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.