CEO 91-33 -- July 19, 1991
EX PARTE COMMUNICATIONS
PUBLIC SERVICE
COMMISSIONERS RECEIVING
EX PARTE COMMUNICATIONS
To: Thomas M. Beard, Chairman, Florida Public
Service Commission (Tallahassee)
SUMMARY:
Where Public Service
Commission staff first review commissioners' mail and remove any documents
which are considered to be ex parte communications in violation of Section
350.042, Florida Statutes, the commissioner has not knowingly received an ex
parte communication, and thus is not required to place the communication in the
record. Nor is a commissioner
responsible for disclosing communications which were not considered to be ex
parte communications at the time they were received, but that do become the subject
of PSC proceedings within 90 days of their receipt.
QUESTION 1:
Are letters which would
otherwise be ex parte communications which are intercepted prior to a
Commissioner's review, deemed to be ex parte communications which must be
placed in the record?
Your question is
answered in the negative.
In your letter of
inquiry you advise that as Chairman of the Public Service Commission, you
request this opinion on behalf of you and your fellow Commissioners. In 1990, Chapter 350, Florida Statutes, was
amended to include standards of conduct applicable to Public Service
Commissioners and members of the Public Service Commission Nominating
Council. These standards are in
addition to the provisions contained in Chapter 112, Part III, Florida
Statutes. Section 350.041(3), Florida
Statutes (1990), authorizes a Public Service Commissioner or member of the
Public Service Commission Nominating Council to request advisory opinions from
the Commission on Ethics regarding the standards of conduct or prohibitions
contained in Sections 350.031, 350.04, 350.041, 350.042, and 350.043, Florida
Statutes (1990).
We are advised that the
PSC is a five-member appointed board which has quasi-legislative and
quasi-judicial, as well as executive powers and duties. We note that ratemaking and rulemaking are
generally considered quasi-legislative matters, although the commission may and does hold quasi-judicial
hearings on all matters of economic and service regulation including ratesetting. Commission orders in cases involving
electric, gas, and telephone utilities are appealable to the Florida Supreme
Court; orders in water and wastewater proceedings are appealable to the
District Court of Appeal. As an
executive agency, the commission enforces state laws affecting utility
industries. In the recent case of Chiles
v. Public Service Commission Nominating Council, 573 So.2d 829, (Fla.
1991), the Supreme Court reaffirmed the view that the PSC is a legislative
entity, while at the same time recognized that the commission also performs
executive as well as quasi-judicial functions.
We are further advised
that a "docketed case" or "docket" is established to record
and identify any matter of official commission interest or concern which may be
addressed by the PSC in formal proceedings.
Matters to be docketed can include letters, petitions, applications,
complaints, and staff reports or filings which involve the exercise of the
commission's statutory authority.
Further, in discussions with your staff, we are advised that from 500 to
600 dockets are open at any one time, and that a majority of the open dockets
are assigned to all five commissioners.
It is also our understanding that a docket generally entails a formal
proceeding, with the filing of pleadings and documents by interested
parties. We are advised that the PSC's
Division of Records and Reporting serves as a clerk to the commission, and
assigns docket numbers as well as maintains the working files for all docketed
cases. As in most formal proceedings,
either administrative or judicial, when a party to a PSC docket files a
document or pleading, the pleading contains a docket number, is filed in the
clerk's office, and is also served on the other parties to the proceeding. In its quasi-legislative role, however, the
commission frequently receives communications from individuals or entities who
may not be parties to proceedings before the commission, but who may be
affected by it decisions and who wish to inform the commissioners of their
views on the issues.
With the foregoing as a
background, you have asked this Commission to determine whether communications
which are sent to commissioners' offices, but intercepted by staff prior to the
commissioner's review, constitute ex parte communications within the scope of
Section 350.042.
The statute provides in
relevant part:
EX PARTE
COMMUNICATIONS.-
(1) A commissioner should accord to every
person who is legally interested in a proceeding, or his lawyer, full right to
be heard according to law, and, except as authorized by law, shall neither
initiate or consider ex parte communications concerning the merits, threat, or
offer of reward in any proceeding other than a proceeding under s. 120.54 or s.
120.565, workshops, or internal affairs meetings. No individual shall discuss ex parte with a commissioner the
merits of any issue that he knows will be filed with the commission within 90
days. The provisions of this subsection
shall not apply to commission staff.
(2) The provisions of this section shall not
prohibit an individual residential ratepayer from communicating with a
commissioner, provided that the ratepayer is representing only himself, without
compensation.
(3) This section shall not apply to oral
communications or discussions in scheduled and noticed open public meetings of
educational programs or of a conference or other meeting of an association of
regulatory agencies.
