United States: New Legislation Changes Rules For Ex Parte Communications At The CPUC

 Anyone with business before the California Public Utilities Commission (CPUC) needs to be familiar with the CPUC's rules governing ex parte communications. "Ex parte communications," or "ex partes," are direct, non-public communications with decision-makers, such as CPUC Commissioners or their advisors Ex partes have played an important behind-the-scenes role in many CPUC decisions, and have been at the center of the several CPUC controversies involving allegedly overly cozy relationships with regulated entities.

Senate Bill SB 215 (SB 215) was one of the few CPUC reform-related bills to emerge from the legislature this year. SB 215 makes a large number of changes to the CPUC's procedures and to its ex parte rules. This article identifies those changes and discusses what those changes mean for those who practice before the CPUC.

Significantly, SB 215 does not impose a blanket ban on ex parte communications, nor does it impose a one-size-fits-all framework on all CPUC proceedings. Rather, SB 215 makes nuanced changes to the pre-existing framework governing CPUC processes. While the changes are large in number, the net effect of these changes may not be significant. Most parties with business before the CPUC will likely see little change in their day-to-day dealings with the agency, whether in formal proceedings or in less formal settings like ex parte meetings. Ex partes are not going away, so it is very important for anyone interacting with the CPUC to know the rules governing them, as modified by SB 215.


The Public Utilities Code, at Section 1701.1 et seq.,1 has long required the CPUC to assign its formal proceedings to one of three categories.2 These are:

  • adjudicatory;
  • ratesetting; and
  • quasi-legislative.

Categorization of proceedings matters to practitioners mainly because categorization determines the applicable ex parte rules. Ex parte communications are "off-the-record communications between agency decision-makers and interested parties regarding a matter that is before the agency for decision."3

As one moves across the spectrum of proceedings, from adjudicatory through ratesetting to quasi-legislative, the ex parte rules become progressively more relaxed. Ex parte communications are absolutely barred in complaint cases, allowed subject to various notice and reporting requirements in ratesetting cases, and allowed without notice or reporting obligations in quasi-legislative proceedings. There is considerable nuance around these general rules, particularly for ratesetting proceedings (consult an expert for details), but this is the gist.

Categorization has other significance as well. Categorization determines, among other things, the process applicable to draft decisions, who can preside over proceedings, who can issue alternates, and the processes for CPUC review of draft decisions and final decisions.


SB 215 leaves the pre-existing general categorization and ex parte rules intact. Post-SB 215, the CPUC must still assign proceedings to adjudicatory, ratesetting, or quasi-legislative categories. Different ex parte rules still apply to each category. Ex parte communications are still absolutely barred in complaint cases, allowed subject to various notice and reporting requirements in ratesetting cases, and generally allowed without notice or reporting obligations in quasi-legislative proceedings. The same distinct rules for finalizing decisions remain in place for each category.

What SB 215 does is change many of the details of Section 1701.1 et seq. Specifically, SB 215:

  • eliminates the CPUC's statutory exemption from the "technical rules of evidence"
  • subjects the CPUC and "persons seeking to influence" the CPUC to the Political Reform Act of 1974 (Title 9 (commencing with Section 81000) of the Government Code), "including, but not limited to, any applicable lobbying obligations";
  • makes technical changes to language regarding ALJ/Assigned CPUC roles;
  • eliminates the "hearing trigger" for application of the ex parte rules in ratesetting proceedings;
  • requires that the CPUC define "procedural" communications;
  • adds ratings agencies and investors to the ranks of "interested persons";
  • bans "one-way" ex parte communications from a decision-maker to a party and imposes reporting requirements on CPUC personnel;
  • bans communication with the Chief ALJ regarding assignment of an ALJ;
  • changes the process for challenging the assignment of an ALJ or CPUC Commissioner to a proceeding;
  • explicitly identifies communications at conferences as ex parte communications and applies reporting requirements to communications at conferences even in quasi-legislative proceedings;
  • explicitly excludes ex parte communications from the formal administrative record;
  • prohibits CPUC commissioners from reaching "consensus" or taking votes on "administrative matters" in closed session;
  • specifies how to treat public comments in the administrative record;
  • restructures the code to more clearly break out different rules for the three different types of proceedings; and
  • provides for enforcement by the attorney general against individual CPUC personnel.


What does this laundry list of changes mean for practitioners before the CPUC? Perhaps less than an initial review would suggest. To get a sense of how SB 215 will impact outside practitioners, consider the current Practitioner's Guide to Ex Parte Communications (Guide), available here: http://docs.cpuc.ca.gov/PUBLISHED/REPORT/124510.htm. Peruse the Q&A and you will quickly see that nearly all of the guidance it contains applies equally post-SB 215.

There are several reasons why this is so.

First, many of SB 215's changes are directed at the CPUC and its staff, not at outside practitioners. Examples of such changes include:

  • reporting requirements for decision-makers;
  • banning of "one-way" communications from decision-makers to parties;
  • limitations on what can be discussed in closed session; and
  • perhaps most significantly, liability for CPUC employees for rules violations of the ex parte rules.
  • Second, many of the changes SB 215 makes reflect current law, CPUC rules, or CPUC practice. For instance:
  • The CPUC already has a conflict of interest code and statement of incompatible activities, as already required by section 303(b): "The commission shall adopt an updated Conflict of Interest Code and Statement of Incompatible Activities, by February 28, 1998, in a manner consistent with applicable law."
  • The CPUC already bans communications with the Chief ALJ regarding the assignment of an ALJ to a proceeding. See CPUC Rule of Practice and Procedure (Rule) 8.3(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."
  • The CPUC already has a rule defining a "procedural" communication; see Rule 8.1(c): "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."
  • CPUC ALJs rarely, if ever, include ex parte communications in the administrative record.

Third, some of the processes that SB 215 affects are rarely invoked. For instance, challenges to the assignment of an ALJ or CPUC Commissioner to a particular proceeding are unusual, and will probably continue to be so.

Certainly some of the changes here will impact particular practitioners before the CPUC. For instance, ratings agencies and investors are now explicitly included among the ranks of "interested persons" and so are unequivocally subject to the ex parte rules. The elimination of the statutory exemption from the formal rules of evidence means that adjudicatory and ratesetting proceedings may now be subject to rehearing and/or appeal on the basis of overly informal hearing procedures, leading to more formality in hearings, as well as new possibilities for appellate lawyers. Finally, the risk of personal liability for CPUC employees, coupled with the new reporting requirements, may lead CPUC personnel to curtail ex parte communications, particularly in ratesetting proceedings.

Ultimately, though, SB 215 is more of a surgical strike rather than a radical demolition of the status quo. A radical revamp of CPUC procedures and ex parte rules it is not, and most parties with business before the CPUC and practitioners will likely see little change in their day-to-day dealings with the CPUC.


 1 All statutory references are to the Public Utilities Code, unless noted otherwise.

2 Somewhat confusingly, these are not the categories you will see in the proceedings numbers of CPUC proceedings. There, you will find a completely different set of categories:

" Complaint (C.)

" Application (A.)

" Rulemaking (R.)

" Investigation (I.)

The categories in this footnoted list do not always match up with a particular category from the list in the body text. Applications will usually be ratesetting, rulemakings will usually be quasi-legislative, and investigations will usually be adjudicatory, but these are just rules of thumb. The one exception is complaint proceedings, which are always adjudicatory.

3 This quote comes from the June 22, 2015 Strumwasser et al. report to the CPUC. The formal definition can be found at Section 1701.1(c)(4).

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.