Writer’s Direct Dial:
404-657-2204
Fax 404-656-0677
March 5, 2007
Hon. H. Doug Everett, Commissioner
Georgia Public Service Commission
244 Washington Ave. SW
Atlanta, Georgia 30334
RE: Ex Parte Notice of Proposed Rulemaking
Dear Commissioner Everett:
You have asked me to evaluate the legal arguments raised in the February 27, 2007,
Memorandum provided by Georgia Power Company regarding the suggested Notice of Proposed
Rulemaking on ex parte communications in contested cases. The Memorandum concludes that it
would be contrary to law for the Georgia Public Service Commission to promulgate rules that
restricted ex parte communications in contested cases. Based on review of the relevant law, I
disagree with this conclusion.
First, the Memorandum states that it would exceed the Commission’s authority to adopt an ex
parte rule because the legislature struck an ex parte prohibition from the model statute that
became the state Administrative Procedure Act (“APA”), O.C.G.A. § 50-13-1 et seq., and
rejected a subsequent effort in 2006 to impose ex parte rules for the Commission.
(Memorandum, p. 2). However, the legislature’s decision not to restrict ex parte communications
by statute is not the equivalent of a decision to require the Commission to permit ex parte
communications. Such decision does not address the authority of the Commission to restrict ex
parte communications on its own authority. The fact that the legislature has declined to require
the Commission to restrict ex parte communications does not mean that it would violate the law
for the Commission to promulgate ex parte rules on its own.
Second, the Memorandum states that “To deny any person access to those conducting business in
a legislative arena violates Constitutional protections to address one’s government, and equal
protection.” (Memorandum, p. 2). However, the proposed rule does not deny any party or person
access to the Commission. Proposed Rule 515-2-1-.14(2) would provide for the following:
Proceedings before the Commission shall be open and transparent to all
parties and to the public. Except as provided in Commission Rule 515-31-.11 regarding trade secret information, all communications, directly or
indirectly, between a party and the Commission, an individual
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Page 2
Commissioner, a Commission hearing officer, or a member of the
Commission Advisory Staff relating to a proceeding shall be made in a
public and open manner that allows all other parties the opportunity to
respond to such communication or information. Copies of all written or
electronic communications relating to a proceeding shall be
contemporaneously filed with the Executive Secretary and served on all
parties. All oral communications relating to a proceeding shall be made at
a properly noticed meeting, hearing, or workshop of the Commission.
To begin with, this proposed rule would only apply to “proceedings.” The word “proceedings” is
defined in the proposed rule to mean “a contested case to be adjudicated, decided, arbitrated, or
promulgated by the Commission.” Proposed Rule 515-2-1-.14(1)(c). Thus, the proposed rule
would not apply to any matter or docket that would not meet this definition, such as investigatory
dockets. In addition, this rule would not deny access to anyone in contested cases; instead, it
would merely require that communications by a party be made in “a public and open manner that
allows all other parties the opportunity to respond to such communication or information.” The
proposed rule addresses the way in which parties must address the Commission, but it does not
deny anyone the right to address the Commission. Finally, the proposed rule allows an exception
to the requirement that communications be “public and open” in the event of an “emergency.”
Proposed Rule 515-2-1-.14(3). In summary, the proposed rule does not restrict access in an
unlawful manner.
Third, the Memorandum argues that an ex parte rule would “run afoul and interfere with the
Commission’s statutorily mandated responsibility.” (Memorandum, p. 3). In support of this
position, the Memorandum relies upon O.C.G.A. § 46-2-20(a), which provides that the
Commission shall have general supervision over the companies subject to its jurisdiction. Id.
However, a rule requiring open and public communication in the limited context of contested
cases is not inconsistent with the Commission’s general supervisory authority.
