Bill Text: NY A09768 | 2015-2016 | General Assembly | Amended

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Bill Title: Relates to the membership of the public service commission and clarifies the mandatory time frame within which the public service commission must act upon petitions submitted by regulated entities and citizenry.

Spectrum: Partisan Bill (Democrat 31-1)

Status: (Introduced - Dead) 2016-06-14 - ordered to third reading rules cal.355 [A09768 Detail]

Download: New_York-2015-A09768-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                         9768--A
                   IN ASSEMBLY
                                      April 6, 2016
                                       ___________
        Introduced by M. of A. BRENNAN, SIMOTAS, MOSLEY, RODRIGUEZ, SIMON, BRON-
          SON,  ABINANTI,  LIFTON,  MAYER,  KEARNS,  HOOPER,  ORTIZ,  GOTTFRIED,
          JAFFEE, OTIS, TITONE, CAHILL, THIELE, GALEF, KAVANAGH  --  Multi-Spon-
          sored by -- M. of A.  ABBATE, BLAKE, COOK, ENGLEBRIGHT, GIGLIO, GLICK,
          HEVESI,  HIKIND,  LENTOL, MARKEY, McDONOUGH, MONTESANO, PICHARDO, RAIA
          -- read once and referred to the Committee on  Corporations,  Authori-
          ties  and  Commissions  -- 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 the membership of the public service
          commission and in relation to clarifying  the  mandatory  time  frames
          within  which  the  public  service commission must act upon petitions
          submitted by regulated entities and the citizenry
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. Section 4 of the public service law, as amended by chapter
     2  155 of the laws of 1970, is amended to read as follows:
     3    § 4. The public service commission. (a)  1.  There  shall  be  in  the
     4  department  of  public  service a public service commission, which shall
     5  possess the powers and duties hereinafter specified, and also all powers
     6  necessary or proper to enable it to carry out the purposes of this chap-
     7  ter. The commission shall consist of [five] eleven members, nine  voting
     8  and  two non-voting, as follows: seven voting members to be appointed by
     9  the governor, by and with the advice and consent of the senate, one upon
    10  the recommendation of the attorney general and one upon the  recommenda-
    11  tion of the state comptroller; one voting member appointed by the speak-
    12  er  of the assembly; one voting member appointed by the temporary presi-
    13  dent of the senate; and one non-voting member appointed by the  minority
    14  leader of the assembly and one non-voting member appointed by the minor-
    15  ity  leader of the senate. [A commissioner shall be designated as chair-
    16  man of the commission by the governor to serve in such capacity  at  the
    17  pleasure  of  the  governor  or  until  his term as commissioner expires
    18  whichever first occurs. No more than three commissioners may be  members
    19  of  the  same  political  party  unless,  pursuant to action taken under

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14610-05-6
        A. 9768--A                          2

