1.1                          A bill for an act 
  1.2             relating to utilities; creating advisory selection 
  1.3             process for public utility commissioners; regulating 
  1.4             ex parte communications with commissioners; amending 
  1.5             Minnesota Statutes 1998, sections 216A.03, 
  1.6             subdivisions 1 and 1a; and 216A.037; proposing coding 
  1.7             for new law in Minnesota Statutes, chapter 216A. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 1998, section 216A.03, 
  1.10  subdivision 1, is amended to read: 
  1.11     Subdivision 1.  [MEMBERS.] The public utilities commission 
  1.12  shall consist of five members.  The terms of members shall be 
  1.13  six years and until their successors have been appointed and 
  1.14  qualified.  Each commissioner shall be appointed by the governor 
  1.15  by and with the advice and consent of the senate.  Each 
  1.16  commissioner may be selected from the list of candidates 
  1.17  recommended to the governor by the public utilities commission 
  1.18  advisory appointment committee pursuant to section 216A.031.  
  1.19  Not more than three commissioners shall belong to the same 
  1.20  political party.  At least one commissioner must have been 
  1.21  domiciled at the time of appointment outside the seven-county 
  1.22  metropolitan area.  If the membership of the commission after 
  1.23  July 31, 1986, does not consist of at least one member domiciled 
  1.24  at the time of appointment outside the seven-county metropolitan 
  1.25  area, the membership shall conform to this requirement following 
  1.26  normal attrition of the present commissioners.  The advisory 
  2.1   committee when recommending and the governor when selecting 
  2.2   commissioners shall give consideration to persons learned in the 
  2.3   law or persons who have engaged in the profession of 
  2.4   engineering, public accounting, property and utility valuation, 
  2.5   finance, physical or natural sciences, production agriculture, 
  2.6   or natural resources as well as being representative of the 
  2.7   general public. 
  2.8      For purposes of this subdivision, "seven-county 
  2.9   metropolitan area" means Anoka, Carver, Dakota, Hennepin, 
  2.10  Ramsey, Scott, and Washington counties. 
  2.11     Sec. 2.  Minnesota Statutes 1998, section 216A.03, 
  2.12  subdivision 1a, is amended to read: 
  2.13     Subd. 1a.  [REMOVAL; VACANCY.] The removal of members, and 
  2.14  filling of vacancies on the commission shall be as provided in 
  2.15  section 15.0575.  The filling of vacancies on the commission 
  2.16  shall be as provided in section 216A.031. 
  2.17     Sec. 3.  [216A.031] [COMMISSION CANDIDATE APPOINTMENT 
  2.18  PROCESS.] 
  2.19     Subdivision 1.  [COMMISSION VACANCY.] When a vacancy on the 
  2.20  commission occurs, the process set forth in this section must be 
  2.21  used to recommend up to five candidates to the governor to fill 
  2.22  the vacancy. 
  2.23     Subd. 2.  [APPOINTMENT COMMITTEE, MEMBERS.] Before filling 
  2.24  a vacancy on the commission, the governor shall activate an 
  2.25  advisory appointment committee, which must be selected as 
  2.26  provided in paragraphs (a) and (b). 
  2.27     (a) The governor shall appoint eight members:  the chair of 
  2.28  the committee; a person who must be at least 65 years of age; a 
  2.29  representative of labor; a representative of the business 
  2.30  community; a representative of the investors in entities 
  2.31  regulated by the commission; a representative of the 
  2.32  telecommunications entities regulated by the commission; a 
  2.33  representative of the energy entities regulated by the 
  2.34  commission; and a representative of low-income consumers. 
  2.35     (b) The following persons or entities, or their designees, 
  2.36  shall each appoint one member: 
  3.1      (1) the League of Minnesota Cities; 
  3.2      (2) the president of the Minnesota State Bar Association; 
  3.3      (3) the commissioner of trade and economic development; 
  3.4      (4) the attorney general, on behalf of residential and 
  3.5   small business consumers; 
  3.6      (5) the commissioner of the department of public service; 
  3.7      (6) the chair of the board of accountancy; 
  3.8      (7) the chair of the board of architecture, engineering, 
  3.9   land surveying, landscape architecture, geoscience, and interior 
  3.10  design; and 
  3.11     (8) the commissioner of the pollution control agency. 
