Senate Bill S5535

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5535--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 14, 2009
                               ___________

Introduced  by  Sen.  FOLEY  -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations  --  recommitted  to  the Committee on Energy and Telecommuni-
  cations in  accordance  with  Senate  Rule  6,  sec.  8  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  public service law and the state administrative
  procedure act, in relation  to  ex  parte  communications  before  the
  public service commission

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The public service law is amended by adding a  new  section
20-a to read as follows:
  S  20-A.  EX PARTE COMMUNICATIONS. 1. UNLESS REQUIRED FOR THE DISPOSI-
TION OF EX PARTE MATTERS  AUTHORIZED  BY  LAW,  A  COMMISSIONER  OR  ANY
EMPLOYEE  OF  THE  DEPARTMENT WHO IS ASSIGNED TO RENDER A DECISION OR TO
MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN AN ADJUDICATORY PROCEED-
ING BEFORE THE COMMISSION SHALL NOT COMMUNICATE, DIRECTLY OR INDIRECTLY,
IN CONNECTION WITH ANY ISSUE OF FACT OR OF LAW, WITH ANY PARTY,  OR  THE
REPRESENTATIVE  OF ANY PARTY, EXCEPT UPON NOTICE AND OPPORTUNITY FOR ALL
PARTIES TO PARTICIPATE. PROVIDED, HOWEVER, THAT ANY SUCH COMMISSIONER OR
EMPLOYEE (A) MAY COMMUNICATE WITH OTHER COMMISSIONERS, AND (B) MAY  HAVE
THE AID AND ADVICE OF AGENCY STAFF OTHER THAN STAFF WHICH HAS BEEN OR IS
ENGAGED IN THE INVESTIGATIVE OR PROSECUTING FUNCTIONS IN CONNECTION WITH
THE CASE UNDER CONSIDERATION OR A FACTUALLY RELATED CASE.
  2.  A PARTY IN AN ADJUDICATORY PROCEEDING BEFORE THE COMMISSION OR THE
REPRESENTATIVE OF ANY SUCH PARTY  SHALL  NOT  COMMUNICATE,  DIRECTLY  OR
INDIRECTLY,  IN  CONNECTION  WITH  ANY  ISSUE  OF  FACT OR OF LAW WITH A
COMMISSIONER OR ANY EMPLOYEE OF THE DEPARTMENT WHO IS ASSIGNED TO RENDER
A DECISION OR TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF  LAW  IN  SUCH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08143-02-0

              

S. 5535--A                          2

ADJUDICATORY  PROCEEDING  EXCEPT  UPON  NOTICE  AND  OPPORTUNITY FOR ALL
PARTIES TO PARTICIPATE.
  3. IF THE COMMISSIONER OR ANY EMPLOYEE OF THE DEPARTMENT SHALL RECEIVE
ANY  COMMUNICATION,  ORAL  OR  WRITTEN,  CONTRARY TO THE PROHIBITIONS IN
SUBDIVISIONS ONE AND TWO OF THIS SECTION, HE OR SHE SHALL MAKE A  RECORD
OF  SUCH  COMMUNICATION AND FILE SUCH RECORD PROMPTLY WITH THE SECRETARY
OF THE COMMISSION. THE SECRETARY OF THE COMMISSION SHALL SERVE COPIES OF
SUCH RECORD ON EACH PARTY TO THE ADJUDICATORY PROCEEDING. ANY PARTY  MAY
PETITION THE COMMISSION FOR SUCH SANCTIONS AGAINST A PARTY THAT HAS MADE
SUCH  COMMUNICATION  CONTRARY  TO  THE PROHIBITION IN SUBDIVISION TWO OF
THIS SECTION AS MAY BE JUST IN THE CIRCUMSTANCES.
  4. FOR THE PURPOSES OF THIS SECTION THE TERM "ADJUDICATORY PROCEEDING"
SHALL BE DEFINED AS IN SUBDIVISION THREE OF SECTION ONE HUNDRED  TWO  OF
THE  STATE  ADMINISTRATIVE PROCEDURE ACT, EXCEPT THAT THIS SECTION SHALL
NOT APPLY TO PROCEEDINGS TO DETERMINE APPLICATIONS FOR INITIAL LICENSES;
PROVIDED THAT THIS SECTION SHALL NOT APPLY TO PROCEEDINGS INVOLVING  THE
VALIDITY  OR  APPLICATION  OF  RATES, FACILITIES, OR PRACTICES OF PUBLIC
UTILITY COMPANIES.
  S 2. Subdivision 2 of section 307 of the state  administrative  proce-
dure act is amended to read as follows:
  2.  Unless required for the disposition of ex parte matters authorized
by law, members or employees of an agency assigned to render a  decision
or  to  make  findings of fact and conclusions of law in an adjudicatory
proceeding shall not communicate, directly or indirectly, in  connection
with  any  issue  of  fact, with any person or party, nor, in connection
with any issue of law, with any party or his representative, except upon
notice and opportunity for all parties to participate.  Any such  agency
member (a) may communicate with other members of the agency, and (b) may
have  the aid and advice of agency staff other than staff which has been
or  is  engaged  in  the  investigative  or  prosecuting  functions   in
connection with the case under consideration or factually related case.
  This  subdivision  does not apply [(a) in determining applications for
initial  licenses  for  public  utilities  or  carriers;  or   (b)]   to
proceedings [involving the validity or application of rates, facilities,
or  practices of public utilities or carriers] BEFORE THE PUBLIC SERVICE
COMMISSION.
  S 3.  This act shall take effect immediately and shall  apply  to  all
proceedings  instituted  after  such  effective date; provided, however,
that with respect to proceedings in  process  prior  to  such  effective
date,  this  act shall apply as of the date specified in an order of the
public service commission in response to the motion  of  any  party,  or
ninety days after such effective date, whichever is earlier.