BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 215|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                   THIRD READING 


          Bill No:  SB 215
          Author:   Leno (D) and Hueso (D)
          Amended:  1/4/16  
          Vote:     21  

           SENATE ENERGY, U. & C. COMMITTEE:  10-0, 1/13/16
           AYES:  Hueso, Fuller, Cannella, Hertzberg, Hill, Lara, McGuire,  
            Morrell, Pavley, Wolk
           NO VOTE RECORDED:  Leyva

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 1/21/16
           AYES:  Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

           SUBJECT:   Public Utilities Commission


          SOURCE:    The Utility Reform Network
          
          DIGEST:   This bill proposes a suite of reforms of the rules,  
          operations 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.)








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           2) Requires the CPUC to adopt procedures on the  
             disqualification of administrative law judges (ALJs) 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 rules regarding ex parte communication.  (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 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 (a) all parties are  
             invited with no less than three days' notice (b) written ex  
             parte communication, provided copies are transmitted to all  
             parties, and (c) 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:







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           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 decisionmaker  
             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  
             part of a proceeding.









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           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








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          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  
          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 ALJ 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, only after a newspaper published details of the  
          search warrant which mentioned a previously undisclosed meeting  
          between Southern California Edison (SCE) executive and then-CPUC  
          President Peevey, SCE 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  







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          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 December 2015, the CPUC voted 4-0 to fine SCE  
          $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  
          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.








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          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 of the  
          Senate Committee on Energy, Utilities and Communications on ex  
          parte 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 in  
          ratesetting proceedings because of the lack of fairness, the  
          un-level playing field, and 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-legislative  
          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."
           
          Related/Prior 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.








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          AB 1023 (Rendon, 2015) proposed to codify the summary log  
          requirements currently required at the CPUC for ratesetting  
          proceedings and extend 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  
          originally in SB 611 (Hill, 2013).  The bill was vetoed by the  
          Governor. 

          SB 512 (Hill, 2015) proposes a suite of reforms of the  
          operations and governance of the CPUC, including requiring the  
          CPUC to hold no less than six sessions per year in Sacramento,  
          expanding the information required of the CPUC in its annual  
          report and workplan to the Legislature and Governor, requiring  
          specific information on its website, applying the Code of Ethics  
          from the Administrative Procedures Act to ALJs, and others.  The  
          bill is currently under consideration by the Senate Floor. 

          SB 660 (Leno and Hueso, 2015) proposed many of the same reforms  
          included in SB 215 of the ex parte communications laws related  
          to ratesetting and quasi-legislative proceedings, address 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 15, 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.:YesLocal:   Yes           

          According to the Senate Appropriations Committee:
           
           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 ALJs on  
            the appearance of bias.

           Up to $708,000 annually from the Public Utilities  







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            Reimbursement Account (special) to create and implement new ex  
            parte communication rules.

           Ongoing costs of $375,000 from the Public Utilities  
            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.



          SUPPORT:   (Verified1/21/16)


          The Utility Reform Network (source)
          Consumer Federation of California
          Sierra Club California 


          OPPOSITION:   (Verified1/21/16)


          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  
          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. 

          This bill seeks to remedy three specific problems:  "(1)  
          unreasonable process and unduly restrictive standards for  







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          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 CPUC itself  
          rather than by an independent judiciary."



          Prepared by:Nidia Bautista / E., U., & C. / (916) 651-4107
          1/25/16 16:01:12


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