INDEPENDENT ENERGY PRODUCERS ASSOCIATION
34th ANNUAL MEETING
Ethics Reference Materials
Ethical Advocacy
Ex Parte Do’s and Don’ts. Talking to California Regulators
The following provides selected ethical rules taken from the California Rules of Professional
Conduct, the American Bar Association Model Rules of Professional Conduct, and the California
Attorney Guidelines of Civility and Professionalism. In addition, we have included selected
sections of the California Public Utilities Code and the Rules of Practice and Procedure that
further illuminate a practitioners’ ethical and legal conduct before the California Public Utilities
Commission (CPUC). Next, we include selections from the Administrative Procedure Act
implementing and extending ethical limitations on ex parte contacts in adjudicative hearings at
both the California Energy Commission (CEC) and the California Air Resources Board (CARB).
Finally, we touch on the ethical policies regarding receipt of gifts adopted by the California
Independent System Operator (CAISO). For CAISO tariff filings the ex parte obligations apply
to interactions with the Federal Energy Regulatory Commission (FERC) when proposed tariffs
are filed for FERC approval.
JANE LUCKHARDT
DAY CARTER MURPHY LLP
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TABLE OF CONTENTS
Page
California Rules of Professional Conduct.....................................................................................1
ABA Model Rules of Professional Conduct .................................................................................4
California Attorney Guidelines of Civility and Professionalism ..................................................7
California Public Utilities Code ....................................................................................................9
CPUC Rules of Practice and Procedure ......................................................................................14
Administrative Procedure Act.....................................................................................................25
Title 20 California Code of Regulations .....................................................................................33
Title 17 California Code of Regulations .....................................................................................36
California Independent System Operator....................................................................................45
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California Rules of Professional Conduct
Authority of the Rules of Professional Conduct
The California Rules of Professional Conduct are intended to regulate professional conduct of
members of the State Bar through discipline. They have been adopted by the Board of Trustees
and approved by the California Supreme Court pursuant to statute to protect the public and to
promote respect and confidence in the legal profession. The rules and any related standards
adopted by the Board are binding on all members of the State Bar.
With the approval of the Supreme Court, the Board of Trustees may formulate
and enforce rules of professional conduct for all members of the State Bar.
Cal. Bus & Prof Code §6076.
The rules of professional conduct adopted by the board, when approved by the
Supreme Court, are binding upon all members of the State Bar.
For a wilful breach of any of these rules, the board has power to discipline
members of the State Bar by reproval, public or private, or to recommend to the
Supreme Court the suspension from practice for a period not exceeding three
years of members of the State Bar.
Cal. Bus & Prof Code § 6077.
Selected Rules of Professional Conduct
Rule 3-110 Failing to Act Competently
(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with
competence.
(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1)
diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably
necessary for the performance of such service.
(C) If a member does not have sufficient learning and skill when the legal service is undertaken,
the member may nonetheless perform such services competently by 1) associating with or, where
appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2)
by acquiring sufficient learning and skill before performance is required.
Discussion:
The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney
and non-attorney employees or agents. (See, e.g., Waysman v. State Bar (1986) 41 Cal.3d 452;
Trousil v. State Bar (1985) 38 Cal.3d 337, 342 [211 Cal.Rptr. 525]; Palomo v. State Bar (1984)
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36 Cal.3d 785 [205 Cal.Rptr. 834]; Crane v. State Bar (1981) 30 Cal.3d 117, 122; Black v. State
Bar (1972) 7 Cal.3d 676, 692 [103 Cal.Rptr. 288; 499 P.2d 968]; Vaughn v. State Bar (1972) 6
Cal.3d 847, 857-858 [100 Cal.Rptr. 713; 494 P.2d 1257]; Moore v. State Bar (1964) 62 Cal.2d
74, 81 [41 Cal.Rptr. 161; 396 P.2d 577].)
In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not
have the skill ordinarily required where referral to or consultation with another lawyer would be
impractical. Even in an emergency, however, assistance should be limited to that reasonably
necessary in the circumstances. (Amended by order of Supreme Court, operative September 14,
1992.)
Rule 5-200 Trial Conduct
In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the member such means
only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement
of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a
statute that has been repealed or declared unconstitutional; and
(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.
Rule 5-300 Contact With Officials
(A) A member shall not directly or indirectly give or lend anything of value to a judge, official,
or employee of a tribunal unless the personal or family relationship between the member and the
judge, official, or employee is such that gifts are customarily given and exchanged. Nothing
contained in this rule shall prohibit a member from contributing to the campaign fund of a judge
running for election or confirmation pursuant to applicable law pertaining to such contributions.
(B) A member shall not directly or indirectly communicate with or argue to a judge or judicial
officer upon the merits of a contested matter pending before such judge or judicial officer,
except:
(1) In open court; or
(2) With the consent of all other counsel in such matter; or
(3) In the presence of all other counsel in such matter; or
(4) In writing with a copy thereof furnished to such other counsel; or
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(5) In ex parte matters.
(C) As used in this rule, "judge" and "judicial officer" shall include law clerks, research
attorneys, or other court personnel who participate in the decision-making process. (Amended by
order of Supreme Court, operative September 14, 1992.)
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ABA Model Rules of Professional Conduct
Selected ABA Model Rules: referred to as guidance in determining the appropriate
conduct
Client-Lawyer Relationship
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
Client-Lawyer Relationship
Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Advocate
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness
called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
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(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.
Advocate
Rule 3.4 Fairness To Opposing Party And Counsel
A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal
a document or other material having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a
witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that
will not be supported by admissible evidence, assert personal knowledge of facts in issue except
when testifying as a witness, or state a personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused;
or
(f) request a person other than a client to refrain from voluntarily giving relevant information to
another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by
refraining from giving such information.
Advocate
Rule 3.5 Impartiality And Decorum Of The Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by
law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by
law or court order;
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(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
Advocate
Rule 3.9 Advocate In Nonadjudicative Proceedings
A lawyer representing a client before a legislative body or administrative agency in a
nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and
shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
Maintaining The Integrity Of The Profession
Rule 8.2 Judicial And Legal Officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or appointment to
judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of
the Code of Judicial Conduct.
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California Attorney Guidelines of Civility and Professionalism
1. What are the California Attorney Guidelines of Civility and Professionalism?
The Guidelines are voluntary goals of best practices of civility in the practice of law in
California.
SECTION 4
COMMUNICATIONS
An attorney’s communications about the legal system should at all times reflect civility,
professional integrity, personal dignity, and respect for the legal system. An attorney should not
engage in conduct that is unbecoming a member of the Bar and an officer of the court.
For example, in communications about the legal system and with adversaries:
a. An attorney’s conduct should be consistent with high respect and esteem for the civil and
criminal justice systems.
b. This guideline does not prohibit an attorney’s good faith expression of dissent or criticism
made in public or private discussions for the purpose of improving the legal system or
profession.
c. An attorney should not disparage the intelligence, integrity, ethics, morals or behavior of the
court or other counsel, parties or participants when those characteristics are not at issue.
d. Respecting cultural diversity, an attorney should not disparage another’s personal
characteristics.
e. An attorney should not make exaggerated, false, or misleading statements to the media while
representing a party in a pending matter.
f. An attorney should avoid hostile, demeaning or humiliating words.
g. An attorney should not create a false or misleading record of events or attribute to an opposing
counsel a position not taken.
h. An attorney should agree to reasonable requests in the interests of efficiency and economy,
including agreeing to a waiver of procedural formalities where appropriate.
i. Unless specifically permitted or invited by the court or authorized by law, an attorney should
not correspond directly with the court regarding a case.
Nothing above shall be construed as discouraging the reporting of conduct that fails to comply
with the Rules of Professional Conduct.
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SECTION 12
EX PARTE COMMUNICATION WITH THE COURT
In a social setting or otherwise, an attorney should not communicate ex parte with a judicial
officer on the substance of a case pending before the court, unless permitted by law.
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California Public Utilities Code
Sections 1701.1, 1701.2 & 1701.3
1701.1.
(a) The commission, consistent with due process, public policy, and statutory requirements, shall
determine whether a proceeding requires a hearing. The commission shall determine whether the
matter requires a quasi-legislative, an adjudication, or a ratesetting hearing. The commission’s
decision as to the nature of the proceeding shall be subject to a request for rehearing within 10
days of the date of that decision. If that decision is not appealed to the commission within that
time period it shall not be subsequently subject to judicial review. Only those parties who have
requested a rehearing within that time period shall subsequently have standing for judicial review
and that review shall only be available at the conclusion of the proceeding. The commission shall
render its decision regarding the rehearing within 30 days. The commission shall establish
regulations regarding ex parte communication on case categorization issues.
(b) The commission upon initiating a hearing shall assign one or more commissioners to oversee
the case and an administrative law judge where appropriate. The assigned commissioner shall
schedule a prehearing conference. The assigned commissioner shall prepare and issue by order or
ruling a scoping memo that describes the issues to be considered and the applicable timetable for
resolution.
(c) (1) Quasi-legislative cases, for purposes of this article, are cases that establish policy,
including, but not limited to, rulemakings and investigations which may establish rules affecting
an entire industry.
(2) Adjudication cases, for purposes of this article, are enforcement cases and complaints except
those challenging the reasonableness of any rates or charges as specified in Section 1702.
(3) Ratesetting cases, for purposes of this article, are cases in which rates are established for a
specific company, including, but not limited to, general rate cases, performance-based
ratemaking, and other ratesetting mechanisms.
