CS for SB 1034                             First Engrossed (ntc)
       
       
       
       
       
       
       
       
       20101034e1
       
    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 members of a
   46         commissioner’s direct report staff who fail to report
   47         certain communications; amending s. 350.0605, F.S.;
   48         prohibiting former commissioners and members of a
   49         commissioner’s direct reporting staff from lobbying
   50         the legislative or executive branch of state
   51         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 to 4 years from biennially; 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 shall govern communications made by or
   97  directed to commissioners and their direct reporting staff which
   98  concern proceedings before the Public Service Commission. The
   99  purpose of this section is to ensure the fairness of the
  100  commission’s proceedings by assuring the public that the
  101  decisions by the commission are not influenced by prohibited
  102  communications between commissioners and legally interested
  103  persons.
  104         (a) It is the express intent of the Legislature that the
  105  commission shall afford to every person who is legally
  106  interested in a proceeding, or the person’s attorney or
  107  qualified representative, the full right to be heard according
  108  to law except as otherwise prohibited in this section.
  109         (b) For purposes of this section, the term:
  110         1. “Legally interested person” means any party to a
  111  proceeding before the commission, or a representative of a party
  112  to a proceeding pending before the commission, and includes
  113  corporations, partnerships, limited liability companies, elected
  114  or appointed officials of state government, and other public and
  115  elected officials.
  116         2. “Prohibited communication” means any communication
  117  regarding a docketed matter that, if written, is not served on
  118  all the parties to a proceeding, and, if oral, is made without
  119  adequate notice to the parties and an opportunity for them to be
  120  present and heard.
  121         3. “Commissioner’s direct reporting staff” means a
  122  commissioner’s chief advisor and executive assistant.
  123         (c) A commissioner or the commissioner’s direct reporting
  124  staff should accord to every person who is legally interested in
  125  a proceeding, or the person’s lawyer, full right to be heard
  126  according to law, and, except as authorized by law, shall
  127  neither initiate, engage in, nor consider prohibited ex parte
  128  communications concerning the merits, threat, or offer of reward
  129  in any proceeding other than an undocketed workshop a proceeding
  130  under s. 120.54 or s. 120.565, workshops, or an internal affairs
  131  meeting meetings. No individual shall discuss ex parte with a
  132  commissioner the merits of any issue that he or she knows will
  133  be filed with the commission within 90 days. The provisions of
  134  this subsection shall not apply to commission staff unless
  135  otherwise provided for in this section.
  136         (d) An individual shall not discuss any matter with a
  137  commissioner or the commissioner’s direct reporting staff which
  138  the individual reasonably foresees will be filed with the
  139  commission.
  140         (2)(a) Any oral or written communication, not otherwise
  141  prohibited under subsection (1), between a commissioner or the
  142  commissioner’s direct reporting staff and a representative of an
  143  entity regulated by the commission must be made available to the
  144  public. Such oral or written communication must be posted to the
  145  commission website within 72 hours after the communication was
  146  made or received.
  147         (b) The commission shall post on its website a copy of any
  148  written communication by the close of the next business day
  149  after the communication is received by the commission.
  150         (c) The commission shall prepare a written summary of any
  151  communication related to a documented emergency or a
  152  communication related to a brief, unscheduled followup to a
  153  previously scheduled meeting or previously scheduled telephone
  154  conference call. The commission shall post the written summary
  155  on its website within 72 hours after the communication was made
  156  or received.
  157         (d) Notice shall be posted on the commission’s website at
  158  least 72 hours prior to the occurrence of any meeting, telephone
  159  conference call, or written communication between a commissioner
  160  or the commissioner’s direct reporting staff and a
  161  representative of a regulated entity. The Public Counsel may
  162  participate in the meeting, telephone conference call, or
  163  written communication for the purpose of questioning or directly
  164  responding to the communication.
  165         (e)This subsection does not apply to commission staff or
  166  representatives of a regulated entity who are required to
  167  initiate or receive brief, unscheduled communications for the
  168  purpose of obtaining additional information that may be needed
  169  after the completion of an audit.
  170         (3)The provisions of This section does shall not prohibit
  171  an individual residential ratepayer from communicating with a
  172  commissioner or the commissioner’s direct reporting staff if,
  173  provided that the ratepayer is representing only himself or
  174  herself, without compensation.
