Ex parte communications by malj

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 2                                                                             ATTACHMENT “A”


 3   Ex parte communications.


 4   Section 1. Section 350.042, Florida Statutes, is amended to read:


 5   (1) This section shall govern communications directed to commissioners and commission

 6   staff concerning proceedings before the commission. The purpose of this section is to ensure

 7   the fairness of the commission’s proceedings and that commission decisions are not

 8   influenced by prohibited communications between commissioners and legally interested

 9   persons, to ensure that commissioners have unrestricted independence to make decisions

10   based on the facts and merits of individual proceedings, free from the perception of undue

11   influence, threat, or offer of reward, and to ensure the preservation of the due process rights

12   of all parties to proceedings.


13   (2) For purposes of this section a legally interested person means any party to a proceeding

14   before the commission, a representative of a party to a proceeding pending before the

15   commission, corporations, partnerships, limited liability companies, elected or appointed

16   officials of state government, and other public and elected officials.


17   (3) (1) A commissioner and commission staff who report directly to an individual

18   commissioner, shall afford should accord to every person who is legally interested in a

19   proceeding as defined in this section, or the person's lawyer, the full right to be heard

20   according to law, and, except as authorized in this section by law, shall neither initiate,

21   engage in, nor consider ex parte communications concerning the merits, threat, or offer of
 1   reward in any proceeding, other than an proceeding under s. 120.54 or s. 120.565,

 2   undocketed workshops, or internal affairs meetings. No legally interested person individual

 3   shall discuss ex parte with a commissioner or commission staff who report directly to an

 4   individual commissioner the merits of any issue that he or she reasonably foresees knows

 5   will be filed with the commission within 90 days. The provisions of this subsection shall not

 6   apply to remaining commission staff, including the Executive Director of the commission

 7   and the General Counsel to the commission..


 8   (4) (2) For purposes of this section, ex parte communication means any communication that,

 9   if written, is not served on all the parties to a proceeding, and, if oral, is made without

10   adequate notice to the parties and without an opportunity for them to be present. The

11   provisions of this section shall not prohibit an individual residential ratepayer from

12   communicating with a commissioner or commission staff who report directly to an individual

13   commissioner, provided that the ratepayer is representing only himself or herself, without

14   compensation.


15   (5) (3) The ex parte communication restrictions provided in subsection (3) shall also apply to

16   communication directed to commissioners and commission staff who report directly to an

17   individual commissioner from the Governor, Cabinet, or Legislature. Written or oral

18   communication from the Governor, Cabinet, or Legislature that is only a status inquiry and

19   does not address the merits of a proceeding as defined in subsection (3) is not an ex parte

20   communication. A written communication from the Governor, Cabinet, or Legislature that

21   attaches or forwards constituent correspondence concerning the merits of a docketed

22   proceeding shall be placed on the commission records.




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 1   (6) This section shall not apply to oral communications or discussions in scheduled and

 2   noticed open public meetings of educational programs or of a conference or other meeting of

 3   an association of regulatory agencies. This exemption does not allow a commissioner or any

 4   commission staff who report directly to any commissioner to discuss matters individually

 5   with parties or legally interested persons to proceedings.


 6   (7) (4) If a commissioner or commission staff who report directly to an individual

 7   commissioner knowingly receives an ex parte communication relative to a proceeding other

 8   than as set forth in subsection (1), to which he or she is assigned, he or she must place on the

 9   record of the proceeding copies of all written communications received, all written responses

10   to the communications, and a memorandum stating the substance of all oral communications

11   received and all oral responses made, and shall give written notice to all parties to the

12   communication that such matters have been placed on the record. Any party who desires to

13   respond to an ex parte communication may do so. The response must be received by the

14   commission within 10 days after receiving notice that the ex parte communication has been

15   placed on the record. The commissioner may, if he or she deems it necessary to eliminate the

16   effect of an ex parte communication received by him or her, withdraw from the proceeding,

17   in which case the chair shall substitute another commissioner for the proceeding.


18   (6) (5) Any legally interested person who participates in makes an ex parte communication

19   shall submit to the commission a written statement describing the nature of such

20   communication, to include the name of the person making the communication, the name of

21   the commissioner or commission staff who report directly to an individual commissioner

22   receiving the communication, copies of all written communications made, all written

23   responses to such communications, and a memorandum stating the substance of all oral

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 1   communications received and all oral responses made. The commission shall place on the

 2   record of a proceeding all such communications.