(4) “Ex parte communication,” for purposes of this article, means any oral or written
communication between a decisionmaker and a person with an interest in a matter before the
commission concerning substantive, but not procedural issues, that does not occur in a public
hearing, workshop, or other public proceeding, or on the official record of the proceeding on the
matter. “Person with an interest,” for purposes of this article, means any of the following:
(A) Any applicant, an agent or an employee of the applicant, or a person receiving consideration
for representing the applicant, or a participant in the proceeding on any matter before the
commission.
(B) Any person with a financial interest, as described in Article 1 (commencing with Section
87100) of Chapter 7 of Title 9 of the Government Code, in a matter before the commission, or an
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agent or employee of the person with a financial interest, or a person receiving consideration for
representing the person with a financial interest.
(C) A representative acting on behalf of any civic, environmental, neighborhood, business, labor,
trade, or similar organization who intends to influence the decision of a commission member on
a matter before the commission.
The commission shall by regulation adopt and publish a definition of decisionmakers and
persons for purposes of this section, along with any requirements for written reporting of ex parte
communications and appropriate sanctions for noncompliance with any rule proscribing ex parte
communications. The regulation shall provide that reportable communications shall be reported
by the party, whether the communication was initiated by the party or the decisionmaker.
Communications shall be reported within three working days of the communication by filing a
“Notice of Ex Parte Communication” with the commission in accordance with the procedures
established by the commission for the service of that notice. The notice shall include the
following information:
(i) The date, time, and location of the communication, and whether it was oral, written, or a
combination.
(ii) The identity of the recipient and the person initiating the communication, as well as the
identity of any persons present during the communication.
(iii) A description of the party’s, but not the decisionmaker’s, communication and its content, to
which shall be attached a copy of any written material or text used during the communication.
(Amended by Stats. 1999, Ch. 1005, Sec. 55. Effective January 1, 2000.)
1701.2
1701.2. (a) If the commission pursuant to Section 1701.1 has determined that an adjudication
case requires a hearing, the procedures prescribed by this section shall be applicable. The
assigned commissioner or the assigned administrative law judge shall hear the case in the manner
described in the scoping memo. The scoping memo shall designate whether the assigned
commissioner or the assigned administrative law judge shall preside in the case. The commission
shall provide by rule for peremptory challenges and challenges for cause of the administrative
law judge. Challenges for cause shall include, but not be limited to, financial interests and
prejudice. The rule shall provide that all parties are entitled to one peremptory challenge of the
assignment of the administrative law judge in all cases. All parties are entitled to unlimited
peremptory challenges in any case in which the administrative law judge has within the previous
12 months served in any capacity in an advocacy position at the commission, been employed by
a regulated public utility, or has represented a party or has been a party of interest in the case.
The assigned commissioner or the administrative law judge shall prepare and file a decision
setting forth recommendations, findings, and conclusions. The decision shall be filed with the
commission and served upon all parties to the action or proceeding without undue delay, not later
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than 60 days after the matter has been submitted for decision. The decision of the assigned
commissioner or the administrative law judge shall become the decision of the commission if no
further action is taken within 30 days. Any interested party may appeal the decision to the
commission, provided that the appeal is made within 30 days of the issuance of the decision. The
commission may itself initiate a review of the proposed decision on any grounds. The
commission decision shall be based on the record developed by the assigned commissioner or the
administrative law judge. A decision different from that of the assigned commissioner or the
administrative law judge shall be accompanied by a written explanation of each of the changes
made to the decision.
(b) Notwithstanding Section 307, an officer, employee, or agent of the commission that is
personally involved in the prosecution or in the supervision of the prosecution of an adjudication
case before the commission shall not participate in the decision of the case, or in the decision of
any factually related adjudicatory proceeding, including participation in or advising the
commission as to findings of fact, conclusions of law, or orders. An officer, employee, or agent
of the commission that is personally involved in the prosecution or in the supervision of the
prosecution of an adjudication case may participate in reaching a settlement of the case, but shall
not participate in the decision of the commission to accept or reject the settlement, except as a
witness or counsel in an open hearing or a hearing closed pursuant to subdivision (d). The
Legislature finds that the commission performs both prosecutorial and adjudicatory functions in
an adjudication case and declares its intent that an officer, employee, or agent of the commission,
including its attorneys, may perform only one of those functions in any adjudication case or
factually related adjudicatory proceeding.
(c) Ex parte communications shall be prohibited in adjudication cases.
(d) Notwithstanding any other law, the commission may meet in a closed hearing to consider
the decision that is being appealed. The vote on the appeal shall be in a public meeting and shall
be accompanied with an explanation of the appeal decision.
(e) Adjudication cases shall be resolved within 12 months of initiation unless the commission
makes findings why that deadline cannot be met and issues an order extending that deadline. In
the event that a rehearing of an adjudication case is granted, the parties shall have an opportunity
for final oral argument.
(f) (1) The commission may determine that the respondent lacks, or may lack, the ability to pay
potential penalties or fines or to pay restitution that may be ordered by the commission.
(2) If the commission determines that a respondent lacks, or may lack, the ability to pay, the
commission may order the respondent to demonstrate, to the satisfaction of the commission,
sufficient ability to pay potential penalties, fines, or restitution that may be ordered by the
commission. The respondent shall demonstrate the ability to pay, or make other financial
arrangements satisfactory to the commission, within seven days of the commission commencing
an adjudication case. The commission may delegate to the attorney to the commission the
determination of whether a sufficient showing has been made by the respondent of an ability to
pay.
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(3) Within seven days of the commission's determination of the respondent's ability to pay
potential penalties, fines, or restitution, the respondent shall be entitled to an impartial review by
an administrative law judge of the sufficiency of the showing made by the respondent of the
respondent's ability to pay. The review by an administrative law judge of the ability of the
respondent to pay shall become part of the record of the adjudication and is subject to the
commission's consideration in its order resolving the adjudication case. The administrative law
judge may enter temporary orders modifying any financial requirement made of the respondent
pending the review by the administrative law judge.
(4) A respondent that is a public utility regulated under a rate of return or rate of margin
regulatory structure or that has gross annual revenues of more than one hundred million dollars
($100,000,000) generated within California is presumed to be able to pay potential penalties or
fines or to pay restitution that may be ordered by the commission, and, therefore, paragraphs (1)
to (3), inclusive, do not apply to that respondent.
1701.3
1701.3. (a) If the commission pursuant to Section 1701.1 has determined that a ratesetting case
requires a hearing, the procedures prescribed by this section shall be applicable. The assigned
commissioner shall determine prior to the first hearing whether the commissioner or the assigned
administrative law judge shall be designated as the principal hearing officer. The principal
hearing officer shall be present for more than one-half of the hearing days. The decision of the
principal hearing officer shall be the proposed decision. An alternate decision may be issued by
the assigned commissioner or the assigned administrative law judge who is not the principal
hearing officer. The commission shall establish a procedure for any party to request the presence
of a commissioner at a hearing. The assigned commissioner shall be present at the closing
arguments of the case. The principal hearing officer shall present the proposed decision to the
full commission in a public meeting. The alternate decision, if any, shall also be presented to the
full commission at that public meeting. The alternate decision shall be filed with the commission
and shall be served on all parties simultaneously with the proposed decision.
The presentation to the full commission shall contain a record of the number of days of the
hearing, the number of days that each commissioner was present, and whether the decision was
completed on time.
(b) The commission shall provide by regulation for peremptory challenges and challenges for
cause of the administrative law judge. Challenges for cause shall include, but not be limited to,
financial interests and prejudice. All parties shall be entitled to unlimited peremptory challenges
in any case in which the administrative law judge has within the previous 12 months served in
any capacity in an advocacy position at the commission, been employed by a regulated public
utility, or has represented a party or has been a party of interest in the case.
(c) Ex parte communications are prohibited in ratesetting cases. However, oral ex parte
communications may be permitted at any time by any commissioner if all interested parties are
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invited and given not less than three days' notice. Written ex parte communications may be
permitted by any party provided that copies of the communication are transmitted to all parties
on the same day. If an ex parte communication meeting is granted to any party, all other parties
shall also be granted individual ex parte meetings of a substantially equal period of time and
shall be sent a notice of that authorization at the time that the request is granted. In no event shall
that notice be less than three days. The commission may establish a period during which no oral
or written ex parte communications shall be permitted and may meet in closed session during
that period, which shall not in any circumstance exceed 14 days. If the commission holds the
decision, it may permit ex parte communications during the first half of the interval between the
hold date and the date that the decision is calendared for final decision. The commission may
meet in closed session for the second half of that interval.
(d) Any party has the right to present a final oral argument of its case before the commission.
Those requests shall be scheduled in a timely manner. A quorum of the commission shall be
present for the final oral arguments.
(e) The commission may, in issuing its decision, adopt, modify, or set aside the proposed
decision or any part of the decision based on evidence in the record. The final decision of the
commission shall be issued not later than 60 days after the issuance of the proposed decision.
Under extraordinary circumstances the commission may extend this date for a reasonable period.
The 60-day period shall be extended for 30 days if any alternate decision is proposed pursuant to
Section 311.
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CPUC Rules of Practice and Procedure
TITLE 20. PUBLIC UTILITIES AND ENERGY
DIVISION 1. PUBLIC UTILITIES COMMISSION
CHAPTER 1. RULES OF PRACTICE AND PROCEDURE
ARTICLE 1. GENERAL PROVISIONS
1.1. (Rule 1.1) Ethics.
