Senate Bill sb7036pb

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036

    FOR CONSIDERATION By the Committee on Communications and
    Public Utilities




    579-1014A-05

  1                      A bill to be entitled

  2         An act relating to the Public Service

  3         Commission; creating the Committee on Public

  4         Service Commission Oversight as a standing

  5         joint committee of the Legislature; providing

  6         for its membership, powers, and duties;

  7         amending s. 350.001, F.S.; deleting the

  8         authority of the Governor to appoint members to

  9         the Public Service Commission; requiring that

10         the commission perform its duties

11         independently; specifying that the Governor has

12         no planning or budgetary authority with respect

13         to the commission; specifying that the Governor

14         and the Department of Management Services have

15         no authority over the commission's employees;

16         amending s. 350.031, F.S.; authorizing the

17         Florida Public Service Commission Nominating

18         Council to make expenditures to advertise a

19         vacancy on the council or the commission;

20         requiring that the Committee on Public Service

21         Commission Oversight rather than the Governor

22         accept nominations and make appointments to the

23         Public Service Commission; amending s. 350.041,

24         F.S.; clarifying the prohibition against

25         accepting gifts with respect to its application

26         to commissioners attending conferences;

27         requiring that a penalty be imposed against a

28         person who gives a commissioner a prohibited

29         gift; requiring that commissioners comply with

30         the Florida Code of Judicial Conduct, with

31         certain exceptions; requiring that the

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1         Commission on Ethics report alleged violations

 2         to the Committee on Public Service Commission

 3         Oversight rather than the Governor for purposes

 4         of enforcement; amending s. 350.042, F.S.;

 5         requiring that the Commission on Ethics report

 6         certain alleged violations to the Committee on

 7         Public Service Commission Oversight rather than

 8         the Governor for purposes of enforcement;

 9         requiring that a penalty be imposed against a

10         person involved in a prohibited ex parte

11         communication with a commissioner; amending s.

12         350.043, F.S.; providing for enforcement of

13         penalties for specified violations by the

14         Committee on Public Service Commission

15         Oversight rather than the Governor; amending s.

16         350.05, F.S.; providing for the Committee on

17         Public Service Commission Oversight rather than

18         the Governor to suspend a public service

19         commissioner who becomes disqualified; amending

20         s. 350.061, F.S.; requiring that the Committee

21         on Public Service Commission Oversight rather

22         than the Joint Legislative Auditing Committee

23         appoint the Public Counsel; providing for

24         biennial reconfirmation rather than annual;

25         requiring that the Public Counsel perform his

26         or her duties independently; amending s.

27         350.0614, F.S.; requiring that the Committee on

28         Public Service Commission Oversight rather than

29         the Joint Legislative Auditing Committee

30         oversee expenditures of the Public Counsel;

31         repealing s. 350.03, F.S., relating to the

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1         power of the Governor to remove commissioners

 2         of the Public Service Commission; providing an

 3         effective date.

 4  

 5  Be It Enacted by the Legislature of the State of Florida:

 6  

 7         Section 1.  Committee on Public Service Commission

 8  Oversight; creation; membership; powers and duties.--

 9         (1)  There is created a standing joint committee of the

10  Legislature, designated the Committee on Public Service

11  Commission Oversight, and composed of six members appointed as

12  follows: three members of the Senate appointed by the

13  President of the Senate, one of whom must be a member of the

14  minority party; and three members of the House of

15  Representatives appointed by the Speaker of the House of

16  Representatives, one of whom must be a member of the minority

17  party. The terms of members shall be for 2 years and shall run

18  from the organization of one Legislature to the organization

19  of the next Legislature. The President shall appoint the chair

20  of the committee in even years and the vice chair in odd

21  years, and the Speaker of the House of Representatives shall

22  appoint the chair of the committee in odd years and the vice

23  chair in even years, from among the committee membership.

