Florida Senate - 2011                                     SB 212
       
       
       
       By Senator Fasano
       
       
       
       
       11-00153-11                                            2011212__
    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 commissioners
   46         or members of a commissioner’s direct reporting staff
   47         who fail to report certain communications; amending s.
   48         350.0605, F.S.; prohibiting former commissioners and
   49         members of a commissioner’s direct reporting staff
   50         from lobbying the legislative or executive branch of
   51         state 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 from biennially to every 4 years; 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 governs communications made by or directed
   97  to commissioners and their direct reporting staff which concern
   98  proceedings before the Public Service Commission. The purpose of
   99  this section is to ensure the fairness of the commission’s
  100  proceedings by assuring the public that the decisions by the
  101  commission are not influenced by prohibited communications
  102  between commissioners and legally interested persons.
  103         (a) It is the express intent of the Legislature that the
  104  commission shall afford to every person who is legally
  105  interested in a proceeding, or the person’s attorney or
  106  qualified representative, the full right to be heard according
  107  to law except as otherwise prohibited in this section.
  108         (b) For purposes of this section, the term:
  109         1. “Legally interested person” means any party to a
  110  proceeding before the commission, or a representative of a party
  111  to a proceeding pending before the commission, and includes
  112  corporations, partnerships, limited liability companies, elected
  113  or appointed officials of state government, and other public and
  114  elected officials.
  115         2. “Prohibited communication” means any communication
  116  regarding a docketed matter which, if written, is not served on
  117  all the parties to a proceeding, and, if oral, is made without
  118  adequate notice to the parties and an opportunity for them to be
  119  present and heard.
  120         3. “Commissioner’s direct reporting staff” means a
  121  commissioner’s chief advisor and executive assistant.
  122         (c) A commissioner or the commissioner’s direct reporting
  123  staff should accord to every person who is legally interested in
  124  a proceeding, or the person’s lawyer, full right to be heard
  125  according to law, and, except as authorized by law, shall
  126  neither initiate, engage in, nor consider prohibited ex parte
  127  communications concerning the merits, threat, or offer of reward
  128  in any proceeding other than an undocketed workshop a proceeding
  129  under s. 120.54 or s. 120.565, workshops, or an internal affairs
  130  meeting meetings. No individual shall discuss ex parte with a
  131  commissioner the merits of any issue that he or she knows will
  132  be filed with the commission within 90 days. The provisions of
  133  this subsection do shall not apply to commission staff unless
  134  otherwise provided for in this section.
  135         (d) An individual may not discuss any matter with a
  136  commissioner or the commissioner’s direct reporting staff which
  137  the individual reasonably foresees will be filed with the
  138  commission.
  139         (2)(a) Any oral or written communication, not otherwise
  140  prohibited under subsection (1), between a commissioner or the
  141  commissioner’s direct reporting staff and a representative of an
  142  entity regulated by the commission must be made available to the
  143  public. Such oral or written communication must be posted to the
  144  commission’s website within 72 hours after the communication is
  145  made or received.
  146         (b) The commission shall post on its website a copy of any
  147  written communication by the close of the next business day
  148  after the communication is received by the commission.
  149         (c) The commission shall prepare a written summary of any
  150  communication related to a documented emergency or a
  151  communication related to a brief, unscheduled followup to a
  152  previously scheduled meeting or previously scheduled telephone
  153  conference call. The commission shall post the written summary
  154  on its website within 72 hours after the communication is made
  155  or received.
  156         (d) Notice shall be posted on the commission’s website at
  157  least 72 hours prior to the occurrence of any meeting, telephone
  158  conference call, or written communication between a commissioner
  159  or the commissioner’s direct reporting staff and a
  160  representative of a regulated entity. The Public Counsel may
  161  participate in the meeting, telephone conference call, or
  162  written communication for the purpose of questioning or directly
  163  responding to the communication.
  164         (e)This subsection does not apply to commission staff or
  165  representatives of a regulated entity who are required to
  166  initiate or receive brief, unscheduled communications for the
  167  purpose of obtaining additional information that may be needed
  168  after the completion of an audit.
  169         (3)(2)The provisions of This section does shall not
  170  prohibit an individual residential ratepayer from communicating
  171  with a commissioner or the commissioner’s direct reporting staff
  172  if, provided that the ratepayer is representing only himself or
  173  herself, without compensation.
