| 1 | A bill to be entitled |
| 2 | An act relating to the Public Service Commission; amending |
| 3 | s. 350.042, F.S.; revising provisions relating to ex parte |
| 4 | communications; eliminating an exemption from certain |
| 5 | prohibitions provided for commission staff; requiring that |
| 6 | communications between a commissioner or commission staff |
| 7 | and a representative of a utility be made available to the |
| 8 | public and advance notice be provided to the Public |
| 9 | Counsel; providing penalties for commission staff who fail |
| 10 | to report certain communications; amending s. 350.0605, |
| 11 | F.S.; prohibiting former commissioners and employees of |
| 12 | the Public Service Commission from lobbying the |
| 13 | legislative or executive branch of state government for 2 |
| 14 | years after termination of service or employment with the |
| 15 | commission; prohibiting any former employee of the |
| 16 | commission from appearing before the commission |
| 17 | representing any client or industry regulated by the |
| 18 | commission for 2 years after termination of employment |
| 19 | with the commission; providing that such prohibitions |
| 20 | apply to commissioners and employees who are appointed or |
| 21 | reappointed or terminate their employment with the |
| 22 | commission on or after a specified date; prohibiting a |
| 23 | former commissioner or commission staff member from |
| 24 | accepting employment by or compensation from certain |
| 25 | entities regulated by the commission for a period of 2 |
| 26 | years after termination of employment with the commission; |
| 27 | providing that the prohibition apply to former |
| 28 | commissioners and commission staff members who terminate |
| 29 | their employment with the commission on or after a |
| 30 | specified date; amending ss. 364.183, 366.093, 367.156, |
| 31 | and 368.108, F.S., relating to provisions governing access |
| 32 | to telecommunications company and public utility records |
| 33 | by the commission; providing for the Public Counsel to |
| 34 | have access to such records; providing an effective date. |
| 35 |
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| 36 | Be It Enacted by the Legislature of the State of Florida: |
| 37 |
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| 38 | Section 1. Section 350.042, Florida Statutes, is amended |
| 39 | to read: |
| 40 | 350.042 Ex parte communications.- |
| 41 | (1) A commissioner and commission staff shall afford |
| 42 | should accord to every person who is legally interested in a |
| 43 | proceeding, or the person's lawyer, the full right to be heard |
| 44 | according to law, and, except as authorized in this section by |
| 45 | law, shall neither initiate, engage in, nor consider ex parte |
| 46 | communications concerning the merits, threat, or offer of reward |
| 47 | in any proceeding other than a proceeding under s. 120.54 or s. |
| 48 | 120.565, workshops, or internal affairs meetings. An No |
| 49 | individual shall not discuss ex parte with a commissioner or |
| 50 | commission staff the merits of any issue that he or she knows |
| 51 | will be filed with the commission within 90 days after the date |
| 52 | of the discussion. The provisions of this subsection shall not |
| 53 | apply to commission staff. |
| 54 | (2)(a) Any oral or written communication between a |
| 55 | commissioner or commission staff and a representative of a |
| 56 | utility regulated by the commission must be made available to |
| 57 | the public. Such oral or written communication requires advanced |
| 58 | notification to the Public Counsel. |
| 59 | (b) The commission shall send a copy of any written |
| 60 | communication to the Public Counsel on the same day that the |
| 61 | communication is received by the commission. |
| 62 | (c) The commission shall prepare a written summary of any |
| 63 | communication related to a documented emergency or a |
| 64 | communication related to a brief, unscheduled follow-up to a |
| 65 | previously scheduled meeting or previously scheduled telephone |
| 66 | conference call. The commission shall provide such summary to |
| 67 | the Public Counsel no later than 10 working days after the |
| 68 | communication occurred. |
| 69 | (d) A commissioner or commission staff shall notify the |
| 70 | Public Counsel in writing at least 5 working days before any |
| 71 | meeting, telephone conference call, or written communication |
| 72 | between the commissioner or commission staff and a |
| 73 | representative of a regulated utility. The Public Counsel may |