Any person who signs a pleading or brief, enters an appearance, offers testimony at a hearing, or
transacts business with the Commission, by such act represents that he or she is authorized to do
so and agrees to comply with the laws of this State; to maintain the respect due to the
Commission, members of the Commission and its Administrative Law Judges; and never to
mislead the Commission or its staff by an artifice or false statement of fact or law.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701, Public
Utilities Code.
ARTICLE 8. COMMUNICATIONS WITH DECISIONMAKERS AND ADVISORS
8.1. (Rule 8.1) Definitions.
For purposes of this Article, the following definitions apply:
(a) "Commission staff of record" includes staff from the Division of Ratepayer Advocates
assigned to the proceeding, staff from the Consumer Protection and Safety Division assigned to
an adjudicatory proceeding or to a ratesetting proceeding initiated by complaint, and any other
staff assigned to an adjudicatory proceeding in an advocacy capacity.
"Commission staff of record" does not include the following staff when and to the extent they are
acting in an advisory capacity to the Commission with respect to a formal proceeding: (1) staff
from any of the industry divisions; or (2) staff from the Consumer Protection and Safety Division
in a quasi-legislative proceeding, or in a ratesetting proceeding not initiated by complaint.
(b) "Decisionmaker" means any Commissioner, the Chief Administrative Law Judge, any
Assistant Chief Administrative Law Judge, the assigned Administrative Law Judge, or the Law
and Motion Administrative Law Judge.
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(c) "Ex parte communication" means a written communication (including a communication by
letter or electronic medium) or oral communication (including a communication by telephone or
in person) that:
(1) concerns any substantive issue in a formal proceeding,
(2) takes place between an interested person and a decisionmaker, and
(3) does not occur in a public hearing, workshop, or other public forum noticed by ruling or
order in the proceeding, or on the record of the proceeding.
Communications regarding the schedule, location, or format for hearings, filing dates, identity of
parties, and other such nonsubstantive information are procedural inquiries, not ex parte
communications.
(d) "Interested person" means any of the following:
(1) any party to the proceeding or the agents or employees of any party, including persons
receiving consideration to represent any of them;
(2) any person with a financial interest, as described in Article I (commencing with
Section 87100) of Chapter 7 of Title 9 of the Government Code, in a matter at issue before
the Commission, or such person's agents or employees, including persons receiving
consideration to represent such a person; or
(3) a representative acting on behalf of any formally organized civic, environmental,
neighborhood, business, labor, trade, or similar association who intends to influence the
decision of a Commission member on a matter before the Commission, even if that
association is not a party to the proceeding.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.1(c)(4),
Public Utilities Code.
8.2. (Rule 8.2) Communications with Advisors.
Communications with Commissioners' personal advisors are subject to all of the restrictions on,
and reporting requirements applicable to, ex parte communications, except that oral
communications in ratesetting proceedings are permitted without the restrictions of Rule
8.3(c)(1) and (2).
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.1(c)(4),
Public Utilities Code.
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8.3. (Rule 8.3) Ex Parte Requirements.
(a) In any quasi-legislative proceeding, ex parte communications are allowed without restriction
or reporting requirement.
(b) In any adjudicatory proceeding, ex parte communications are prohibited.
(c) In any ratesetting proceeding, ex parte communications are subject to the reporting
requirements set forth in Rule 8.4. In addition, the following restrictions apply:
(1) All-party meetings: Oral ex parte communications are permitted at any time with a
Commissioner provided that the Commissioner involved (i) invites all parties to attend the
meeting or sets up a conference call in which all parties may participate, and (ii) gives
notice of this meeting or call as soon as possible, but no less than three days before the
meeting or call.
(2) Individual oral communications: If a decisionmaker grants an ex parte communication
meeting or call to any interested person individually, all other parties shall be granted an
individual meeting of a substantially equal period of time with that decisionmaker. The
interested person requesting the initial individual meeting shall notify the parties that its
request has been granted, and shall file a certificate of service of this notification, at least
three days before the meeting or call.
(3) Written ex parte communications are permitted at any time provided that the interested
person making the communication serves copies of the communication on all parties on the
same day the communication is sent to a decisionmaker.
(4) Ratesetting Deliberative Meetings and Ex Parte Prohibitions:
(A) The Commission may prohibit ex parte communications for a period beginning not
more than 14 days before the day of the Commission Business Meeting at which the
decision in the proceeding is scheduled for Commission action, during which period the
Commission may hold a Ratesetting Deliberative Meeting. If the decision is held, the
Commission may permit such communications for the first half of the hold period, and
may prohibit such communications for the second half of the period, provided that the
period of prohibition shall begin not more than 14 days before the day of the Business
Meeting to which the decision is held.
(B) In proceedings in which a Ratesetting Deliberative Meeting has been scheduled, ex
parte communications are prohibited from the day of the Ratesetting Deliberative Meeting
at which the decision in the proceeding is scheduled to be discussed through the
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conclusion of the Business Meeting at which the decision is scheduled for Commission
action.
(d) Notwithstanding Rule 8.5, unless otherwise directed by the assigned Administrative Law
Judge with the approval of the assigned Commissioner, the provisions of subsections (b) and (c)
of this rule, and any reporting requirements under Rule 8.4, shall cease to apply, and ex parte
communications shall be permitted, in any proceeding in which (1) no timely answer, response,
protest, or request for hearing is filed, (2) all such responsive pleadings are withdrawn, or (3) a
scoping memo has issued determining that a hearing is not needed in the proceeding.
(e) Ex parte communications concerning categorization of a given proceeding are permitted, but
must be reported pursuant to Rule 8.4.
(f) Ex parte communications regarding the assignment of a proceeding to a particular
Administrative Law Judge, or reassignment of a proceeding to another Administrative Law
Judge, are prohibited. For purposes of this rule, "ex parte communications" include
communications between an Administrative Law Judge and other decisionmakers about a motion
for reassignment of a proceeding assigned to that Administrative Law Judge.
(g) The requirements of this rule, and any reporting requirements under Rule 8.4, shall apply
until (1) the date when the Commission serves the decision finally resolving any application for
rehearing, or (2) where the period to apply for rehearing has expired and no application for
rehearing has been filed.
(h) Upon the filing of a petition for modification, the requirements of this rule, and any reporting
requirements under Rule 8.4, that applied to the proceeding in which the decision that would be
modified was issued shall apply until and unless (1) no timely response, protest or request for
hearing is filed, (2) all such responsive pleadings are withdrawn, or (3) a scoping memo has
issued determining that a hearing is not needed in the proceeding or that a different category
shall apply.
(i) Where a proceeding is remanded to the Commission by a court or where the Commission reopens a proceeding, the requirements of this rule and any reporting requirements under Rule 8.4
that previously applied to the proceeding shall apply until and unless a Commission order or a
scoping memo has issued determining that a hearing is not needed in the proceeding or that a
different category shall apply.
(j) When the Commission determines that there has been a violation of this rule or of Rule 8.4,
the Commission may impose penalties and sanctions, or make any other order, as it deems
appropriate to ensure the integrity of the record and to protect the public interest.
(k) The Commission shall render its decision based on the evidence of record. Ex parte
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communications, and any notice filed pursuant to Rule 8.4, are not a part of the record of the
proceeding.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Sections 1701.1(a),
1701.2(b), 1701.3(c) and 1701.4(b), Public Utilities Code.
8.4. (Rule 8.4) Reporting Ex Parte Communications.
Ex parte communications that are subject to these reporting requirements shall be reported by the
interested person, regardless of whether the communication was initiated by the interested
person. Notice of ex parte communications shall be filed within three working days of the
communication. The notice may address multiple ex parte communications in the same
proceeding, provided that notice of each communication identified therein is timely. The notice
shall include the following information:
(a) The date, time, and location of the communication, and whether it was oral, written, or a
combination;
(b) The identities of each decisionmaker (or Commissioner's personal advisor) involved, the
person initiating the communication, and any persons present during such communication;
(c) A description of the interested person's, but not the decisionmaker's (or Commissioner's
personal advisor's), communication and its content, to which description shall be attached a copy
of any written, audiovisual, or other material used for or during the communication.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section
1701.1(c)(4)(C)(i)-(iii), Public Utilities Code.
8.5. (Rule 8.5) Ex Parte Requirements Prior to Final Categorization.
(a) Applications.
(1) The ex parte requirements applicable to ratesetting proceedings shall apply from the date
the application is filed through the date of the Commission's preliminary determination of
category pursuant to Rule 7.1(a).
(2) The ex parte requirements applicable to the category preliminarily determined by the
Commission pursuant to Rule 7.1(a) shall apply until the date of the assigned Commissioner's
scoping memo finalizing the determination of categorization pursuant to Rule 7.3.
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(b) Rulemakings. The ex parte requirements applicable to the category preliminarily determined
by the Commission pursuant to Rule 7.1(d) shall apply until the date of the assigned
Commissioner's ruling on scoping memo finalizing the determination of category pursuant to
Rule 7.3.
(c) Complaints. The ex parte requirements applicable to adjudicatory proceedings shall apply
until the date of service of the instructions to answer finalizing the determination of category
pursuant to Rule 7.1(b).
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.1(c)(4),
Public Utilities Code.