24  Vacancies shall be filled in the same manner as the original

25  appointment. Members shall serve without additional

26  compensation, but shall be reimbursed for expenses.

27         (2)  The committee shall be governed by joint rules of

28  the Senate and the House of Representatives which shall remain

29  in effect until repealed or amended by concurrent resolution.

30         (3)  The committee shall:

31  

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1         (a)  Fill a vacancy occurring on the Public Service

 2  Commission by appointment of an applicant as provided by

 3  general law;

 4         (b)  Discipline a member of the Public Service

 5  Commission as provided by general law; and

 6         (c)  Appoint a Public Counsel as provided by general

 7  law.

 8         (4)  The committee is authorized to file a complaint

 9  with the Commission on Ethics alleging a violation of this

10  chapter by a commissioner, former commissioner, former

11  commission employee, or member of the Public Service

12  Commission Nominating Council.

13         (5)  The committee will not have a permanent staff, but

14  the chair shall select staff members from among existing

15  legislative staff, when and as needed.

16         Section 2.  Section 350.001, Florida Statutes, is

17  amended to read:

18         350.001  Legislative intent.--The Florida Public

19  Service Commission has been and shall continue to be an arm of

20  the legislative branch of government. The Public Service

21  Commission shall perform its duties independently. The

22  Legislature declares and determines that the Public Service

23  Commission is under the legislative branch of government

24  within the intent expressed in chapter 216. The Executive

25  Office of the Governor or its successor is not authorized to

26  release or withhold funds appropriated to the Public Service

27  Commission, but the Committee on Public Service Commission

28  Oversight shall release or withhold funds appropriated to the

29  Public Service Commission as provided by law and the rules or

30  decisions of the Committee on Public Service Commission

31  Oversight. The Executive Office of the Governor, the

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1  Department of Management Services, or any successor may not

 2  determine the number, or fix the compensation, of employees of

 3  the Public Service Commission and may not exercise any manner

 4  of control over the employees of the Public Service

 5  Commission. It is the desire of the Legislature that the

 6  Governor participate in the appointment process of

 7  commissioners to the Public Service Commission.  The

 8  Legislature accordingly delegates to the Governor a limited

 9  authority with respect to the Public Service Commission by

10  authorizing him or her to participate in the selection of

11  members only from the list provided by the Florida Public

12  Service Commission Nominating Council in the manner prescribed

13  by s. 350.031.

14         Section 3.  Section 350.031, Florida Statutes, is

15  amended to read:

16         350.031  Florida Public Service Commission Nominating

17  Council.--

18         (1)  There is created a Florida Public Service

19  Commission Nominating Council consisting of nine members. At

20  least one member of the council must be 60 years of age or

21  older.  Three members, including one member of the House of

22  Representatives, shall be appointed by and serve at the

23  pleasure of the Speaker of the House of Representatives; three

24  members, including one member of the Senate, shall be

25  appointed by and serve at the pleasure of the President of the

26  Senate; and three members shall be selected and appointed by a

27  majority vote of the other six members of the council. All

28  terms shall be for 4 years except those members of the House

29  and Senate, who shall serve 2-year terms concurrent with the

30  2-year elected terms of House members. Vacancies on the

31  council shall be filled for the unexpired portion of the term

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1  in the same manner as original appointments to the council. A

 2  member may not be reappointed to the council, except for a

 3  member of the House of Representatives or the Senate who may

 4  be appointed to two 2-year terms or a person who is appointed

 5  to fill the remaining portion of an unexpired term.

