II. Background
On May 2, 2002, the Commission announced that it would hold a Ratesetting Deliberative Meeting (RDM) on a draft decision in the above-captioned proceeding (the "UNE Reexamination").1 Notice of this closed session meeting was provided to the public in advance of the meeting via the Commission's public meeting agenda. The RDM was held at 10:00 a.m. on May 15, 2002.
Statutory authority for those Commission closed session meetings, known as RDMs, is set forth in Pub. Util. Code § 1701.3(c), which provides, in pertinent part, that:
The commission may establish a period during which no oral or written ex parte communications shall be permitted and may meet in closed session during that period which shall not in any circumstance exceed 14 days.
The Commission's Rules of Practice and Procedure state in Rule 7.c.4, parts (i) and (ii), that:
In any ratesetting proceeding, the Commission may establish a period during which no oral or written communications on a substantive issue in the proceeding shall be permitted between an interested person and a Commissioner, a Commissioner's personal advisor, the Chief Administrative Law Judge, any Assistant Chief Administrative Law Judge, or the assigned Administrative Law Judge.
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(ii) Prohibition of Ex Parte Communications When a Ratesetting Deliberative Meeting is Scheduled:
In all ratesetting proceedings in which a hearing has been held, a proposed decision has been filed and served, and a Ratesetting Deliberative Meeting has been scheduled, there shall be a prohibition on communications as provided in this subsection.
The first day of the prohibition on communications will be the day of the Ratesetting Deliberative Meeting at which the proposed decision is scheduled to be discussed and will continue through the conclusion of the Business Meeting at which a vote on the proposed decision is scheduled.
The Commission's Rules define an ex parte communication as a written or oral communication that concerns any substantive issue in a formal proceeding, takes place between an interested person and a decisionmaker, and does not occur in a public hearing, workshop, or other public setting, or on the record of the proceeding. (Rule 5.e.) A decisionmaker in a ratesetting case such as this one includes Commissioners and the assigned Administrative Law Judge (ALJ). (Rule 5.f.) Prohibitions on ex parte communications extend to Commissioners' advisors when a closed session meeting is scheduled and a corresponding quiet time is invoked. (Rule 7.c.4.)2 The rules further define an "interested person" to include a party who has made a formal appearance in a case (Rule 5.h).
On May 15, 2002, the day of the RDM, Pacific, a party in the UNE Reexamination proceeding, sent a letter to all five Commissioners regarding the substance of the alternate decision of Commissioner Lynch in this proceeding. A copy of the letter was also sent to five of the commissioners' personal advisors and the assigned ALJ. On the same day, an attorney representing WorldCom, Inc. (WorldCom), one of the applicants in this proceeding, left a voicemail message for Tom Long, Commissioner Lynch's personal advisor, also regarding the substance of the draft and alternate decisions in this matter.
1 The Draft Decision was initially slated for consideration at the Commission's April 4, 2002 public meeting agenda. Subsequently, Commissioners Lynch and Peevey issued alternate decisions and the initial draft plus the two alternates were considered at the Commission's May 16, 2002 meeting. 2 Rule 7.c. 4(i) specifies to whom the prohibitions on ex parte communications applies when a quiet-time is invoked. We interpret Rule 7.c.4.ii as applying to the same list of persons.
