Bill Text: FL S1034 | 2010 | Regular Session | Engrossed

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Bill Title: Public Service Commission [EPSC]

Spectrum: Partisan Bill (Republican 3-0)

Status: (Failed) 2010-04-30 - In returning messages; Died in returning Messages [S1034 Detail]

Download: Florida-2010-S1034-Engrossed.html

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CS for SB 1034                             First Engrossed (ntc) 
20101034e1 
1                        A bill to be entitled 
2         An act relating to the Public Service Commission; 
3         amending s. 350.041, F.S.; revising the standards of 
4         conduct for commissioners of the Public Service 
5         Commission; requiring that commissioners observe and 
6         abide by the Code of Judicial Conduct while conducting 
7         docketed proceedings; providing for statutory 
8         preemption; providing for penalties; amending s. 
9         350.042, F.S.; deleting references to “ex parte 
10         communications” and replacing such references with 
11         “prohibited communications”; providing a purpose; 
12         providing legislative intent; providing definitions; 
13         prohibiting a commissioner or the commissioner’s 
14         direct reporting staff from initiating, engaging in, 
15         or considering prohibited communications in any 
16         proceeding other than an undocketed workshop or an 
17         internal affairs meeting; prohibiting any individual 
18         from discussing any matter with a commissioner or the 
19         commissioner’s direct reporting staff which the 
20         individual reasonably foresees will be filed with the 
21         commission; requiring that any communication between a 
22         commissioner or the commissioner’s direct reporting 
23         staff and a representative of a utility be made 
24         available to the public; requiring that any 
25         communication be posted on the commission’s website 
26         within a specified time after the communication is 
27         made or received; requiring that the commission post 
28         on its website a copy of written communications 
29         received by the commission; requiring that the 
30         commission prepare a written summary of certain 
31         communications and post such summary on its website 
32         within a specified time after the communication is 
33         made or received; requiring that notice be posted on 
34         the commission’s website a minimum number of hours 
35         before the occurrence of any meeting, telephone 
36         conference call, or written communication between a 
37         commissioner or the commissioner’s direct reporting 
38         staff; authorizing the Office of Public Counsel to 
39         participate in such communications for limited 
40         purposes; providing an exception for certain 
41         commission staff or industry representatives; 
42         providing that the restrictions on prohibited 
43         communications apply to communications made to or from 
44         the Governor, a member of the Cabinet, or a member of 
45         the Legislature; providing penalties for members of a 
46         commissioner’s direct report staff who fail to report 
47         certain communications; amending s. 350.0605, F.S.; 
48         prohibiting former commissioners and members of a 
49         commissioner’s direct reporting staff from lobbying 
50         the legislative or executive branch of state 
51         government on behalf of any client or industry 
52         regulated by the commission for 4 years after 
53         termination of service or employment with the 
54         commission; defining the term “commissioner’s direct 
55         reporting staff”; prohibiting any former 
56         commissioner’s direct reporting staff from appearing 
57         before the commission representing any client or 
58         industry regulated by the commission for 4 years after 
59         termination of employment with the commission; 
60         providing that such prohibitions apply to 
61         commissioners and their direct reporting staff who are 
62         appointed or reappointed to or who terminate their 
63         employment with the commission on or after a specified 
64         date; prohibiting a former commissioner or member of a 
65         commissioner’s direct reporting staff from accepting 
66         employment by or compensation from certain entities 
67         regulated by the commission for a period of 4 years 
68         after termination of service or employment with the 
69         commission; providing that the prohibition applies to 
70         former commissioners and members of a commissioner’s 
71         direct reporting staff who are appointed or 
72         reappointed to or hired with the commission on or 
73         after a specified date; amending s. 350.061, F.S.; 
74         extending reconfirmation intervals for the Public 
75         Counsel to 4 years from biennially; providing an 
76         effective date. 
77 
78  Be It Enacted by the Legislature of the State of Florida: 
79 
80         Section 1. Paragraph (j) is added to subsection (2) of 
81  section 350.041, Florida Statutes, to read: 
82         350.041 Commissioners; standards of conduct.— 
83         (2) STANDARDS OF CONDUCT.— 
84         (j) In docketed proceedings before the Public Service 
85  Commission, each commissioner shall observe and abide by the 
86  Code of Judicial Conduct as adopted by the Supreme Court. If any 
87  canon of the Code of Judicial Conduct is in direct conflict with 
88  a statutory provision that applies to the commissioners or the 
89  commission, the statutory provision shall control. Any material 
90  violation of the Code of Judicial Conduct, excluding any canon 
91  preempted by a conflicting statutory provision, shall be grounds 
92  for suspension or removal of a commissioner by the Governor. 
