BILL ANALYSIS �
SB 636
Page 1
Date of Hearing: August 6, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 636 (Hill) - As Amended: June 15, 2014
Policy Committee: Utilities and
Commerce Vote: 14-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill establishes procedures for adjudication cases at the
California Public Utilities Commission (PUC) relating to staff
advocacy and advisory functions.
Specifically, this bill:
1)Prohibits an employee, officer, or agent of the PUC involved
in 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 employee, officer, or agent of the PUC involved in
the prosecution of an adjudication case to participate in
reaching a settlement of the case. 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.
FISCAL EFFECT
Minor, if any, costs to the PUC.
COMMENTS
1)Purpose. According to the author, the PUC's current policy
requiring separate advocacy and advisory functions is not
binding and may be waived by the general counsel and executive
director.
The author notes a circumstance during the penalty proceeding
against the Pacific Gas & Electric Company for the San Bruno
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gas pipeline explosion in which the PUC general counsel served
as advisor to the Commissioners while also directing the
prosecuting attorneys to take specified actions.
This bill mandates requirements to separate the advocacy and
advisory functions at the PUC.
2)Background. The principle of separation of functions is
generally applied to administrative agencies that engage in
quasi-judicial or adjudicative actions to protect the due
process rights of the parties involved. If the administrative
judge and the prosecutor are housed in the same agency and
under the supervision of the same administrators, certain
procedures must be in place. As such, the California
Administrative Procedures Act (APA) requires a state agency's
adjudicatory function to be separated from the investigative,
prosecutorial and advocacy functions.
The PUC, as an independent constitutional entity, is exempt
from the APA and instead is governed by the Public Utilities
Code. The Public Utilities Code requires the PUC to
establish a code of conduct and procedures for the employees
in the Office of Ratepayer Assistance (ORA) to ensure an
employee does not both advocate and advise decision makers in
the same case. There is, however, no similar statutory
requirement for other employees of the PUC.
The PUC does operate under guidelines regarding ethical duties
and responsibilities and the separation of advisory and
advocacy functions. However, the executive director and legal
counsel may waive separation guidelines on a case-by-case
basis.
3)Due Process. 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 decision maker 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 where an attorney prosecuting the case
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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 decision maker in one case while
prosecuting an unrelated case before that same decision maker
does not by itself violate due process as long as an agency's
internal separation of functions are observed.
Analysis Prepared by : Jennifer Galehouse / APPR. / (916)
319-2081