2017 CCPUC Ethics MCLE January 25, 2017 2:30 – 4:00 p.m. Ex Parte and Lobbying at the California Public Utilities Commission in 2017 CPUC Auditorium 505 Van Ness Ave. San Francisco, CA. 94102
Seminar Purpose This special seminar will examine the changing perspectives on Ex Parte Communications and Lobbying the Commission by providing an overview of the new and existing law, rules and governing ex parte communications and lobbying at the Commission.
Ex Parte and Lobbying at the California Public Utilities Commission in 2017 Program Schedule Opening Remarks 2:30-2:40 Warm Up & Introductions 2:40-2:45 SB 215 Genesis & Overview 2:45-3:00 Lobbying Rules and the CPUC 3:00-3:15 SB 215 and the New CPUC Ex Parte Rules 3:15-3:55 30min. (plus Q&A) 10 min. Final Remarks 3:55-4:00
Michael B. Day, Partner Goodin, MacBride, Squeri & Day, LLP Panelist Michael B. Day joined the Goodin MacBride firm in January 1998, from the firm of Wright & Talisman, whose San Francisco office he had opened in 1991. Mr. Day represents a wide variety of clients before the Commission in electric transmission, natural gas, telecommunications, rail safety, and water matters. From 1980-91, he held several positions in the Legal Division at the CPUC, including lead counsel in natural gas matters before the Federal Energy Regulatory Commission; Deputy General Counsel supervising all appellate and advisory matters before the commission; and Acting General Counsel to the CPUC. Prior to joining the Legal Division he was a trial attorney with Thornton, Taylor & Downs in San Francisco, specializing in property insurance litigation. Mr. Day received a B.A. from Cornell University in 1973 and a J.D. from the University of California, Hastings College of the Law in 1976. Mr. Day is admitted to practice before the U.S. Supreme Court and the District of Columbia and Fifth Circuits of the U.S. Court of Appeals
Tom Long, Legal Director The Utility Reform Network Panelist Tom rejoined TURN in 2010 after previously serving as TURN’s Senior Telecommunications Attorney from 1990 through 1999. Since returning to TURN, Tom has been TURN’s lead representative in many energy and safety-related proceedings at the Commission, including the enforcement cases against PG&E following the San Bruno gas pipeline explosion. In between his former and current stints at TURN, Tom served as the Legal and Telecommunications Advisor to CPUC Commissioner Loretta Lynch and as a Deputy City Attorney for the City and County of San Francisco. Prior to joining TURN in 1990, Tom was a Litigation Associate for the law firm of Morrison and Foerster in San Francisco and a law clerk for a federal district court judge in San Diego. As a 1998-99 Atlantic Fellow in Public Policy at the University of Glasgow School of Law, Tom researched telecommunications competition in the United Kingdom. He has also taught English in Shanghai, China. Tom has a law degree with Honors from NYU School of Law and an undergraduate degree with High Honors from Swarthmore College.
Betsy Mains Political Compliance and Reporting Manager Sempra Energy Panelist Ms. Mains team is responsible for providing legal guidance to Sempra’s 13,000 domestic employees, including the company’s two California utilities – SDG&E and Southern California Gas Co. As part of Sempra Energy’s compliance program, Ms. Mains leads training and education, conducting regular sessions that cover topics such as lobbying for federal, state, and local jurisdictions; gifts; fundraising; campaign finance; and conflict of interest laws for hundreds of jurisdictions in 16 states. Mains’ 23 years of professional experience include corporate and project finance, real estate development and political law. She has worked in a variety of roles promoting financial, environmental, and political compliance and integrity. She received her BA in International Business from San Diego State University and her MBA from the University of San Diego and resides in San Diego with her husband and two daughters.