     1  subdivision two, the number of commissioners shall exceed five,  and  in
     2  such  event  no  more than four commissioners may be members of the same
     3  political party.] The governor shall appoint a  chairperson  from  among
     4  the voting members of the commission.
     5    (b)  To  the  maximum extent possible, the commissioners shall possess
     6  broad and extensive knowledge and experience in the areas of energy  and
     7  telecommunications  issues, financing and regulation of utilities, rate-
     8  making, or consumer protection and advocacy.  At least one of the gover-
     9  nor's appointments shall be an individual who has demonstrated in his or
    10  her career a commitment  and  competence  in  consumer  advocacy  or  in
    11  furthering  the public interest in one or more areas relevant to utility
    12  regulation.
    13    2. [Notwithstanding subdivision one,  whenever  the  commission  shall
    14  certify to the governor that additional commissioners are needed for the
    15  proper  disposition of the business before it, the governor may increase
    16  the membership of the commission to  seven  members  by  appointing  two
    17  additional  commissioners  by  and  with  the  advice and consent of the
    18  senate. The terms of office of such  additional  commissioners  and  the
    19  filling  of vacancies during such terms shall be governed by subdivision
    20  three, except that upon the expiration of the terms of  such  additional
    21  commissioners,  no  further appointments or reappointments shall be made
    22  to such additional offices, unless the commission shall first certify to
    23  the governor that the need for  additional  commissioners  continues  to
    24  exist.
    25    3.]  The  term of office of a commissioner shall be six years from the
    26  first day of February  of  the  calendar  year  in  which  he  shall  be
    27  appointed  and  commissioners  shall  serve on a full-time basis. Upon a
    28  vacancy occurring otherwise than by expiration of term in the office  of
    29  any  commissioner,  [the governor, by and with the advice and consent of
    30  the senate,] the appropriate appointing authority described in  subdivi-
    31  sion  one  of this section shall fill the vacancy by appointment for the
    32  unexpired term, provided that any appointment made by  the  governor  to
    33  fill  a  vacancy  pursuant  to this subdivision shall be by and with the
    34  advice and consent of the senate.
    35    § 2. Section 20 of the public service law is amended by adding  a  new
    36  subdivision 3 to read as follows:
    37    3.  Notwithstanding any provisions of law to the contrary, the commis-
    38  sion shall adopt rules to prohibit or limit the use of ex parte communi-
    39  cations in any  proceeding  before  the  commission.  Such  rules  shall
    40  include, but not be limited to:
    41    (a)  whether  ex  parte  communications  should  be absolutely barred,
    42  limited or require notice to all parties and an opportunity to respond;
    43    (b) the timing of, or specific triggering event for, the imposition of
    44  a ban or limitation on ex parte communications; and
    45    (c) sanctions for violating such rules.
    46    § 3. The public service law is amended by adding a new section  28  to
    47  read as follows:
    48    §  28.  Petitions;  time  period  for  action  to be taken. 1. For the
    49  purposes of this section, the term:
    50    (a) "customer" shall mean a customer or consumer of a utility  service
    51  that is regulated pursuant to this chapter, who shall be either an indi-
    52  vidual;  a  group of individuals; the mayor of a city; the trustees of a
    53  village; the town board of a town; or the chief executive office or  the
    54  legislative  body  of  a  county.  For the purposes of this subdivision,
    55  "customer" shall include the division  of  consumer  protection  of  the
    56  department of state.
        A. 9768--A                          3
     1    (b)  "petition"  shall  mean  any  petition or complaint filed with or
     2  submitted to the commission pursuant to  this  chapter  by  a  customer,
     3  alleging or relating to:
     4    (i) the failure or omitting to do anything required of a public utili-
     5  ty company by any provision of this chapter, or by any regulations or an
     6  order of the commission;
     7    (ii)  any  actions  taken  by  a public utility company, its officers,
     8  employees or agents  that  are  contrary  to  or  in  violation  of  the
     9  provisions  of  this chapter; the regulations or an order of the commis-
    10  sion; or the terms or conditions of the  franchise  or  charter  of  the
    11  public utility company;
    12    (iii) rate charges or classification of service; or
    13    (iv) the adequacy, efficiency or reliability of service.
    14    Such term shall not mean or include any petition filed or submitted by
    15  a  public  utility  corporation  or  any  corporation  that  provides or
    16  supplies utility services pursuant to this chapter.
    17    2. (a) Notwithstanding any provision  of  law  to  the  contrary,  and
    18  except where a shorter time period is required pursuant to this chapter,
    19  the  commission  shall  complete  its investigation and issue a determi-
    20  nation or decision with respect to any petition within  ninety  days  of
    21  the filing or submission of the petition.
    22    (b)  Notwithstanding  any  provision of paragraph (a) of this subdivi-
    23  sion, if the petition alleges an emergency or  some  other  action  that
    24  threatens or impacts the health or safety of any person or the surround-
    25  ing  area, the commission shall make a determination as soon as possible
    26  but in no event more than thirty days from the date when  such  petition
    27  was filed or submitted.
    28    (c) If the commission is unable to meet the time limitations set forth
    29  in  this subdivision, the commission shall prepare and send to the peti-
    30  tioner or complainant a written document stating  the  reasons  for  the
    31  failure  or  inability of the commission to comply with the time frames,
    32  and the date when a determination will be made, which date  shall  occur