93         Section 2. Section 350.042, Florida Statutes, is amended to 
94  read: 
95         350.042 Prohibited Ex parte communications.— 
96         (1) This section shall govern communications made by or 
97  directed to commissioners and their direct reporting staff which 
98  concern proceedings before the Public Service Commission. The 
99  purpose of this section is to ensure the fairness of the 
100  commission’s proceedings by assuring the public that the 
101  decisions by the commission are not influenced by prohibited 
102  communications between commissioners and legally interested 
103  persons. 
104         (a) It is the express intent of the Legislature that the 
105  commission shall afford to every person who is legally 
106  interested in a proceeding, or the person’s attorney or 
107  qualified representative, the full right to be heard according 
108  to law except as otherwise prohibited in this section. 
109         (b) For purposes of this section, the term: 
110         1. “Legally interested person” means any party to a 
111  proceeding before the commission, or a representative of a party 
112  to a proceeding pending before the commission, and includes 
113  corporations, partnerships, limited liability companies, elected 
114  or appointed officials of state government, and other public and 
115  elected officials. 
116         2. “Prohibited communication” means any communication 
117  regarding a docketed matter that, if written, is not served on 
118  all the parties to a proceeding, and, if oral, is made without 
119  adequate notice to the parties and an opportunity for them to be 
120  present and heard. 
121         3. “Commissioner’s direct reporting staff” means a 
122  commissioner’s chief advisor and executive assistant. 
123         (c) A commissioner or the commissioner’s direct reporting 
124  staff should accord to every person who is legally interested in 
125  a proceeding, or the person’s lawyer, full right to be heard 
126  according to law, and, except as authorized by law, shall 
127  neither initiate, engage in, nor consider prohibited ex parte 
128  communications concerning the merits, threat, or offer of reward 
129  in any proceeding other than an undocketed workshop a proceeding 
130  under s. 120.54 or s. 120.565, workshops, or an internal affairs 
131  meeting meetings. No individual shall discuss ex parte with a 
132  commissioner the merits of any issue that he or she knows will 
133  be filed with the commission within 90 days. The provisions of 
134  this subsection shall not apply to commission staff unless 
135  otherwise provided for in this section. 
136         (d) An individual shall not discuss any matter with a 
137  commissioner or the commissioner’s direct reporting staff which 
138  the individual reasonably foresees will be filed with the 
139  commission. 
140         (2)(a) Any oral or written communication, not otherwise 
141  prohibited under subsection (1), between a commissioner or the 
142  commissioner’s direct reporting staff and a representative of an 
143  entity regulated by the commission must be made available to the 
144  public. Such oral or written communication must be posted to the 
145  commission website within 72 hours after the communication was 
146  made or received. 
147         (b) The commission shall post on its website a copy of any 
148  written communication by the close of the next business day 
149  after the communication is received by the commission. 
150         (c) The commission shall prepare a written summary of any 
151  communication related to a documented emergency or a 
152  communication related to a brief, unscheduled followup to a 
153  previously scheduled meeting or previously scheduled telephone 
154  conference call. The commission shall post the written summary 
155  on its website within 72 hours after the communication was made 
156  or received. 
157         (d) Notice shall be posted on the commission’s website at 
158  least 72 hours prior to the occurrence of any meeting, telephone 
159  conference call, or written communication between a commissioner 
160  or the commissioner’s direct reporting staff and a 
161  representative of a regulated entity. The Public Counsel may 
162  participate in the meeting, telephone conference call, or 
163  written communication for the purpose of questioning or directly 
164  responding to the communication. 
165         (e) This subsection does not apply to commission staff or 
166  representatives of a regulated entity who are required to 
167  initiate or receive brief, unscheduled communications for the 
168  purpose of obtaining additional information that may be needed 
169  after the completion of an audit. 
170         (3) The provisions of This section does shall not prohibit 
171  an individual residential ratepayer from communicating with a 
172  commissioner or the commissioner’s direct reporting staff if, 
173  provided that the ratepayer is representing only himself or 
174  herself, without compensation. 
