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)
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.
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.
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.