  175         (4) The restrictions on prohibited communications as
  176  provided in this section shall also apply to communications made
  177  by or directed to a commissioner and the commissioner’s direct
  178  reporting staff to or from the Governor, a member of the
  179  Cabinet, or a member of the Legislature. Any written or oral
  180  communication from the Governor, a member of the Cabinet, or a
  181  member of the Legislature which is only a status inquiry and
  182  does not address the merits of a proceeding is not a prohibited
  183  communication. A written communication from the Governor, a
  184  member of the Cabinet, or a member of the Legislature which
  185  attaches or forwards a constituent’s correspondence concerning
  186  the merits of a docketed proceeding shall be placed in the
  187  commission’s docket files.
  188         (5)(3) This section does shall not apply to oral
  189  communications or discussions in scheduled and noticed open
  190  public meetings of educational programs or of a conference or
  191  other meeting of an association of regulatory agencies. This
  192  exemption does not authorize a commissioner or the
  193  commissioner’s direct reporting staff to discuss matters with
  194  any party or legally interested person to a proceeding.
  195         (6)(4) If a commissioner or the commissioner’s direct
  196  reporting staff knowingly receives a prohibited an ex parte
  197  communication as provided in subsection (1) which is related
  198  relative to a proceeding other than as set forth in subsection
  199  (1), to which the commissioner he or she is assigned, he or she
  200  must place on the record of the proceeding copies of all written
  201  communications received, all written responses to the
  202  communications, and a memorandum stating the substance of all
  203  oral communications received and all oral responses made. The
  204  commissioner or the commissioner’s direct reporting staff, and
  205  shall give written notice to all parties to the communication
  206  that such matters have been placed on the record. Any party who
  207  desires to respond to a prohibited an ex parte communication may
  208  do so. The response must be received by the commission within 10
  209  days after receiving notice that the prohibited ex parte
  210  communication has been placed on the record. The commissioner
  211  may, if he or she deems it necessary to eliminate the effect of
  212  a prohibited an ex parte communication received by him or her,
  213  withdraw from the proceeding, in which case the chair shall
  214  substitute another commissioner for the proceeding.
  215         (7)(5) Any individual who makes a prohibited an ex parte
  216  communication shall submit to the commission a written statement
  217  describing the nature of the such communication, to include the
  218  name of the person making the communication, the name of each
  219  the commissioner or member of the commissioner’s direct
  220  reporting staff or commissioners receiving the communication,
  221  copies of all written communications made, all written responses
  222  to such communications, and a memorandum stating the substance
  223  of all oral communications received and all oral responses made.
  224  The commission shall place on the record of a proceeding all
  225  such communications.
  226         (8)(6) Any commissioner or member of the commissioner’s
  227  direct reporting staff who knowingly fails to place on the
  228  record any such communications, in violation of the section,
  229  within 15 days after of the date of the such communication is
  230  subject to removal or dismissal and may be assessed a civil
  231  penalty not to exceed $5,000.
  232         (9)(7)(a) It is shall be the duty of the Commission on
  233  Ethics to receive and investigate sworn complaints of violations
  234  of this section pursuant to the procedures contained in ss.
  235  112.322-112.3241.
  236         (b) If the Commission on Ethics finds that there has been a
  237  violation of this section by a public service commissioner or
  238  the commissioner’s direct reporting staff, it shall provide the
  239  Governor and the Florida Public Service Commission Nominating
  240  Council with a report of its findings and recommendations. The
  241  Governor may is authorized to enforce the findings and
  242  recommendations of the Commission on Ethics, pursuant to part
  243  III of chapter 112.
  244         (c) If a commissioner or the commissioner’s direct
  245  reporting staff fails or refuses to pay the Commission on Ethics
  246  any civil penalties assessed pursuant to the provisions of this
  247  section, the Commission on Ethics may bring an action in any
  248  circuit court to enforce such penalty.
  249         (d) If, during the course of an investigation by the
  250  Commission on Ethics into an alleged violation of this section,
  251  allegations are made as to the identity of the person who
  252  participated in the prohibited ex parte communication, that
  253  person must be given notice and an opportunity to participate in
  254  the investigation and relevant proceedings to present a defense.
  255  If the Commission on Ethics determines that the person
  256  participated in the prohibited ex parte communication, the
  257  person may not appear before the commission or otherwise
  258  represent anyone before the commission for a period of 2 years
  259  and may be assessed a civil penalty not to exceed $5,000. The
  260  regulated entity represented by the person, if applicable, may
  261  also be assessed a penalty of up to one-tenth of 1 percent of