175         (4) The restrictions on prohibited communications as 
176  provided in this section shall also apply to communications made 
177  by or directed to a commissioner and the commissioner’s direct 
178  reporting staff to or from the Governor, a member of the 
179  Cabinet, or a member of the Legislature. Any written or oral 
180  communication from the Governor, a member of the Cabinet, or a 
181  member of the Legislature which is only a status inquiry and 
182  does not address the merits of a proceeding is not a prohibited 
183  communication. A written communication from the Governor, a 
184  member of the Cabinet, or a member of the Legislature which 
185  attaches or forwards a constituent’s correspondence concerning 
186  the merits of a docketed proceeding shall be placed in the 
187  commission’s docket files. 
188         (5)(3) This section does shall not apply to oral 
189  communications or discussions in scheduled and noticed open 
190  public meetings of educational programs or of a conference or 
191  other meeting of an association of regulatory agencies. This 
192  exemption does not authorize a commissioner or the 
193  commissioner’s direct reporting staff to discuss matters with 
194  any party or legally interested person to a proceeding. 
195         (6)(4) If a commissioner or the commissioner’s direct 
196  reporting staff knowingly receives a prohibited an ex parte 
197  communication as provided in subsection (1) which is related 
198  relative to a proceeding other than as set forth in subsection 
199  (1), to which the commissioner he or she is assigned, he or she 
200  must place on the record of the proceeding copies of all written 
201  communications received, all written responses to the 
202  communications, and a memorandum stating the substance of all 
203  oral communications received and all oral responses made. The 
204  commissioner or the commissioner’s direct reporting staff, and 
205  shall give written notice to all parties to the communication 
206  that such matters have been placed on the record. Any party who 
207  desires to respond to a prohibited an ex parte communication may 
208  do so. The response must be received by the commission within 10 
209  days after receiving notice that the prohibited ex parte 
210  communication has been placed on the record. The commissioner 
211  may, if he or she deems it necessary to eliminate the effect of 
212  a prohibited an ex parte communication received by him or her, 
213  withdraw from the proceeding, in which case the chair shall 
214  substitute another commissioner for the proceeding. 
215         (7)(5) Any individual who makes a prohibited an ex parte 
216  communication shall submit to the commission a written statement 
217  describing the nature of the such communication, to include the 
218  name of the person making the communication, the name of each 
219  the commissioner or member of the commissioner’s direct 
220  reporting staff or commissioners receiving the communication, 
221  copies of all written communications made, all written responses 
222  to such communications, and a memorandum stating the substance 
223  of all oral communications received and all oral responses made. 
224  The commission shall place on the record of a proceeding all 
225  such communications. 
226         (8)(6) Any commissioner or member of the commissioner’s 
227  direct reporting staff who knowingly fails to place on the 
228  record any such communications, in violation of the section, 
229  within 15 days after of the date of the such communication is 
230  subject to removal or dismissal and may be assessed a civil 
231  penalty not to exceed $5,000. 
232         (9)(7)(a) It is shall be the duty of the Commission on 
233  Ethics to receive and investigate sworn complaints of violations 
234  of this section pursuant to the procedures contained in ss. 
235  112.322-112.3241. 
236         (b) If the Commission on Ethics finds that there has been a 
237  violation of this section by a public service commissioner or 
238  the commissioner’s direct reporting staff, it shall provide the 
239  Governor and the Florida Public Service Commission Nominating 
240  Council with a report of its findings and recommendations. The 
241  Governor may is authorized to enforce the findings and 
242  recommendations of the Commission on Ethics, pursuant to part 
243  III of chapter 112. 
244         (c) If a commissioner or the commissioner’s direct 
245  reporting staff fails or refuses to pay the Commission on Ethics 
246  any civil penalties assessed pursuant to the provisions of this 
247  section, the Commission on Ethics may bring an action in any 
248  circuit court to enforce such penalty. 
249         (d) If, during the course of an investigation by the 
250  Commission on Ethics into an alleged violation of this section, 
251  allegations are made as to the identity of the person who 
252  participated in the prohibited ex parte communication, that 
253  person must be given notice and an opportunity to participate in 
254  the investigation and relevant proceedings to present a defense. 
255  If the Commission on Ethics determines that the person 
256  participated in the prohibited ex parte communication, the 
257  person may not appear before the commission or otherwise 
258  represent anyone before the commission for a period of 2 years 
259  and may be assessed a civil penalty not to exceed $5,000. The 
260  regulated entity represented by the person, if applicable, may 
261  also be assessed a penalty of up to one-tenth of 1 percent of 
262  the entity’s annual operating revenue for the most recent 
263  calendar year. 