8.6. (Rule 8.6) Requirements in Proceedings Filed Before January 1, 1998.
The following requirements apply to proceedings filed before January 1, 1998:
(a) In any investigation or complaint where the order instituting investigation or complaint raises
the alleged violation of any provision of law or Commission order or rule, ex parte
communications and communications with Commissioners' personal advisors are prohibited after
the proceeding has been submitted to the Commission.
(b) Ex parte communications and communications with Commissioners' personal advisors are
permitted, and shall not be reported, in rulemakings and in investigations consolidated with
rulemakings to the extent that the investigation raises the identical issues raised in the
rulemaking.
(c) All other ex parte communications and communications with Commissioners' personal
advisors are permitted, and are subject to the reporting requirements of Rule 8.4.
(d) The Commission, or the assigned Administrative Law Judge with the approval of the
assigned Commissioner, may issue a ruling tailoring these requirements to the needs of any
specific proceeding.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.1(c)(4),
Public Utilities Code.
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ARTICLE 9. ADMINISTRATIVE LAW JUDGES
9.1. (Rule 9.1) Authority.
The Administrative Law Judge may administer oaths; issue subpoenas; receive evidence; hold
appropriate conferences before or during hearings; rule upon all objections or motions which do
not involve final determination of proceedings; receive offers of proof; hear argument; and fix
the time for the filing of briefs. The Administrative Law Judge may take such other action as
may be necessary and appropriate to the discharge of his duties, consistent with the statutory or
other authorities under which the Commission functions and with the rules and policies of the
Commission.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701, Public
Utilities Code.
9.2. (Rule 9.2) Motion for Reassignment on Peremptory Challenge.
(a) A party to a proceeding preliminarily or finally determined to be adjudicatory may file a
motion, once only, for automatic reassignment of that proceeding to another Administrative Law
Judge in accordance with the provisions of this subsection. The motion shall be filed and served
on all parties, and on the Chief Administrative Law Judge and the President of the Commission.
The motion shall be supported by declaration under penalty of perjury (or affidavit by an out-ofstate person) in substantially the following form:
_______________, [declares under penalty of perjury:] That [s]he is [a party] [attorney for a
party] to the above-captioned adjudicatory proceeding. That [declarant] believes that [s]he
cannot have a [fair] [expeditious] hearing before Administrative Law Judge [to whom the
proceeding is assigned]. That declarant [or the party declarant represents] has not filed,
pursuant to Rule 9.2, any prior motion for reassignment on peremptory challenge in the
proceeding. Dated _______________, at ________________, California.
____________________ [Signature]
Where there is more than one complainant or similar party, or more than one defendant or
similar party, only one peremptory challenge for each side may be made, and the declaration
shall include a showing that either (1) no previous peremptory challenge has been filed in the
proceeding, or (2) the interests of the moving party are substantially adverse to those of any party
who previously moved for reassignment under this rule.
(b) A party to a proceeding preliminarily or finally determined to be ratesetting, or a person
filing a concurrent motion to become a party under Rule 1.4(a)(4), may file a motion, once only,
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20
for reassignment of that proceeding to another Administrative Law Judge in accordance with the
provisions of this subsection; however, no more than two reassignments pursuant to this
subsection shall be permitted in the same proceeding. The motion shall be filed and served as
provided in subsection (a) of this rule, and shall be supported by a declaration similar in form
and substance to that set forth in subsection (a) of this rule.
(c) Any motion filed pursuant to this rule shall be filed no later than 10 days after the date of the
notice of the assignment or ruling, if any, on reassignment.
(d) The Chief Administrative Law Judge shall issue either a ruling reassigning the proceeding to
another Administrative Law Judge or, in consultation with the President of the Commission, a
ruling explaining why the motion is not proper under this rule.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.2, Public
Utilities Code.
9.3. (Rule 9.3) Motion for Reassignment for Prior Service.
(a) Irrespective of the limits in Rule 9.2 on number of motions for reassignment, a party may
move for reassignment in any adjudicatory proceeding or ratesetting proceeding in which the
assigned Administrative Law Judge (1) has, within the previous 12 months, served in any
capacity in an advocacy position at the Commission or been employed by a regulated public
utility, or (2) has been a party or served in a representative capacity in the proceeding.
(b) A motion under this subsection shall be supported by declaration under penalty of perjury (or
affidavit by an out-of-state person) setting forth the factual basis for the motion, and shall be
filed and served as provided in Rule 9.2(a).
(c) Any motion filed pursuant to this rule shall be filed no later than 10 days after the date of the
notice of the assignment.
(d) The Chief Administrative Law Judge shall issue either a ruling reassigning the proceeding to
another Administrative Law Judge or, in consultation with the President of the Commission, a
ruling explaining the basis for denial of the motion.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.2, Public
Utilities Code.
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9.4. (Rule 9.4) Motion for Reassignment for Cause.
(a) Irrespective of the limits in Rule 9.2 on number of motions for reassignment, a party may
move for reassignment in any proceeding in which the assigned Administrative Law Judge:
(1) has a financial interest in the subject matter in a proceeding or in a party to the
proceeding. An Administrative Law Judge shall be deemed to have a financial interest if:
(A) A spouse or minor child living in the Administrative Law Judge's household has a
financial interest; or
(B) The Administrative Law Judge or his or her spouse is a fiduciary who has a financial
interest.
(2) has bias, prejudice, or interest in the proceeding.
(b) A motion filed pursuant to this rule shall be supported by a declaration under penalty of
perjury (or affidavit by an out-of-state person) setting forth the factual basis for the motion, and
shall be filed and served as provided in Rule 9.2(a).
(c) A motion filed pursuant to this rule shall be filed at the earliest practicable opportunity and in
any event no later than 10 days after the date the party discovered or should have discovered
facts set forth in the declaration filed pursuant to this rule.
(d) Any written response by the assigned Administrative Law Judge to a motion for reassignment
for cause shall be filed and served in the proceeding where the motion was filed.
(e) The Chief Administrative Law Judge, in consultation with the President of the Commission,
and after considering any response from the assigned Administrative Law Judge, shall issue a
ruling addressing the motion.
(f) For the purposes of this rule, "financial interest" means ownership of more than a 1 percent
legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market
value in excess of one thousand five hundred dollars ($1,500), or a relationship as director,
advisor or other active participant in the affairs of a party, except as follows:
(1) Ownership in a mutual or common investment fund that holds securities is not a "financial
interest" in those securities held by the organization unless the Administrative Law Judge
participates in the management of the fund.
(2) An office in an educational, religious, charitable, fraternal, or civic organization is not a
"financial interest" in securities held by the organization.
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(3) The proprietary interest of a policyholder in a mutual insurance company, or a depositor in
a mutual savings association, or a similar proprietary interest, is a "financial interest" in the
organization only if the outcome of the proceeding could substantially affect the value of the
interest.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.2, Public
Utilities Code.
9.5. (Rule 9.5) Circumstances Not Constituting Cause.
It shall not be cause for reassignment for cause that the Administrative Law Judge:
(a) Is or is not a member of a racial, ethnic, religious, sexual or similar group and the proceeding
involves the rights of such a group.
(b) Has experience, technical competence, or specialized knowledge of or has in any capacity
expressed a view on a legal, factual or policy issue presented in the proceeding, except as
provided in Rule 9.3.
(c) Has, as a representative or public official participated in the drafting of laws or regulations or
in the effort to pass or defeat laws or regulations, the meaning, effect, or application of which is
in issue in the proceeding unless the Administrative Law Judge believes that the prior
involvement was such as to prevent the Administrative Law Judge from exercising unbiased and
impartial judgment in the proceeding.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.2, Public
Utilities Code.
9.6. (Rule 9.6) Administrative Law Judge's Request for Reassignment.
The Administrative Law Judge shall request reassignment and withdraw from a proceeding in
which there are grounds for reassignment for cause unless the parties waive the reassignment
pursuant to Rule 9.7.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.2, Public
Utilities Code.
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23
9.7. (Rule 9.7) Waiver.
An Administrative Law Judge, after determining that there is basis for his or her reassignment
for cause, shall disclose the basis on the record, and may ask the parties whether they wish to
waive the reassignment. A waiver of reassignment shall recite the basis for reassignment and is
effective only when signed by all parties, and included in the record. The Administrative Law
Judge shall not seek to induce a waiver and shall avoid any effort to discover which
representatives or parties favored or opposed a waiver of reassignment.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.2, Public
Utilities Code.
9.8. (Rule 9.8) Prior Rulings.
If a proceeding is reassigned, the rulings made up to that time shall not be set aside in the
absence of good cause.
Note: Authority cited: Section 1701, Public Utilities Code. Reference: Section 1701.2, Public
Utilities Code.
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Administrative Procedure Act
Applicable to California Energy Commission and California Air
Resources Board
GOVERNMENT CODE
SECTION 11400-11400.20 PRELIMINARY PROVISIONS
11400. (a) This chapter and Chapter 5 (commencing with Section 11500) constitute the
administrative adjudication provisions of the Administrative Procedure Act.
(b) A reference in any other statute or in a rule of court, executive order, or regulation, to a
provision formerly found in Chapter 5 (commencing with Section 11500) that is superseded by a
provision of this chapter, means the applicable provision of this chapter.
11400.10. (a) This chapter is operative on July 1, 1997.
(b) This chapter is applicable to an adjudicative proceeding commenced on or after July 1,
1997.
