HB 565

1
A bill to be entitled
2An act relating to the Public Service Commission; amending
3s. 350.042, F.S.; revising provisions relating to ex parte
4communications; eliminating an exemption from certain
5prohibitions provided for commission staff; requiring that
6communications between a commissioner or commission staff
7and a representative of a utility be made available to the
8public and advance notice be provided to the Public
9Counsel; providing penalties for commission staff who fail
10to report certain communications; amending s. 350.0605,
11F.S.; prohibiting former commissioners and employees of
12the Public Service Commission from lobbying the
13legislative or executive branch of state government for 2
14years after termination of service or employment with the
15commission; prohibiting any former employee of the
16commission from appearing before the commission
17representing any client or industry regulated by the
18commission for 2 years after termination of employment
19with the commission; providing that such prohibitions
20apply to commissioners and employees who are appointed or
21reappointed or terminate their employment with the
22commission on or after a specified date; prohibiting a
23former commissioner or commission staff member from
24accepting employment by or compensation from certain
25entities regulated by the commission for a period of 2
26years after termination of employment with the commission;
27providing that the prohibition apply to former
28commissioners and commission staff members who terminate
29their employment with the commission on or after a
30specified date; amending ss. 364.183, 366.093, 367.156,
31and 368.108, F.S., relating to provisions governing access
32to telecommunications company and public utility records
33by the commission; providing for the Public Counsel to
34have access to such records; providing an effective date.
35
36Be It Enacted by the Legislature of the State of Florida:
37
38     Section 1.  Section 350.042, Florida Statutes, is amended
39to read:
40     350.042  Ex parte communications.-
41     (1)  A commissioner and commission staff shall afford
42should accord to every person who is legally interested in a
43proceeding, or the person's lawyer, the full right to be heard
44according to law, and, except as authorized in this section by
45law, shall neither initiate, engage in, nor consider ex parte
46communications concerning the merits, threat, or offer of reward
47in any proceeding other than a proceeding under s. 120.54 or s.
48120.565, workshops, or internal affairs meetings. An No
49individual shall not discuss ex parte with a commissioner or
50commission staff the merits of any issue that he or she knows
51will be filed with the commission within 90 days after the date
52of the discussion. The provisions of this subsection shall not
53apply to commission staff.
54     (2)(a)  Any oral or written communication between a
55commissioner or commission staff and a representative of a
56utility regulated by the commission must be made available to
57the public. Such oral or written communication requires advanced
58notification to the Public Counsel.
59     (b)  The commission shall send a copy of any written
60communication to the Public Counsel on the same day that the
61communication is received by the commission.
62     (c)  The commission shall prepare a written summary of any
63communication related to a documented emergency or a
64communication related to a brief, unscheduled follow-up to a
65previously scheduled meeting or previously scheduled telephone
66conference call. The commission shall provide such summary to
67the Public Counsel no later than 10 working days after the
68communication occurred.
69     (d)  A commissioner or commission staff shall notify the
70Public Counsel in writing at least 5 working days before any
71meeting, telephone conference call, or written communication
72between the commissioner or commission staff and a
73representative of a regulated utility. The Public Counsel may
74participate in the meeting, telephone conference call, or
75written communication for the purpose of questioning or directly
76responding to the communication.
77     (e)  This subsection does not apply to commission staff or
78representatives of a regulated utility who are required to
79initiate or receive brief, unscheduled communications for the
80purpose of obtaining additional information that may be needed
81after the completion of an audit.
82     (3)(2)  The provisions of This section shall not prohibit
83an individual residential ratepayer from communicating with a
84commissioner or commission staff if, provided that the ratepayer
85is representing only himself or herself, without compensation.
86     (4)(3)  This section shall not apply to oral communications
87or discussions in scheduled and noticed open public meetings of
88educational programs or of a conference or other meeting of an
89association of regulatory agencies.
90     (5)(4)  If a commissioner or commission staff member
91knowingly receives an ex parte communication relative to a
92proceeding other than as set forth in subsection (1), to which
93he or she is assigned, he or she must place on the record of the
94proceeding copies of all written communications received, all
95written responses to the communications, and a memorandum
96stating the substance of all oral communications received and
97all oral responses made. The commissioner or commission staff
98member, and shall give written notice to all parties to the
99communication that such matters have been placed on the record.
