Second Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 12-0069.01 Chuck Brackney x2295 HOUSE BILL 12-1016 HOUSE SPONSORSHIP Balmer, SENATE SPONSORSHIP (None), House Committees Senate Committees Transportation A BILL FOR AN ACT Concerning limiting ex parte communications by commissioners of the public utilities commission. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill allows a party to a proceeding before the public utilities commission (PUC) to file a motion seeking the disqualification of a public utilities commissioner or an administrative law judge for failure to be impartial. A district court may stay or suspend the proceedings of the PUC if the PUC fails to disqualify a commissioner from the proceedings. If the disqualification of a commissioner results in the loss of a quorum, the decision rendered by a commissioner designated as a hearing officer or by an administrative law judge is the final decision of the PUC. The rule of necessity, which states that under some circumstances an adjudicator must hear a case even if the adjudicator has an interest in the case, does not apply. The bill specifies that the standards contained in the Colorado code of judicial conduct apply to commissioners and PUC administrative law judges. The bill requires the director to post memoranda regarding ex parte communications by commissioners and administrative law judges on the PUC's web site within 5 business days. Discussions by commissioners or administrative law judges on pending legislative proposals will no longer be exempted from disclosure as an "adjudicatory proceeding". Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 40-6-123, add (5.5) as follows: 40-6-123. Standards of conduct. (5.5) The standards contained in the Colorado code of judicial conduct apply to commissioners of the public utilities commission and public utilities commission administrative law judges acting in their quasi-judicial capacity. SECTION 2. In Colorado Revised Statutes, 40-6-116, add (2.5) as follows: 40-6-116. Suspension of decision - notice - bond - accounting pending review. (2.5) A district court may stay or suspend a commission proceeding if the commission declines to disqualify one or more commissioners pursuant to section 40-6-122. The court may stay or suspend a proceeding even if the commission had not been previously requested to stay or suspend the proceeding. The court must hear the application at the earliest practical time. A party making a request to stay or suspend a commission proceeding is not required to make an application for reconsideration, reargument, or rehearing of a commission decision pursuant to section 40-6-114 regarding the disqualification of one or more commissioners. SECTION 3. In Colorado Revised Statutes, 40-6-122, amend (3) and (5); and add (6), (7), and (8) as follows: 40-6-122. Ex parte communications - disclosure - disqualification. (3) Each memorandum filed pursuant to subsection (1) of this section shall set forth the time and place at which the communication was made, the persons who were present at that time and place, a statement of the subject matter of the communication, other than proprietary information, and a statement that the subject matter of the communication did not relate to any pending adjudicatory proceeding before the commission. It shall not be necessary for the memorandum to be prepared by the commissioner or judge, but it shall be signed or otherwise authenticated by the commissioner or judge, whose signature or authentication shall constitute a certificate by such commissioner or judge that the memorandum is complete and accurate. All such memoranda shall be filed with the director of the commission, who shall keep them on file and available for public inspection for a minimum of three years after their submission. The director shall post each memorandum on the commission's web site within five business days after it is filed. (5) As used in this section, an "adjudicatory proceeding" does not include a rule-making proceeding. or discussions on pending legislative proposals. (6) The common-law governmental privilege, or the deliberative process privilege, does not protect the records of communications among two or more commissioners concerning pending legislative proposals. Such communications are subject to disclosure in accordance with the "Colorado Open Records Act", part 2 of article 72 of title 24, C.R.S. (7) When a party has a good-faith belief that a commissioner or administrative law judge may not be impartial or has engaged in a prohibited communication, the party may file a motion to disqualify the commissioner or administrative law judge from the proceeding. The commission shall suspend the proceeding until it rules on the motion. The commission shall rule upon the motion within ten business days. (8) If the disqualification of a commissioner pursuant to subsection (7) of this section results in the loss of a quorum, the decision rendered by a commissioner designated as a hearing officer or by an administrative law judge is the final decision of the commission. In this situation, a suit to enforce, enjoin, suspend, modify, or set aside any final decision of the hearing officer or administrative law judge may be brought in district court without an application for reconsideration, reargument, or rehearing pursuant to section 40-6-114. The rule of necessity does not apply in situations where a quorum is lost due to the disqualification of a commissioner or administrative law judge. SECTION 4. In Colorado Revised Statutes, 24-72-202, amend (6) (a) (II) introductory portion as follows: 24-72-202. Definitions. As used in this part 2, unless the context otherwise requires: (6) (a) (II) "Public records" includes the correspondence of elected officials, including any communication between two or more members of the public utilities commission concerning pending legislative proposals, except to the extent that such correspondence or communication is: SECTION 5. Act subject to petition - effective date. This act takes effect September 1, 2012; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2012 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.