 6         (2)(a)  No member or spouse shall be the holder of the

 7  stocks or bonds of any company, other than through ownership

 8  of shares in a mutual fund, regulated by the commission, or

 9  any affiliated company of any company regulated by the

10  commission, or be an agent or employee of, or have any

11  interest in, any company regulated by the commission or any

12  affiliated company of any company regulated by the commission,

13  or in any firm which represents in any capacity either

14  companies which are regulated by the commission or affiliates

15  of companies regulated by the commission.  As a condition of

16  appointment to the council, each appointee shall affirm to the

17  Speaker and the President his or her qualification by the

18  following certification:  "I hereby certify that I am not a

19  stockholder, other than through ownership of shares in a

20  mutual fund, in any company regulated by the commission or in

21  any affiliate of a company regulated by the commission, nor in

22  any way, directly or indirectly, in the employment of, or

23  engaged in the management of any company regulated by the

24  commission or any affiliate of a company regulated by the

25  commission, or in any firm which represents in any capacity

26  either companies which are regulated by the commission or

27  affiliates of companies regulated by the commission."

28  

29  This certification is made as condition to appointment to the

30  Florida Public Service Commission Nominating Council.

31  

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1         (b)  A member of the council may be removed by the

 2  Speaker of the House of Representatives and the President of

 3  the Senate upon a finding by the Speaker and the President

 4  that the council member has violated any provision of this

 5  subsection or for other good cause.

 6         (c)  If a member of the council does not meet the

 7  requirements of this subsection, the President of the Senate

 8  or the Speaker of the House of Representatives, as

 9  appropriate, shall appoint a legislative replacement.

10         (3)  A majority of the membership of the council may

11  conduct any business before the council.  All meetings and

12  proceedings of the council shall be staffed by the Office of

13  Legislative Services and shall be subject to the provisions of

14  ss. 119.07 and 286.011.  Members of the council are entitled

15  to receive per diem and travel expenses as provided in s.

16  112.061, which shall be funded by the Florida Public Service

17  Regulatory Trust Fund.  Applicants invited for interviews

18  before the council may, in the discretion of the council,

19  receive per diem and travel expenses as provided in s.

20  112.061, which shall be funded by the Florida Public Service

21  Regulatory Trust Fund.  The council shall establish policies

22  and procedures to govern the process by which applicants are

23  nominated.

24         (4)  The council may spend a nominal amount, not to

25  exceed $10,000, to advertise a vacancy on the council or the

26  commission, which shall be funded by the Florida Public

27  Service Regulatory Trust Fund.

28         (5)(4)  A person may not be nominated to the Committee

29  on Public Service Commission Oversight Governor until the

30  council has determined that the person is competent and

31  knowledgeable in one or more fields, which shall include, but

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1  not be limited to:  public affairs, law, economics,

 2  accounting, engineering, finance, natural resource

 3  conservation, energy, or another field substantially related

 4  to the duties and functions of the commission.  The commission

 5  shall fairly represent the above-stated fields.

 6  Recommendations of the council shall be nonpartisan.

 7         (6)(5)  It is the responsibility of the council to

 8  nominate to the Committee on Public Service Commission

 9  Oversight Governor not fewer than three persons for each

10  vacancy occurring on the Public Service Commission.  The

11  council shall submit the recommendations to the committee

12  Governor by October 1 of those years in which the terms are to

13  begin the following January, or within 60 days after a vacancy

14  occurs for any reason other than the expiration of the term.

15         (7)(6)  The Committee on Public Service Commission

16  Oversight Governor shall fill a vacancy occurring on the

17  Public Service Commission by appointment of one of the

18  applicants nominated by the council only after a background

19  investigation of such applicant has been conducted by the

20  Florida Department of Law Enforcement.  If the committee

21  Governor has not made an appointment by December 1 to fill a

22  vacancy for a term to begin the following January, then the

23  council, by majority vote, shall appoint by December 31 one

24  person from the applicants previously nominated to the

25  committee Governor to fill the vacancy.  If the committee

26  Governor has not made the appointment to fill a vacancy

27  occurring for any reason other than the expiration of the term

28  by the 60th day following receipt of the nominations of the

29  council, the council by majority vote shall appoint within 30

30  days thereafter one person from the applicants previously

31  nominated to the committee Governor to fill the vacancy.