(c) This chapter is not applicable to an adjudicative proceeding commenced before July 1,
1997, except an adjudicative proceeding conducted on a remand from a court or another agency
on or after July 1, 1997.
11400.20. (a) Before, on, or after July 1, 1997, an agency may adopt interim or permanent
regulations to govern an adjudicative proceeding under this chapter or Chapter 5 (commencing
with Section 11500). Nothing in this section authorizes an agency to adopt regulations to govern
an adjudicative proceeding required to be conducted by an administrative law judge employed by
the Office of Administrative Hearings, except to the extent the regulations are otherwise
authorized by statute.
(b) Except as provided in Section 11351:
(1) Interim regulations need not comply with Article 5 (commencing with Section 11346) or
Article 6 (commencing with Section 11349) of Chapter 3.5, but are governed by Chapter 3.5
(commencing with Section 11340) in all other respects.
(2) Interim regulations expire on December 31, 1998, unless earlier terminated or replaced by
or readopted as permanent regulations under paragraph (3). If on December 31, 1998, an agency
has completed proceedings to replace or readopt interim regulations and has submitted
permanent regulations for review by the Office of Administrative Law, but permanent
regulations have not yet been filed with the Secretary of State, the interim regulations are
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25
extended until the date permanent regulations are filed with the Secretary of State or March 31,
1999, whichever is earlier.
(3) Permanent regulations are subject to all the provisions of Chapter 3.5 (commencing with
Section 11340), except that if by December 31, 1998, an agency has submitted the regulations
for review by the Office of Administrative Law, the regulations are not subject to review for
necessity under Section 11349.1 or 11350.
GOVERNMENT CODE
SECTION 11410.10-11410.20 APPLICATION OF CHAPTER
11410.10. This chapter applies to a decision by an agency if, under the federal or state
Constitution or a federal or state statute, an evidentiary hearing for determination of facts is
required for formulation and issuance of the decision.
11410.20. Except as otherwise expressly provided by statute:
(a) This chapter applies to all agencies of the state.
(b) This chapter does not apply to the Legislature, the courts or judicial branch, or the
Governor or office of the Governor.
GOVERNMENT CODE
SECTION 11425.10-11425.60 ADMINISTRATIVE ADJUDICATION BILL OF RIGHTS
11425.10. (a) The governing procedure by which an agency conducts an adjudicative
proceeding is subject to all of the following requirements:
(1) The agency shall give the person to which the agency action is directed notice and an
opportunity to be heard, including the opportunity to present and rebut evidence.
(2) The agency shall make available to the person to which the agency action is directed a copy
of the governing procedure, including a statement whether Chapter 5 (commencing with Section
11500) is applicable to the proceeding.
(3) The hearing shall be open to public observation as provided in Section 11425.20.
(4) The adjudicative function shall be separated from the investigative, prosecutorial, and
advocacy functions within the agency as provided in Section 11425.30.
(5) The presiding officer is subject to disqualification for bias, prejudice, or interest as
provided in Section 11425.40.
(6) The decision shall be in writing, be based on the record, and include a statement of the
factual and legal basis of the decision as provided in Section 11425.50.
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(7) A decision may not be relied on as precedent unless the agency designates and indexes the
decision as precedent as provided in Section 11425.60.
(8) Ex parte communications shall be restricted as provided in Article 7 (commencing with
Section 11430.10).
(9) Language assistance shall be made available as provided in Article 8 (commencing with
Section 11435.05) by an agency described in Section 11018 or 11435.15.
(b) The requirements of this section apply to the governing procedure by which an agency
conducts an adjudicative proceeding without further action by the agency, and prevail over a
conflicting or inconsistent provision of the governing procedure, subject to Section 11415.20.
The governing procedure by which an agency conducts an adjudicative proceeding may include
provisions equivalent to, or more protective of the rights of the person to which the agency
action is directed than, the requirements of this section.
11425.20. (a) A hearing shall be open to public observation.
Nothing in this subdivision limits the authority of the presiding officer to order closure of a
hearing or make other protective orders to the extent necessary or proper for any of the following
purposes:
(1) To satisfy the United States Constitution, the California Constitution, federal or state
statute, or other law, including but not limited to laws protecting privileged, confidential, or other
protected information.
(2) To ensure a fair hearing in the circumstances of the particular case.
(3) To conduct the hearing, including the manner of examining witnesses, in a way that is
appropriate to protect a minor witness or a witness with a developmental disability, as defined in
Section 4512 of the Welfare and Institutions Code, from intimidation or other harm, taking into
account the rights of all persons.
(b) To the extent a hearing is conducted by telephone, television, or other electronic means,
subdivision (a) is satisfied if members of the public have an opportunity to do both of the
following:
(1) At reasonable times, hear or inspect the agency's record, and inspect any transcript obtained
by the agency.
(2) Be physically present at the place where the presiding officer is conducting the hearing.
(c) This section does not apply to a prehearing conference, settlement conference, or
proceedings for alternative dispute resolution other than binding arbitration.
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11425.30. (a) A person may not serve as presiding officer in an adjudicative proceeding in any
of the following circumstances:
(1) The person has served as investigator, prosecutor, or advocate in the proceeding or its
preadjudicative stage.
(2) The person is subject to the authority, direction, or discretion of a person who has served as
investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.
(b) Notwithstanding subdivision (a):
(1) A person may serve as presiding officer at successive stages of an adjudicative proceeding.
(2) A person who has participated only as a decisionmaker or as an advisor to a decisionmaker
in a determination of probable cause or other equivalent preliminary determination in an
adjudicative proceeding or its preadjudicative stage may serve as presiding officer in the
proceeding.
(c) The provisions of this section governing separation of functions as to the presiding officer
also govern separation of functions as to the agency head or other person or body to which the
power to hear or decide in the proceeding is delegated.
11425.40. (a) The presiding officer is subject to disqualification for bias, prejudice, or interest in
the proceeding.
(b) It is not alone or in itself grounds for disqualification, without further evidence of bias,
prejudice, or interest, that the presiding officer:
(1) Is or is not a member of a racial, ethnic, religious, sexual, or similar group and the
proceeding involves the rights of that group.
(2) Has experience, technical competence, or specialized knowledge of, or has in any capacity
expressed a view on, a legal, factual, or policy issue presented in the proceeding.
(3) Has as a lawyer or public official participated in the drafting of laws or regulations or in the
effort to pass or defeat laws or regulations, the meaning, effect, or application of which is in
issue in the proceeding.
(c) The provisions of this section governing disqualification of the presiding officer also
govern disqualification of the agency head or other person or body to which the power to hear or
decide in the proceeding is delegated.
(d) An agency that conducts an adjudicative proceeding may provide by regulation for
peremptory challenge of the presiding officer.
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28
11425.50. (a) The decision shall be in writing and shall include a statement of the factual and
legal basis for the decision.
(b) The statement of the factual basis for the decision may be in the language of, or by
reference to, the pleadings. If the statement is no more than mere repetition or paraphrase of the
relevant statute or regulation, the statement shall be accompanied by a concise and explicit
statement of the underlying facts of record that support the decision. If the factual basis for the
decision includes a determination based substantially on the credibility of a witness, the
statement shall identify any specific evidence of the observed demeanor, manner, or attitude of
the witness that supports the determination, and on judicial review the court shall give great
weight to the determination to the extent the determination identifies the observed demeanor,
manner, or attitude of the witness that supports it.
(c) The statement of the factual basis for the decision shall be based exclusively on the
evidence of record in the proceeding and on matters officially noticed in the proceeding. The
presiding officer's experience, technical competence, and specialized knowledge may be used in
evaluating evidence.
(d) Nothing in this section limits the information that may be contained in the decision,
including a summary of evidence relied on.
(e) A penalty may not be based on a guideline, criterion, bulletin, manual, instruction, order,
standard of general application or other rule subject to Chapter 3.5 (commencing with Section
11340) unless it has been adopted as a regulation pursuant to Chapter 3.5 (commencing with
Section 11340).
11425.60. (a) A decision may not be expressly relied on as precedent unless it is designated as a
precedent decision by the agency.
(b) An agency may designate as a precedent decision a decision or part of a decision that
contains a significant legal or policy determination of general application that is likely to recur.
Designation of a decision or part of a decision as a precedent decision is not rulemaking and
need not be done under Chapter 3.5 (commencing with Section 11340). An agency's designation
of a decision or part of a decision, or failure to designate a decision or part of a decision, as a
precedent decision is not subject to judicial review.
(c) An agency shall maintain an index of significant legal and policy determinations made in
precedent decisions. The index shall be updated not less frequently than annually, unless no
precedent decision has been designated since the last preceding update. The index shall be made
available to the public by subscription, and its availability shall be publicized annually in the
California Regulatory Notice Register.
(d) This section applies to decisions issued on or after July 1, 1997. Nothing in this section
precludes an agency from designating and indexing as a precedent decision a decision issued
before July 1, 1997.
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29
GOVERNMENT CODE
SECTION 11430.10-11430.80 EX PARTE COMMUNICATIONS
11430.10. (a) While the proceeding is pending there shall be no communication, direct or
indirect, regarding any issue in the proceeding, to the presiding officer from an employee or
representative of an agency that is a party or from an interested person outside the agency,
without notice and opportunity for all parties to participate in the communication.
(b) Nothing in this section precludes a communication, including a communication from an
employee or representative of an agency that is a party, made on the record at the hearing.