  262  the entity’s annual operating revenue for the most recent
  263  calendar year.
  264         Section 3. Section 350.0605, Florida Statutes, is amended
  265  to read:
  266         350.0605 Former commissioners and employees; representation
  267  of clients or industry before commission; lobbying the
  268  legislative or executive branch.—
  269         (1)(a) Any former commissioner of the Public Service
  270  Commission is prohibited from appearing before the commission
  271  representing any client or any industry regulated by the Public
  272  Service Commission for a period of 4 2 years following his or
  273  her termination of service on the commission.
  274         (b) Any former commissioner of the Public Service
  275  Commission is prohibited from lobbying the legislative or
  276  executive branch of state government on behalf of any client or
  277  any industry regulated by the commission for a period of 4 years
  278  following his or her termination of service on the commission.
  279  This subsection applies only to commissioners who are appointed
  280  or reappointed on or after July 1, 2010.
  281         (2) Any former member of the commissioner’s direct
  282  reporting staff is prohibited from appearing before the
  283  commission representing any client or industry regulated by the
  284  Public Service Commission, or from lobbying the legislative or
  285  executive branch of state government on behalf of any client or
  286  any industry regulated by the commission, for a period of 4
  287  years following his or her termination of employment with the
  288  commission. This subsection applies only to a member of the
  289  commissioner’s direct reporting staff who is hired with the
  290  commission on or after July 1, 2010. For purposes of this
  291  section, the term “commissioner’s direct reporting staff” means
  292  a commissioner’s chief advisor and executive assistant. Any
  293  former employee of the commission is prohibited from appearing
  294  before the commission representing any client regulated by the
  295  Public Service Commission on any matter which was pending at the
  296  time of termination and in which such former employee had
  297  participated.
  298         (3) For a period of 4 years following termination of
  299  service on the commission or employment with the commission, a
  300  former commissioner or former member of the commissioner’s
  301  direct reporting staff may not accept employment by or
  302  compensation from a business entity that, directly or
  303  indirectly, owns or controls a public utility regulated by the
  304  commission, from a public utility regulated by the commission,
  305  from a business entity that, directly or indirectly, is an
  306  affiliate or subsidiary of a public utility regulated by the
  307  commission or is an actual business competitor of a local
  308  exchange company or public utility regulated by the commission
  309  and is otherwise exempt from regulation by the commission under
  310  ss. 364.02(14) and 366.02(1), or from a business entity or trade
  311  association that has been a party to a commission proceeding
  312  within the 4 years preceding the former commissioner’s
  313  termination of service or the former commissioner’s direct
  314  reporting staff member’s termination of employment with the
  315  commission. This subsection applies only to former commissioners
  316  and members of the commissioner’s direct reporting staff who are
  317  appointed or reappointed to or hired with the commission on or
  318  after July 1, 2010.
  319         (3) For a period of 2 years following termination of
  320  service on the commission, a former member may not accept
  321  employment by or compensation from a business entity which,
  322  directly or indirectly, owns or controls a public utility
  323  regulated by the commission, from a public utility regulated by
  324  the commission, from a business entity which, directly or
  325  indirectly, is an affiliate or subsidiary of a public utility
  326  regulated by the commission or is an actual business competitor
  327  of a local exchange company or public utility regulated by the
  328  commission and is otherwise exempt from regulation by the
  329  commission under ss. 364.02(14) and 366.02(1), or from a
  330  business entity or trade association that has been a party to a
  331  commission proceeding within the 2 years preceding the member’s
  332  termination of service on the commission. This subsection
  333  applies only to members of the Florida Public Service Commission
  334  who are appointed or reappointed after May 10, 1993.
  335         Section 4. Subsection (1) of section 350.061, Florida
  336  Statutes, is amended to read:
  337         350.061 Public Counsel; appointment; oath; restrictions on
  338  Public Counsel and his or her employees.—
  339         (1) The Committee on Public Counsel Oversight shall appoint
  340  a Public Counsel by majority vote of the members of the
  341  committee to represent the general public of Florida before the
  342  Florida Public Service Commission. The Public Counsel shall be
  343  an attorney admitted to practice before the Florida Supreme
  344  Court and shall serve at the pleasure of the Committee on Public
  345  Counsel Oversight, subject to biennial reconfirmation every 4
  346  years by the committee. The Public Counsel shall perform his or
  347  her duties independently. Vacancies in the office shall be
  348  filled in the same manner as the original appointment.
  349         Section 5. This act shall take effect July 1, 2010.