Senate Bill sb1322c2

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    Florida Senate - 2005                    CS for CS for SB 1322

    By the Committees on Governmental Oversight and Productivity;
    and Communications and Public Utilities




    585-1970-05

  1                      A bill to be entitled

  2         An act relating to the Public Service

  3         Commission; creating the Committee on Public

  4         Service Commission Oversight as a standing

  5         joint committee of the Legislature; providing

  6         for its membership, powers, and duties;

  7         amending s. 350.001, F.S.; requiring that the

  8         commission perform its duties independently;

  9         specifying that the Governor has no planning or

10         budgetary authority with respect to the

11         commission; specifying that the Governor and

12         the Department of Management Services have no

13         authority over the commission's employees;

14         amending s. 350.031, F.S.; authorizing the

15         Florida Public Service Commission Nominating

16         Council to make expenditures to advertise a

17         vacancy on the council or the commission;

18         requiring that the Committee on Public Service

19         Commission Oversight provide a nominee for

20         recommendation to the Governor for appointment

21         to the Public Service Commission; providing

22         procedures; amending s. 350.041, F.S.;

23         clarifying the prohibition against accepting

24         gifts with respect to its application to

25         commissioners attending conferences; requiring

26         that a penalty be imposed against a person who

27         gives a commissioner a prohibited gift;

28         requiring that commissioners avoid impropriety

29         and act in a manner that promotes confidence in

30         the commission; amending s. 350.042, F.S.;

31         requiring that a penalty be imposed against a

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 1         person involved in a prohibited ex parte

 2         communication with a commissioner; amending s.

 3         350.061, F.S.; requiring that the Committee on

 4         Public Service Commission Oversight rather than

 5         the Joint Legislative Auditing Committee

 6         appoint the Public Counsel; providing for

 7         biennial reconfirmation rather than annual;

 8         requiring that the Public Counsel perform his

 9         or her duties independently; amending s.

10         350.0614, F.S.; requiring that the Committee on

11         Public Service Commission Oversight rather than

12         the Joint Legislative Auditing Committee

13         oversee expenditures of the Public Counsel;

14         amending s. 120.80, F.S.; requiring that the

15         commission refer certain matters affecting the

16         substantial interest of a utility to the

17         Division of Administrative Hearings so that an

18         administrative judge may be assigned to conduct

19         a hearing and enter a recommended order;

20         providing an effective date.

21  

22  Be It Enacted by the Legislature of the State of Florida:

23  

24         Section 1.  Committee on Public Service Commission

25  Oversight; creation; membership; powers and duties.--

26         (1)  There is created a standing joint committee of the

27  Legislature, designated the Committee on Public Service

28  Commission Oversight, and composed of twelve members appointed

29  as follows: six members of the Senate appointed by the

30  President of the Senate, two of whom must be members of the

31  minority party; and six members of the House of

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 1  Representatives appointed by the Speaker of the House of

 2  Representatives, two of whom must be members of the minority

 3  party. The terms of members shall be for 2 years and shall run

 4  from the organization of one Legislature to the organization

 5  of the next Legislature. The President shall appoint the chair

 6  of the committee in even years and the vice chair in odd

 7  years, and the Speaker of the House of Representatives shall

 8  appoint the chair of the committee in odd years and the vice

 9  chair in even years, from among the committee membership.

10  Vacancies shall be filled in the same manner as the original

11  appointment. Members shall serve without additional

12  compensation, but shall be reimbursed for expenses.

13         (2)  The committee shall be governed by joint rules of

14  the Senate and the House of Representatives which shall remain

15  in effect until repealed or amended by concurrent resolution.

16         (3)  The committee shall:

17         (a)  Recommend to the Governor a nominee to fill a

18  vacancy on the Public Service Commission, as provided by

19  general law; and

20         (b)  Appoint a Public Counsel as provided by general

21  law.

22         (4)  The committee is authorized to file a complaint

23  with the Commission on Ethics alleging a violation of this

24  chapter by a commissioner, former commissioner, former

25  commission employee, or member of the Public Service

26  Commission Nominating Council.

27         (5)  The committee will not have a permanent staff, but

28  the President of the Senate and the Speaker of the House of

29  Representatives shall select staff members from among existing

30  legislative staff, when and as needed.