  3.12     Subd. 3.  [NOTICE OF VACANCY.] Upon being appointed, the 
  3.13  chair shall provide notices of the vacancy in the state register:
  3.14     (1) that a vacancy on the commission has or will occur; 
  3.15     (2) that applications are invited from interested persons; 
  3.16     (3) stating the statutory criteria applicable to the 
  3.17  vacancy; 
  3.18     (4) setting forth an outline of the process that will be 
  3.19  followed in recruiting and evaluating the candidates; and 
  3.20     (5) that qualified candidates are encouraged, including 
  3.21  women and minorities. 
  3.22     Subd. 4.  [MEETINGS.] The chair is responsible for 
  3.23  scheduling meetings of the committee.  A quorum of the committee 
  3.24  is eight members.  Meetings of the committee must be open to the 
  3.25  public, except that the meetings must be closed in order to 
  3.26  discuss applicants that have not been selected as finalists. 
  3.27     Subd. 5.  [APPLICANT INFORMATION; DATA PRACTICES.] The 
  3.28  provisions of section 13.43, subdivision 3, apply to this 
  3.29  section. 
  3.30     Subd. 6.  [EVALUATION STANDARDS.] The committee shall 
  3.31  evaluate each candidate based on the criteria contained in 
  3.32  section 216A.03, subdivision 1.  The committee shall consider 
  3.33  the need for diversity on the commission.  Based on those 
  3.34  evaluations, the committee shall recommend four candidates to 
  3.35  the governor.  When an existing commissioner whose term is 
  3.36  expiring desires to be appointed to another term, that 
  4.1   individual is deemed a fifth candidate recommended to the 
  4.2   governor. 
  4.3      Subd. 7.  [APPOINTMENT.] The governor may appoint a person 
  4.4   from among the candidates recommended by the committee.  The 
  4.5   governor may also select a person not recommended by the 
  4.6   committee.  If a vacancy occurs in a position that will expire 
  4.7   before the process contemplated by this section can be 
  4.8   completed, the governor may fill the position for the remaining 
  4.9   term without activating the committee. 
  4.10     Sec. 4.  Minnesota Statutes 1998, section 216A.037, is 
  4.11  amended to read: 
  4.12     216A.037 [RULES; EX PARTE COMMUNICATIONS; CODE OF CONDUCT; 
  4.13  RULES.] 
  4.14     Subdivision 1.  [EX PARTE COMMUNICATIONS PROHIBITIONS; 
  4.15  RULES.] (a) The commission shall adopt rules under chapter 14 
  4.16  prescribing permissible and impermissible ex parte 
  4.17  communications.  The ex parte rules may prohibit only ex parte 
  4.18  communications by commission members with a party, directly or 
  4.19  indirectly, between a commissioner and a participant under the 
  4.20  commission's rules of practice and procedure relating to: 
  4.21     (1) a material issue during a pending contested case 
  4.22  proceeding; 
  4.23     (2) a material issue in a rulemaking proceeding after the 
  4.24  beginning of commission deliberations; 
  4.25     (3) a material issue in a disputed formal petition; and 
  4.26     (4) any other communication impermissible by law. 
  4.27     (b) The commission may apply ex parte prohibitions, 
  4.28  prospectively and after notice to affected parties, to other 
  4.29  commission proceedings as the commission deems necessary.  
  4.30     (c) A contested case is pending from the time the 
  4.31  commission refers the matter to the office of administrative 
  4.32  hearings until the commission has issued its final order, and 
  4.33  the time to petition for reconsideration has expired or the 
  4.34  commission has issued an order finally disposing an application 
  4.35  for reconsideration, whichever is later. 
  4.36     Subd. 2.  [CONFLICT-OF-INTEREST COMMUNICATIONS PROHIBITED.] 
  5.1   A commissioner shall not communicate, directly or indirectly, 
  5.2   with a person or entity who is a party to a pending proceeding 
  5.3   before the commission regarding past or future benefits or 
  5.4   compensation to be received from that person or entity.  The 
  5.5   commission may dismiss a proceeding if an applicant, petitioner, 
  5.6   or complainant violates this subdivision. 