| 74 | participate in the meeting, telephone conference call, or |
| 75 | written communication for the purpose of questioning or directly |
| 76 | responding to the communication. |
| 77 | (e) This subsection does not apply to commission staff or |
| 78 | representatives of a regulated utility who are required to |
| 79 | initiate or receive brief, unscheduled communications for the |
| 80 | purpose of obtaining additional information that may be needed |
| 81 | after the completion of an audit. |
| 82 | (3)(2) The provisions of This section shall not prohibit |
| 83 | an individual residential ratepayer from communicating with a |
| 84 | commissioner or commission staff if, provided that the ratepayer |
| 85 | is representing only himself or herself, without compensation. |
| 86 | (4)(3) This section shall not apply to oral communications |
| 87 | or discussions in scheduled and noticed open public meetings of |
| 88 | educational programs or of a conference or other meeting of an |
| 89 | association of regulatory agencies. |
| 90 | (5)(4) If a commissioner or commission staff member |
| 91 | knowingly receives an ex parte communication relative to a |
| 92 | proceeding other than as set forth in subsection (1), to which |
| 93 | he or she is assigned, he or she must place on the record of the |
| 94 | proceeding copies of all written communications received, all |
| 95 | written responses to the communications, and a memorandum |
| 96 | stating the substance of all oral communications received and |
| 97 | all oral responses made. The commissioner or commission staff |
| 98 | member, and shall give written notice to all parties to the |
| 99 | communication that such matters have been placed on the record. |
| 100 | Any party who desires to respond to an ex parte communication |
| 101 | may do so. The response must be received by the commission |
| 102 | within 10 days after receiving notice that the ex parte |
| 103 | communication has been placed on the record. The commissioner |
| 104 | may, if he or she deems it necessary to eliminate the effect of |
| 105 | an ex parte communication received by him or her, withdraw from |
| 106 | the proceeding, in which case the chair shall substitute another |
| 107 | commissioner for the proceeding. |
| 108 | (6)(5) Any individual who makes an ex parte communication |
| 109 | shall submit to the commission a written statement describing |
| 110 | the nature of the such communication, to include the name of the |
| 111 | person making the communication, the name of each the |
| 112 | commissioner or commission staff member commissioners receiving |
| 113 | the communication, copies of all written communications made, |
| 114 | all written responses to such communications, and a memorandum |
| 115 | stating the substance of all oral communications received and |
| 116 | all oral responses made. The commission shall place on the |
| 117 | record of a proceeding all such communications. |
| 118 | (7)(6) Any commissioner or commission staff member who |
| 119 | knowingly fails to place on the record any such communications, |
| 120 | in violation of the section, within 15 days after of the date of |
| 121 | the such communication is subject to removal or dismissal and |
| 122 | may be assessed a civil penalty not to exceed $5,000. |
| 123 | (8)(7)(a) It is shall be the duty of the Commission on |
| 124 | Ethics to receive and investigate sworn complaints of violations |
| 125 | of this section pursuant to the procedures contained in ss. |
| 126 | 112.322-112.3241. |
| 127 | (b) If the Commission on Ethics finds that there has been |
| 128 | a violation of this section by a public service commissioner or |
| 129 | commission staff, it shall provide the Governor and the Florida |
| 130 | Public Service Commission Nominating Council with a report of |
| 131 | its findings and recommendations. The Governor may is authorized |
| 132 | to enforce the findings and recommendations of the Commission on |
| 133 | Ethics, pursuant to part III of chapter 112. |
| 134 | (c) If a commissioner or commission staff fails or refuses |
| 135 | to pay the Commission on Ethics any civil penalties assessed |
| 136 | pursuant to the provisions of this section, the Commission on |
| 137 | Ethics may bring an action in any circuit court to enforce such |
| 138 | penalty. |
| 139 | (d) If, during the course of an investigation by the |
| 140 | Commission on Ethics into an alleged violation of this section, |
| 141 | allegations are made as to the identity of the person who |
| 142 | participated in the ex parte communication, that person must be |