In further support of this argument, the Memorandum cites O.C.G.A. § 46-2-20(g), which states
that “The commission shall have the power, through any of its members, to make personal visits
to the offices and places of business of the companies under its general supervisions for the
purpose of examination . . . in order to procure information deemed by the Commissioner
necessary to the work of the commission.” This language does not support the Memorandum’s
suggestion that the proposed ex parte rule may violate this statutory provision. First, this
statutory language authorizes the Commission to gather information. It does not address ex parte
communications. Further, the proposed rules would not prohibit a Commissioner from making a
personal visit as contemplated in O.C.G.A. § 46-2-20(g); but rather, it may require, in certain
instances, that such a visit be noticed in accordance with the proposed rule. In addition, as
discussed above, the proposed ex parte rule only applies to contested cases. The proposed rule
February 12, 2016
Page 3
does not inhibit ex parte communications in matters or dockets that are not contested cases;
therefore, the proposed rule does not eliminate all instances in which a Commissioner may visit
the offices and places of business of companies under its general supervision. Moreover, the
proposed rule would not interfere with the Commission’s ability to carry out its duties in
deciding contested cases. The APA requires that the Commission’s decisions be confined to the
record in contested case proceedings. Atlanta Gas Light Company v. Georgia Pub. Serv.
Comm’n, 152 Ga. App. 366, 373 (1979). It would not be “necessary to the work of the
commission or of value to the public” for an individual Commissioner to consider information
obtained outside of the record in deciding a contested case. In fact, such reliance may constitute
reversible error in certain circumstances. See Atlanta Gas Light Company, 152 Ga. App. at 373.
In addition, the Commission has broad authority to prescribe the rules of procedure and the rules
for taking evidence. O.C.G.A. § 46-2-51. Provided that any such rules comply with the APA, it
appears that the Commission will have acted within its authority. In my judgment, it would be a
lawful exercise of the discretion granted to the Commission under this Code Section to adopt the
proposed rule on ex parte communications.
Finally, the Memorandum argues that the proposed rule is one sided and unfair because it would
“prohibit communications by the utilities, but not its customers who are affected by the
proceeding.” (Memorandum, p. 4). The Memorandum contends that this provision would violate
“fundamental fairness, equal protection of the law, Constitutional protections of free speech, and
the right to petition one’s government.” Id. However, as noted above, the proposed rule does not
prohibit a utility in a contested case proceeding from communicating with the Commission.
Instead, it requires that communications be made in a public and open manner. I note that the
restriction applies with equal force to all other parties to the contested case, and not just to the
utility. Proposed Rule 515-2-1-.14(2).
The equal protection argument raised in the Memorandum is without merit. The Georgia
Constitution provides that “No person shall be denied the equal protection of the laws.” Ga.
Const. Art. 1, § 1, ¶ 2. The equal protection provision of the Georgia Constitution is
“substantially equivalent” to the equal protection clause of the Fourteenth Amendment to the
United States Constitution. Bell v. Austin, 278 Ga. 844 (2005). It is well established that equal
protection is denied only if similarly situated persons are treated differently. Id.; City of Calhoun
v. North Ga. Elec. Membership Corp., 233 Ga. 759, 770 (1975). Different treatment of different
persons does not violate the equal protection clause if there is a reasonable basis for the
distinction. Jackson v. Composite State Bd. of Medical Examiners, 256 Ga. 264, 265 (1986).
Parties to a contested case proceeding are not similarly situated to non-parties. Non-parties do
not have the right to present or respond to evidence on all issues that may be raised in a contested
proceeding, they do not have the right to conduct cross-examination of witnesses, they do not
have the right to seek review of the final decision, and the Commission’s decision cannot be
February 12, 2016
Page 4
based on communications they might make outside of the record. Moreover, party status carries
with it the ability to defend any position advanced by the party whether made publicly or not. A
non-party lacks this ability, and consequently, any person accepting the views of a non-party
must do so with knowledge that no party to the proceeding may be willing to support the
position.1 Therefore, it is my conclusion that there is a reasonable basis in support of the different
treatment for parties and non-parties in the proposed rule, and that an equal protection challenge
would not succeed.
In summary, I do not believe that it would be unlawful for the Commission to adopt the proposed
ex parte rule. The views expressed in this letter are those of the author and do not necessarily
reflect the views of the Attorney General.
I hope this response has been of assistance.
Sincerely,
Daniel S. Walsh
Assistant Attorney General
cc:
All Commissioners
Tom Bond, Director of Utilities
Sidney R. Barrett Jr., Senior Assistant Attorney General
#430313
While it is my conclusion that the proposed rules as drafted do not violate the equal protection
clause, this is not to say that an open process should not be followed wherever possible. See, e.g.,
O.C.G.A. § 50-14-1 et seq.
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