  5.7      Subd. 3.  [CODE OF CONDUCT RULES.] Except as limited by 
  5.8   subdivision 1, the commission shall adopt rules prescribing a 
  5.9   code of conduct for commissioners and employees of the 
  5.10  commission.  The code of conduct must include standards to 
  5.11  preserve the quasi-judicial function of the commission. 
  5.12     Subd. 4.  [COMPLAINT PROCEDURE; HEARING; SANCTIONS.] (a) 
  5.13  Any person seeking sanctions for alleged violations of the rules 
  5.14  adopted under this section shall file a complaint with the 
  5.15  commission. 
  5.16     (b) A complaint seeking sanctions must include the 
  5.17  following information:  the name and address of the complainant; 
  5.18  the name and address of complainant's counsel, if any; the name 
  5.19  and address of each person alleged to have violated the ex parte 
  5.20  prohibition (respondents); the name and address of each 
  5.21  respondent's counsel, if known; the facts constituting the 
  5.22  alleged violation; and the sanctions sought by the complainant. 
  5.23     (c) A complaint filed under this section must be filed with 
  5.24  the commission and mailed to each respondent, the department, 
  5.25  the office of the attorney general, and all persons on the 
  5.26  commission's service list for the proceeding. 
  5.27     (d) Within seven days of service of the complaint, a 
  5.28  respondent shall file an answer with the commission and serve it 
  5.29  on the complainant, the department, the office of the attorney 
  5.30  general, and all persons on the commission's service list for 
  5.31  the proceeding. 
  5.32     (e) The commission shall refer the complaint and any reply 
  5.33  to the office of administrative hearings. 
  5.34     (f) The administrative law judge assigned to the ex parte 
  5.35  complaint proceeding by the office of administrative hearings 
  5.36  shall conduct a hearing investigation and shall issue a report 
  6.1   within 30 days after the matter is referred.  If the 
  6.2   administrative law judge determines that the report cannot be 
  6.3   properly completed within that time period, the judge shall 
  6.4   report that fact to the commission within the 30-day period and 
  6.5   shall file a final report within a reasonable time thereafter, 
  6.6   no later than 60 days after the referral to the office of 
  6.7   administrative hearings. 
  6.8      (g) The report of the administrative law judge shall 
  6.9   describe the relevant facts of the case and shall set forth the 
  6.10  judge's findings as to whether ex parte violations occurred.  
  6.11  The findings and decisions of the judge as to whether ex parte 
  6.12  violations have occurred are binding on the commission.  The 
  6.13  judge shall also discuss and make recommendations regarding the 
  6.14  imposition of sanctions in accordance with paragraph (h).  The 
  6.15  judge shall include in the report a discussion of the recusal of 
  6.16  any commissioner or the removal of decision-making personnel 
  6.17  from this case. 
  6.18     (h) In the report under paragraph (g), the administrative 
  6.19  law judge may only recommend that the commission impose one of 
  6.20  the following sanctions if the judge finds that the condition 
  6.21  specified for the sanction is met: 
  6.22     (1) dismiss the proceeding if the prohibited ex parte 
  6.23  communication has so prejudiced the proceeding that the 
  6.24  commission cannot consider it impartially; 
  6.25     (2) issue an adverse ruling on a pending issue that is the 
  6.26  subject of the prohibited ex parte communication if other 
  6.27  parties are prejudiced by the prohibited ex parte communication; 
  6.28     (3) strike evidence or pleadings if the evidence or 
  6.29  pleadings are tainted by the prohibited ex parte communication; 
  6.30  or 
  6.31     (4) issue a public statement of censure, if the prohibited 
  6.32  ex parte communication is determined to be part of a continuing 
  6.33  pattern of improper ex parte communication or if the prohibited 
  6.34  ex parte violation consists of a single prohibited communication 
  6.35  and mitigating circumstances exist that: 
  6.36     (i) negate the need for a more severe sanction; 
  7.1      (ii) do not prejudice the proceeding to the extent that the 
  7.2   commission is unable to consider it impartially; 
  7.3      (iii) do not prejudice other parties; or 
  7.4      (iv) do not taint the evidence or pleadings. 
  7.5      If the administrative law judge finds the complainant's 
  7.6   allegation of an ex parte violation to be frivolous, the judge 
  7.7   may recommend that the commission issue a ruling adverse to the 
  7.8   complainant on a pending issue that is the subject of the 
  7.9   prohibited ex parte communication.