(c) For the purpose of this section, a proceeding is pending from the issuance of the agency's
pleading, or from an application for an agency decision, whichever is earlier.
11430.20. A communication otherwise prohibited by Section 11430.10 is permissible in any of
the following circumstances:
(a) The communication is required for disposition of an ex parte matter specifically authorized
by statute.
(b) The communication concerns a matter of procedure or practice, including a request for a
continuance, that is not in controversy.
11430.30. A communication otherwise prohibited by Section 11430.10 from an employee or
representative of an agency that is a party to the presiding officer is permissible in any of the
following circumstances:
(a) The communication is for the purpose of assistance and advice to the presiding officer from
a person who has not served as investigator, prosecutor, or advocate in the proceeding or its
preadjudicative stage. An assistant or advisor may evaluate the evidence in the record but shall
not furnish, augment, diminish, or modify the evidence in the record.
(b) The communication is for the purpose of advising the presiding officer concerning a
settlement proposal advocated by the advisor.
(c) The communication is for the purpose of advising the presiding officer concerning any of
the following matters in an adjudicative proceeding that is nonprosecutorial in character:
(1) The advice involves a technical issue in the proceeding and the advice is necessary for, and
is not otherwise reasonably available to, the presiding officer, provided the content of the advice
is disclosed on the record and all parties are given an opportunity to address it in the manner
provided in Section 11430.50.
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30
(2) The advice involves an issue in a proceeding of the San Francisco Bay Conservation and
Development Commission, California Tahoe Regional Planning Agency, Delta Protection
Commission, Water Resources Control Board, or a regional water quality control board.
11430.40. If, while the proceeding is pending but before serving as presiding officer, a person
receives a communication of a type that would be in violation of this article if received while
serving as presiding officer, the person, promptly after starting to serve, shall disclose the content
of the communication on the record and give all parties an opportunity to address it in the
manner provided in Section 11430.50.
11430.50. (a) If a presiding officer receives a communication in violation of this article, the
presiding officer shall make all of the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written response of the presiding
officer to the communication.
(2) If the communication is oral, a memorandum stating the substance of the communication,
any response made by the presiding officer, and the identity of each person from whom the
presiding officer received the communication.
(b) The presiding officer shall notify all parties that a communication described in this section
has been made a part of the record.
(c) If a party requests an opportunity to address the communication within 10 days after receipt
of notice of the communication:
(1) The party shall be allowed to comment on the communication.
(2) The presiding officer has discretion to allow the party to present evidence concerning the
subject of the communication, including discretion to reopen a hearing that has been concluded.
11430.60. Receipt by the presiding officer of a communication in violation of this article may be
grounds for disqualification of the presiding officer. If the presiding officer is disqualified, the
portion of the record pertaining to the ex parte communication may be sealed by protective order
of the disqualified presiding officer.
11430.70. (a) Subject to subdivisions (b) and (c), the provisions of this article governing ex
parte communications to the presiding officer also govern ex parte communications in an
adjudicative proceeding to the agency head or other person or body to which the power to hear or
decide in the proceeding is delegated.
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31
(b) An ex parte communication to the agency head or other person or body to which the power
to hear or decide in the proceeding is delegated is permissible in an individualized ratemaking
proceeding if the content of the communication is disclosed on the record and all parties are
given an opportunity to address it in the manner provided in Section 11430.50.
(c) An ex parte communication to the agency head or other person or body to which the power
to hear or decide in the proceeding is delegated is permissible in an individualized determination
of an application for site certification pursuant to Chapter 6 (commencing with Section 25500) of
Division 15 of the Public Resources Code, that is before the State Energy Resources
Conservation and Development Commission, if the communication is made by an employee of
another state agency and is made for the purpose of enabling the presiding officer to effectively
manage the proceeding.
11430.80. (a) There shall be no communication, direct or indirect, while a proceeding is pending
regarding the merits of any issue in the proceeding, between the presiding officer and the agency
head or other person or body to which the power to hear or decide in the proceeding is delegated.
(b) This section does not apply where the agency head or other person or body to which the
power to hear or decide in the proceeding is delegated serves as both presiding officer and
agency head, or where the presiding officer does not issue a decision in the proceeding.
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32
Title 20 California Code of Regulations
Applicable to the California Energy Commission
20 CCR § 1216
§ 1216. Ex Parte Contacts.
(a) The ex parte provisions of Article 7 of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the
Government Code (sections 11430.10 et seq.) apply to all adjudicative proceedings conducted by
the commission. For purposes of this section “presiding officer” means all commissioners and all
hearing advisors.
(b) An adviser to a commissioner or any other member of a commissioner's own staff shall not
be used in any manner that would circumvent the purposes and intent of this section.
Note: Authority cited: Section 25213, Public Resources Code. Reference: Sections 11430.1011430.80, Government Code; and Section 25210, Public Resources Code.
HISTORY
1. Repealer of Section 1216 and renumbering and amendment of former Section 1218 to Section
1216 filed 1-11-83; designated effective 2-1-83 pursuant to Government Code Section
11346.2(d) (Register 83, No. 3).
2. Amendment of section and Note filed 3-28-2007; operative 3-28-2007 pursuant to
Government Code section 11343.4 (Register 2007, No. 13).
This database is current through 8/7/15 Register 2015, No. 32
20 CCR § 1216, 20 CA ADC § 1216
20 CCR § 1710
§ 1710. Noticing Procedures; Setting of Hearings, Presentations, Conferences, Meetings,
Workshops, and Site Visits.
(a) All hearings, presentations, conferences, meetings, workshops, and site visits shall be open to
the public and noticed as required by subsection (b); provided, however, these requirements do
not apply to communications between parties, including staff, for the purpose of exchanging
information or discussing procedural issues. Information includes facts, data, measurements,
calculations and analyses related to the project. Discussions between the staff and any other party
to modify the staff's position or recommendations regarding substantive issues shall be noticed.
The staff may also meet with any governmental agency, not a party to the proceedings, for the
purpose of discussing any matter related to the project without public notice.
(b) Except for the hearing conducted pursuant to Section 1809(a) and the workshop pursuant to
Section 1709.5(d), notice of the initial public hearing on a notice or application shall be mailed
{01007160}
33
or otherwise delivered fourteen (14) days prior to the first such hearing to the applicant,
intervenors, and to all persons who have requested notice in writing. Except for continued
hearings, notices shall, to the extent possible, be mailed at least fourteen (14) days in advance,
and in no case less than ten (10) days in advance.
(c) The public adviser shall be consulted in the scheduling of locations, times, and dates for all
noticed hearings, presentations, conferences, meetings, workshops, and site visits so as to
encourage maximum public participation.
(d) Notices of Committee hearings, conferences, and meetings shall be signed by a member of
the committee or specific designee thereof. Notices of staff workshops, conferences, and
meetings shall be signed by the Executive Director or a Deputy Director, unless, in a specific
proceeding, the Committee or Commission orders otherwise.
(e) The public adviser shall be afforded a reasonable opportunity to review all notices of
hearings, presentations, conferences, meetings, workshops, and site visits for timeliness,
completeness, clarity, and adequacy of dissemination.
(f) Publicly noticed hearings, presentations, conferences, meetings, workshops, and site visits
may be continued from the date, time, and place originally scheduled to a future date, time, and
place, by posting notice at the door in the same manner as provided by Government Code section
11129. If the continuance is to a date ten days or more in the future, then notice shall also be
provided by mail as provided in subdivision (b).
(g) Publicly noticed hearings, presentations, conferences, meetings, workshops, and site visits
may be canceled for good reason, provided the following requirements are met:
(1) A notice of cancellation shall be posted at the door in the same manner as provided by
Government Code section 11129.
(2) A notice of cancellation shall be mailed as provided in subdivision (b).
(3) If the notice of cancellation is mailed less than ten (10) days before the originally noticed
date, then the staff shall work with the public adviser to ensure that notice is provided to all
interested parties by the best means available.
Note: Authority cited: Section 25213, Public Resources Code. Reference: Section 11129,
Government Code; and Sections 25216.5 and 25222, Public Resources Code.
HISTORY
1. Amendment of subsection (b) filed 1-28-81; effective thirtieth day thereafter (Register 81, No.
5).
2. Amendment of subsections (b) and (d) filed 1-11-83; designated effective 2-1-83 pursuant to
Government Code section 11346.2(d) (Register 83, No. 3).
3. Amendment of subsections (b)-(c) and Note and new subsections (f)-(h) filed 8-10-93;
operative 9-9-93 (Register 93, No. 33).
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34
4. Amendment of subsections (a)-(c), (f) and (g) and repealer of subsection (h) filed 3-8-2002;
operative 4-7-2002 (Register 2002, No. 10).
{01007160}
35
Title 17 California Code of Regulations
Applicable to the California Air Resources Board
17 CCR § 60055.13
§ 60055.13. Prohibited Communications. (Procedures forPetitions for Review of Executive
Officer Decisions)
(a) Except as otherwise provided in this section, while the proceeding is pending, the hearing
officer shall not participate in any communications with any party, representative of a party, or
any person who has a direct or indirect interest in the outcome of the proceeding about the
subject matter or merits of the case at issue, without notice and opportunity of all parties, to
participate in communication except a party that has been determined to be in default pursuant to
section 60055.37.
(b) No pleading, letter, document, or other writing shall be filed in a proceeding under these rules
by a party unless service of a copy thereof together with any exhibit or attachment is made on all
other parties to a proceeding. Service shall be in a manner as prescribed in section 60055.5.
