Florida Senate - 2012 SB 172
By Senator Fasano
11-00096-12 2012172__
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 definitions;
12 prohibiting a commissioner or the commissioner’s
13 direct reporting staff from initiating, engaging in,
14 or considering prohibited communications in any
15 proceeding other than an undocketed workshop or an
16 internal affairs meeting; prohibiting any individual
17 from discussing any matter with a commissioner or the
18 commissioner’s direct reporting staff which the
19 individual reasonably foresees will be filed with the
20 commission; requiring that any communication between a
21 commissioner or the commissioner’s direct reporting
22 staff and a representative of a utility be made
23 available to the public; requiring that any
24 communication be posted on the commission’s website
25 within a specified time after the communication is
26 made or received; requiring that the commission post
27 on its website a copy of written communications
28 received by the commission; requiring that the
29 commission prepare a written summary of certain
30 communications and post such summary on its website
31 within a specified time after the communication is
32 made or received; requiring that notice be posted on
33 the commission’s website a minimum number of hours
34 before the occurrence of any meeting, telephone
35 conference call, or written communication between a
36 commissioner or the commissioner’s direct reporting
37 staff; authorizing the Office of Public Counsel to
38 participate in such communications for limited
39 purposes; providing an exception for certain
40 commission staff or industry representatives;
41 providing that the restrictions on prohibited
42 communications apply to communications made to or from
43 the Governor, a member of the Cabinet, or a member of
44 the Legislature; providing penalties for commissioners
45 or members of a commissioner’s direct reporting staff
46 who fail to report certain communications; providing
47 that a civil penalty may be assessed against the
48 regulated entity represented by a person who makes a
49 prohibited communication; amending s. 350.0605, F.S.;
50 prohibiting former commissioners and members of a
51 commissioner’s direct reporting staff from lobbying
52 the legislative or executive branch of state
53 government on behalf of any client or industry
54 regulated by the commission for 4 years after
55 termination of service or employment with the
56 commission; defining the term “commissioner’s direct
57 reporting staff”; prohibiting any former
58 commissioner’s direct reporting staff from appearing
59 before the commission representing any client or
60 industry regulated by the commission for 4 years after
61 termination of employment with the commission;
62 providing that such prohibitions apply to
63 commissioners and their direct reporting staff who are
64 appointed or reappointed to or who terminate their
65 employment with the commission on or after a specified
66 date; prohibiting a former commissioner or member of a
67 commissioner’s direct reporting staff from accepting
68 employment by or compensation from certain entities
69 regulated by the commission for a period of 4 years
70 after termination of service or employment with the
71 commission; providing that the prohibition applies to
72 former commissioners and members of a commissioner’s
73 direct reporting staff who are appointed or
74 reappointed to or hired with the commission on or
75 after a specified date; amending s. 350.061, F.S.;
76 extending reconfirmation intervals for the Public
77 Counsel from biennially to every 4 years; providing an
78 effective date.
79
80 Be It Enacted by the Legislature of the State of Florida:
81
82 Section 1. Paragraph (j) is added to subsection (2) of
83 section 350.041, Florida Statutes, to read:
84 350.041 Commissioners; standards of conduct.—
85 (2) STANDARDS OF CONDUCT.—
86 (j) Each commissioner shall observe and abide by the Code
87 of Judicial Conduct as adopted by the Supreme Court in docketed
88 proceedings before the Public Service Commission. If any canon
89 of the Code of Judicial Conduct is in direct conflict with a
90 statutory provision that applies to the commissioners or the
91 commission, the statutory provision controls. A commissioner who
92 materially violates the Code of Judicial Conduct, excluding any
93 canon preempted by a conflicting statutory provision, may be
94 suspended or removed by the Governor.
95 Section 2. Section 350.042, Florida Statutes, is amended to
96 read:
97 350.042 Prohibited Ex parte communications; communications
98 with a commissioner or a commissioner’s direct reporting staff.—
99 (1) For the purposes of this section, the term:
100 (a) “Commissioner’s direct reporting staff” means a
101 commissioner’s chief advisor and executive assistant.
