SENATE BILL 369

46th legislature - STATE OF NEW MEXICO - second session, 2004

INTRODUCED BY

Phil A. Griego

AN ACT

RELATING TO UTILITIES; PROVIDING FOR RULES ON EX PARTE COMMUNICATIONS WITH ADVISORY STAFF FOR THE PUBLIC REGULATION COMMISSION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 8-8-17 NMSA 1978 (being Laws 1998, Chapter 108, Section 17, as amended) is amended to read:

     "8-8-17. EX PARTE COMMUNICATIONS.--

          A. A commissioner shall not initiate, permit or consider a communication directly or indirectly with a party or his representative outside the presence of the other parties concerning a pending rulemaking after the record has been closed or a pending adjudication.

          B. A hearing examiner shall not initiate, permit or consider a communication directly or indirectly with a party or his representative outside the presence of the other parties concerning a pending rulemaking or adjudication.

          C. Notwithstanding the provisions of Subsections A and B of this section, the following ex parte communications are permitted:

                (1) where circumstances require, ex parte communications for procedural or administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are allowed if the commissioner or hearing examiner reasonably believes that no party will gain an advantage as a result of the ex parte communication and the commissioner or hearing examiner makes provision to promptly notify all other parties of the substance of the ex parte communication;

                (2) a commissioner may consult with another commissioner or with advisory staff whose function is to advise the commission in carrying out the commissioner's rulemaking or adjudicative responsibilities;

                (3) a hearing examiner may consult with the commission's advisory staff;

                (4) a commissioner or hearing examiner may obtain the advice of a nonparty expert on an issue raised in the rulemaking or adjudication if the commissioner or hearing examiner gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond; and

                (5) [pursuant to the public regulation commission's rulemaking authority] a party to a proceeding may consult with the commission's advisory staff. By July 1, 2004, the commission shall establish rules that allow a party to a proceeding to consult directly with any member of the commission's advisory staff on matters that are before the commission. The rules shall ensure open access for all parties to discuss matters with the advisory staff before, during and after such matters being heard by the commission and shall direct the advisory staff on how to present a fair and balanced view of all interested parties of a proceeding to commissioners.

          D. A commissioner or hearing examiner who receives or who makes or knowingly causes to be made a communication prohibited by this section shall disclose it to all parties and give other parties an opportunity to respond.

          E. Upon receipt of a communication knowingly made or caused to be made by a party to a commissioner or hearing examiner in violation of this section, the commissioner or hearing examiner may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded or otherwise adversely affected on account of the violation of this section."

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