(c) For the purpose of this section, a proceeding is pending from the time that the petition for
review of an executive officer decision is filed.
(d) Communications prohibited under paragraph (a) do not include communications concerning
matters of procedure or practice, including requests for continuances that are not in controversy.
It also does not prohibit communications between a party and the hearing officer when the
opposing party has had a default entered pursuant to section 60055.37.
(e) A communication between a hearing officer and an employee of the state board that would
otherwise be prohibited by this section is permissible if:
(1) The employee is another hearing officer or other employee of the hearing office whose job
duties include aiding the hearing officer in carrying out the hearing officer's adjudicative
responsibilities. Upon request, the hearing office will provide a list of employees of the hearing
office to the parties.
(2) The employee of the state board has not served as an investigator, prosecutor, or advocate in
the proceeding or its preadjudicative stage, or in any factually related proceedings, and the
purpose of the communication is to assist and advise the hearing officer in determining whether a
document is a confidential business record (i.e., trade secrets). In obtaining such assistance and
advice, the hearing officer shall give notice to the parties of the person consulted and shall
provide the parties with as detailed a summary as possible of the substance of the advice
received, while protecting the confidentiality of the business records at issue, and a reasonable
opportunity to respond.
{01007160}
36
(3) The prohibitions of paragraph (a) that apply to the hearing officer shall also apply to all
employees covered by subparagraphs (1) and (2) above.
(4) Communications permitted under subparagraphs (1) and (2) above shall not furnish, augment,
diminish, or modify the evidence in the record.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews
v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections
11430.70-11430.80, Government Code.
HISTORY
1. New subarticle 3 (sections 60055.13-60055.15) and section filed 9-1-99; operative 10-1-99
(Register 99, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60055.13, 17 CA ADC § 60055.13
17 CCR § 60055.14
§ 60055.14. Disclosure of Communication.
(a) If, while the proceeding is pending, but before serving as hearing officer, the hearing officer
receives a communication of a type that would be in violation of this subarticle if received while
serving as hearing officer, he or she shall, promptly after starting to serve, disclose the content of
the communication on the record and give all parties an opportunity to address it as provided
below.
(b) If a hearing officer receives a communication in violation of this article, the hearing officer
shall make all of the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written response of the hearing officer to
the communication; and
(2) If the communication is oral, a memorandum stating the substance of the communication, any
response made by the hearing officer, and the identity of each person from whom the hearing
officer received the communication.
(c) The hearing officer shall notify all parties that a communication described in this section has
been made a part of the record.
(d) If a party requests an opportunity to address the communication within ten days after receipt
of notice of the communication:
(1) The party shall be allowed to comment on the communication.
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37
(2) The hearing officer has discretion to allow the party to present evidence concerning the
subject of the communication, including discretion to reopen a hearing that hearing having been
concluded.
(e) Receipt of ex parte communications may be cause for disqualification of the hearing officer.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews
v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections 11340.111340.5, Government Code.
HISTORY
1. New section filed 9-1-99; operative 10-1-99 (Register 99, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60055.14, 17 CA ADC § 60055.14
17 CCR § 60055.15
§ 60055.15. Applicability to the State Board.
The provision of Subarticle 3 governing ex parte communications to the hearing officer also
governs ex parte communications with members of the state board on matters that may come
before them pursuant to Subarticles 4 and 9. Nothing in this provision shall be construed to
prohibit ex parte communications, after a proposed decision has been forwarded to the state
board, between members of the state board and the hearing officer who prepared the decision, a
hearing officer from the State Office of Administrative Hearings (OAH) not previously involved
in the case, or outside legal counsel to the state board. Nor shall anything in this provision be
construed to prohibit communications between members of the state board and staff of the state
board (including staff counsel), provided reasonable notice and opportunity to participate in such
communications either in person or by telephone has been provided to all parties. For purposes
of this section, reasonable notice shall be deemed as 24-hours or greater advance notice.
Note: Authority cited: Sections 39600 and 39601, Health and Safety Code. Reference: Mathews
v. Eldridge, 424 U.S. 319 (1976); Section 43105, Health and Safety Code; and Sections
11430.70-11430.80 Government Code.
HISTORY
1. New section filed 9-1-99; operative 10-1-99 (Register 99, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60055.15, 17 CA ADC § 60055.15
17 CCR § 60065.13
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38
§ 60065.13. Prohibited Communications. (Review of Complaints)
(a) Except as otherwise provided in this section, while the proceeding is pending, the hearing
officer shall not participate in any communications with any party, representative of a party, or
any person who has a direct or indirect interest in the outcome of the proceeding about the
subject matter or merits of the case at issue, without notice and opportunity of all parties, to
participate in communication except a party that has been determined to be in default pursuant to
section 60065.38.
(b) No pleading, letter, document, or other writing shall be filed in a proceeding under these rules
by a party unless service of a copy thereof together with any exhibit or attachment is made on all
other parties to a proceeding. Service shall be in a manner as prescribed in section 60065.5.
(c) For the purpose of this section, a proceeding is pending from the time that the complaint is
filed.
(d) Communications prohibited under paragraph (a) do not include communications concerning
matters of procedure or practice, including requests for continuances that are not in controversy.
It also does not prohibit communications between a party and the hearing officer when the
opposing party has had a default entered pursuant to section 60065.38.
(e) A communication between a hearing officer and an employee of the state board that would
otherwise be prohibited by this section is permissible if:
(1) The employee is another hearing officer or other employee of the hearing office whose job
duties include aiding the hearing officer in carrying out the hearing officer's adjudicative
responsibilities. Upon request, the hearing office will provide a list of employees of the hearing
office to the parties.
(2) The employee of the state board has not served as an investigator, prosecutor, or advocate in
the proceeding or its preadjudicative stage, or in any factually related proceedings, and the
purpose of the communication is to assist and advise the hearing officer in determining whether a
document is a confidential business record (i.e., trade secrets). In obtaining such assistance and
advice, the hearing officer shall give notice to the parties of the person consulted and shall
provide the parties with as detailed a summary as possible of the substance of the advice
received, while protecting the confidentiality of the business records at issue, and a reasonable
opportunity to respond.
(3) The prohibitions of paragraph (a) that apply to the hearing officer shall also apply to all
employees covered by subparagraphs (1) and (2) above.
(4) Communications permitted under subparagraphs (1) and (2) above shall not furnish, augment,
diminish, or modify the evidence in the record.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and
Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023,
43028 and 43031(a), Health and Safety Code; and Sections 11430.70-11430.80, Government
Code.
{01007160}
39
HISTORY
1. New subarticle 3 (sections 60065.13-60065.15) and section filed 9-1-99; operative 10-1-99
(Register 99, No. 36).
2. Amendment of subsection (c) and amendment of Note filed 9-4-2003; operative 10-4-2003
(Register 2003, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60065.13, 17 CA ADC § 60065.13
17 CCR § 60065.14
§ 60065.14. Disclosure of Communication.
(a) If, while the proceeding is pending, but before serving as hearing officer, the hearing officer
receives a communication of a type that would be in violation of this subarticle if received while
serving as hearing officer, he or she shall, promptly after starting to serve, disclose the content of
the communication on the record and give all parties an opportunity to address it as provided
below.
(b) If a hearing officer receives a communication in violation of this article, the hearing officer
shall make all of the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written response of the hearing officer to
the communication; and
(2) If the communication is oral, a memorandum stating the substance of the communication, any
response made by the hearing officer, and the identity of each person from whom the hearing
officer received the communication.
(c) The hearing officer shall notify all parties that a communication described in this section has
been made a part of the record.
(d) If a party requests an opportunity to address the communication within ten days after receipt
of notice of the communication:
(1) The party shall be allowed to comment on the communication.
(2) The hearing officer has discretion to allow the party to present evidence concerning the
subject of the communication, including discretion to reopen a hearing that hearing having been
concluded.
(e) Receipt of ex parte communications may be cause for disqualification of the hearing officer.
Note: Authority cited: Sections 39600 and 39601, 42410, 43023, 43028 and 43031(a), Health
and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023,
43028 and 43031(a), Health and Safety Code; and Sections 11340.1-11340.5, Government Code.
{01007160}
40
HISTORY
1. New section filed 9-1-99; operative 10-1-99 (Register 99, No. 36).
2. Amendment of Note filed 9-4-2003; operative 10-4-2003 (Register 2003, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60065.14, 17 CA ADC § 60065.14
17 CCR § 60065.15
§ 60065.15. Applicability to Executive Officer.
(a) The provision of Subarticle 3 governing ex parte communications to the hearing officer also
governs ex parte communications with the executive officer on matters that may come before
him or her pursuant to Subarticle 9. Irrespective of the prohibitions of section 60065.13(a), the
executive officer may consult with state board personnel who are not involved as an investigator,
prosecutor, or advocate in the proceedings or preadjudicative proceedings of the matter before
the executive officer, or in a factually related case, and whose job duties include assisting the
executive officer in his or her adjudicative responsibilities.
(b) Except as otherwise provided in these procedures, while a proceeding is pending, the hearing
officer shall have no communication, direct or indirect, with the members of the state board
regarding the merits of any issue in the proceeding.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and
Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023,
43028 and 43031(a). Health and Safety Code; and Sections 11430.70-11430.80 Government
Code.