102 (b) “Legally interested person” means a party or his or her
103 representative to a proceeding or a proceeding pending before
104 the commission. The term also includes a corporation,
105 partnership, limited liability company, elected or appointed
106 official of state government, or other public or elected
107 official who directly or indirectly has an interest in the
108 commission’s decision in the proceeding.
109 (c) “Prohibited communication” means any communication made
110 by or directed to a commissioner or his or her direct reporting
111 staff regarding a docketed matter or a proceeding pending before
112 the commission which, if written, is not served on all the
113 parties in the docketed matter, and if oral, is made without
114 adequate notice to the parties and an opportunity for them to be
115 present and heard when the communication is made.
116 (2) Proceedings before the commission shall be fair and its
117 decisions may not be influenced by prohibited communications
118 between commissioners and legally interested persons.
119 (a) The commission shall afford to every legally interested
120 person in a proceeding or in a proceeding pending before the
121 commission the full right to be heard according to law except as
122 otherwise prohibited in this section.
123 (b)(1) A commissioner or the commissioner’s direct
124 reporting staff may not should accord to every person who is
125 legally interested in a proceeding, or the person’s lawyer, full
126 right to be heard according to law, and, except as authorized by
127 law, shall neither initiate, engage in, or nor consider
128 prohibited ex parte communications concerning the merits,
129 threat, or offer of reward in any proceeding other than an
130 undocketed workshop a proceeding under s. 120.54 or s. 120.565,
131 workshops, or an internal affairs meeting meetings. No
132 individual shall discuss ex parte with a commissioner the merits
133 of any issue that he or she knows will be filed with the
134 commission within 90 days. The provisions of this subsection do
135 shall not apply to commission staff unless otherwise provided
136 for in this section.
137 (c) An individual may not discuss any matter with a
138 commissioner or the commissioner’s direct reporting staff which
139 the individual reasonably foresees will be filed with the
140 commission.
141 (d) The restrictions on prohibited communications as
142 provided in this section apply to communications made by or
143 directed to a commissioner and the commissioner’s direct
144 reporting staff to or from the Governor, a member of the
145 Cabinet, or a member of the Legislature. Any written or oral
146 communication from the Governor, a member of the Cabinet, or a
147 member of the Legislature which is only a status inquiry and
148 does not address the merits of a proceeding is not a prohibited
149 communication.
150 (3)(a) Any oral or written communication, not otherwise
151 prohibited under subsection (1), between a commissioner or the
152 commissioner’s direct reporting staff and a representative of an
153 entity regulated by the commission must be made available to the
154 public. Such oral or written communication must be posted to the
155 commission’s website within 72 hours after the communication is
156 made or received.
157 (b) The commission shall post on its website a copy of any
158 written communication by the close of the next business day
159 after the communication is received by the commission.
160 (c) The commission shall prepare a written summary of any
161 communication related to a documented emergency or a
162 communication related to a brief, unscheduled follow-up to a
163 previously scheduled meeting or previously scheduled telephone
164 conference call. The commission shall post the written summary
165 on its website within 72 hours after the communication is made
166 or received.
167 (d) The commission shall post notice on the commission’s
168 website at least 72 hours before the occurrence of any meeting,
169 telephone conference call, or written communication between a
170 commissioner or the commissioner’s direct reporting staff and a
171 representative of a regulated entity. The Public Counsel may
172 participate in the meeting, telephone conference call, or
173 written communication for the purpose of questioning or directly
174 responding to the communication.
175 (e) This subsection does not apply to commission staff or
176 representatives of a regulated entity who are required to
177 initiate or receive brief, unscheduled communications for the
178 purpose of obtaining additional information that is needed after
179 the completion of an audit.
180 (f) A written communication from the Governor, a member of
181 the Cabinet, or a member of the Legislature which attaches or
182 forwards a constituent’s correspondence concerning the merits of
183 a docketed proceeding shall be placed in the commission’s docket
184 files.
185 (4)(2) The provisions of This section does shall not
186 prohibit an individual residential ratepayer from communicating
187 with a commissioner or the commissioner’s direct reporting staff
188 if, provided that the ratepayer is representing only himself or
189 herself, without compensation.
