VI. Ex Parte Rules

Our current rules contain two sets of ex parte rules with different requirements: those applicable to proceedings filed before January 1, 1998 (Article 1.5), and those applicable to most proceedings filed after January 1, 1998 and certain proceedings filed before that date (Article 2.5). We propose to consolidate the two sets of rules in a single article, while retaining the substance of the different sets of applicable rules. Our proposed amendments eliminate the reference to pre-January 1, 1998, proceedings that are nevertheless subject to Article 2.5 either by virtue of being an "included proceeding" pursuant to Resolution ALJ-170, or because a prehearing conference had not been held in the proceeding as of that date (Rule 4(b)(2)). There is, however, only one proceeding in this category that remains open and active; clarification of the applicable ex parte rules in the proceeding is more appropriately made by ruling, rather than by a Rule of Practice and Procedure.

We propose to retain and apply to the current rules governing ex parte communications the provisions of Article 1.5 regarding the reporting of notices of ex parte communications in the Daily Calendar and procedures for obtaining such notices. This modification reflects current practice, including with respect to communications in proceedings filed after January 1, 1998.

We propose to retain and apply to the current rules governing ex parte communications the provision of Article 1.5 placing parties on notice that the Commission's decisions are based on the record and that notices of communications with decisionmakers and their personal advisors are not part of the record.

Pub. Util. Code §§ 1701.2 through 1701.4, and our rules implementing them, set forth restrictions and reporting requirements for ex parte communications in proceedings where a hearing is required. While the statute is silent on this point, our current rules exempt uncontested proceedings or proceedings without hearing from the otherwise applicable restrictions and reporting requirements. We propose a modification to clarify that the Commission or the assigned Administrative Law Judge, with the approval of the assigned Commissioner, may apply the otherwise applicable restrictions and reporting requirements to adjudicatory or ratesetting proceedings in which there are no hearings. This generally reflects the current provision of Article 1.5 (applicable to proceedings filed before January 1, 1998) giving the Commission and the assigned Administrative Law Judge the discretion to issue an ex parte communications ruling tailored to the needs of any specific proceeding.

We propose to require same-day electronic service of notices of ex parte communication by any party who has consented to e-mail service for other purposes. Current rules require parties to file, but not serve, notices of ex parte communication. As noted above, notices are currently reported in the Daily Calendar and available upon request; nevertheless, there may be a time lag before the report appears in the Daily Calendar. With the advent and ease of service by electronic mail, there no longer appears to be a reason to excuse service of ex parte notices to the extent that it can be done electronically.

Article 2.5 as currently written does not address the applicability of the ex parte rules to proceedings while the decision in the proceeding is subject to an application for rehearing, or to proceedings that are reopened by virtue of the filing of a petition for modification. We propose to clarify the applicability of the ex parte rules in such circumstances. Specifically, we propose to clarify, consistent with the ex parte rules in Article 1.5, that the ex parte rules that apply to the underlying proceeding continue to apply until the time for filing applications for rehearing has passed and none has been filed or, if an application for rehearing is filed, until it is resolved. Similarly, we propose to clarify that the ex parte rules that applied to the underlying proceeding will resume upon the filing of a petition to modify a decision that issued in it, unless there are no responses or requests for hearing, or it is determined that there will be no further hearings, or that the proceeding should be categorized differently.

We propose to clarify the circumstances under which a party may request to meet individually with a decisionmaker in a ratesetting proceeding if the decisionmaker has granted an individual meeting with another party. As currently written, the rule is silent as to how much time a party has within in which to request "equal time" meeting. We propose to require any party requesting an individual meeting with a decisionmaker after another party has been granted such a meeting to make such request within 15 days of being notified of the initial individual meeting.

We also propose to amend the definition of "decisionmaker" to exclude Commissioners' personal advisors in adjudicatory proceedings. As currently written, Article 2.5 defines "decisionmaker" to include Commissioners' personal advisors, but only in adjudicatory proceedings. It is unnecessarily confusing to define who is a decisionmaker by reference to circumstances rather than the individual's role. We propose other amendments, however, to preserve the effect of the current definition, e.g., to prohibit communications with Commissioners' personal advisors in adjudicatory proceedings and to require the reporting of communications with them in ratesetting proceedings.

We propose to move the rule banning ex parte communications regarding assignment or reassignment of a proceeding to an administrative law judge, Rule 63.9, from its current location in the article addressing presiding officers and reassignment of proceedings to the article addressing ex parte rules and requirements. The article on ex parte communications is the logical place for parties to look for requirements governing any such communications.