HISTORY
1. New section filed 9-1-99; operative 10-1-99 (Register 99, No. 36).
2. Amendment of Note filed 9-4-2003; operative 10-4-2003 (Register 2003, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60065.15, 17 CA ADC § 60065.15
17 CCR § 60075.14
§ 60075.14. Prohibited Communications. (Review of Citations)
(a) Except as otherwise provided in this section, while the proceeding is pending, the hearing
officer shall not participate in any communications with any party, representative of a party, or
any person who has a direct or indirect interest in the outcome of the proceeding about the
{01007160}
41
subject matter or merits of the case at issue, without notice and opportunity of all parties, to
participate in communication except a party that has been determined to be in default pursuant to
section 60075.38.
(b) No pleading, letter, document, or other writing shall be filed in a proceeding under these rules
by a party unless service of a copy thereof together with any exhibit or attachment is made on all
other parties to a proceeding. Service shall be in a manner as prescribed in section 60075.4.
(c) For the purpose of this section, a proceeding is pending from the time that the petition for
review of an executive officer decision is filed.
(d) Communications prohibited under paragraph (a) do not include communications concerning
matters of procedure or practice, including requests for continuances that are not in controversy.
It also does not prohibit communications between a party and the hearing officer when the
opposing party has had a default entered pursuant to section 60075.38.
(e) A communication between a hearing officer and an employee of the state board that would
otherwise be prohibited by this section is permissible if:
(1) The employee is another hearing officer or other employee of the hearing office whose job
duties include aiding the hearing officer in carrying out the hearing officer's adjudicative
responsibilities. Upon request, the hearing office will provide a list of employees of the hearing
office to the parties.
(2) The employee of the state board has not served as an investigator, prosecutor, or advocate in
the proceeding or its preadjudicative stage, or in any factually related proceedings, and the
purpose of the communication is to assist and advise the hearing officer in determining whether a
document is a confidential business record (i.e., trade secrets). In obtaining such assistance and
advice, the hearing officer shall give notice to the parties of the person consulted and shall
provide the parties with as detailed a summary as possible of the substance of the advice
received, while protecting the confidentiality of the business records at issue, and a reasonable
opportunity to respond.
(3) The prohibitions of paragraph (a) that apply to the hearing officer shall also apply to all
employees covered by subparagraphs (1) and (2) above.
(4) Communications permitted under subparagraphs (1) and (2) above shall not furnish, augment,
diminish, or modify the evidence in the record.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, and 43031(a). Health and
Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023,
43028 and 43031(a). Health and Safety Code; and Sections 11430.70-11430.80, Government
Code.
HISTORY
1. New section filed 11-27-91; operative 11-27-91 pursuant to Government Code section
11346.2(d) (Register 92, No. 8).
{01007160}
42
2. New subarticle 4, renumbering of former section 60075.14 to section 60075.21 and new
section 60075.14 filed 9-1-99; operative 10-1-99 (Register 99, No. 36).
3. Amendment of Note filed 9-4-2003; operative 10-4-2003 (Register 2003, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60075.14, 17 CA ADC § 60075.14
17 CCR § 60075.15
§ 60075.15. Disclosure of Communication.
(a) If, while the proceeding is pending, but before serving as hearing officer, the hearing officer
receives a communication of a type that would be in violation of this subarticle if received while
serving as hearing officer, he or she shall, promptly after starting to serve, disclose the content of
the communication on the record and give all parties an opportunity to address it as provided
below.
(b) If a hearing officer receives a communication in violation of this article, the hearing officer
shall make all of the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written response of the hearing officer to
the communication; and
(2) If the communication is oral, a memorandum stating the substance of the communication, any
response made by the hearing officer, and the identity of each person from whom the hearing
officer received the communication.
(c) The hearing officer shall notify all parties that a communication described in this section has
been made a part of the record.
(d) If a party requests an opportunity to address the communication within ten days after receipt
of notice of the communication:
(1) The party shall be allowed to comment on the communication.
(2) The hearing officer has discretion to allow the party to present evidence concerning the
subject of the communication, including discretion to reopen a hearing that hearing having been
concluded.
(e) Receipt of ex parte communications may be cause for disqualification of the hearing officer.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m),
Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410,
43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11340.1-11340.5,
Government Code.
HISTORY
{01007160}
43
1. New section filed 11-27-91; operative 11-27-91 pursuant to Government Code section
11346.2(d) (Register 92, No. 8).
2. Renumbering of former subarticle 4 to subarticle 6, renumbering of former section 60075.15
to section 60075.22 and new section 60075.15 filed 9-1-99; operative 10-1-99 (Register 99, No.
36).
3. Amendment of Note filed 9-4-2003; operative 10-4-2003 (Register 2003, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60075.15, 17 CA ADC § 60075.15
17 CCR § 60075.16
§ 60075.16. Applicability to Executive Officer.
(a) The provision of Subarticle 4 governing ex parte communications to the hearing officer also
governs ex parte communications with the executive officer on matters that may come before
him or her pursuant to Subarticle 11. Irrespective of the prohibitions of section 60075.13(a), the
executive officer may consult with state board personnel who are not involved as an investigator,
prosecutor, or advocate in the proceedings or preadjudicative proceedings of the matter before
the executive officer, or in a factually related case, and whose job duties include assisting the
executive officer in his or her adjudicative responsibilities.
(b) Except as otherwise provided in these procedures, while a proceeding is pending, the hearing
officer shall have no communication, direct or indirect, with the executive officer on a matter
that is under consideration.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m),
Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410,
43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11430.70-11430.80
Government Code.
HISTORY
1. New section filed 11-27-91; operative 11-27-91 pursuant to Government Code section
11346.2(d) (Register 92, No. 8).
2. Renumbering of former section 60075.16 to section 60075.23 and new section 60075.16 filed
9-1-99; operative 10-1-99 (Register 99, No. 36).
3. Amendment of Note filed 9-4-2003; operative 10-4-2003 (Register 2003, No. 36).
This database is current through 8/7/15 Register 2015, No. 32
17 CCR § 60075.16, 17 CA ADC § 60075.16
{01007160}
44
California Independent System Operator
Code of Conduct & Ethical Principles
CAISO Standard for Entertainment, Gifts and Favors
Our Standard
Strong relationships with our business partners are vital to our success, but receiving gifts from
any market participant, contractor, supplier or vendor can potentially affect the independence of
our judgment and may create the appearance of favoritism.
For the purposes of our Code and policies, the term “Entertainment, Gifts and Favors” includes
gifts and favors of all kinds including: trips, services, meals, discounted or free tickets to events
or conferences, and any other gratuitous item, benefit, or thing of value.
You must avoid even the perception that receiving entertainment, gifts or favors is connected in
any way with access or favorable treatment. Even if there is no intent to gain inappropriate
influence or advantage, inappropriate entertainment, gifts, or favors may cause embarrassment to
the company and damage our reputation.
Individual Responsibilities
We recognize there will be times when a current or potential business associate (e.g., market
participant or vendor) may extend an invitation to attend a social event or provide a modest gift
of nominal value (e.g. pens, calendars, items of clothing) in order to further develop your
business relationship.
As a general rule, entertainment, gifts and favors must never be accepted if they are intended to,
or may appear to, influence your decision or judgment, and they may never exceed a value of
$100 per business associate over a rolling 12-month period. Also, all gifts exceeding $50 must be
recorded on an Employee Gift Log or board member Gratuity Log at the time of receipt. The ISO
collects Gift Logs annually, but may ask to review your Gift Log at any time.
However, personnel may accept meals, beverages and other entertainment from a current or
potential business associate, regardless of value, if all of the following conditions are met:
1) The meals, beverages and other entertainment are of modest value are provided in
connection with a business related event (e.g., business meeting, conference or social event
to celebrate a business accomplishment)
2) You are not provided preference based on your status as ISO personnel
3) The business associate does not have a contract approval or Request for Proposal pending
with the ISO where you are part of the decision process
In the limited circumstances when the above-listed conditions are met, such offers may be
accepted, but in these cases, they must never influence, or appear to influence, your decision
about the entity, and they must also meet the following criteria:
{01007160}
45
 Be in accordance with applicable law and acceptable good business practices
 Be modest and infrequent
If you receive an unsolicited gift with a value that exceeds the $100 gift limit, you should return
it with a note explaining the ISO policy. If the value of the gift is unstated or not easily
determined, you must request an estimate of the value from the business associate that provided
the gift and include that information when reporting the gift. If you are in doubt as to whether the
gift or entertainment is acceptable, seek guidance and approval from your manager or the
Chief Compliance Officer.
Discounts or reimbursement for transportation, meals, lodging, tuition, or incidental expenses
related to business events – e.g., the attendance of a course or conference, facility tour, or other
business gathering, can be considered gifts. However, they are often acceptable if they are
consistent with and further the purposes of the ISO. You must obtain the approval of the ISO,
through your manager, before accepting.
The nature and an estimated value of any such discounts or reimbursements should be approved
by your manager.
Some examples of gifts and entertainment that are generally prohibited are:
 Loans or payments of cash or cash equivalent (gift cards) of any amount
 Invitations to lavish dinners or other forms of extravagant entertainment
 Extravagant forms of hospitality, for example luxury resorts or expensive trips
 Paying travel expenses or lodging if the trips have no direct connection to a business
purpose
 Gifts or entertainment for spouses or family members, other than meals where spouses are
invited
 Anything which, if publicly disclosed, would reflect poorly on the ISO
{01007160}
46