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1         (8)(7)  Each appointment to the Public Service

 2  Commission shall be subject to confirmation by the Senate.  If

 3  the Senate refuses to confirm or rejects the committee's

 4  Governor's appointment, the council shall initiate, in

 5  accordance with this section, the nominating process within 30

 6  days.

 7         Section 4.  Subsections (2) and (3) of section 350.041,

 8  Florida Statutes, are amended to read:

 9         350.041  Commissioners; standards of conduct.--

10         (2)  STANDARDS OF CONDUCT.--

11         (a)  A commissioner may not accept anything from any

12  business entity which, either directly or indirectly, owns or

13  controls any public utility regulated by the commission, from

14  any public utility regulated by the commission, or from any

15  business entity which, either directly or indirectly, is an

16  affiliate or subsidiary of any public utility regulated by the

17  commission. A commissioner may attend conferences and

18  associated meals and events that are generally available to

19  all conference participants without payment of any fees in

20  addition to the conference fee. It is not a violation of this

21  paragraph for a commissioner to attend a conference for which

22  conference participants who are employed by a utility

23  regulated by the commission have paid a higher conference

24  registration fee than the commissioner, or to attend a meal or

25  event that is generally available to all conference

26  participants without payment of any fees in addition to the

27  conference fee and that is sponsored, in whole or in part, by

28  a utility regulated by the commission. If, in the course of

29  determining that a commissioner has violated this paragraph,

30  the Commission on Ethics determines the identity of the person

31  who gave or provided the prohibited item to the commissioner,

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1  that person may not appear before the commission or otherwise

 2  represent anyone before the commission for a period of 2

 3  years.

 4         (b)  A commissioner may not accept any form of

 5  employment with or engage in any business activity with any

 6  business entity which, either directly or indirectly, owns or

 7  controls any public utility regulated by the commission, any

 8  public utility regulated by the commission, or any business

 9  entity which, either directly or indirectly, is an affiliate

10  or subsidiary of any public utility regulated by the

11  commission.

12         (c)  A commissioner may not have any financial

13  interest, other than shares in a mutual fund, in any public

14  utility regulated by the commission, in any business entity

15  which, either directly or indirectly, owns or controls any

16  public utility regulated by the commission, or in any business

17  entity which, either directly or indirectly, is an affiliate

18  or subsidiary of any public utility regulated by the

19  commission.  If a commissioner acquires any financial interest

20  prohibited by this section during his or her term of office as

21  a result of events or actions beyond the commissioner's

22  control, he or she shall immediately sell such financial

23  interest or place such financial interest in a blind trust at

24  a financial institution.  A commissioner may not attempt to

25  influence, or exercise any control over, decisions regarding

26  the blind trust.

27         (d)  A commissioner may not accept anything from a

28  party in a proceeding currently pending before the commission.

29  If, in the course of determining that a commissioner has

30  violated this paragraph, the Commission on Ethics determines

31  the identity of the person who gave or provided the prohibited

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1  item to the commissioner, that person may not appear before

 2  the commission or otherwise represent anyone before the

 3  commission for a period of 2 years.

 4         (e)  A commissioner may not serve as the representative

 5  of any political party or on any executive committee or other

 6  governing body of a political party; serve as an executive

 7  officer or employee of any political party, committee,

 8  organization, or association; receive remuneration for

 9  activities on behalf of any candidate for public office;

10  engage on behalf of any candidate for public office in the

11  solicitation of votes or other activities on behalf of such

12  candidacy; or become a candidate for election to any public

13  office without first resigning from office.

14         (f)  A commissioner, during his or her term of office,

15  may not make any public comment regarding the merits of any

16  proceeding under ss. 120.569 and 120.57 currently pending

17  before the commission.

18         (g)  A commissioner may not conduct himself or herself

19  in an unprofessional manner at any time during the performance

20  of his or her official duties.