190 (5)(3) This section does shall not apply to oral
191 communications or discussions in scheduled and noticed open
192 public meetings of educational programs or of a conference or
193 other meeting of an association of regulatory agencies. This
194 exemption does not authorize a commissioner or the
195 commissioner’s direct reporting staff to discuss matters with
196 any party to a proceeding or legally interested person.
197 (6)(4) If a commissioner or the commissioner’s direct
198 reporting staff knowingly receives a prohibited an ex parte
199 communication as provided in subsection (1) which is related
200 relative to a proceeding other than as set forth in subsection
201 (1), to which the commissioner he or she is assigned, he or she
202 must place on the record of the proceeding copies of all written
203 communications received, all written responses to the
204 communications, and a memorandum stating the substance of all
205 oral communications received and all oral responses made. The
206 commissioner or the commissioner’s direct reporting staff, and
207 shall give written notice to all parties to the communication
208 that such matters have been placed on the record. Any party who
209 desires to respond to a prohibited an ex parte communication may
210 do so. The response must be received by the commission within 10
211 days after receiving notice that the prohibited ex parte
212 communication has been placed on the record. The commissioner
213 may, if he or she deems it necessary to eliminate the effect of
214 a prohibited an ex parte communication received by him or her,
215 withdraw from the proceeding, in which case the chair shall
216 substitute another commissioner for the proceeding.
217 (7)(5) Any individual who makes a prohibited an ex parte
218 communication shall submit to the commission a written statement
219 describing the nature of the such communication and including,
220 to include the name of the person making the communication, the
221 name of each the commissioner or member of the commissioner’s
222 direct reporting staff or commissioners receiving the
223 communication, copies of all written communications made, all
224 written responses to such communications, and a memorandum
225 stating the substance of all oral communications received and
226 all oral responses made. The commission shall place on the
227 record of a proceeding all such communications.
228 (8)(6) Any commissioner or member of the commissioner’s
229 direct reporting staff who knowingly fails to place on the
230 record any such communications, in violation of this the
231 section, within 15 days after of the date of the such
232 communication is subject to removal or dismissal and may be
233 assessed a civil penalty not to exceed $5,000.
234 (9)(7)(a) It is shall be the duty of the Commission on
235 Ethics to receive and investigate sworn complaints of violations
236 of this section pursuant to the procedures contained in ss.
237 112.322-112.3241.
238 (b) If the Commission on Ethics finds that there has been a
239 violation of this section by a public service commissioner or
240 the commissioner’s direct reporting staff, it shall provide the
241 Governor and the Florida Public Service Commission Nominating
242 Council with a report of its findings and recommendations. The
243 Governor may is authorized to enforce the findings and
244 recommendations of the Commission on Ethics, pursuant to part
245 III of chapter 112.
246 (c) If a commissioner or the commissioner’s direct
247 reporting staff fails or refuses to pay the Commission on Ethics
248 any civil penalties assessed pursuant to the provisions of this
249 section, the Commission on Ethics may bring an action in any
250 circuit court to enforce such penalty.
251 (d) If, during the course of an investigation by the
252 Commission on Ethics into an alleged violation of this section,
253 allegations are made as to the identity of the person who
254 participated in the prohibited ex parte communication, that
255 person must be given notice and an opportunity to participate in
256 the investigation and relevant proceedings to present a defense.
257 If the Commission on Ethics determines that the person
258 participated in the prohibited ex parte communication, the
259 person may not appear before the commission or otherwise
260 represent anyone before the commission for a period of 2 years
261 and may be assessed a civil penalty not to exceed $5,000. The
262 regulated entity represented by the person, if applicable, may
263 also be assessed a penalty of up to 0.001 percent of the
264 entity’s annual operating revenue for the most recent calendar
265 year.
266 Section 3. Section 350.0605, Florida Statutes, is amended
267 to read:
268 350.0605 Former commissioners and employees; representation
269 of clients or industry before commission; lobbying the
270 legislative or executive branch.—
271 (1)(a) Any former commissioner of the Public Service
272 Commission is prohibited from appearing before the commission
273 representing any client or any industry regulated by the Public
274 Service Commission for a period of 4 2 years following his or
275 her termination of service on the commission.
