Amended in Senate January 15, 2014

Amended in Senate January 6, 2014

Senate Bill No. 636

Introduced by Senator Hill

February 22, 2013

An act to amend Section 1701.2 of the Public Utilities Code, relating to the Public Utilities Commission.

LEGISLATIVE COUNSEL’S DIGEST

SB 636, as amended, Hill. Public Utilities Commission: proceedings.

(1) Existing law establishes certain procedures that are applicable to adjudication, rulemaking, and ratesetting cases of the Public Utilities Commission.

This bill would prohibit an officer, employee, or agent of the commission that is begin delete assigned to assist in the prosecution of, to testify in, or to supervise end delete begin insert personally involved in the prosecution or in the supervision of end insert the prosecution of an adjudication case from participating in the decision of the case or in the decision of any factually related proceeding. The bill would permit an officer, employee, or agent of the commission that is begin delete assigned to assist in end delete begin insert personally involved in the prosecution or in the supervision of end insert the prosecution begin delete of, end delete begin insert of end insert an adjudication case to participate in reaching a settlement of the case, but would prohibit the officer, employee, or agent from participating in the decision of the commission to accept or reject the settlement, except as a witness or counsel in an open hearing or a specified closed hearing.

(2) The California Constitution authorizes the commission to establish its own procedures, subject to statutory limitations or directions and constitutional requirements of due process, and to establish rules for all public utilities.

This bill would correct certain statutory references from the commission adopting regulations to the commission adopting rules.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1701.2 of the Public Utilities Code is
amended to read:

1701.2.  

(a) If the commission pursuant to Section 1701.1 has
determined that an adjudication case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned commissioner or the assigned administrative law judge
shall hear the case in the manner described in the scoping memo.
The scoping memo shall designate whether the assigned
commissioner or the assigned administrative law judge shall preside
in the case. The commission shall provide by rule for peremptory
challenges and challenges for cause of the administrative law judge.
Challenges for cause shall include, but not be limited to, financial
interests and prejudice. The rule shall provide that all parties are
entitled to one peremptory challenge of the assignment of the
administrative law judge in all cases. All parties are entitled to
unlimited peremptory challenges in any case in which the
administrative law judge has within the previous 12 months served
in any capacity in an advocacy position at the commission, been
employed by a regulated public utility, or has represented a party
or has been a party of interest in the case. The assigned
commissioner or the administrative law judge shall prepare and
file a decision setting forth recommendations, findings, and
conclusions. The decision shall be filed with the commission and
served upon all parties to the action or proceeding without undue
delay, not later than 60 days after the matter has been submitted
for decision. The decision of the assigned commissioner or the
administrative law judge shall become the decision of the
commission if no further action is taken within 30 days. Any
interested party may appeal the decision to the commission,
provided that the appeal is made within 30 days of the issuance of
the decision. The commission may itself initiate a review of the
proposed decision on any grounds. The commission decision shall
be based on the record developed by the assigned commissioner
or the administrative law judge. A decision different from that of
the assigned commissioner or the administrative law judge shall
be accompanied by a written explanation of each of the changes
made to the decision.

(b)  begin delete An end delete begin insert Notwithstanding Section 307, an end insert officer, employee, or
agent of the commission that is begin delete assigned to assist in the prosecution
of, to testify in, or to supervise end delete begin insert personally involved in the
prosecution or in the supervision of end insert the prosecution of an
adjudication case before the commission shall not participate in
the decision of the case, or in the decision of any factually related
proceeding, including participation in or advising the commission
as to findings of fact, conclusions of law, or orders. An officer,
employee, or agent of the commission that begin delete is assigned to assist in end delete
begin insert is personally involved in the prosecution or in the supervision of end insert
the prosecution of an adjudication case may participate in reaching
a settlement of the case, but shall not participate in the decision of
the commission to accept or reject the settlement, except as a
witness or counsel in an open hearing or a hearing closed pursuant
to subdivision (d). The Legislature finds that the commission
performs both prosecutorial and adjudicatory functions in an
adjudication case and declares its intent that an officer, employee,
or agent of the commission, including its attorneys, may perform
only one of those functions in any adjudication case or factually
related proceeding.

(c) Ex parte communications shall be prohibited in adjudication
cases.

(d) Notwithstanding any other law, the commission may meet
in a closed hearing to consider the decision that is being appealed.
The vote on the appeal shall be in a public meeting and shall be
accompanied with an explanation of the appeal decision.

(e) Adjudication cases shall be resolved within 12 months of
initiation unless the commission makes findings why that deadline
cannot be met and issues an order extending that deadline. In the
event that a rehearing of an adjudication case is begin delete granted end delete begin insert granted, end insert
the parties shall have an opportunity for final oral argument.

(f) (1) The commission may determine that the respondent
lacks, or may lack, the ability to pay potential penalties or fines
or to pay restitution that may be ordered by the commission.

(2) If the commission determines that a respondent lacks, or
may lack, the ability to pay, the commission may order the
respondent to demonstrate, to the satisfaction of the commission,
sufficient ability to pay potential penalties, fines, or restitution that
may be ordered by the commission. The respondent shall
demonstrate the ability to pay, or make other financial
arrangements satisfactory to the commission, within seven days
of the commission commencing an adjudication case. The
commission may delegate to the attorney to the commission the
determination of whether a sufficient showing has been made by
the respondent of an ability to pay.

(3) Within seven days of the commission’s determination of the
respondent’s ability to pay potential penalties, fines, or restitution,
the respondent shall be entitled to an impartial review by an
administrative law begin delete judge, end delete begin insert judge end insert of the sufficiency of the showing
made by the respondent of the respondent’s ability to pay. The
review by an administrative law judge of the ability of the
respondent to pay shall become part of the record of the
adjudication and is subject to the commission’s consideration in
its order resolving the adjudication case. The administrative law
judge may enter temporary orders modifying any financial
requirement made of the respondent pending the review by the
administrative law judge.

(4) A respondent that is a public utility regulated under a rate
of return or rate of margin regulatory structure or that has gross
annual revenues of more than one hundred million dollars
($100,000,000) generated within California is presumed to be able
to pay potential penalties or fines or to pay restitution that may be
ordered by the commission, and, therefore, paragraphs (1) to (3),
inclusive, do not apply to that respondent.