21         (h)  A commissioner must comply with the Florida Code

22  of Judicial Conduct where relevant, where not in conflict with

23  other applicable law, and where not in conflict with the

24  lawful duties of a commissioner.

25         (3)  The Commission on Ethics shall accept and

26  investigate any alleged violations of this section pursuant to

27  the procedures contained in ss. 112.322-112.3241.  The

28  Commission on Ethics shall provide the Committee on Public

29  Service Commission Oversight Governor and the Florida Public

30  Service Commission Nominating Council with a report of its

31  findings and recommendations.  The Committee on Public Service

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1  Commission Oversight may Governor is authorized to enforce the

 2  findings and recommendations of the Commission on Ethics,

 3  pursuant to s. 350.043 part III of chapter 112. A public

 4  service commissioner or a member of the Florida Public Service

 5  Commission Nominating Council may request an advisory opinion

 6  from the Commission on Ethics, pursuant to s. 112.322(3)(a),

 7  regarding the standards of conduct or prohibitions set forth

 8  in ss. 350.031, 350.04, 350.041 and 350.042.

 9         Section 5.  Subsection (7) of section 350.042, Florida

10  Statutes, is amended to read:

11         350.042  Ex parte communications.--

12         (7)(a)  It shall be the duty of the Commission on

13  Ethics to receive and investigate sworn complaints of

14  violations of this section pursuant to the procedures

15  contained in ss. 112.322-112.3241.

16         (b)  If the Commission on Ethics finds that there has

17  been a violation of this section by a public service

18  commissioner, it shall provide the Committee on Public Service

19  Commission Oversight Governor and the Florida Public Service

20  Commission Nominating Council with a report of its findings

21  and recommendations.  The Committee on Public Service

22  Commission Oversight may Governor is authorized to enforce the

23  findings and recommendations of the Commission on Ethics,

24  pursuant to s. 350.043 part III of chapter 112.

25         (c)  If a commissioner fails or refuses to pay the

26  Commission on Ethics any civil penalties assessed pursuant to

27  the provisions of this section, the Commission on Ethics may

28  bring an action in any circuit court to enforce such penalty.

29         (d)  If, in the course of determining that a

30  commissioner has violated this section, the Commission on

31  Ethics determines the identity of the person who participated

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    Florida Senate - 2005   (PROPOSED COMMITTEE BILL)     SPB 7036
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 1  in the ex parte communication, that person may not appear

 2  before the commission or otherwise represent anyone before the

 3  commission for a period of 2 years.

 4         Section 6.  Section 350.043, Florida Statutes, is

 5  amended to read:

 6         350.043  Enforcement and interpretation.--Any violation

 7  of s. 350.031, s. 350.04, s. 350.041, s. 350.042, or s.

 8  350.0605 by a commissioner, former commissioner, or former

 9  commission employee, or Public Service Commission Nominating

10  Council member shall be punishable as provided in this section

11  ss. 112.317 and 112.324. The Commission on Ethics is hereby

12  given the power and authority to investigate complaints of

13  violation of this chapter in the manner provided in part III

14  of chapter 112, as if this section were included in that part.

15  If the Commission on Ethics, upon completing a full and final

16  investigation, finds that there has been a violation, it shall

17  forward a copy of the complaint and its findings, including

18  any recommendation as to what penalty should be imposed, if

19  any, by certified mail to the Committee on Public Service

20  Commission Oversight for investigation and action, which shall

21  be governed by the joint rules of the Senate and the House of

22  Representatives. The committee must report its final action

23  upon the complaint to the Commission on Ethics within 90 days

24  after the date of transmittal to the committee. The committee

25  shall determine what penalty it will impose, if any, which may

26  include any penalty provided in part III of chapter 112. A

27  commissioner may request an advisory opinion from the

28  Commission on Ethics as provided by s. 112.322(3)(a).

29         Section 7.  Section 350.05, Florida Statutes, is

30  amended to read:

31  

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 1         350.05  Oath of office.--Before entering upon the

 2  duties of his or her office each commissioner shall subscribe

 3  to the following oath:  "I do solemnly swear (or affirm) that

 4  I will support, protect and defend the Constitution and

 5  Government of the United States and of the State of Florida;

 6  that I am qualified to hold office under the constitution of

 7  the state, and that I will well and faithfully perform at all

 8  times the duties of Florida Public Service Commissioner, on

 9  which I am now about to enter in a professional, independent,

10  objective, and nonpartisan manner; that I do not have any

11  financial, employment, or business interest which is

12  prohibited by chapter 350, Florida Statutes; and that I will

13  abide by the standards of conduct required of me by chapters

14  112 and 350, Florida Statutes, so help me God."  In case any

15  commissioner should in any way become disqualified, he or she

16  shall at once remove such disqualification or resign, and upon

17  his or her failure to do so, he or she shall be suspended from

18  office by the Committee on Public Service Commission Oversight

19  Governor and dealt with as provided by law.

20         Section 8.  Subsection (1) of section 350.061, Florida

21  Statutes, is amended to read:

22         350.061  Public Counsel; appointment; oath;

23  restrictions on Public Counsel and his or her employees.--

24         (1)  The Committee on Public Service Commission

25  Oversight Joint Legislative Auditing Committee shall appoint a

26  Public Counsel by majority vote of the members of the

27  committee to represent the general public of Florida before

28  the Florida Public Service Commission. The Public Counsel

29  shall be an attorney admitted to practice before the Florida

30  Supreme Court and shall serve at the pleasure of the Joint

31  Legislative Auditing Committee on Public Service Commission

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 1  Oversight, subject to biennial annual reconfirmation by the

 2  committee. The Public Counsel shall perform his or her duties

 3  independently. Vacancies in the office shall be filled in the

 4  same manner as the original appointment.

 5         Section 9.  Subsection (2) of section 350.0614, Florida

 6  Statutes, is amended to read:

 7         350.0614  Public Counsel; compensation and expenses.--

 8         (2)  The Legislature hereby declares and determines

 9  that the Public Counsel is under the legislative branch of

10  government within the intention of the legislation as

11  expressed in chapter 216, and no power shall be in the

12  Executive Office of the Governor or its successor to release

13  or withhold funds appropriated to it, but the same shall be

14  available for expenditure as provided by law and the rules or

15  decisions of the Joint Auditing Committee on Public Service

16  Commission Oversight.

17         Section 10.  Section 350.03, Florida Statutes, is

18  repealed.

19         Section 11.  This act shall take effect October 1,

20  2005.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Creates the Committee on Public Service Commission
      Oversight as a standing joint committee of the
 4    Legislature to appoint commissioners to the Public
      Service Commission and oversee its functions. Authorizes
 5    the Florida Public Service Commission Nominating Council
      to expend up to $10,000 to advertise a vacancy on the
 6    council or the Public Service Commission. Requires that
      public service commissioners be subject to the Florida
 7    Code of Judicial Conduct rather than the code of conduct
      contained in ch. 112, F.S. Clarifies the prohibition
 8    against accepting gifts with respect to its application
      to commissioners attending conferences. Requires that a
 9    person who gives a commissioner a prohibited gift or who
      is involved in a prohibited ex parte communication be
10    prohibited from appearing before the commission for 2
      years. Requires that the Commission on Ethics report
11    certain alleged violations to the Committee on Public
      Service Commission Oversight rather than the Governor for
12    purposes of enforcement. Provides for the Committee on
      Public Service Commission Oversight rather than the
13    Governor to suspend a public service commissioner who
      becomes disqualified. Requires that the Committee on
14    Public Service Commission Oversight rather than the Joint
      Legislative Auditing Committee appoint the Public Counsel
15    and oversee the expenditures of the Public Counsel. (See
      bill for details.)
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