  174         (4) The restrictions on prohibited communications as
  175  provided in this section also apply to communications made by or
  176  directed to a commissioner and the commissioner’s direct
  177  reporting staff to or from the Governor, a member of the
  178  Cabinet, or a member of the Legislature. Any written or oral
  179  communication from the Governor, a member of the Cabinet, or a
  180  member of the Legislature which is only a status inquiry and
  181  does not address the merits of a proceeding is not a prohibited
  182  communication. A written communication from the Governor, a
  183  member of the Cabinet, or a member of the Legislature which
  184  attaches or forwards a constituent’s correspondence concerning
  185  the merits of a docketed proceeding shall be placed in the
  186  commission’s docket files.
  187         (5)(3) This section does shall not apply to oral
  188  communications or discussions in scheduled and noticed open
  189  public meetings of educational programs or of a conference or
  190  other meeting of an association of regulatory agencies. This
  191  exemption does not authorize a commissioner or the
  192  commissioner’s direct reporting staff to discuss matters with
  193  any party to a proceeding or legally interested person.
  194         (6)(4) If a commissioner or the commissioner’s direct
  195  reporting staff knowingly receives a prohibited an ex parte
  196  communication as provided in subsection (1) which is related
  197  relative to a proceeding other than as set forth in subsection
  198  (1), to which the commissioner he or she is assigned, he or she
  199  must place on the record of the proceeding copies of all written
  200  communications received, all written responses to the
  201  communications, and a memorandum stating the substance of all
  202  oral communications received and all oral responses made. The
  203  commissioner or the commissioner’s direct reporting staff, and
  204  shall give written notice to all parties to the communication
  205  that such matters have been placed on the record. Any party who
  206  desires to respond to a prohibited an ex parte communication may
  207  do so. The response must be received by the commission within 10
  208  days after receiving notice that the prohibited ex parte
  209  communication has been placed on the record. The commissioner
  210  may, if he or she deems it necessary to eliminate the effect of
  211  a prohibited an ex parte communication received by him or her,
  212  withdraw from the proceeding, in which case the chair shall
  213  substitute another commissioner for the proceeding.
  214         (7)(5) Any individual who makes a prohibited an ex parte
  215  communication shall submit to the commission a written statement
  216  describing the nature of the such communication, to include the
  217  name of the person making the communication, the name of each
  218  the commissioner or member of the commissioner’s direct
  219  reporting staff or commissioners receiving the communication,
  220  copies of all written communications made, all written responses
  221  to such communications, and a memorandum stating the substance
  222  of all oral communications received and all oral responses made.
  223  The commission shall place on the record of a proceeding all
  224  such communications.
  225         (8)(6) Any commissioner or member of the commissioner’s
  226  direct reporting staff who knowingly fails to place on the
  227  record any such communications, in violation of this the
  228  section, within 15 days after of the date of the such
  229  communication is subject to removal or dismissal and may be
  230  assessed a civil penalty not to exceed $5,000.
  231         (9)(7)(a) It is shall be the duty of the Commission on
  232  Ethics to receive and investigate sworn complaints of violations
  233  of this section pursuant to the procedures contained in ss.
  234  112.322-112.3241.
  235         (b) If the Commission on Ethics finds that there has been a
  236  violation of this section by a public service commissioner or
  237  the commissioner’s direct reporting staff, it shall provide the
  238  Governor and the Florida Public Service Commission Nominating
  239  Council with a report of its findings and recommendations. The
  240  Governor may is authorized to enforce the findings and
  241  recommendations of the Commission on Ethics, pursuant to part
  242  III of chapter 112.
  243         (c) If a commissioner or the commissioner’s direct
  244  reporting staff fails or refuses to pay the Commission on Ethics
  245  any civil penalties assessed pursuant to the provisions of this
  246  section, the Commission on Ethics may bring an action in any
  247  circuit court to enforce such penalty.
  248         (d) If, during the course of an investigation by the
  249  Commission on Ethics into an alleged violation of this section,
  250  allegations are made as to the identity of the person who
  251  participated in the prohibited ex parte communication, that
  252  person must be given notice and an opportunity to participate in
  253  the investigation and relevant proceedings to present a defense.
  254  If the Commission on Ethics determines that the person
  255  participated in the prohibited ex parte communication, the
  256  person may not appear before the commission or otherwise
  257  represent anyone before the commission for a period of 2 years
  258  and may be assessed a civil penalty not to exceed $5,000. The
  259  regulated entity represented by the person, if applicable, may
  260  also be assessed a penalty of up to one-tenth of 1 percent of
  261  the entity’s annual operating revenue for the most recent
  262  calendar year.