31  

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 1         Section 2.  Section 350.001, Florida Statutes, is

 2  amended to read:

 3         350.001  Legislative intent.--The Florida Public

 4  Service Commission has been and shall continue to be an arm of

 5  the legislative branch of government. The Public Service

 6  Commission shall perform its duties independently. The

 7  Legislature declares and determines that the Public Service

 8  Commission is under the legislative branch of government

 9  within the intent expressed in chapter 216. The Executive

10  Office of the Governor or its successor is not authorized to

11  release or withhold funds appropriated to the Public Service

12  Commission, but the Committee on Public Service Commission

13  Oversight shall release or withhold funds appropriated to the

14  Public Service Commission as provided by law and the rules or

15  decisions of the Committee on Public Service Commission

16  Oversight. The Executive Office of the Governor, the

17  Department of Management Services, or any successor may not

18  determine the number, or fix the compensation, of employees of

19  the Public Service Commission and may not exercise any manner

20  of control over the employees of the Public Service

21  Commission. It is the desire of the Legislature that the

22  Governor participate in the appointment process of

23  commissioners to the Public Service Commission.  The

24  Legislature accordingly delegates to the Governor a limited

25  authority with respect to the Public Service Commission by

26  authorizing him or her to participate in the selection of

27  members only from the list provided by the Florida Public

28  Service Commission Nominating Council in the manner prescribed

29  by s. 350.031.

30         Section 3.  Section 350.031, Florida Statutes, is

31  amended to read:

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 1         350.031  Florida Public Service Commission Nominating

 2  Council.--

 3         (1)  There is created a Florida Public Service

 4  Commission Nominating Council consisting of nine members. At

 5  least one member of the council must be 60 years of age or

 6  older.  Three members, including one member of the House of

 7  Representatives, shall be appointed by and serve at the

 8  pleasure of the Speaker of the House of Representatives; three

 9  members, including one member of the Senate, shall be

10  appointed by and serve at the pleasure of the President of the

11  Senate; and three members shall be selected and appointed by a

12  majority vote of the other six members of the council. All

13  terms shall be for 4 years except those members of the House

14  and Senate, who shall serve 2-year terms concurrent with the

15  2-year elected terms of House members. Vacancies on the

16  council shall be filled for the unexpired portion of the term

17  in the same manner as original appointments to the council. A

18  member may not be reappointed to the council, except for a

19  member of the House of Representatives or the Senate who may

20  be appointed to two 2-year terms or a person who is appointed

21  to fill the remaining portion of an unexpired term.

22         (2)(a)  No member or spouse shall be the holder of the

23  stocks or bonds of any company, other than through ownership

24  of shares in a mutual fund, regulated by the commission, or

25  any affiliated company of any company regulated by the

26  commission, or be an agent or employee of, or have any

27  interest in, any company regulated by the commission or any

28  affiliated company of any company regulated by the commission,

29  or in any firm which represents in any capacity either

30  companies which are regulated by the commission or affiliates

31  of companies regulated by the commission.  As a condition of

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 1  appointment to the council, each appointee shall affirm to the

 2  Speaker and the President his or her qualification by the

 3  following certification:  "I hereby certify that I am not a

 4  stockholder, other than through ownership of shares in a

 5  mutual fund, in any company regulated by the commission or in

 6  any affiliate of a company regulated by the commission, nor in

 7  any way, directly or indirectly, in the employment of, or

 8  engaged in the management of any company regulated by the

 9  commission or any affiliate of a company regulated by the

10  commission, or in any firm which represents in any capacity

11  either companies which are regulated by the commission or

12  affiliates of companies regulated by the commission."

13  

14  This certification is made as condition to appointment to the

15  Florida Public Service Commission Nominating Council.

16         (b)  A member of the council may be removed by the

17  Speaker of the House of Representatives and the President of

18  the Senate upon a finding by the Speaker and the President

19  that the council member has violated any provision of this

20  subsection or for other good cause.

21         (c)  If a member of the council does not meet the

22  requirements of this subsection, the President of the Senate

23  or the Speaker of the House of Representatives, as

24  appropriate, shall appoint a legislative replacement.

