Background and Procedural History
On August 1, 2008, the assigned Commissioner issued a revised Scoping Memo and Order to Show Cause (OSC)1 to establish Phase 3 of this proceeding, stating:
[T]here is a reasonable basis to conclude that SDG&E, through its officers, agents and/or attorneys, misrepresented material facts in its June 2008 ex parte meetings with Commission staff regarding the routing of the proposed Sunrise Powerlink Transmission Project, in violation of Rule 1.1. SDG&E appears to have misrepresented that the route went through tribal lands, when in fact an alternate route had previously been jointly developed and agreed to by SDG&E that did not go through tribal lands.2
The OSC includes, as attachments, a number of declarations from Commission staff as well as letters and other documents, all offered in support of the facts set out in the OSC. The OSC limits participation in Phase 3 to SDG&E and CPSD. The OSC directs SDG&E to respond within 15 days, preliminarily categorizes Phase 3 as adjudicatory, and imposes a ban on all ex parte communications relating to the matters at issue in Phase 3. It also provides:
[T]he declarants, who are the Commissioner advisors and staff and are percipient witnesses in this adjudicatory phase of this proceeding, may not advise the Commissioners on the potential violations of Rules 1.1 or 8.3, but they are not limited in continuing to advise their Commissioners on Phase 1, and 2, the ratesetting phases of this proceeding.3
The June ex parte meetings referred to in the OSC occurred on June 10 and 11, 2008. On August 7, 2008, SDG&E filed revised notices of ex parte communication for those meetings.4 These notices contain two attachments which were not part of the original notices -- an excerpt from SDG&E's reply brief (previously filed and served on May 30, 2008) and a PowerPoint presentation summarizing SDG&E's Phase 1 and 2 positions.
On August 19, 2008, SDG&E filed an answer and motion to dismiss.5 The answer includes, as attachments, declarations of various SDG&E employees and other documents, including emails and revised notices of ex parte contact. The answer admits that SDG&E violated Rule 8.36 of the Commission's Rules of Practice and Procedure (Rules) by inadvertently failing to attach two of the four documents that should have been appended to ex parte notices filed after four ex parte meetings held on June 10 and 11, 2008. The answer states that SDG&E did not violate Rule 1.17.
The Commission's Consumer Protection and Safety Division (CPSD) filed a notice of intervention on August 25, 2008 and filed an opposition to SDG&E's answer on September 2, 2008.
On March 6, 2009 the parties filed a joint motion requesting approval of their settlement of Phase 3. The parties Settlement Agreement is Exhibit A to the joint motion. At the request of the assigned Administrative Law Judge (ALJ), on March 20, 2009, the parties filed an amendment to their joint motion which includes an exhibit list showing the exhibit identification they propose.
1 Assigned Commissioner's Revised Scoping Memo and Ruling Regarding Possible Rule 1.1 and Rule 8.3 Violations; Order to Show Cause (OSC), August 1, 2008.
2 OSC at 7.
3 Id. at 9 (emphasis added).
4 See for example, Augmented Notice of Ex Parte Communication, August 7, 2008 [re: meeting with Advisors Kinosian and Brown].
5 SDG&E filed these documents pursuant to the grant of its concurrently filed Motion to file out-of time (i.e., one day late because of technical problems with a computerized document management system).
6 Rule 8.3, entitled Reporting Ex Parte Communications, provides, in pertinent part:
(a) Ex parte communications that are subject to these reporting requirements shall be reported by the interested person, regardless of whether the communication was initiated by the interested person. A "Notice of Ex Parte Communication" (Notice) shall be filed with the Commission's San Francisco Docket Office within three working days of the communication. The Notice shall include the following information:
(1) The date, time, and location of the communication, and whether it was oral, written, or a combination;
(2) The identities of each decision-maker (or Commissioner's personal advisor) involved, the person initiating the communication, and any persons present during such communication;
(3) A description of the interested person's, but not the decision-maker's (or the Commissioner's personal advisor's), communication and its content, to which description shall be attached a copy of any written, audiovisual, or other material used for or during the communication. (Emphasis added.)
7 Rule 1.1, entitled Ethics, provides:
Any person who signs a pleading or brief, enters an appearance, offers testimony at a hearing, or transacts business with the Commission, by such act represents that he or she is authorized to do so and agrees to comply with the laws of this State; to maintain the respect due to the Commission, members of the Commission and its Administrative Law Judges; and never to mislead the Commission or its staff by an artifice or false statement of fact or law.
