BILL ANALYSIS �
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THIRD READING
Bill No: SB 636
Author: Hill (D)
Amended: 1/15/14
Vote: 21
PRIOR VOTES NOT RELEVANT
SENATE ENERGY, UTILITIES & COMMUNIC. COMMITTEE : 8-0, 1/14/14
AYES: Padilla, Cannella, De Le�n, DeSaulnier, Hill, Knight,
Pavley, Wolk
NO VOTE RECORDED: Fuller, Corbett, Wright
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Public Utilities Commission: proceedings
SOURCE : Author
DIGEST : This bill prohibits any Public Utilities Commission
(PUC) employee, agent or officer that is personally involved in
the prosecution or in the supervision of an adjudication case
from participating in, or advising PUC on, the decision of that
case or the decision of a factually related proceeding.
ANALYSIS :
Existing law:
1.Requires the Governor to designate one of the commissioners as
president who is authorized to direct and prescribe duties of
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an attorney (general counsel), executive director, and other
staff and preside at PUC meetings.
2.Authorizes the PUC to appoint a general counsel to represent
the PUC in all actions, to commence, prosecute or intervene in
proceedings as directed by the president, to advise the PUC
and each commissioner on all matters, and to perform all
duties that the president or a vote of the PUC may require.
3.Establishes within the PUC an independent Office of Ratepayer
Advocates (ORA), to be staffed with attorneys from the office
of the PUC general counsel (Legal Division), and requires the
PUC to develop procedures and a code of conduct to ensure that
ORA advocates on a particular case or proceeding are not
advising decisionmakers on the same case or proceeding.
This bill:
1.Prohibits an officer, employee, or agent of the PUC that is
personally involved in the prosecution or in the supervision
of the prosecution of an adjudication case from participating
in the decision of the case or in the decision of any
factually related proceeding.
2.Permits an officer, employee, or agent of the PUC that is
personally involved in the prosecution or in the supervision
of the prosecution of an adjudication case to participate in
reaching a settlement of the case, but prohibits the officer,
employee, or agent from participating in the decision of the
PUC to accept or reject the settlement, except as a witness or
counsel in an open hearing or a specified closed hearing.
Background
Due process requires separation of functions . The
constitutional guarantee of procedural due process includes the
right to have legal disputes and proceedings resolved by a
neutral, impartial and unbiased adjudicator and tribunal. This
generally requires that a judge or other decisionmaker be
advised by an attorney who is different from the attorney
serving as prosecutor or advocate in a proceeding. A leading
California Supreme Court case is Morongo Band of Mission Indians
v. State Water Resources Control Board (45 Cal.4th 731 (2009),
which involved a board proceeding to revoke a water license
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where an attorney prosecuting the case also served as advisory
counsel for the board in its decision on an unrelated matter.
The court held that contemporaneously serving as adviser to a
decisionmaker in one case while prosecuting an unrelated case
before that same decisionmaker does not by itself violate due
process as long as an agency's internal separation of functions
are observed.
PUC's separation of functions . The California Administrative
Procedures Act (APA) requires a state agency's adjudicative
function to be separated from the investigative, prosecutorial,
and advocacy functions.
The PUC, as an independent constitutional entity, has long been
exempt from the APA and instead is governed by provisions in the
Public Utilities Code. These provisions do not require
separation of advocacy and advisory functions for all PUC
employees or even all attorneys in the PUC Legal Division.
Existing law requires the general counsel, head of the Legal
Division, to both prosecute cases on behalf of PUC and advise
commissioners. However, provisions governing ORA (which has
attorneys assigned to it from the Legal Division), requires PUC
to develop a code of conduct and procedures to ensure that an
employee does not both advocate and advise decisionmakers in the
same case.
PUC guidelines and practices . A 1997 memorandum from the PUC
executive director to staff on "Conflict of Roles: Guidelines &
Procedures" requires separation of functions for PUC staff under
the following general principle:
"Commission staff who have been personally involved in
preparing or presenting an adjudicatory case shall not serve
in an advisory role in the same adjudicatory proceeding, or
any factually related adjudicatory proceeding."
But the memo emphasizes that its provisions are only guidelines
and also gives the executive director and general counsel
authority to waive the guidelines. The PUC states that this
memo and its "current practice of keeping attorneys separated on
a case-by-case basis" complies with the California Supreme
Court's Morongo decision.
On January 7, 2014, the commissioners issued a memorandum to the
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general counsel and Legal Division attorneys with a report from
an outside expert on ethical duties and responsibilities of PUC
attorneys and a directive that legal ethics training will be
forthcoming. The PUC hired the outside expert in August 2013
after an internal dispute last summer involving PUC attorneys
and supervisors working on an enforcement action against Pacific
Gas and Electric (PG&E) in connection with the San Bruno gas
pipeline explosion.
Comments
According to the author's office, this bill is necessary to
codify the requirement to separate advocacy and advisory
functions at the PUC because the PUC's current policy requiring
separation is not binding and can be waived at the discretion of
the general counsel and executive director. The author's office
describes two incidents demonstrating the need for this bill
involving the general counsel serving both as adviser to the
commissioners and directing the prosecuting attorneys to take
specified actions in the PUC's penalty proceeding against PG&E
for the San Bruno gas pipeline explosion.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
JG:k 1/21/14 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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