100Any party who desires to respond to an ex parte communication
101may do so. The response must be received by the commission
102within 10 days after receiving notice that the ex parte
103communication has been placed on the record. The commissioner
104may, if he or she deems it necessary to eliminate the effect of
105an ex parte communication received by him or her, withdraw from
106the proceeding, in which case the chair shall substitute another
107commissioner for the proceeding.
108     (6)(5)  Any individual who makes an ex parte communication
109shall submit to the commission a written statement describing
110the nature of the such communication, to include the name of the
111person making the communication, the name of each the
112commissioner or commission staff member commissioners receiving
113the communication, copies of all written communications made,
114all written responses to such communications, and a memorandum
115stating the substance of all oral communications received and
116all oral responses made. The commission shall place on the
117record of a proceeding all such communications.
118     (7)(6)  Any commissioner or commission staff member who
119knowingly fails to place on the record any such communications,
120in violation of the section, within 15 days after of the date of
121the such communication is subject to removal or dismissal and
122may be assessed a civil penalty not to exceed $5,000.
123     (8)(7)(a)  It is shall be the duty of the Commission on
124Ethics to receive and investigate sworn complaints of violations
125of this section pursuant to the procedures contained in ss.
126112.322-112.3241.
127     (b)  If the Commission on Ethics finds that there has been
128a violation of this section by a public service commissioner or
129commission staff, it shall provide the Governor and the Florida
130Public Service Commission Nominating Council with a report of
131its findings and recommendations. The Governor may is authorized
132to enforce the findings and recommendations of the Commission on
133Ethics, pursuant to part III of chapter 112.
134     (c)  If a commissioner or commission staff fails or refuses
135to pay the Commission on Ethics any civil penalties assessed
136pursuant to the provisions of this section, the Commission on
137Ethics may bring an action in any circuit court to enforce such
138penalty.
139     (d)  If, during the course of an investigation by the
140Commission on Ethics into an alleged violation of this section,
141allegations are made as to the identity of the person who
142participated in the ex parte communication, that person must be
143given notice and an opportunity to participate in the
144investigation and relevant proceedings to present a defense. If
145the Commission on Ethics determines that the person participated
146in the ex parte communication, the person may not appear before
147the commission or otherwise represent anyone before the
148commission for a period of 2 years.
149     Section 2.  Section 350.0605, Florida Statutes, is amended
150to read:
151     350.0605  Former commissioners and employees;
152representation of clients or industry before commission;
153lobbying the legislative or executive branch.-
154     (1)(a)  Any former commissioner of the Public Service
155Commission is prohibited from appearing before the commission
156representing any client or any industry regulated by the Public
157Service Commission for a period of 2 years following his or her
158termination of service on the commission.
159     (b)  Any former commissioner of the Public Service
160Commission is prohibited from lobbying the legislative or
161executive branch of state government for a period of 2 years
162following his or her termination of service on the commission.
163This subsection applies only to commissioners who are appointed
164or reappointed on or after July 1, 2010.
165     (2)  Any former employee of the Public Service Commission
166is prohibited from appearing before the commission representing
167any client or industry regulated by the Public Service
168Commission, or from lobbying the legislative or executive branch
169of state government, for a period of 2 years following his or
170her termination of employment with the commission. This
171subsection applies only to employees of the commission who
172terminate their employment with the commission on or after July
1731, 2010. Any former employee of the commission is prohibited
174from appearing before the commission representing any client
175regulated by the Public Service Commission on any matter which
176was pending at the time of termination and in which such former
177employee had participated.
178     (3)  For a period of 2 years following termination of
179employment with the commission, a former commissioner or
180commission staff member may not accept employment by or
181compensation from a business entity that, directly or
182indirectly, owns or controls a public utility regulated by the
183commission, from a public utility regulated by the commission,
184from a business entity that, directly or indirectly, is an
185affiliate or subsidiary of a public utility regulated by the
186commission or is an actual business competitor of a local
187exchange company or public utility regulated by the commission
188and is otherwise exempt from regulation by the commission under
189ss. 364.02(14) and 366.02(1), or from a business entity or trade
190association that has been a party to a commission proceeding
191within the 2 years preceding the former commissioner or
192commission staff member's termination of employment with the
193commission. This subsection applies only to former commissioners
194or commission staff members who terminate their employment with
195the commission on or after July 1, 2010.
