BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 215 (Leno) - Public Utilities Commission
          
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          |Version: January 4, 2016        |Policy Vote:   E., U., & C. 10  |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date:  January 19, 2016 |Consultant: Marie Liu           |
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          This bill meets the criteria for referral to the Suspense File. 


          Bill  
          Summary:  SB 215 would make numerous changes to the governance  
          of the California Public Utilities Commission (CPUC),  
          particularly in regards to ex parte communication.


          Fiscal  
          Impact:  
           Up to $558,000 annually for the first four-years and  
            potentially up to $373,000 thereafter from the Public  
            Utilities Reimbursement Account (special) for creation and  
            implementation of rules to disqualify commissions or  
            administrative law judges (ALJs) on the appearance of bias.

           Up to $708,000 annually from the Public Utilities  
            Reimbursement Account (special) to create and implement new ex  
            parte communication rules.

           Ongoing costs of $375,000 from the Public Utilities  







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            Reimbursement Account (special) for two additional ALJs for  
            longer proceedings as a result of including oral and written  
            comments received at a hearing in the record of proceedings.

           Minor and absorbable costs from the Public Utilities  
            Reimbursement Account (special) for CPUC to elect to hold  
            all-party conferences for a proceeding.



          Background:  The CPUC is governed by five members appointed by the Governor  
          and approved by the Senate Rules Committee. The CPUC is  
          generally empowered to regulate privately owned public utilities  
          in California. Policies and actions of the CPUC are generally  
          made through a proceeding. Each proceeding is assigned a lead  
          commissioner and an administrative law judge (ALJ). ALJs prepare  
          proposed decisions which may be adopted in whole or in part by  
          the commission. 
          Substantive communications 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. As these  
          communications can conflict with the need for public decision  
          making, the CPUC is required under the existing law to have  
          regulations that require the reporting of ex parte  
          communications within three working days of the communication  
          having occurred. These regulations require specific information  
          about the communication including the form which it occurred,  
          the identity of the recipient and the person initiating the  
          communication and the names of any other parties present, as  
          well as a description of the communication. The requirement to  
          report ex parte communication falls with the interested party,  
          not the CPUC decisionmaker.


          The CPUC has three types of proceedings, which is its regulator  
          and decision making process, each of which have different  
          existing ex parte communication rules. 


          1.Adjudication Cases: Ex parte communications are prohibited.


          2.Ratesetting Cases: Ex parte communications are prohibited  
            except under specified conditions. Oral ex parte  








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            communications are allowed with a commissioner if all  
            interested parties are invited and given at least three days'  
            notice. Written ex parte communications are permitted if  
            copies are transmitted to all parties on the same day. If an  
            individual ex parte communication meeting is granted to any  
            party, all other parties shall also be granted individual  
            meetings of similar duration. 


          3.Quasi-legislative Cases: Ex parte communications are allowed  
            without restriction.




          Proposed Law:  
            This bill would make a number of changes to the CPUC's  
          governance, especially in regards to ex parte communication.  
          Specifically, this bill would:
           Require the CPUC to adopt procedures on the disqualification  
            of commissioners and would further specify the reasons for  
            which a commissioner or ALJ can be disqualified in ratesetting  
            and adjudicatory proceedings.

           Prohibit ex parte communications in ratesetting proceedings,  
            with some exceptions and limitations.

           Expand the parties and the types of communications that  
            subject to the ex parte communication rules.

           Extends the requirements for the disclosure of prohibited ex  
            parte communications to the decisionmaker in addition to the  
            interested party.

           Allow the CPUC to assess civil penalties for violations of ex  
            parte communication requirements. 

           Allow the Attorney General (AG) to bring enforcement action  
            against a decisionmaker or CPUC employee who violates ex parte  
            communication requirements.

           Allow for the holding of an all-party conference, as defined,  
            that have broad participation by parties to a proceeding.









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           Require that CPUC to establish and maintain a communications  
            log summarizing al written and oral ex parte communications.  
            This log must be available to the public on the CPUC's website  
            by July 1, 2017.




          Related  
          Legislation:  SB 660 (Leno) would have made many of the same  
          changes as proposed by this bill, among other provisions. The  
          governor vetoed SB 660 citing technical and conflicting issues  
          among the bills that proposed governance changes at the CPUC. 


          Staff  
          Comments:  Disqualification provisions: This bill would require  
          that a commissioner or ALJ be disqualified if there is an  
          appearance of bias or prejudice. The CPUC anticipates initial  
          annual costs of $558,000 for one ALJ and two legal counsel  
          positions for four years to develop and implement  
          disqualification procedures. The ALJ would be needed ongoing to  
          make judgments on disqualification motions. The legal counsel  
          positions would be needed to advise and handle increased  
          litigation risks. After four years, the CPUC estimates that only  
          one of these legal positions will be needed after legal  
          precedent is established, bringing the annual costs down to  
          $373,000. 
          Staff notes a similar provision in SB 660 had lower one-time and  
          ongoing costs. However, the CPUC notes the additional costs are  
          largely the result of a lower standard for disqualification in  
          this bill compared to SB 660 as this bill would allow  
          disqualification on the appearance of bias. Because of this  
          lower standard and because disqualification motions can be made  
          multiple times throughout a proceeding and by multiple parties,  
          the CPUC has increased its anticipated ongoing costs under the  
          assumption that there will be a large increase in the number of  
          disqualification motions that will need to be addressed. Staff  
          notes that while an increase in ongoing costs appears to be  
          justified, the actual increase is speculative.


          Ex parte provisions generally: This bill will label a greater  
          number of communications as ex parte communications by expanding  








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          the definition of decisionmaker and by including informal  
          discussions. The CPUC would have greater responsibilities for  
          tracking allowable ex parte communications and reporting  
          prohibited communications. While the tracking requirements under  
          this bill are not detailed, the CPUC believes the sheer number  
          of communications that will need recorded and tracked will  
          necessitate ongoing annual costs of $708,000 (1 ALJ II, 1 legal  
          counsel III, 2 legal analysts, 1 senior legal analyst). Staff  
          notes that these costs are higher than the costs associated with  
          similar provisions in SB 660. It is unclear what assumptions  
          have changed since last year. 


          Staff notes that this bill would also eliminate most ex parte  
          communications in ratesetting cases, which currently involve  
          thousands of communication disclosures under existing laws.  
          However, since the current rules places the responsibility of  
          disclosing these communications with the interested party  
          instead of the decisionmaker, the CPUC does not anticipate that  
          eliminating these communications will result in any significant  
          workload reduction.


          Potential additional legal costs: The CPUC notes that the bill's  
          provisions allowing the AG to bring enforcement action against a  
          decisionmaker or CPUC employee for violations of ex parte  
          communication requirements could result in legal costs as the  
          CPUC would be required to either defend its employees or to pay  
          for their litigation costs. 


          Inclusion of hearing comments into the record of proceedings:  
          This bill would require the CPUC to include oral and written  
          comments received from the public at a hearing to be included in  
          the record of proceedings and to allow parties to respond to  
          these comments. According to the CPUC, these provisions are  
          likely to extend the length of all proceedings and increase the  
          amount of ALJ workload per proceeding, which will necessitate  
          two additional ALJs at an annual cost of $375,000. These  
          provisions and associated costs were not part of SB 660. 












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