 3   (7) (6) Any commissioner or commission staff who report directly to an individual

 4   commissioner who knowingly fails to place on the record any such communications, in

 5   violation of the section, within 15 days of the date of such communication is subject to

 6   removal and may be assessed a civil penalty not to exceed $5,000.


 7   (8) (7) (a) It is shall be the duty of the Commission on Ethics to receive and investigate

 8   sworn complaints of violations of this section pursuant to the procedures contained in ss.

 9   112.322-112.3241.

10   (b) If the Commission on Ethics finds that there has been a violation of this section by a

11   public service commissioner or commission staff who reports directly to an individual

12   commissioner, it shall provide the Governor and the Florida Public Service Commission

13   Nominating Council with a report of its findings and recommendations. The Governor is

14   authorized to enforce the findings and recommendations of the Commission on Ethics,

15   pursuant to part III of chapter 112.

16   (c) If a commissioner or commission staff who report directly to an individual commissioner

17   fails or refuses to pay the Commission on Ethics any civil penalties assessed pursuant to the

18   provisions of this section, the Commission on Ethics may bring an action in any circuit court

19   to enforce such penalty.

20   (d) If, during the course of an investigation by the Commission on Ethics into an alleged

21   violation of this section, allegations are made as to the identity of the person who participated

22   in the ex parte communication, that person must be given notice and an opportunity to

23   participate in the investigation and relevant proceedings to present a defense. If the

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 1   Commission on Ethics determines that the person participated in the ex parte communication,

 2   the person may not appear before the commission or otherwise represent anyone before the

 3   commission for a period of 2 years and may be assessed a civil penalty not to exceed $5,000.

 4   In addition, the regulated entity represented by the person may be assessed a penalty of up to

 5   one percent of the entity’s annual operating revenue for the most recent calendar year.


 6   (9) The Commission may adopt rules to implement the provisions of this section for

 7   commissioners and commission staff concerning communications with legally interested

 8   persons.


 9   Section 2. Section 350.0605, Florida Statutes, is amended to read:

10   350.0605 Former commissioners and employees; representation of clients or industry before

11   commission; lobbying the legislative or executive branch. -

12   (1)(a) Any former commissioner of the Public Service Commission is prohibited from

13   appearing before the commission representing any client or any industry regulated by the

14   Public Service Commission for a period of 4 2 years following his or her termination of

15   service on the commission.

16   (b) Any former commissioner or commission staff who report directly to an individual

17   commissioner is prohibited from representing as a lobbyist as defined in s. 11.045 any client

18   or any industry regulated by the commission to lobby before the legislative or executive

19   branch of state government for a period of 4 years following his or her termination of service

20   on the commission. This subsection applies only to commissioners or commission staff who

21   report directly to an individual commissioner who are appointed, reappointed, or hired on or

22   after July 1, 2010.



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 1   (2) Any former employee of the commission is prohibited from appearing before the

 2   commission representing any client or industry regulated by the commission for a period of 4

 3   years following his or her termination of employment with the commission. This subsection

 4   applies to employees of the commission hired on or after July 1, 2010. Any former employee

 5   of the commission is prohibited from appearing before the commission representing any

 6   client regulated by the Public Service Commission on any matter which was pending at the

 7   time of termination and in which such former employee had participated.


 8   (3) For a period of 4 2 years following termination of service on the commission, a former

 9   commissioner or commission staff who report directly to an individual commission member

10   may not accept employment by or compensation from a business entity which, directly or

11   indirectly, owns or controls a public utility regulated by the commission, from a public utility

12   regulated by the commission, from a business entity which, directly or indirectly, is an

13   affiliate or subsidiary of a public utility regulated by the commission or is an actual business

14   competitor of a local exchange company or public utility regulated by the commission and is

15   otherwise exempt from regulation by the commission under ss. 364.02(14) and 366.02(1), or

16   from a business entity or trade association that has been a party to a commission proceeding

17   within the 4 2 years preceding the member's termination of service on the commission. This

18   subsection applies only to members of the Florida Public Service Commission who are

19   appointed or reappointed after May 10, 1993, or commission staff who report directly to an

20   individual commissioner and who are hired on or after July 1, 2010.


21   Section 3. This act shall take effect July 1, 2010.




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