25         (3)  A majority of the membership of the council may

26  conduct any business before the council.  All meetings and

27  proceedings of the council shall be staffed by the Office of

28  Legislative Services and shall be subject to the provisions of

29  ss. 119.07 and 286.011.  Members of the council are entitled

30  to receive per diem and travel expenses as provided in s.

31  112.061, which shall be funded by the Florida Public Service

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 1  Regulatory Trust Fund.  Applicants invited for interviews

 2  before the council may, in the discretion of the council,

 3  receive per diem and travel expenses as provided in s.

 4  112.061, which shall be funded by the Florida Public Service

 5  Regulatory Trust Fund.  The council shall establish policies

 6  and procedures to govern the process by which applicants are

 7  nominated.

 8         (4)  The council may spend a nominal amount, not to

 9  exceed $10,000, to advertise a vacancy on the council, which

10  shall be funded by the Florida Public Service Regulatory Trust

11  Fund.

12         (5)(4)  A person may not be nominated to the Committee

13  on Public Service Commission Oversight Governor until the

14  council has determined that the person is competent and

15  knowledgeable in one or more fields, which shall include, but

16  not be limited to:  public affairs, law, economics,

17  accounting, engineering, finance, natural resource

18  conservation, energy, or another field substantially related

19  to the duties and functions of the commission.  The commission

20  shall fairly represent the above-stated fields.

21  Recommendations of the council shall be nonpartisan.

22         (6)(5)  It is the responsibility of the council to

23  nominate to the Committee on Public Service Commission

24  Oversight Governor not fewer than three persons for each

25  vacancy occurring on the Public Service Commission.  The

26  council shall submit the recommendations to the committee

27  Governor by August 1 October 1 of those years in which the

28  terms are to begin the following January, or within 60 days

29  after a vacancy occurs for any reason other than the

30  expiration of the term.

31  

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 1         (7)(6)  The Committee on Public Service Commission

 2  Oversight Governor shall select from the list of nominees

 3  provided by the nominating council one nominee for

 4  recommendation to the Governor for appointment to the

 5  commission. The recommendation must be provided to the

 6  Governor within 45 days after receipt of the list of nominees.

 7  The committee shall make the recommendation fill a vacancy

 8  occurring on the Public Service Commission by appointment of

 9  one of the applicants nominated by the council only after a

10  background investigation of the recommended nominee such

11  applicant has been conducted by the Florida Department of Law

12  Enforcement. If the Governor rejects the recommendation or has

13  not made an appointment within 30 days after the receipt of

14  the recommendation by December 1 to fill a vacancy for a term

15  to begin the following January, then the council shall

16  immediately initiate the nominating process in accordance with

17  this section. The council shall include in the process all new

18  applicants and all previous applicants for this vacancy. The

19  council must, within 30 days after the Governor's rejection of

20  the previous recommendation or failure to timely make an

21  appointment, submit to the committee a list of no fewer than

22  three persons for each vacancy. The committee must, within 30

23  days after receipt, select one nominee for recommendation to

24  the Governor for appointment to the commission. If the

25  Governor rejects the recommendation or fails to make an

26  appointment within 30 days after receipt of the

27  recommendation, the council shall immediately initiate the

28  nominating process again with the time periods applicable., by

29  majority vote, shall appoint by December 31 one person from

30  the applicants previously nominated to the Governor to fill

31  the vacancy.  If the Governor has not made the appointment to

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 1  fill a vacancy occurring for any reason other than the

 2  expiration of the term by the 60th day following receipt of

 3  the nominations of the council, the council by majority vote

 4  shall appoint within 30 days thereafter one person from the

 5  applicants previously nominated to the Governor to fill the

 6  vacancy.

 7         (8)(7)  Each appointment to the Public Service

 8  Commission shall be subject to confirmation by the Senate

 9  during the next regular session after the vacancy occurs. If

10  the Senate refuses to confirm or rejects the Governor's

11  appointment, the council shall initiate, in accordance with

12  this section, the nominating process within 30 days.