276 (b) Any former commissioner of the Public Service
277 Commission is prohibited from lobbying the legislative or
278 executive branch of state government on behalf of any client or
279 any industry regulated by the commission for a period of 4 years
280 after his or her termination of service on the commission. This
281 subsection applies only to commissioners who are appointed or
282 reappointed on or after July 1, 2012.
283 (2) Any former member of the commissioner’s direct
284 reporting staff is prohibited from appearing before the
285 commission representing any client or industry regulated by the
286 Public Service Commission, or from lobbying the legislative or
287 executive branch of state government on behalf of any client or
288 any industry regulated by the commission, for a period of 4
289 years after his or her termination of employment with the
290 commission. This subsection applies only to a member of the
291 commissioner’s direct reporting staff who is hired with the
292 commission on or after July 1, 2012. For purposes of this
293 section, the term “commissioner’s direct reporting staff” means
294 a commissioner’s chief advisor and executive assistant. Any
295 former employee of the commission is prohibited from appearing
296 before the commission representing any client regulated by the
297 Public Service Commission on any matter that which was pending
298 at the time of termination and in which such former employee had
299 participated.
300 (3) For a period of 4 years after termination of service on
301 the commission or employment with the commission, a former
302 commissioner or former member of the commissioner’s direct
303 reporting staff may not accept employment by or compensation
304 from a business entity that, directly or indirectly, owns or
305 controls a public utility regulated by the commission; from a
306 public utility regulated by the commission; from a business
307 entity that, directly or indirectly, is an affiliate or
308 subsidiary of a public utility regulated by the commission or is
309 an actual business competitor of a local exchange company or
310 public utility regulated by the commission and that is otherwise
311 exempt from regulation by the commission under ss. 364.02(14)
312 and 366.02(1); or from a business entity or trade association
313 that has been a party to a commission proceeding within the 4
314 years preceding the former commissioner’s termination of service
315 or the former commissioner’s direct reporting staff member’s
316 termination of employment with the commission. This subsection
317 applies only to former commissioners and members of the
318 commissioner’s direct reporting staff who are appointed or
319 reappointed to or hired with the commission on or after July 1,
320 2012.
321 (3) For a period of 2 years following termination of
322 service on the commission, a former member may not accept
323 employment by or compensation from a business entity which,
324 directly or indirectly, owns or controls a public utility
325 regulated by the commission, from a public utility regulated by
326 the commission, from a business entity which, directly or
327 indirectly, is an affiliate or subsidiary of a public utility
328 regulated by the commission or is an actual business competitor
329 of a local exchange company or public utility regulated by the
330 commission and is otherwise exempt from regulation by the
331 commission under ss. 364.02(13) and 366.02(1), or from a
332 business entity or trade association that has been a party to a
333 commission proceeding within the 2 years preceding the member’s
334 termination of service on the commission. This subsection
335 applies only to members of the Florida Public Service Commission
336 who are appointed or reappointed after May 10, 1993.
337 Section 4. Subsection (1) of section 350.061, Florida
338 Statutes, is amended to read:
339 350.061 Public Counsel; appointment; oath; restrictions on
340 Public Counsel and his or her employees.—
341 (1) The committee designated by joint rule of the
342 Legislature or by agreement between the President of the Senate
343 and the Speaker of the House of Representatives as the Committee
344 on Public Counsel Oversight shall appoint a Public Counsel to
345 represent the general public of Florida before the Florida
346 Public Service Commission. The Public Counsel must shall be an
347 attorney admitted to practice before the Florida Supreme Court
348 and shall serve at the pleasure of the Committee on Public
349 Counsel Oversight, subject to biennial reconfirmation every 4
350 years by the committee. The Public Counsel shall perform his or
351 her duties independently. Vacancies in the office shall be
352 filled in the same manner as the original appointment.
353 Section 5. This act shall take effect July 1, 2012.