  263         Section 3. Section 350.0605, Florida Statutes, is amended
  264  to read:
  265         350.0605 Former commissioners and employees; representation
  266  of clients or industry before commission; lobbying the
  267  legislative or executive branch.—
  268         (1)(a) Any former commissioner of the Public Service
  269  Commission is prohibited from appearing before the commission
  270  representing any client or any industry regulated by the Public
  271  Service Commission for a period of 4 2 years following his or
  272  her termination of service on the commission.
  273         (b) Any former commissioner of the Public Service
  274  Commission is prohibited from lobbying the legislative or
  275  executive branch of state government on behalf of any client or
  276  any industry regulated by the commission for a period of 4 years
  277  following his or her termination of service on the commission.
  278  This subsection applies only to commissioners who are appointed
  279  or reappointed on or after July 1, 2011.
  280         (2) Any former member of the commissioner’s direct
  281  reporting staff is prohibited from appearing before the
  282  commission representing any client or industry regulated by the
  283  Public Service Commission, or from lobbying the legislative or
  284  executive branch of state government on behalf of any client or
  285  any industry regulated by the commission, for a period of 4
  286  years following his or her termination of employment with the
  287  commission. This subsection applies only to a member of the
  288  commissioner’s direct reporting staff who is hired with the
  289  commission on or after July 1, 2011. For purposes of this
  290  section, the term “commissioner’s direct reporting staff” means
  291  a commissioner’s chief advisor and executive assistant. Any
  292  former employee of the commission is prohibited from appearing
  293  before the commission representing any client regulated by the
  294  Public Service Commission on any matter which was pending at the
  295  time of termination and in which such former employee had
  296  participated.
  297         (3) For a period of 4 years following termination of
  298  service on the commission or employment with the commission, a
  299  former commissioner or former member of the commissioner’s
  300  direct reporting staff may not accept employment by or
  301  compensation from a business entity that, directly or
  302  indirectly, owns or controls a public utility regulated by the
  303  commission; from a public utility regulated by the commission;
  304  from a business entity that, directly or indirectly, is an
  305  affiliate or subsidiary of a public utility regulated by the
  306  commission or is an actual business competitor of a local
  307  exchange company or public utility regulated by the commission
  308  and that is otherwise exempt from regulation by the commission
  309  under ss. 364.02(14) and 366.02(1); or from a business entity or
  310  trade association that has been a party to a commission
  311  proceeding within the 4 years preceding the former
  312  commissioner’s termination of service or the former
  313  commissioner’s direct reporting staff member’s termination of
  314  employment with the commission. This subsection applies only to
  315  former commissioners and members of the commissioner’s direct
  316  reporting staff who are appointed or reappointed to or hired
  317  with the commission on or after July 1, 2011.
  318         (3) For a period of 2 years following termination of
  319  service on the commission, a former member may not accept
  320  employment by or compensation from a business entity which,
  321  directly or indirectly, owns or controls a public utility
  322  regulated by the commission, from a public utility regulated by
  323  the commission, from a business entity which, directly or
  324  indirectly, is an affiliate or subsidiary of a public utility
  325  regulated by the commission or is an actual business competitor
  326  of a local exchange company or public utility regulated by the
  327  commission and is otherwise exempt from regulation by the
  328  commission under ss. 364.02(14) and 366.02(1), or from a
  329  business entity or trade association that has been a party to a
  330  commission proceeding within the 2 years preceding the member’s
  331  termination of service on the commission. This subsection
  332  applies only to members of the Florida Public Service Commission
  333  who are appointed or reappointed after May 10, 1993.
  334         Section 4. Subsection (1) of section 350.061, Florida
  335  Statutes, is amended to read:
  336         350.061 Public Counsel; appointment; oath; restrictions on
  337  Public Counsel and his or her employees.—
  338         (1) The Committee on Public Counsel Oversight shall appoint
  339  a Public Counsel by majority vote of the members of the
  340  committee to represent the general public of Florida before the
  341  Florida Public Service Commission. The Public Counsel shall be
  342  an attorney admitted to practice before the Florida Supreme
  343  Court and shall serve at the pleasure of the Committee on Public
  344  Counsel Oversight, subject to biennial reconfirmation every 4
  345  years by the committee. The Public Counsel shall perform his or
  346  her duties independently. Vacancies in the office shall be
  347  filled in the same manner as the original appointment.
  348         Section 5. This act shall take effect July 1, 2011.