Senate Bill sb1322c2
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By the Committees on Governmental Oversight and Productivity;
and Communications and Public Utilities
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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.
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22 Be It Enacted by the Legislature of the State of Florida:
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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.
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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."
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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.
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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
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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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