6. Transphase's Motion to Disqualify President Peevey
On March 6, 2009, Transphase filed a motion to disqualify President Peevey from further participation in this proceeding on due process grounds. It argues that President Peevey has demonstrated actual bias, prejudice, and gross partiality in addition to the probability of actual and apparent bias. In support of its allegations, Transphase points to the following language in the March 4 ACR:
While I applaud SCE's movement to provide dynamic pricing options for these customer groups, I feel that, consistent with the Commission's previously stated objectives, dynamic pricing options should be made available to all customers. Therefore I believe a plan should be established to ensure that SCE has dynamic pricing proposals for all customer classes when it files its 2012 General Rate Case Phase 2 Application.
In particular, Transphase argues that the statement regarding the 2012 GRC indicates that the President has prejudged the decision now pending as to whether to accept a settlement in the 2009 GRC that would require TOU for certain classes of customers. Transphase objects to the proposed MLP settlement on the grounds that it allegedly contains an inadequate rate differential between off-peak and on-peak rates. In actuality, President Peevey's statement in the ACR makes no mention whatsoever about what the rate-differential between off-peak and on-peak rates should be. At most, it signifies a commitment to having TOU rates available to additional classes of customers following the next GRC. Therefore, Transphase has made no showing of any prejudgment or bias whatsoever with regard to its position in this case.
Decisionmakers at administrative agencies are accorded a presumption of impartiality-as recently reiterated by the Supreme Court of California in the Morongo decision.58 In ratesetting proceedings such as the instant case, a decisionmaker may be disqualified "only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding."59 A party seeking to disqualify a decisionmaker on this basis must meet the clear and convincing test in order to rebut the presumption of administrative regularity. As already discussed, Transphase does not even come close to meeting this standard. Transphase has failed to show any bias or prejudgment on any issue, much less an unalterably closed mind on the part of President Peevey with regard to its positions.
Transphase also points to President Peevey's past positions with SCE and Edison International, suggesting that his past association with these entities compromises his impartiality in the present proceeding. In certain instances, the mere appearance of bias may require disqualification. These situations include a financial or personal interest in the outcome of the proceeding.60 Personal animosity toward a party or embroilment in the dispute also may create an impermissible appearance of bias requiring disqualification.61 Transphase has failed to show the appearance of bias or actual bias in this instance.
President Peevey left Edison International and SCE approximately 15 years ago. Moreover, Public Utilities Commissioners are subject to Pub. Util. Code § 303 which prohibits Public Utilities Commissioners from holding "an official relation to" or having a "financial interest in, a person or corporation subject to regulation by the commission."
For these reasons we are denying Transphase's motion. Finally, Transphase has requested information concerning the financial interests of President Peevey and his family in Edison International and SCE so that it may further demonstrate bias. Legal Division has forwarded copies of the President's Form 700 Statements of Economic Interests to Transphase.
58 Morongo Band of Mission Indians v. State Water Resources Control Board (2009) 45 Cal.4th 731, 737.
59 Association of National Advertisers, Inc. v. Federal Trade Commission (D.C. Cir. 1979) 627 F.2d 1151, 1170.
60 Haas v. County of San Bernardino (2007) 27 Cal.4th 1017.
61 Stivers v. Pierce (9th Cir. 1995) 71 F.3d 732.