13         Section 4.  Subsection (2) of section 350.041, Florida

14  Statutes, is amended to read:

15         350.041  Commissioners; standards of conduct.--

16         (2)  STANDARDS OF CONDUCT.--

17         (a)  A commissioner may not accept anything from any

18  business entity which, either directly or indirectly, owns or

19  controls any public utility regulated by the commission, from

20  any public utility regulated by the commission, or from any

21  business entity which, either directly or indirectly, is an

22  affiliate or subsidiary of any public utility regulated by the

23  commission. A commissioner may attend conferences and

24  associated meals and events that are generally available to

25  all conference participants without payment of any fees in

26  addition to the conference fee. Additionally, while attending

27  a conference, a commissioner may attend meetings, meals, or

28  events that are not sponsored, in whole or in part, by any

29  representative of any public utility regulated by the

30  commission and that are limited to commissioners only,

31  committee members, or speakers if the commissioner is a member

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 1  of a committee of the association of regulatory agencies that

 2  organized the conference or is a speaker at the conference. It

 3  is not a violation of this paragraph for a commissioner to

 4  attend a conference for which conference participants who are

 5  employed by a utility regulated by the commission have paid a

 6  higher conference registration fee than the commissioner, or

 7  to attend a meal or event that is generally available to all

 8  conference participants without payment of any fees in

 9  addition to the conference fee and that is sponsored, in whole

10  or in part, by a utility regulated by the commission. If,

11  during the course of an investigation by the Commission on

12  Ethics into an alleged violation of this paragraph,

13  allegations are made as to the identity of the person giving

14  or providing the prohibited gift, that person must be given

15  notice and an opportunity to participate in the investigation

16  and relevant proceedings to present a defense. If the

17  Commission on Ethics determines that the person gave or

18  provided a prohibited gift, the person may not appear before

19  the commission or otherwise represent anyone before the

20  commission for a period of 2 years.

21         (b)  A commissioner may not accept any form of

22  employment with or engage in any business activity with any

23  business entity which, either directly or indirectly, owns or

24  controls any public utility regulated by the commission, any

25  public utility regulated by the commission, or any business

26  entity which, either directly or indirectly, is an affiliate

27  or subsidiary of any public utility regulated by the

28  commission.

29         (c)  A commissioner may not have any financial

30  interest, other than shares in a mutual fund, in any public

31  utility regulated by the commission, in any business entity

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 1  which, either directly or indirectly, owns or controls any

 2  public utility regulated by the commission, or in any business

 3  entity which, either directly or indirectly, is an affiliate

 4  or subsidiary of any public utility regulated by the

 5  commission.  If a commissioner acquires any financial interest

 6  prohibited by this section during his or her term of office as

 7  a result of events or actions beyond the commissioner's

 8  control, he or she shall immediately sell such financial

 9  interest or place such financial interest in a blind trust at

10  a financial institution.  A commissioner may not attempt to

11  influence, or exercise any control over, decisions regarding

12  the blind trust.

13         (d)  A commissioner may not accept anything from a

14  party in a proceeding currently pending before the commission.

15  If, during the course of an investigation by the Commission on

16  Ethics into an alleged violation of this paragraph,

17  allegations are made as to the identity of the person giving

18  or providing the prohibited gift, that person must be given

19  notice and an opportunity to participate in the investigation

20  and relevant proceedings to present a defense. If the

21  Commission on Ethics determines that the person gave or

22  provided a prohibited gift, the person may not appear before

23  the commission or otherwise represent anyone before the

24  commission for a period of 2 years.

25         (e)  A commissioner may not serve as the representative

26  of any political party or on any executive committee or other

27  governing body of a political party; serve as an executive

28  officer or employee of any political party, committee,

29  organization, or association; receive remuneration for

30  activities on behalf of any candidate for public office;

31  engage on behalf of any candidate for public office in the

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 1  solicitation of votes or other activities on behalf of such

 2  candidacy; or become a candidate for election to any public

 3  office without first resigning from office.

 4         (f)  A commissioner, during his or her term of office,

 5  may not make any public comment regarding the merits of any

 6  proceeding under ss. 120.569 and 120.57 currently pending

 7  before the commission.

 8         (g)  A commissioner may not conduct himself or herself

 9  in an unprofessional manner at any time during the performance

10  of his or her official duties.

