The Florida Public Service Commission has recently come under fire regarding a number of incidents involving allegedly improper communications between our staff and parties to pending cases before the Commission. In order to restore the public confidence in the Commission, I call on my colleagues to join me in reevaluating the way our body operates so that we can refocus our energies on the many important matters before us and resume our most important function: serving Florida’s consumers.
The Commission was designed to be a quasi-legislative and quasi-judicial body. This means that we have the power to promulgate new rules that govern the utilities sector and to adjudicate complaints and other matters brought to us by companies and consumers. At times, however, these two roles diverge with respect to rules governing our conduct and communications during various proceedings. Switching from one function to the other has become increasingly confusing and inefficient. The different rules governing our conduct, coupled with the new and evolving methods by which people communicate, compound the problem. The repercussions of these changes distract us from our mission and can cause permanent damage to the reputation of an agency that is vital to protecting consumers. Thus, in order to ensure consistency and clarity for how the Commission communicates with the parties that come before it, I believe a new set of rules is needed. To that end, I propose that we adopt and implement the more rigorous framework used by judicial bodies to govern our conduct going forward.
The need for a new set of rules is clear, and the model used by judicial bodies offers us a good framework for fulfilling our duties as regulators: protecting consumers and ensuring that essential utility services are provided in a safe, affordable, and reliable manner. Under this new framework, everything would be placed on the record. Parties and interested persons would be provided notice of all commissioner and staff communications to parties. Participation in events that are not “open” would be restricted absent delineated measures taken to satisfy concerns. All staff, including Chief Advisors, would be prohibited from communications with parties outside noticed meetings or written communications placed in the docket file. Implementing a unifying set of rules would give clear guidance to all current and future PSC personnel, would provide adequate notice to all parties that come before the Commission as to the integrity of our process, and would foster greater trust among the public that we were appointed to serve.
This is not something I propose on a whim. During my 15-year tenure at the Commission, I have served in a number of capacities and have seen this issue come up time and time again. While we have made changes over the years, it is clear that our efforts have not kept up with the changes in technology and have been inadequate. I believe large-scale, fundamental, and immediate change is needed.
Chapter 350 of the Florida Statutes governs Commissioner communications. The law distinguishes between communications that are considered ex parte, and therefore prohibited, and those that are not.
What communications by Commissioners are prohibited?
Commissioners are prohibited from ex parte communication (whether verbal or written) on the merits of docketed matters or dockets that an individual knows will be filed within 90 days. When all parties of record have received the same written communication from a stakeholder, such communication would not be considered, by definition, ex parte and would be permitted.
What communications by Commissioners are allowed?
The law allows for numerous communications. For example, communications on the merits of any matter (docketed or not) from an individual residential ratepayer (provided he/she is representing only himself/herself without compensation) are allowed. Also allowed are communications with respect to, among other areas:
Procedural matters (including on docketed matters);
Non-docketed matters (unless the Commissioner knows they are to be filed within 90 days); and
Matters for deliberation at Internal Affairs (e.g., comments in federal proceedings, positions on federal legislation, etc.).
Such communications are not considered ex parte and are thus allowed (hereinafter referred to as “allowed communications”).
The fact that such communications are allowed does not mean that we should not strive for better ways to communicate – ways that restore and enhance the public trust in the agency. Going forward, I propose the following set of reforms to govern Commissioner and Commission staff communications to parties on a going forward basis. These reforms consist of two broad parts. Part I articulates several foundational principles that should govern our actions. Part II articulates specific proposals for reform.
Part I – Foundational Principles
Commissioners should conduct themselves like judges.
The rules that apply with respect to Commissioners should, as a matter of policy, apply with equal force to the Commissioners’ aides / advisors.
Communications by the Commission (including Commissioners, management, and staff) to parties should be memorialized and made in the Sunshine.
The Commission should use its website and information technology resources to open up the agency to the public.
Part II – Specific Proposals
No Commissioner shall engage in an “allowed communication” except in writing. Any such communication shall be copied to the agency’s Executive Director and General Counsel (or designees). Further, any such communication shall be made available to the public by posting the communication on the agency’s website in an easily identifiable manner.
Proposed Rule No. 1 applies with equal force to a Commissioner’s staff. In other words, no member of a Commissioner’s staff shall engage in communications with parties, interested persons, or stakeholders except in writing. This prohibition applies to all procedural matters, docketed matters, rulemaking proceedings, declaratory statements, workshops, non-docketed matters, and matters for deliberation at Internal Affairs. Any such communication shall be copied to the agency’s Executive Director and General Counsel (or designees) and shall be made available to the public by posting the communication on the agency’s website in an easily identifiable manner.
Proposed Rules Nos. 1 and 2 address outbound communications by Commissioners and their staff. To the extent a Commissioner or his/her staff receives an inbound communication, the Commissioner or staff shall transmit such written communication to the agency’s Executive Director and General Counsel (or designees). If the inbound communication is verbal, as opposed to in writing, the Commissioner or staff shall summarize the communication and transmit such written communication to the agency’s Executive Director and General Counsel (or designees).
Commission Staff (Legal and Technical/Policy):
All communications by agency staff, whether legal or technical, should be made in writing (e.g., by email, by letter, etc.) and not verbally. This will help ensure that all such communications become part of “the record” regardless of the type of proceeding.
Preference for Written Communications
: Where a communication can be made in writing (as opposed to verbally) without hindering the progress of a matter, the communication should be made in writing.
Where a communication must be made verbally by staff (e.g., due to the time-sensitive nature of the matter), such communication should be immediately memorialized in writing and communicated to the parties of record in a docketed matter and otherwise made publicly available in other matters.
To the extent possible, a meeting with a party to a docketed matter (whether such meeting is to gather facts, ask questions, hear a presentation, etc.) should be “noticed” so that other interested parties may participate. In all non-docketed matters, meetings with individuals or entities should, to the extent possible, be “noticed” in advance so that all interested parties can participate.
Populating the Record:
To the extent that verbal communications might occur or meetings without notice might occur, the Commission employee (be it Commissioner, management, or staff) shall summarize such communication and make it part of the record in a docketed matter or otherwise publicly available in a non-docketed manner.
Calendars for Commissioners and Agency Management:
Each Commissioner, the Executive Director, the General Counsel, and each division/office head shall maintain a calendar of his or her schedule, and such calendar shall be available at the agency website.
Participation in Events:
Commissioner and Commission staff participation in events shall be guided by the following principles: the event must be open to the public; the Commissioner or Commission staff must pay all registration fees and his/her expenses associated with the event; and the event must provide a benefit to the state.
Executive Director, General Counsel, Commission Clerk, and Chief Information Officer:
I request that these individuals recommend the best means to implement the above changes on an agency-wide basis. Our website offers an invaluable tool for making the agency’s actions more transparent (e.g., publishing communications, noticing meetings, etc.), and I would ask the Chief Information Officer to recommend a set of operational best practices for doing so.
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Respectfully, I ask my fellow commissioners for their support of this proposal. I would also like to let the public know that we hear you and want to earn back your trust.