| 143 | given notice and an opportunity to participate in the |
| 144 | investigation and relevant proceedings to present a defense. If |
| 145 | the Commission on Ethics determines that the person participated |
| 146 | in the ex parte communication, the person may not appear before |
| 147 | the commission or otherwise represent anyone before the |
| 148 | commission for a period of 2 years. |
| 149 | Section 2. Section 350.0605, Florida Statutes, is amended |
| 150 | to read: |
| 151 | 350.0605 Former commissioners and employees; |
| 152 | representation of clients or industry before commission; |
| 153 | lobbying the legislative or executive branch.- |
| 154 | (1)(a) Any former commissioner of the Public Service |
| 155 | Commission is prohibited from appearing before the commission |
| 156 | representing any client or any industry regulated by the Public |
| 157 | Service Commission for a period of 2 years following his or her |
| 158 | termination of service on the commission. |
| 159 | (b) Any former commissioner of the Public Service |
| 160 | Commission is prohibited from lobbying the legislative or |
| 161 | executive branch of state government for a period of 2 years |
| 162 | following his or her termination of service on the commission. |
| 163 | This subsection applies only to commissioners who are appointed |
| 164 | or reappointed on or after July 1, 2010. |
| 165 | (2) Any former employee of the Public Service Commission |
| 166 | is prohibited from appearing before the commission representing |
| 167 | any client or industry regulated by the Public Service |
| 168 | Commission, or from lobbying the legislative or executive branch |
| 169 | of state government, for a period of 2 years following his or |
| 170 | her termination of employment with the commission. This |
| 171 | subsection applies only to employees of the commission who |
| 172 | terminate their employment with the commission on or after July |
| 173 | 1, 2010. Any former employee of the commission is prohibited |
| 174 | from appearing before the commission representing any client |
| 175 | regulated by the Public Service Commission on any matter which |
| 176 | was pending at the time of termination and in which such former |
| 177 | employee had participated. |
| 178 | (3) For a period of 2 years following termination of |
| 179 | employment with the commission, a former commissioner or |
| 180 | commission staff member may not accept employment by or |
| 181 | compensation from a business entity that, directly or |
| 182 | indirectly, owns or controls a public utility regulated by the |
| 183 | commission, from a public utility regulated by the commission, |
| 184 | from a business entity that, directly or indirectly, is an |
| 185 | affiliate or subsidiary of a public utility regulated by the |
| 186 | commission or is an actual business competitor of a local |
| 187 | exchange company or public utility regulated by the commission |
| 188 | and is otherwise exempt from regulation by the commission under |
| 189 | ss. 364.02(14) and 366.02(1), or from a business entity or trade |
| 190 | association that has been a party to a commission proceeding |
| 191 | within the 2 years preceding the former commissioner or |
| 192 | commission staff member's termination of employment with the |
| 193 | commission. This subsection applies only to former commissioners |
| 194 | or commission staff members who terminate their employment with |
| 195 | the commission on or after July 1, 2010. |
| 196 | (3) For a period of 2 years following termination of |
| 197 | service on the commission, a former member may not accept |
| 198 | employment by or compensation from a business entity which, |
| 199 | directly or indirectly, owns or controls a public utility |
| 200 | regulated by the commission, from a public utility regulated by |
| 201 | the commission, from a business entity which, directly or |
| 202 | indirectly, is an affiliate or subsidiary of a public utility |
| 203 | regulated by the commission or is an actual business competitor |
| 204 | of a local exchange company or public utility regulated by the |
| 205 | commission and is otherwise exempt from regulation by the |
| 206 | commission under ss. 364.02(14) and 366.02(1), or from a |
| 207 | business entity or trade association that has been a party to a |
| 208 | commission proceeding within the 2 years preceding the member's |
| 209 | termination of service on the commission. This subsection |
| 210 | applies only to members of the Florida Public Service Commission |