11         (h)  A commissioner must avoid impropriety in all of

12  his or her activities and must act at all times in a manner

13  that promotes public confidence in the integrity and

14  impartiality of the commission.

15         Section 5.  Subsection (7) of section 350.042, Florida

16  Statutes, is amended to read:

17         350.042  Ex parte communications.--

18         (7)(a)  It shall be the duty of the Commission on

19  Ethics to receive and investigate sworn complaints of

20  violations of this section pursuant to the procedures

21  contained in ss. 112.322-112.3241.

22         (b)  If the Commission on Ethics finds that there has

23  been a violation of this section by a public service

24  commissioner, it shall provide the Governor and the Florida

25  Public Service Commission Nominating Council with a report of

26  its findings and recommendations. The Governor is authorized

27  to enforce the findings and recommendations of the Commission

28  on Ethics, pursuant to part III of chapter 112.

29         (c)  If a commissioner fails or refuses to pay the

30  Commission on Ethics any civil penalties assessed pursuant to

31  

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 1  the provisions of this section, the Commission on Ethics may

 2  bring an action in any circuit court to enforce such penalty.

 3         (d)  If, during the course of an investigation by the

 4  Commission on Ethics into an alleged violation of this

 5  paragraph, allegations are made as to the identity of the

 6  person who participated in the ex parte communication, that

 7  person must be given notice and an opportunity to participate

 8  in the investigation and relevant proceedings to present a

 9  defense. If the Commission on Ethics determines that the

10  person participated in the ex parte communication, the person

11  may not appear before the commission or otherwise represent

12  anyone before the commission for a period of 2 years.

13         Section 6.  Subsection (1) of section 350.061, Florida

14  Statutes, is amended to read:

15         350.061  Public Counsel; appointment; oath;

16  restrictions on Public Counsel and his or her employees.--

17         (1)  The Committee on Public Service Commission

18  Oversight Joint Legislative Auditing Committee shall appoint a

19  Public Counsel by majority vote of the members of the

20  committee to represent the general public of Florida before

21  the Florida Public Service Commission. The Public Counsel

22  shall be an attorney admitted to practice before the Florida

23  Supreme Court and shall serve at the pleasure of the Joint

24  Legislative Auditing Committee on Public Service Commission

25  Oversight, subject to biennial annual reconfirmation by the

26  committee. The Public Counsel shall perform his or her duties

27  independently. Vacancies in the office shall be filled in the

28  same manner as the original appointment.

29         Section 7.  Subsection (2) of section 350.0614, Florida

30  Statutes, is amended to read:

31         350.0614  Public Counsel; compensation and expenses.--

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 1         (2)  The Legislature hereby declares and determines

 2  that the Public Counsel is under the legislative branch of

 3  government within the intention of the legislation as

 4  expressed in chapter 216, and no power shall be in the

 5  Executive Office of the Governor or its successor to release

 6  or withhold funds appropriated to it, but the same shall be

 7  available for expenditure as provided by law and the rules or

 8  decisions of the Joint Auditing Committee on Public Service

 9  Commission Oversight.

10         Section 8.  Paragraph (g) is added to subsection (13)

11  of section 120.80, Florida Statutes, to read:

12         120.80  Exceptions and special requirements;

13  agencies.--

14         (13)  FLORIDA PUBLIC SERVICE COMMISSION.--

15         (g)  When the Public Service Commission initiates an

16  agency action affecting the substantial interest of a utility

17  regulated under chapter 367 concerning any matter pertaining

18  to s. 120.60(5) and a formal administrative hearing is

19  requested under s. 120.57, the commission shall refer the

20  matter to the division for the assignment of an administrative

21  law judge to conduct the hearing and enter a recommended

22  order.

23         Section 9.  This act shall take effect October 1, 2005;

24  however, the provisions creating penalties or new standards of

25  conduct apply to violations occurring on or after that date.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                            CS/SB 1322

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 4  CS/CS/SB 1322 provides that a PSC action affecting the
    substantial interests of a water or wastewater utility for
 5  which a formal hearing is requested shall be referred to an
    administrative law judge assigned by the Division of
 6  Administrative Hearings.

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