Philip Weismehl, Acting Chief Counsel Office of Ratepayer Advocates Panelist Jerry Brown was a relatively new Governor when I started working at the Commission in 1976. I worked in the Legal Division for about 15 years involved in virtually every subject area, primarily large/ complex energy projects, although I did handle the Commissions’ last commercial aviation matter (yes, we used to have them). While I worked in several units, I was among the group representing the predecessor organization of the Office of Ratepayer Advocates, originally called the Public Staff Division. Around 1991 I was appointed Assistant Chief of the Administrative Law Judge Division, initially handling all telecommunications matters and then adding energy ratemaking and other matters as needed. I retired in 2009 and have been brought back periodically to fill in, such assignments including the liaison between Legal Division and the Commission’s Office of Government Affairs, interim Chief of Staff to Commissioner Catherine Sandoval, reprisal of my role as Assistant Chief ALJ, ORA Counsel assisting on the Comcast/Time Warner merger proceeding and, for some time now, partnering with Mary McKenzie as acting Chief Counsel of ORA.
Zeb Zankel, Associate Davis Wright Tremaine LLP Moderator Zeb enjoys solving complex legal and regulatory problems in innovation sectors. Zeb currently work as a telecommunications attorney, representing wireless, CLEC, VoIP, and internet service providers in state utility regulatory proceedings. Zeb is an AmeriCorps alumnus, received a B.A. from Wesleyan University and a J.D. from Santa Clara University School of Law.
CCPUC MCLE: Ex Parte and Lobbying at the California Public Utilities Commission in 2017 Thomas Long Legal Director
Genesis of SB 215 Ø E-mail disclosures in wake of San Bruno explosion, SONGS shutdown Ø Revelations of repeated abuses of ex parte communications by parties and decisionmakers 2
Nature of Ex Parte Abuses u Obvious ex parte communications not reported u Judge shopping (even though already banned) u Secret communications by decisionmakers to parties about their desired outcomes, e.g. SONGS 11
Nature of ex parte abuses (cont’d) u Secret horse-trading between decisionmakers and parties u Procedural exception to ex parte coverage allowed to swallow the rule u Disclosure of prohibited communications months/years later 12
Nature of Ex Parte Abuses (cont’d) u Undisclosed communications between decisionmakers and investor representatives u Oral communications on eve of votes u Commissioner regularly voted on motions to recuse him for bias 13
SB 660 Leads to SB 215 u SB 660 (Leno/Hueso) passed in 2015 in response to abuses u Reforms included banning oral ex parte in ratesetting cases and ex parte disclosure in quasi- legislative cases u SB 660 vetoed by Governor u SB 215 (Leno/Hueso) a compromise to avoid another veto 14
Key Reforms in SB 215 u Gives Commission discretion to impose stricter ex parte rules as needed u Sets clear boundary on procedural exception to ex parte rules u Restricts one-way communications by decisionmakers 15
Key Reforms in SB 215 (cont’d) u Bars oral communications on eve of vote in ratesetting cases u Requires decisionmaker disclosure of ex parte communications in adjudication or ratesetting cases u Clarifies that investor representatives are covered by ex parte rules 16
Key Reforms in SB 215 (cont’d) u Reforms standards and process for disqualification of decisionmakers for bias u Significantly expands potential penalties for violations by interested persons u Allows sanctions against decisionmakers, enforced by Attorney General 17
Effective Date of SB 215 Reforms u SB 215 became effective on January 1, 2017 u Most provisions do not require CPUC rulemaking before requirements go into effect u But for some reforms, CPUC has responsibility to interpret, or discretion to expand, coverage of the provision 18
CCPUC Ex Parte Seminar January 25, 2017 Betsy Mains Political Compliance and Reporting Manager Sempra Energy 1 9
} Law: Poli=cal Reform Act of 1974 – promotes transparency in government } Purpose: Regulates campaign financing, conflicts of interest, lobbying, and governmental ethics- public trust } Enforcement: Governed by the Fair Poli=cal Prac=ces Commission (FPPC) – 5 member, independent, non- par=san commission Separate and in addi+on to CPUC Ex Parte repor+ng rules 2 0
LOBBYIST : A lobbyist is a person who has met a threshold with regard to lobbying ac1vity and is required to register in that jurisdic=on. ◦ State of California: Threshold is 1/3 of your =me in a calendar month engaged in direct communica=on LOBBYING ACTIVITY : Broadly defined as a communica1on with a qualifying official intended to influence legisla=ve or administra=ve ac=on LOBBYIST EMPLOYER : A company who employs a lobbyist – oZen subject to addi=onal repor=ng requirements and/or restric=ons You do not have to be a lobbyist to engage in lobbying ac+vity 2 1
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