1.1 A bill for an act
1.2 relating to utilities; regulating ex parte
1.3 communications with commissioners; amending Minnesota
1.4 Statutes 1998, section 216A.037.
1.5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 1998, section 216A.037, is
1.7 amended to read:
1.8 216A.037 [
RULES; EX PARTE COMMUNICATIONS; CODE OF CONDUCT;
1.10 Subdivision 1. [EX PARTE COMMUNICATIONS PROHIBITIONS;
1.11 RULES.] (a) The commission shall adopt rules under chapter 14
1.12 prescribing permissible and impermissible ex parte
1.13 communications. The ex parte rules may prohibit only ex parte
1.14 communications by commission members with a party, directly or
1.15 indirectly, between a commissioner and a participant under the
1.16 commission's rules of practice and procedure relating to:
1.17 (1) a material issue during a pending contested case
1.19 (2) a material issue in a rulemaking proceeding after the
1.20 beginning of commission deliberations;
1.21 (3) a material issue in a disputed formal petition; and
1.22 (4) any other communication impermissible by law.
1.23 (b) The commission may apply ex parte prohibitions,
1.24 prospectively and after notice to affected parties, to other
1.25 commission proceedings as the commission deems necessary.
2.1 (c) A contested case is pending from the time the
2.2 commission refers the matter to the office of administrative
2.3 hearings until the commission has issued its final order, and
2.4 the time to petition for reconsideration has expired or the
2.5 commission has issued an order finally disposing an application
2.6 for reconsideration, whichever is later.
2.7 Subd. 2. [CONFLICT-OF-INTEREST COMMUNICATIONS PROHIBITED.]
2.8 A commissioner shall not communicate, directly or indirectly,
2.9 with a person or entity who is a party to a pending proceeding
2.10 before the commission regarding past or future benefits or
2.11 compensation to be received from that person or entity. The
2.12 commission may dismiss a proceeding if an applicant, petitioner,
2.13 or complainant violates this subdivision.
2.14 Subd. 3. [CODE OF CONDUCT RULES.] Except as limited by
2.15 subdivision 1, the commission shall adopt rules prescribing a
2.16 code of conduct for commissioners and employees of the
2.17 commission. The code of conduct must include standards to
2.18 preserve the quasi-judicial function of the commission.
2.19 Subd. 4. [COMPLAINT PROCEDURE; HEARING; SANCTIONS.] (a)
2.20 Any person seeking sanctions for alleged violations of the rules
2.21 adopted under this section may file a complaint with the
2.23 (b) A complaint seeking sanctions must include the
2.24 following information: the name and address of the complainant;
2.25 the name and address of complainant's counsel, if any; the name
2.26 and address of each person alleged to have violated the ex parte
2.27 prohibition (respondents); the name and address of each
2.28 respondent's counsel, if known; the facts constituting the
2.29 alleged violation; and the sanctions sought by the complainant.
2.30 (c) A complaint filed under this section must be filed with
2.31 the commission and mailed to each respondent, the department,
2.32 the office of the attorney general, and all persons on the
2.33 commission's service list for the proceeding.
2.34 (d) Within seven days of service of the complaint, a
2.35 respondent shall file an answer with the commission and serve it
2.36 on the complainant, the department, the office of the attorney
3.1 general, and all persons on the commission's service list for
3.2 the proceeding.
3.3 (e) The commission shall refer the complaint and any reply
3.4 to the office of administrative hearings.
3.5 (f) The administrative law judge assigned to the ex parte
3.6 complaint proceeding by the office of administrative hearings
3.7 shall conduct a hearing investigation and shall issue a report
3.8 within 30 days after the matter is referred. If the
3.9 administrative law judge determines that the report cannot be
3.10 properly completed within that time period, the judge shall
3.11 report that fact to the commission within the 30-day period and
3.12 shall file a final report within a reasonable time thereafter,
3.13 no later than 60 days after the referral to the office of
3.14 administrative hearings.
3.15 (g) The report of the administrative law judge shall
3.16 describe the relevant facts of the case and shall set forth the
3.17 judge's findings as to whether ex parte violations occurred.
3.18 The findings and decisions of the judge as to whether ex parte
3.19 violations have occurred are binding on the commission. The
3.20 judge shall also discuss and make recommendations regarding the
3.21 imposition of sanctions in accordance with paragraph (h). The
3.22 judge shall include in the report a discussion of the recusal of
3.23 any commissioner or the removal of decision-making personnel
3.24 from this case.
3.25 (h) In the report under paragraph (g), the administrative
3.26 law judge may only recommend that the commission impose one of
3.27 the following sanctions if the judge finds that the condition
3.28 specified for the sanction is met:
3.29 (1) dismiss the proceeding if the prohibited ex parte
3.30 communication has so prejudiced the proceeding that the
3.31 commission cannot consider it impartially;
3.32 (2) issue an adverse ruling on a pending issue that is the
3.33 subject of the prohibited ex parte communication if other
3.34 parties are prejudiced by the prohibited ex parte communication;
3.35 (3) strike evidence or pleadings if the evidence or
3.36 pleadings are tainted by the prohibited ex parte communication;
4.2 (4) issue a public statement of censure, if the prohibited
4.3 ex parte communication is determined to be part of a continuing
4.4 pattern of improper ex parte communication or if the prohibited
4.5 ex parte violation consists of a single prohibited communication
4.6 and mitigating circumstances exist that:
4.7 (i) negate the need for a more severe sanction;
4.8 (ii) do not prejudice the proceeding to the extent that the
4.9 commission is unable to consider it impartially;
4.10 (iii) do not prejudice other parties; or
4.11 (iv) do not taint the evidence or pleadings.
4.12 (i) If the administrative law judge finds the complainant's
4.13 allegation of an ex parte violation was interposed for any
4.14 improper purpose, such as to harass or cause unnecessary delay
4.15 or needless increase in the cost of the proceeding, the judge
4.16 may recommend that the commission issue an appropriate sanction
4.17 against the complainant.