Article 1.5. Ex Parte Communications in Those Proceedings
Not Subject to Article 2.5.
1.1. (Rule 1.1) Definitions
For purpose of this Article, the following definitions apply:
(a) "Commencement of a proceeding" is the tender to the Commission of a notice of intention, the filing with the Commission of an application or complaint, or the adoption by the Commission of an order instituting investigation (OII).
(b) "Commission Staff of Record" means:
(i) all members of the staff organization or division created pursuant to Public Utilities Code Section 309.5, except those temporarily assigned to other staff organizations or divisions; and
(ii) members of other staff organizations or divisions not specifically covered under Section 309.5, who are appearing as advocates or as witnesses for a particular party in covered proceedings, but excluding other members of such staff organizations or divisions. The Executive Director, General Counsel, and Division Directors (except the director of the staff division created pursuant to Section 309.5) are not Commission Staff of Record.
(c) "Covered Proceeding" is any formal proceeding other than a rulemaking, or an OII consolidated with a rulemaking to the extent that the OII raises the identical issues raised in the rulemaking. An OII is otherwise a covered proceeding. Except for OIIs, if no timely answer or protest or request for hearing is filed in response to a pleading initiating a covered proceeding, the proceeding ceases to be covered. If an answer or protest is withdrawn, the proceeding ceases to be a covered proceeding. However, if there has been a request for hearing, the proceeding remains covered until the request has been denied.
(d) "Date of Issuance of a Final Order" is (1) the date when the Commission serves the decision after rehearing or denying rehearing; or (2) where the period to apply for rehearing has expired and no application for rehearing has been filed, the last date for filing an application for rehearing under PU Code Section 1731. However, where a decision does not close a docket, there has been no issuance of a final order with respect to any issues that remain pending in the proceeding.
(e) "Decisionmaker" means any Commissioner, Commissioner's Personal Advisor(s), the Chief Administrative Law Judge, any Assistant Chief Administrative Law Judge, and any Administrative Law Judge assigned to the proceeding.
(f) Enforcement-related proceedings are those OIIs and complaint proceedings where (i) the order instituting investigation or (ii) the complaint raises the alleged violation of any provision of law, or of any order or rule of the Commission. Complaints solely challenging the "reasonableness of any rates or charges" pursuant to Public Utilities Code Section 1702 are not enforcement-related proceedings.
(g) "Ex parte communication" means a written or oral communication on any substantive issue in a covered proceeding, between a party and a decisionmaker, off the record and without opportunity for all parties to participate in the communication.
(h) "Party" means any applicant, protestant, respondent, petitioner, complainant, defendant, interested party who has made a formal appearance in the proceeding, or Commission staff of record in covered proceedings, and their agent(s) or employee(s). A member of the public who is not acting as the agent or employee of a party is not a party.
(i) "Submission of a proceeding" is as described in Rule 77 of the Commission's Rules of Practice and Procedure.
Note: Athority cited: Section 1701, Public Utilities Code, and Section 2, Article XII, California Constitution. Reference: Section 1701.1, Public Utilities Code.
1.2. (Rule 1.2) The Record
The Commission shall render its decision based on the evidence of record. Any notice filed pursuant to Rule 1.4 is not a part of the record of the proceeding. The record is closed for the receipt of evidence after the proceeding is submitted under Rule 77, unless it is reopened under Rule 84.
1.3. (Rule 1.3) Applicable Proceedings
(a) In any enforcement-related proceeding, no decisionmaker shall have any oral or written ex parte communication with any party to the proceeding concerning any substantive issue involved in the proceeding, unless the communication is reported within three working days in accordance with the reporting requirements set forth in Rule 1.4. Communications limited to the hearing schedule, location, and format, filing dates and identity of parties are procedural inquiries which need not be reported. This rule shall apply from the commencement of such proceeding to its submission to the Commission. After such proceeding has been submitted to the Commission, and until the date of issuance of a final order in such proceeding, ex parte communications between parties and decisionmakers concerning any substantive issue involved in the proceeding are prohibited.
(b) In all other covered proceedings, any oral or written ex parte communication between a decisionmaker and any party to the proceeding concerning any substantive issue involved in the proceeding, shall be reported within three working days, in accordance with the reporting requirements set forth in Rule 1.4. These reporting requirements shall apply from the commencement of the proceeding to the date of issuance of a final order in that proceeding.
(c) Where proceedings covered by subsections (a) and (b) above are consolidated, the ALJ shall, by ruling prior to the date of submission, determine the extent to which the prohibition provisions of subsection (a) shall apply.
1.4. (Rule 1.4) Reporting Ex Parte Communications
(a) Reportable communications shall be reported by the party, whether the communication was initiated by the party or the decisionmaker. They shall be reported within three working days of the communication by filing (but not serving), consistent with Rule 2.5, a "Notice of Ex Parte Communication" (Notice) with the Commission's San Francisco Docket Office. Such Notice shall be provided simultaneously to the assigned ALJ. 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 identity of the recipient(s) and the person(s) initiating the communication, as well as the identity of any persons present during such communication;
(3) a description of the party's, but not the decisionmaker's, communication and its content, to which shall be attached a copy of any written material or text used during the communication.
(b) The filing of a Notice will be reported promptly thereafter in the Commission's Daily Calendar.
(c) Parties may obtain a copy of the Notice and any attachments from the Commission's Central File room or from the filing party, who must provide it to the requesting party without delay.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.1(c)(4)(C), Public Utilities Code.
1.5. (Rule 1.5) Sanctions
The Commission may impose such penalties and sanctions, or make any other order, as it deems appropriate to ensure the integrity of the formal record and to protect the public interest.
1.6. (Rule 1.6) Specific Proceedings
In augmentation of the provisions of this Article, the Commission, or the assigned Administrative Law Judge with the approval of the assigned Commissioner, may issue an ex parte communications ruling tailored to the needs of any specific proceeding.
This Article applies to all covered proceedings (as set forth in Rule 1.3) pending on the date it is effective, and to all covered proceedings commenced on or after the date it is effective.