264         Section 3. Section 350.0605, Florida Statutes, is amended 
265  to read: 
266         350.0605 Former commissioners and employees; representation 
267  of clients or industry before commission; lobbying the 
268  legislative or executive branch.— 
269         (1)(a) Any former commissioner of the Public Service 
270  Commission is prohibited from appearing before the commission 
271  representing any client or any industry regulated by the Public 
272  Service Commission for a period of 4 2 years following his or 
273  her termination of service on the commission. 
274         (b) Any former commissioner of the Public Service 
275  Commission is prohibited from lobbying the legislative or 
276  executive branch of state government on behalf of any client or 
277  any industry regulated by the commission for a period of 4 years 
278  following his or her termination of service on the commission. 
279  This subsection applies only to commissioners who are appointed 
280  or reappointed on or after July 1, 2010. 
281         (2) Any former member of the commissioner’s direct 
282  reporting staff is prohibited from appearing before the 
283  commission representing any client or industry regulated by the 
284  Public Service Commission, or from lobbying the legislative or 
285  executive branch of state government on behalf of any client or 
286  any industry regulated by the commission, for a period of 4 
287  years following his or her termination of employment with the 
288  commission. This subsection applies only to a member of the 
289  commissioner’s direct reporting staff who is hired with the 
290  commission on or after July 1, 2010. For purposes of this 
291  section, the term “commissioner’s direct reporting staff” means 
292  a commissioner’s chief advisor and executive assistant. Any 
293  former employee of the commission is prohibited from appearing 
294  before the commission representing any client regulated by the 
295  Public Service Commission on any matter which was pending at the 
296  time of termination and in which such former employee had 
297  participated. 
298         (3) For a period of 4 years following termination of 
299  service on the commission or employment with the commission, a 
300  former commissioner or former member of the commissioner’s 
301  direct reporting staff may not accept employment by or 
302  compensation from a business entity that, directly or 
303  indirectly, owns or controls a public utility regulated by the 
304  commission, from a public utility regulated by the commission, 
305  from a business entity that, directly or indirectly, is an 
306  affiliate or subsidiary of a public utility regulated by the 
307  commission or is an actual business competitor of a local 
308  exchange company or public utility regulated by the commission 
309  and is otherwise exempt from regulation by the commission under 
310  ss. 364.02(14) and 366.02(1), or from a business entity or trade 
311  association that has been a party to a commission proceeding 
312  within the 4 years preceding the former commissioner’s 
313  termination of service or the former commissioner’s direct 
314  reporting staff member’s termination of employment with the 
315  commission. This subsection applies only to former commissioners 
316  and members of the commissioner’s direct reporting staff who are 
317  appointed or reappointed to or hired with the commission on or 
318  after July 1, 2010. 
319         (3) For a period of 2 years following termination of 
320  service on the commission, a former member may not accept 
321  employment by or compensation from a business entity which, 
322  directly or indirectly, owns or controls a public utility 
323  regulated by the commission, from a public utility regulated by 
324  the commission, from a business entity which, directly or 
325  indirectly, is an affiliate or subsidiary of a public utility 
326  regulated by the commission or is an actual business competitor 
327  of a local exchange company or public utility regulated by the 
328  commission and is otherwise exempt from regulation by the 
329  commission under ss. 364.02(14) and 366.02(1), or from a 
330  business entity or trade association that has been a party to a 
331  commission proceeding within the 2 years preceding the member’s 
332  termination of service on the commission. This subsection 
333  applies only to members of the Florida Public Service Commission 
334  who are appointed or reappointed after May 10, 1993. 
335         Section 4. Subsection (1) of section 350.061, Florida 
336  Statutes, is amended to read: 
337         350.061 Public Counsel; appointment; oath; restrictions on 
338  Public Counsel and his or her employees.— 
339         (1) The Committee on Public Counsel Oversight shall appoint 
340  a Public Counsel by majority vote of the members of the 
341  committee to represent the general public of Florida before the 
342  Florida Public Service Commission. The Public Counsel shall be 
343  an attorney admitted to practice before the Florida Supreme 
344  Court and shall serve at the pleasure of the Committee on Public 
345  Counsel Oversight, subject to biennial reconfirmation every 4 
346  years by the committee. The Public Counsel shall perform his or 
347  her duties independently. Vacancies in the office shall be 
348  filled in the same manner as the original appointment. 
349         Section 5. This act shall take effect July 1, 2010.