Ex Parté Contacts FAQs
What is this guide all about?This guide is designed to provide helpful information on the rules governing ex parté contacts in Energy Commission proceedings. It is provided for information only and is not intended to provide legal advice or to address every situation that may arise in the administrative hearing process. Please seek the advice of a qualified attorney for answers to specific legal questions. The information in this guide is current through the date of publication, September 2004.
Where can I find the rules that apply to ex parté contacts in Energy Commission proceedings?
The rules governing ex parté contacts in Energy Commission proceedings are located at Title 20, California Code of Regulations, Sections 1216 and 1219, and California Government Code, Sections 11430.10 through 11430.80. Copies of Title 20 of the California Code of Regulations can be obtained from the Commission's Publications Unit by calling (916) 654-5200 or from the Commission's website at www.energy.ca.gov/reports/title20/. Copies of the California Government Code can be obtained from the California Legislative Council's website at www.leginfo.ca.gov/calaw.html.
What are "ex parté contacts"?"Ex parté contacts" are oral or written communications, direct or indirect, between any party to a pending adjudicatory proceeding and the commissioners, their advisors, or hearing officers concerning any substantive issue involved in the proceeding.
This does not include communications that a party makes on the record in the proceeding.
What is an adjudicatory proceeding?An adjudicatory proceeding is one that involves a specific party or parties. It includes an evidentiary hearing to determine facts that will be used to formulate and issue a decision. The Energy Commission's power plant licensing proceeding is an adjudicatory proceeding.
What is an "indirect" communication?A communication is indirect if it is made to a member of a commissioner's staff or to a commissioner's advisor, or if it is made by a representative of a party to the proceeding. In other words, a party cannot get around the rule against ex parté contacts by speaking to someone who reports to a commissioner instead of directly to the commissioner, or by having someone who is not a party to the proceeding speak to a commissioner or hearing officer on the party's behalf.
When is a proceeding pending?Usually, a proceeding is pending from the date of the petition, complaint, or application for a decision by the Commission and continues until the Commission adopts or issues the final decision.
What issues are considered to be the "substantive" issues involved in the proceeding?Substantive issues are any issues regarding the legal rights of a party or the merits of what is being proposed or requested. A substantive issue is involved in the proceeding if the issue's resolution will affect the legal rights of a party to the proceeding or the final decision on the merits. An example of a substantive issue is an issue relating to a disputed fact that is important to the outcome of the proceeding.
You may communicate with the commissioners or hearing officers off the record about any issue of procedure that is not in dispute. A procedural issue is an issue regarding the rules and methods of the hearing. Examples of a procedural issue include the timeframe for filing a document, when and where a hearing will be held, and requests for a continuance.
What will happen if a party does communicate ex parté with a commissioner or the hearing officer?The commissioners, their advisors, or hearing officer must include any written ex parté communication in the public file of the proceeding, which is in the Docket Unit of the Energy Commission. If the ex parté communication was oral, the commissioners or hearing officer must include a description of the substance of the communication, the commissioner or hearing officer's response, and the identity of the party that made the communication in the public file of the proceeding.
The commissioner or hearing officer will then notify all the parties of the communication that it is now included in the public record.
Once an affected party receives notice of the communication, the party has 10 days to request an opportunity to rebut the matter on the record. The affected party can comment on the communication and the hearing officer may allow the party to introduce evidence on the subject. If the hearing had already ended, the hearing officer may choose to reopen it to allow the affected party to introduce its evidence.
NOTICE: Distributed by the Public Adviser's Office. This is for informational purposes only. It is designed to assist you in understanding the process. It is, therefore, general in nature and does not discuss all exceptions and variations.
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