(4) If a commissioner knowingly receives an
ex parte communication relative to a proceeding other than as set forth in
subsection (1), to which he is assigned, he must place on the record of the
proceeding copies of all written communications received, all written responses
to the communications, and a memorandum stating the substance of all oral
communications received and all oral responses made, and shall give written
notice to all parties to the communication that such matters have been placed
on the record. Any party who desires to
respond to an ex parte communication may do so. The response must be received by the commission within 10 days
after receiving notice that the ex parte communication has been placed on the
record. The commissioner may, if he
deems it necessary to eliminate the effect of an ex parte communication
received by him, withdraw from the proceeding, in which case the chairman shall
substitute another commissioner for the proceeding.
(5) Any individual who makes an ex parte
communication shall submit to the commission a written statement describing the
nature of such communication, to include the name of the person making the
communication, the name of the commissioner or commissioners receiving the
communication, copies of all written communications made, all written responses
to such communications, and a memorandum stating the substance of all oral
communications received and all oral responses made. The commission shall place on the record of a proceeding all such
communications.
(6) Any commissioner who knowingly fails to
place on the record any such communications, in violation of this section,
within 15 days of the date of such communication is subject to removal and may
be assessed a civil penalty not to exceed $5,000.
Section 350.042, Florida
Statutes, does not define the term "ex parte communication." However, as this term has a specific legal
connotation, we first consult the definition of "ex parte" contained
in Black's Law Dictionary, which defines "ex parte" to mean
"On one side only; by or for one party; done for, in behalf of, or on the
application of, one party only."
The term "ex
parte" is traditionally associated with legal proceedings involving a
judge or panel of judges and litigants appearing before the court. We note that Canon 3A(4) of the Code of
Judicial Conduct, which is applicable to all members of the state judiciary,
provides:
A judge should accord to
every person who is legally interested in a proceeding, or his lawyer, full right
to be heard according to law, and, except as authorized by law, neither
initiate nor consider ex parte or other communications concerning a pending or
impending proceeding. A judge, however,
may obtain the advice of a disinterested expert on the law applicable to a
proceeding before him if he gives notice to the parties of the person consulted
and the substance of the advice, and affords the parties reasonable opportunity
to respond.
The Commentary to this provision notes that:
The proscription against
communications concerning a proceeding includes communications from lawyers,
law teachers, and other persons who are not participants in the proceeding,
except to the limited extent permitted.
It does not preclude a judge from consulting with other judges, or with
court personnel whose function is to aid the judge in carrying out his
adjudicative responsibilities.
An appropriate and often
desirable procedure for a court to obtain the advice of a disinterested expert
on legal issues is to invite him to file a brief amicus curiae.
Enforcement of this
Canon is a function of the Judicial Qualifications Commission, with the Supreme
Court of Florida ultimately responsible for disciplining state judges. See In re Dekle, 308 So.2d 5 (Fla.
1975), and In re Boyd, 308 So.2d 13 (Fla. 1975), where two justices of
the Florida Supreme Court received reprimands for their actions involving an ex
parte communication. See also In re
Clayton, 504 So.2d 394 (Fla. 1987), where a county judge was reprimanded
for violations of this Canon.
We also note that the
concept of "ex parte" is established in the Florida Administrative
Procedures Act at Section 120.66, Florida Statutes, which provides:
Ex Parte
communications.--
(1) In any proceeding under s. 120.57, no ex
parte communication relative to the merits, threat, or offer of reward shall be
made to the agency head, after the agency head
has received a recommended order, or to the hearing officer by:
(a) An agency head or member of the agency
or any other public employee or official engaged in prosecution or advocacy in
connection with the matter under consideration or a factually related matter.
(b) A party to the proceeding or any person
who, directly or indirectly, would have a substantial interest in the proposed
agency action, or his authorized representative or counsel.
Nothing in this
subsection shall apply to advisory staff members who do not testify on behalf
of the agency in the proceeding or to any rulemaking proceedings under s.
120.54.
(2) A hearing officer who is involved in the
decisional process and who receives an ex parte communication in violation of
subsection (1) shall place on the record of the pending matter all written
communications received, all written responses to such communications, and a
memorandum stating the substance of all oral communications received and all
oral responses made, and shall also advise all parties that such matters have
been placed on the record. Any party desiring
to rebut the ex parte communication shall be allowed to do so, if such party
requests the opportunity for rebuttal within 10 days after notice of such
communication. The hearing officer may,
if he deems it necessary to eliminate the effect of an ex parte communication
received by him, withdraw from the proceeding, in which case the division shall
assign a successor.
(3) Any person who makes an ex parte
communication prohibited by subsection (1), and any hearing officer who fails
to place in the record any such communication, is in violation of this act and
may be assessed a civil penalty not to exceed $500 or be subjected to such
other disciplinary action as his superiors may determine.
In the one of few cases
construing Section 120.66, the Supreme Court held that this provision is
directed toward ex parte communications to a hearing officer or to an agency
head after receipt of a recommended order, and that this provision was not
violated where the Public Service Commission allowed staff members to make
recommendations concerning a utility company's petition at a public
hearing. See Citizens of the State
of Florida v. Wilson, 569 So.2d 1268 (Fla. 1990).