196     (3)  For a period of 2 years following termination of
197service on the commission, a former member may not accept
198employment by or compensation from a business entity which,
199directly or indirectly, owns or controls a public utility
200regulated by the commission, from a public utility regulated by
201the commission, from a business entity which, directly or
202indirectly, is an affiliate or subsidiary of a public utility
203regulated by the commission or is an actual business competitor
204of a local exchange company or public utility regulated by the
205commission and is otherwise exempt from regulation by the
206commission under ss. 364.02(14) and 366.02(1), or from a
207business entity or trade association that has been a party to a
208commission proceeding within the 2 years preceding the member's
209termination of service on the commission. This subsection
210applies only to members of the Florida Public Service Commission
211who are appointed or reappointed after May 10, 1993.
212     Section 3.  Subsection (1) of section 364.183, Florida
213Statutes, is amended to read:
214     364.183  Access to company records.-
215     (1)  The commission and Public Counsel shall have access to
216all records of a telecommunications company which that are
217reasonably necessary for the disposition of matters within the
218commission's jurisdiction. The commission and Public Counsel
219shall also have access to those records of a local exchange
220telecommunications company's affiliated companies, including its
221parent company, which that are reasonably necessary for the
222disposition of any matter concerning an affiliated transaction
223or a claim of anticompetitive behavior, including claims of
224cross-subsidization and predatory pricing. The commission or
225Public Counsel may require a telecommunications company to file
226records, reports, or other data directly related to matters
227within the commission's jurisdiction in the form specified by
228the commission or Public Counsel and may require such company to
229retain such information for a designated period of time. Upon
230request of the company or other person, any records received by
231the commission or Public Counsel which are claimed by the
232company or other person to be proprietary confidential business
233information shall be kept confidential and shall be exempt from
234s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
235     Section 4.  Subsection (1) of section 366.093, Florida
236Statutes, is amended to read:
237     366.093  Public utility records; confidentiality.-
238     (1)  The commission and Public Counsel shall continue to
239have reasonable access to all public utility records and records
240of the utility's affiliated companies, including its parent
241company, regarding transactions or cost allocations among the
242utility and such affiliated companies, and such records
243necessary to ensure that a utility's ratepayers do not subsidize
244nonutility activities. Upon request of the public utility or
245other person, any records received by the commission or Public
246Counsel which are shown and found by the commission or Public
247Counsel to be proprietary confidential business information
248shall be kept confidential and shall be exempt from s.
249119.07(1).
250     Section 5.  Subsection (1) of section 367.156, Florida
251Statutes, is amended to read:
252     367.156  Public utility records; confidentiality.-
253     (1)  The commission and Public Counsel shall continue to
254have reasonable access to all utility records and records of
255affiliated companies, including its parent company, regarding
256transactions or cost allocations among the utility and such
257affiliated companies, and such records necessary to ensure that
258a utility's ratepayers do not subsidize nonutility activities.
259Upon request of the utility or any other person, any records
260received by the commission or Public Counsel which are shown and
261found by the commission or Public Counsel to be proprietary
262confidential business information shall be kept confidential and
263shall be exempt from s. 119.07(1).
264     Section 6.  Subsection (1) of section 368.108, Florida
265Statutes, is amended to read:
266     368.108  Confidentiality; discovery.-
267     (1)  The commission and Public Counsel shall continue to
268have reasonable access to all natural gas transmission company
269records and records of the natural gas transmission company's
270affiliated companies, including its parent company, regarding
271transactions or cost allocations among the natural gas
272transmission company and such affiliated companies, and such
273records necessary to ensure that a natural gas transmission
274company's ratepayers do not subsidize unregulated activities.
275Upon request of the natural gas transmission company or other
276person, any records received by the commission or Public Counsel
277which are shown and found by the commission or Public Counsel to
278be proprietary confidential business information shall be
279confidential and exempt from s. 119.07(1).
280     Section 7.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.