the summer
and fall of 2014, Pacific Gas and Electric Company (PG&E),
bowing to legal pressure from the City of San Bruno, began to
release a growing number of emails between the utility and CPUC
SB 215 (Leno) Page 4 of ?
officials. PG&E released 65,000 emails from over a five-year
period that PG&E says it believes "violated CPUC rules governing
ex parte communications." The initial release of emails
revealed efforts by PG&E executives to influence the CPUC's
assignment of the administrative law judge to the San Bruno
proceeding. Many of the other emails exposed regular, private,
familiar communications between PG&E and certain CPUC
commissioners, including former CPUC President Michael Peevey
and current commissioner Michael Florio, as well as senior CPUC
officials.
Criminal investigations opened. Since PG&E's initial release of
the emails, both the state Attorney General and the United
States Department of Justice have opened investigations into
communications between the CPUC and regulated entities. PG&E
has fired three senior executives. A senior CPUC official has
resigned, while other top CPUC officials - including longtime
CPUC President Michael Peevey and Executive Director Paul
Clannon - have retired under pressure. Investigators working
with the Attorney General's Office have raided the CPUC offices
and the homes of former CPUC Commissioner President Peevey and
PG&E former-Vice President Brian Cherry.
San Onofre Nuclear Generating Stations (SONGS). In early
February 2015, after a newspaper published details of the search
warrant, Southern California Edison disclosed a meeting that
occurred two years prior in Warsaw, Poland between then-CPUC
President Peevey and a utility executive in which they discussed
how to resolve the shutdown plans for SONGS. The facility had a
failed steam generator that required SONGS to be permanently
retired. In November 2014, the CPUC approved a settlement
agreement between utilities and ratepayer advocates that split
the costs of retiring the facility and the associated
replacement power, with ratepayers shouldering $3.3 billion of
the $4.7 billion total costs. In light of the information about
the meeting in Poland, some of the parties to the settlement
agreement have rescinded their support. In early December 2015,
the CPUC voted 4-0 to fine Southern California Edison $16.7
million for violations of ex parte communications rules
regarding the SONGS closure proceeding.
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
SB 215 (Leno) Page 5 of ?
communications can conflict with the need for public decision at
the CPUC. The current law directs the CPUC to adopt regulations
requiring reporting of ex parte communications. 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 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 lacks clarity as it
expressly prohibits ex parte communication related to
ratesetting cases, yet, provides circumstances in which ex
parte communication is permitted and establishes procedures
for reporting and managing such communication.
Party of One. The CPUC's laws and rules governing ex parte
communication are unique among other state agencies, and also
among similar agencies across the nation. Many of the experts
who presented at the March 11, 2015 oversight hearing on ex
parte communication of the Senate Committee on Energy, Utilities
and Communication noted that rules governing ex parte
communications in ratesetting proceedings may be the most
permissive as compared to other agencies, such as the Federal
Energy Regulatory Commission and other states' ratesetting
agencies. California law is less clear in ratesetting
proceedings, a major function of the CPUC, both stating that ex
parte communication is prohibited, while allowing for a number
of exceptions. Many of the presenters at the March 11, 2015
hearing advocated for doing away with ex parte communication
because of the lack of fairness, the un-level playing field, and
SB 215 (Leno) Page 6 of ?
the time and resources that are required of commissioners and
others. A report released June 2015, authored by Michael
Strumwasser and requested by the CPUC, reviewed ex parte
communication practices at the CPUC and also recommended
prohibiting ex parte communication in ratesetting proceedings
and requiring disclosure in quasi-legisative proceedings.
However, some interested parties have expressed concerns that
doing away with ex parte communications may further challenge
interests with a less prominent issue in a ratesetting
proceeding to have their concerns heard.
Disqualification of commissioners. The law directs the CPUC to
establish rules to address incidents when an ALJ may be
disqualified from a proceeding. However, no similar mention is
made of addressing concerns of bias by commissioners. In recent
times, any motions to recuse a commissioner from a proceeding
due to a party's claim that there is undue bias have been
denied. After the release of the PG&E emails, the City of San
Bruno motioned for a recusal of then - CPUC President Peevey.
That motion was denied. The ALJ at the time stated that "No
specific rule sets forth a procedure for addressing motions to
seek the recusal of a Commissioner for cause."
Prior/Related Legislation
AB 825 (Rendon, 2015) proposed a suite of reforms of the CPUC to
make the agency more accessible and transparent to the public.
The bill was vetoed by the Governor.
AB 1023 (Rendon, 2015) proposed to codify the summary log
requirements currently required at the CPUC for ratesetting
proceedings and extends those requirements to quasi-legislative
proceedings. The bill was vetoed by the Governor.
SB 48 (Hill, 2015) proposed a suite of reforms of the governance
and operations of the CPUC, including some of the same reforms
in SB 661 (Hill, 2015). The bill was vetoed by the Governor.
SB 215 (Leno and Hueso, 2016) proposes a suite of reforms of the
CPUC related to governance and operations, including
disqualification of commissioners to proceedings, reforming the
rules governing ex parte communications, and other reforms. The
bill is currently being considered in the Senate Committee on
Energy, Utilities and Communication.
SB 215 (Leno) Page 7 of ?
SB 512 (Hill, 2016) proposes a suite of reforms of the
operations and governance of the California Public Utilities
Commission (CPUC), including requiring the CPUC to hold no less
than six sessions per year in Sacramento, expand the information
required of the CPUC in its annual report and workplan to the
Legislature and Governor, require specific information on its
website, apply the Code of Ethics from the Administrative
Procedures Act (APA) to administrative law judges (ALJs), and
others.
SB 660 (Leno and Hueso, 2015) proposed reforms of the ex parte
communications laws related to ratesetting and quasi-legislative
proceedings, addresses the process for disqualifying a
commissioner from a proceeding, and other reforms of the CPUC.
The bill was vetoed by the governor.
SB 611 (Hill, as amended April 13, 2013) proposed reforms of the
CPUC, including repealing some of the powers of the president.
The bill was successfully voted out of Senate Committee on
Energy, Utilities and Communications. It was subsequently
amended numerous times, and ultimately chaptered into law with
unrelated language regarding modified limousines.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: Yes
SUPPORT:
The Utility Reform Network (Source)
Consumer Federation of California
Sierra Club California
OPPOSITION:
None received
ARGUMENTS IN SUPPORT: The authors state that decision-making
based on the public record is central to the work of the CPUC
whose decisions are addressed in proceedings more akin to a
judicial process in a courtroom setting and unlike other state
agencies or bodies. The recent release of 65,000 emails has
SB 215 (Leno) Page 8 of ?
demonstrated a cozy relationship between some of the
commissioners and staff at the CPUC and the regulated utilities.
These exchanges have severely undermined the public's trust in
the agency. While in some cases the rules may have been broken,
it is also evident that the problems at the CPUC are more
systemic than solely a personality or an individual. There is a
need to strengthen and clarify rules governing ex parte
communication to preserve the public trust and prevent future
scandals.
SB 215 seeks to remedy three specific problems: "(1)
unreasonable process and unduly restrictive standards for
determining whether a commissioner should be disqualified due to
prejudice, (2) unreasonably permissive rules governing ex parte
communications, and (3) commissioners and staff who violate ex
parte communication rules are adjudicated by the commission
itself rather than by an independent judiciary."
-- END --