    33  not  later than sixty days from the date of the written document, except
    34  that the provisions of this  paragraph  shall  not  apply  to  petitions
    35  described in paragraph (b) of this subdivision.
    36    (d)  Notwithstanding  any  provision  of  this subdivision and of this
    37  chapter to the contrary, if the petitioner or  complainant  requests  an
    38  opportunity  to  be heard on the petition, the commission shall commence
    39  the hearing within ten business days of the request and shall  make  its
    40  determination  within thirty days of the last day of the hearing. If the
    41  commission directs that a hearing be  conducted  on  the  petition,  the
    42  decision to conduct such hearing shall be made within thirty days of the
    43  initial filing of the petition, and the hearing shall be completed and a
    44  decision  thereon issued within ninety days of the initial filing of the
    45  petition.
    46    3. On or before February fifteenth of each year, the commission  shall
    47  submit a report to the governor, the speaker of the assembly, the tempo-
    48  rary  president  of  the  senate  and  the chairs of senate and assembly
    49  committees on corporations, authorities and commissions setting forth:
    50    (a) the total number of petitions filed or submitted with the  commis-
    51  sion in the previous calendar year;
    52    (b) a breakdown of such petitions by utility and subject matter of the
    53  petition;
    54    (c)  the  number  of  such  petitions  upheld,  dismissed or otherwise
    55  resolved, broken down by utility and subject matter;
        A. 9768--A                          4
     1    (d) the number and percentage of petitions that were upheld, dismissed
     2  or resolved within the statutory time frame; and
     3    (e)  if applicable, the number of petitions that were not completed or
     4  resolved within the statutory time frames, the reasons  for  failure  to
     5  meet  the time frames, and the average length of time for such petitions
     6  to be finally completed or resolved.
     7    4. If the commission fails to meet or comply with the time frames  set
     8  forth  in this subdivision, the petitioner or complainant may commence a
     9  special proceeding against the commission pursuant to subdivision one of
    10  section seventy-eight hundred three of the civil practice law and rules.
    11  A prevailing petitioner or complainant shall be entitled  to  reasonable
    12  attorney's fees and court costs.
    13    § 4.  The opening paragraph of section 64 of the public service law is
    14  designated  subdivision  1  and  a new subdivision 2 is added to read as
    15  follows:
    16    2. No provision of this article or of this chapter shall authorize the
    17  department or the commission to waive  or  reduce  compliance  with  any
    18  requirement of this article for any gas or electric corporation.
    19    §  5.  The opening paragraph of section 89-p of the public service law
    20  is designated subdivision 1 and a new subdivision 2 is added to read  as
    21  follows:
    22    2. No provision of this article or of this chapter shall authorize the
    23  department or commission to waive or reduce compliance with any require-
    24  ment of this article for any water-works corporation.
    25    §  6.  Section 90 of the public service law is amended by adding a new
    26  subdivision 4 to read as follows:
    27    4. No provisions of this article or of this  chapter  shall  authorize
    28  the  department  or  commission  to  waive or reduce compliance with any
    29  requirement of this article for any telegraph or telephone corporation.
    30    § 7. Subdivision 2 of section 307 of the state  administrative  proce-
    31  dure act is amended to read as follows:
    32    2.  Unless required for the disposition of ex parte matters authorized
    33  by law, members or employees of an agency assigned to render a  decision
    34  or  to  make  findings of fact and conclusions of law in an adjudicatory
    35  proceeding shall not communicate, directly or indirectly, in  connection
    36  with  any  issue  of  fact, with any person or party, nor, in connection
    37  with any issue of law, with any party or his representative, except upon
    38  notice and opportunity for all parties to participate.  Any such  agency
    39  member (a) may communicate with other members of the agency, and (b) may
    40  have  the aid and advice of agency staff other than staff which has been
    41  or  is  engaged  in  the  investigative  or  prosecuting  functions   in
    42  connection with the case under consideration or factually related case.
    43    [This  subdivision  does not apply (a) in determining applications for
    44  initial licenses for public utilities or carriers; or (b) to proceedings
    45  involving the validity or application of rates, facilities, or practices
    46  of public utilities or carriers.]
    47    § 8. On or before the one hundred eightieth day  after  the  effective
    48  date  of  this act, the public service commission shall make or render a
    49  determination on any petition  or  complaint  that  was  filed  with  or
    50  submitted to such commission prior to the effective date of this act. As
    51  soon  as  reasonably  possible  after the end of the 180 day period, the
    52  public service commission shall issue a  report  to  the  governor,  the
    53  speaker  of  the assembly, the temporary president of the senate and the
    54  chairs of the senate and assembly standing committees  on  corporations,
    55  authorities  and  commissions  stating  the total number of petitions or
    56  complaints involved; the number of petitions or complaints dismissed  or
        A. 9768--A                          5
     1  resolved;  and if such commission is unable to meet this time frame, the
     2  reasons for the delay or inaction.
     3    §  9. Severability. If any provision of this act or its application to
     4  any person or circumstance is held invalid,  this  invalidity  does  not
     5  affect  other  provisions  or applications of this act that can be given
     6  effect without the invalid provision or application, and to this end the
     7  provisions of this act are declared to be severable.
     8    § 10. This act shall take effect immediately.