Fiscal impact
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standing finance committees of the NM Legislature. The LFC does not assume
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in
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SPONSOR |
Griego |
DATE TYPED |
|
HB |
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SHORT
TITLE |
Ex Parte Communications With PRC Staff |
SB |
369/aSJC/aSFL#1 |
||||
|
|
ANALYST |
Garcia |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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|
FY04 |
FY05 |
FY04 |
FY05 |
||
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|
|
|
NFI |
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
LFC Files
Response
Received From
Public
Regulation Commission
SUMMARY
Synopsis of SFL#1
Amendment
The Senate Floor Amendment #1 restores language
that was removed in the original bill: “pursuant
to the public regulation commission’s rulemaking authority,”
Synopsis
of SJC Amendment
The Senate Judiciary Committee amendment to SB
369 eliminates the following language on page 3 lines 5 through 13: “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.”
In lieu thereof, the amendment inserts “such
rules.”
Significant Issues
The amendment eliminates specific direction to
the PRC for creating rules allowing parties to consult with advisory staff. The
amendment essentially allows the PRC to determine the rules.
Synopsis
of Original Bill
The bill would amend the Public Regulation
Commission Act by requiring the commission to 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
bill would amend the Act’s ex parte provisions. The bill permits a party to a proceeding to
“consult with the commission’s advisory staff,” pursuant to the commission’s
rulemaking authority. The bill would establish a deadline of
Currently, the existing statute prohibits direct or
indirect communications between commissioners and hearing examiners on the one
hand, and parties or their representatives on the other hand. Subsection (C) sets forth the exceptions in
which ex parte communications are permitted.
Significant
Issues
1) The bill could
result in Open Meetings Act and due process challenges. The bill could create a risk of Open Meetings Act
challenges by encouraging substantive communications regarding pending matters
before the commission to be addressed through non-public consultations between
interested parties and the commission’s advisory staff. Commission proceedings must at all times
conform with applicable constitutional standards. Because the commission’s actions often
condition private rights and interests, due process is always a matter of key
importance in commission proceedings.
The commission’s existing procedural rules provide due process protection
for parties appearing in commission proceedings.
2) The bill requires the commission to develop new
rules that would allow parties to consult with the commission’s advisory
staff. The word “consult” suggests that
private communications are intended. By encouraging communications between
parties and advisory staff “before, during, and after” matters are heard by the
commission, the bill effectively would open a flow of communication that would
bypass existing administrative hearing processes for both rulemakings and
adjudications.
3)
The commission currently has already adopted widely accepted administrative
procedures that have low risk of due process or other challenges to commission
actions.
FISCAL IMPLICATIONS
The bill presents no
fiscal impact.
ADMINISTRATIVE IMPLICATIONS
It is not clear whether “consult”
is intended in the usual sense of “seeking advice from,” or communication in a
more general sense. This language (which
appears in both the existing and proposed wording of subsection (C)(5)) could have unintended adverse consequences by placing
the attorney members of the advisory staff in a difficult position with regard
to meeting their ethical obligations under the New Mexico Supreme Court’s
Professional Code of Conduct if they were expected to act in the dual role of
providing advice to both the commission and to parties.
TECHNICAL ISSUES
The
bill may have possible conflicts with the
DG/yr:lg:dm