- What is an ex parte communication?
An ex parte communication is a written or oral communication between a decisionmaker and an interested person concerning any issue in a formal proceeding, other than procedural matters that does not occur in a public forum established in the proceeding or on the record of the proceeding. Ex parte communications include communications that are one-way from a decisionmaker to an interested person.
- What law governs Ex Parte Communications?
Ex parte communications are governed by Article 8 of the Commission's Rules of Practice & Procedure, as mandated by Public Utilities Code §1701.1 et seq.
It is the responsibility of every person who transacts business with the Commission to abide by these rules. Violations of these rules are subject to sanctions, including fines and other penalties.
- Who is a decisionmaker?
Decisionmaker means any Commissioner, the Chief Administrative Law Judge, any Assistant Chief Administrative Law Judge, the policy or legal advisory staff assigned to a Commissioner’s office, the assigned Administrative Law Judge, or the Law and Motion Administrative Law Judge.
- Who is an interested person?
Interested persons subject to this rule include any party to the proceeding, any person with a financial interest in the proceeding; a representative acting on behalf of any formally organized civic, environmental, neighborhood, business, labor, trade, or similar association organization who intends to influence the decision of a Commission member on a matter before the Commission, even if that association is not a party to the proceeding, a person involved in issuing credit ratings or advising entities or persons who invest in shares or operations of any party to a proceeding; and any representative of such persons. “Financial interest” means that the action or decision on the matter will have a direct and significant financial impact, distinguishable from its impact on the public generally or a significant segment of the public, as described in Government Code 87100.
- What is a procedural matter?
"Procedural matter" means an inquiry regarding the proceeding schedule, location or format of a hearing or other event in the proceeding, general Commission practice, or the requirements of the Rules of Practice and Procedure, provided that the person making the inquiry reasonably believes that the subject of the inquiry is not in controversy; a discussion of issues related to submission, filing or service of a document; a request for a specific procedural action, so long as the parties are included in the communication; or an inquiry pertaining to the forms and requirements for filing an intervenor compensation notice of intent or request for compensation. If you are uncertain whether an issue is procedural for purposes of the ex parte rules, contact the assigned Administrative Law Judge for guidance.
- What is a formal proceeding?
A formal proceeding is a proceeding initiated by application, complaint, order instituting investigation, or order instituting rulemaking. Advice letters, draft resolutions and informal complaints to the Commission’s Consumer Affairs Branch are not formal proceedings for purposes of the ex parte rules.
- What is a public forum?
A public forum established in the proceeding is generally a hearing, workshop or other public event that has been noticed to the official service list in a formal proceeding or on the record of the proceeding. If you are uncertain whether a forum is within the formal record of a proceeding for purposes of the ex parte rules, contact the assigned Administrative Law Judge for guidance.
- What about all-party meetings – how do the rules apply?
Ex parte communications that occur during the open session of all-party meetings do not need to be reported.
- When is something “on the record of the proceeding”?
The formal record of the proceeding generally consists of filed pleadings and the transcribed record of hearings set by order of the Commission or by ruling of a decisionmaker. Thus, a communication is on the record of the proceeding if it appears in the transcribed record of hearings, in a ruling, or other widely available formal filing.
- What are the rules surrounding conferences?
When a decision-maker attends a conference ex parte communications may occur that must be reported. The standard rules about adjudicatory proceedings apply, and communications regarding such proceedings are prohibited. The following limited exceptions apply only to ratesetting proceedings. A decisionmaker’s presentation or dialogue during an open question and answer session of a conference where the audience includes an interested person is not a disallowed one-way ex parte communication from the decisionmaker to the interested person. An interested person’s presentation or dialogue during an open question and answer session where the audience includes a decisionmaker is not an ex parte communication but must be reported in the same manner as an ex parte communication.
- What are the rules governing ex parte communications?
The rules governing ex parte communication generally depend on the category of the proceeding. The category of the proceeding is usually set out by the Assigned Commissioner in the scoping ruling (as posted on the proceeding's docket card, which is maintained on the Commission's website):
· Ex parte communications are prohibited in adjudicatory proceedings.
· Ex parte communications are permitted in ratesetting proceedings, subject to restrictions and reporting requirements.
· Ex parte communications are permitted in quasi-legislative proceedings without restrictions or reporting requirements.
Regardless of the category of the proceeding,
· Communications regarding categorization are permitted without restriction, but must be reported.
· Communications regarding particular ALJ or Commissioner assignments are prohibited.
- What rules apply before the category of the proceeding has been determined?
Until the category of the proceeding has been determined, the applicable rules depend on the proceeding type:
· Complaints (proceedings with a number that beings with the letter "C") are treated as adjudicatory proceedings, and ex parte communications are prohibited, until the Commission categorizes the case in the Instructions to Answer. Then, the rules regarding that category apply.
· Applications (which begin with the letter "A") are treated as ratesetting proceedings, and ex parte communications are subject to restrictions and reporting requirements, until the Commission preliminarily categorizes the case. Then, the rules for that category of proceeding apply until the assigned Commissioner issues the final determination of category in the scoping memo, at which time the rules regarding that category apply.
· Rulemakings (which begin with the letter "R") are preliminarily categorized by the Commission in the order instituting the rulemaking, and the rules regarding that category apply until the assigned Commissioner issues the final determination of category in the scoping memo, at which time the rules regarding that category apply. Practitioners should note that the assigned Commissioner is permitted to establish special practices regarding ex parte communications in any scoping memo for an application or a rulemaking, and so a best practice is to review all issued scoping memos.
- What restrictions apply to ex parte communications in ratesetting proceedings?
Ex parte communications are permitted in ratesetting proceedings as follows:
· Individual oral communications with a decisionmaker are permitted provided that 3 days' advance notice of the communication has been provided to the parties. In addition, if a decisionmaker (other than a Commissioner's personal advisor) grants an individual ex parte meeting, all other parties are afforded an opportunity to individually meet with the decisionmaker for a substantially equal period of time.
· Written communications must be concurrently served on all parties, and do not need to be reported. If a party or interested person sends a written communication that is not served on all parties to the affected proceeding(s) on the same day, a prohibited ex parte communication has occurred and must be reported immediately.
· Ex parte communications are generally banned from the date of a Ratesetting Deliberative Meeting, if any, through the date of the decision on the matter. Ratesetting Deliberative Meetings are noticed in the Daily Calendar.
- What reporting requirements apply to ex parte communications in ratesetting proceedings?
Notice of ex parte communications must be filed no later than 3 working days after the communication, and must contain the following information:
(i) The date, time, and location of the communication, whether the communication was oral or written, or a combination of both, and the communication medium used.
(ii) The identity of the decisionmaker, the identity of the person initiating the communication, and the identities of any other persons present.
(iii) The topic of the communication, including applicable proceeding numbers.
(iv) A substantive description of the interested person's communication and its content.
(iv) A copy of any written material or text used during the communication.
· Written ex parte communications must be concurrently served on all parties, and do not need to be reported. If a party or interested person sends a written communication that is not served on all parties to the affected proceeding(s) on the same day, a prohibited ex parte communication has occurred and must be reported immediately.
- When do the ex parte communication restrictions and reporting requirements end?
The ex parte communication restrictions and reporting requirement apply until the Commission resolves any application for rehearing on the decision closing the proceeding or until the time to apply for rehearing has expired and no application for rehearing has been filed. The Commission does not engage in ex parte communications in proceedings in which an application for rehearing has been filed.