| 211 | who are appointed or reappointed after May 10, 1993. |
| 212 | Section 3. Subsection (1) of section 364.183, Florida |
| 213 | Statutes, is amended to read: |
| 214 | 364.183 Access to company records.- |
| 215 | (1) The commission and Public Counsel shall have access to |
| 216 | all records of a telecommunications company which that are |
| 217 | reasonably necessary for the disposition of matters within the |
| 218 | commission's jurisdiction. The commission and Public Counsel |
| 219 | shall also have access to those records of a local exchange |
| 220 | telecommunications company's affiliated companies, including its |
| 221 | parent company, which that are reasonably necessary for the |
| 222 | disposition of any matter concerning an affiliated transaction |
| 223 | or a claim of anticompetitive behavior, including claims of |
| 224 | cross-subsidization and predatory pricing. The commission or |
| 225 | Public Counsel may require a telecommunications company to file |
| 226 | records, reports, or other data directly related to matters |
| 227 | within the commission's jurisdiction in the form specified by |
| 228 | the commission or Public Counsel and may require such company to |
| 229 | retain such information for a designated period of time. Upon |
| 230 | request of the company or other person, any records received by |
| 231 | the commission or Public Counsel which are claimed by the |
| 232 | company or other person to be proprietary confidential business |
| 233 | information shall be kept confidential and shall be exempt from |
| 234 | s. 119.07(1) and s. 24(a), Art. I of the State Constitution. |
| 235 | Section 4. Subsection (1) of section 366.093, Florida |
| 236 | Statutes, is amended to read: |
| 237 | 366.093 Public utility records; confidentiality.- |
| 238 | (1) The commission and Public Counsel shall continue to |
| 239 | have reasonable access to all public utility records and records |
| 240 | of the utility's affiliated companies, including its parent |
| 241 | company, regarding transactions or cost allocations among the |
| 242 | utility and such affiliated companies, and such records |
| 243 | necessary to ensure that a utility's ratepayers do not subsidize |
| 244 | nonutility activities. Upon request of the public utility or |
| 245 | other person, any records received by the commission or Public |
| 246 | Counsel which are shown and found by the commission or Public |
| 247 | Counsel to be proprietary confidential business information |
| 248 | shall be kept confidential and shall be exempt from s. |
| 249 | 119.07(1). |
| 250 | Section 5. Subsection (1) of section 367.156, Florida |
| 251 | Statutes, is amended to read: |
| 252 | 367.156 Public utility records; confidentiality.- |
| 253 | (1) The commission and Public Counsel shall continue to |
| 254 | have reasonable access to all utility records and records of |
| 255 | affiliated companies, including its parent company, regarding |
| 256 | transactions or cost allocations among the utility and such |
| 257 | affiliated companies, and such records necessary to ensure that |
| 258 | a utility's ratepayers do not subsidize nonutility activities. |
| 259 | Upon request of the utility or any other person, any records |
| 260 | received by the commission or Public Counsel which are shown and |
| 261 | found by the commission or Public Counsel to be proprietary |
| 262 | confidential business information shall be kept confidential and |
| 263 | shall be exempt from s. 119.07(1). |
| 264 | Section 6. Subsection (1) of section 368.108, Florida |
| 265 | Statutes, is amended to read: |
| 266 | 368.108 Confidentiality; discovery.- |
| 267 | (1) The commission and Public Counsel shall continue to |
| 268 | have reasonable access to all natural gas transmission company |
| 269 | records and records of the natural gas transmission company's |
| 270 | affiliated companies, including its parent company, regarding |
| 271 | transactions or cost allocations among the natural gas |
| 272 | transmission company and such affiliated companies, and such |
| 273 | records necessary to ensure that a natural gas transmission |
| 274 | company's ratepayers do not subsidize unregulated activities. |
| 275 | Upon request of the natural gas transmission company or other |
| 276 | person, any records received by the commission or Public Counsel |
| 277 | which are shown and found by the commission or Public Counsel to |
| 278 | be proprietary confidential business information shall be |
| 279 | confidential and exempt from s. 119.07(1). |
| 280 | Section 7. This act shall take effect July 1, 2010. |