Returning to Section
350.042, at first glance it appears that the provisions contained in this section
borrow heavily from the concepts contained in both the Code of Judicial
Conduct, Canon 3A(4), and Section 120.66, Florida Statutes. One of the biggest differences, however, is
the use of the term "knowingly" in Subsections 305.042(4) and
(6). The use of this term with regard
to a commissioner's conduct imputes an element of "scienter" or
intent. We therefore construe the
statute to require a commissioner to disclose the receipt of an ex parte communication
only when he consciously, intelligently, willfully, or intentionally receives
an ex parte communication. Where the
commissioner's aides screen the mail prior to giving it to the commissioner, we
would not consider the proscriptions contained in the statute to be implicated,
as the commissioner has not consciously received an ex parte
communication. However, if the aides do
not intercept a communication that is considered to be ex parte, and as a
result the commissioner receives the ex parte communication, then the
communication would have to be disclosed as required in Subsection 350.042(4).
We recognize the statute
with its attendant sanctions places a substantial burden on commissioners and
their staff. This is a result of the
complex nature of the working structure and responsibilities of the Public
Service Commission. However, we are of
the view that the Legislature was aware of the workings of the Public Service
Commission when it instituted by statute the requirements of Section 350.042. Evidently the Legislature wanted to severely
curtail the widely held perception that members of the Public Service
Commission were being influenced in social settings or otherwise informally by
those they regulated.
It would therefore be
appropriate to instruct PSC staff to diligently screen all mail addressed to a
member of the Public Service Commission to determine whether the document
constitutes a prohibited ex parte communication. If the communication falls
under the exception for communications received from an individual
ratepayer only representing himself, without compensation, as provided for in
Section 350.042(2), Florida Statutes, then it may be forwarded to the
commissioner. Otherwise, if the
communication relates to a docketed proceeding, it should be withheld from the
commissioner.
As a practical matter,
it may be difficult for staff to ascertain whether a communication relates to a
docketed proceeding because of the large number of ongoing proceedings, and
because the communication does not
contain a docket number or name, or other identifying characteristics. Staff may wish to consider whether the
document is from a person or entity who frequently appears before the PSC, and
whether the substance of the communication clearly addresses an issue for which
a docket has been opened. Nonetheless,
if a Commissioner does receive a document that is an ex parte communication,
then the procedures contained in Section 350.042(4), Florida Statutes, should
be followed.
Accordingly, letters
which are written by persons unaware of the prohibitions contained in Section
350.042, Florida Statutes, and which are intercepted by staff prior to a
Commissioner's review, are not ex parte communications which must be placed in
the record pursuant to Section 350.042(4), Florida Statutes.
QUESTION 2:
If a Commissioner
receives a communication that subsequently may become subject to Section
350.042(1), Florida Statutes, because a docket is opened within 90 days, does
the Commissioner have a responsibility to place the communication on the record
pursuant to Section 350.042(6), Florida Statutes, and, if so, within what time
frame must it be placed on the record?
Your question is
answered in the negative.
Section 350.042(1),
Florida Statutes, prohibits individuals from discussing the merits of
any proceeding with a commissioner when the individual knows that a
proceeding will be initiated within 90 days.
Section 350.042(6),
Florida Statutes, imposes severe penalties on commissioners who
knowingly fail to place on the record any ex parte communications received by
them within 15 days of their being received.
Your staff has advised
that due to ambiguities in the statute, and in an abundance of caution,
commissioners are attempting to comply with the requirements of Section
350.042(1), Florida Statutes, and hold communications for 90 days in the event
that a docket is opened that addresses the matters contained in the
communication.
We do not interpret the
statute as requiring commissioners to disclose communications received by them,
when at the time they were received they were not considered to be ex parte
communications because there was no pending proceeding, but that subsequently
do become the subject of a proceeding.
We know of no requirement that members of the Public Service Commission
be psychic and able to predict up to 90 days in the future that a docket may be
opened. Nor do we think that the
Legislature intended commissioners disclose communications pursuant to Section
350.042(1), Florida Statutes, which were not considered to be ex parte
communications at the time they were received.
Therefore, we interpret the language contained in Section 350.042(6),
Florida Statutes, as related to the requirements imposed by Section 350.042(4),
Florida Statutes. Read together,
commissioners who knowingly receive an ex parte communication relating to a
proceeding to which they are assigned, must place the communication on the
record of the proceeding within 15 days of its receipt by the
commissioner. Presumably, the date the
communication was date-stamped in the commissioner's office would be the date
it was received by the commissioner.
Accordingly,
commissioners do not have a responsibility to go back and place communications
on the record because a docket is subsequently opened up to 90 days after the
communication was received by the commissioner, and where the communication was
not considered to be an ex parte communication at the time it was received by
the commissioner.