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COMMITTEE REPORT
February 19, 2003
H. 3530
S. Printed 2/19/03--H. [SEC 2/20/03 3:06 PM]
Read the first time February 6, 2003.
To whom was referred a Bill (H. 3530) to amend the Code of Laws of South Carolina, 1976, by adding Section 58-3-27 so as to prohibit membership on and restrict employment by the Public Service Commission, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-27. (A) Unless otherwise provided by law, a person may not serve as a member of the Public Service Commission if the Public Service Commission regulates a business with which that person is associated as defined in Section 8-13-100.
(B) If the Public Service Commission regulates a business with which an employee of the Public Service Commission is associated, the employee annually must file a statement of economic interests, notwithstanding the provisions of Section 8-13-1110.
(C) A person may not be an employee of the Public Service Commission if the commission regulates a business with which he is associated and this relationship creates a continuing or frequent conflict with the performance of his official responsibilities."
SECTION 2. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-35. (A) The commissioners are bound by the Code of Judicial Conduct as contained in Rule 501 of the South Carolina Appellate Court Rules as applicable, except as provided in Section 58-3-400. The State Ethics Commission is responsible for enforcement and administration of those rules pursuant to Section 8-13-320. In addition, the commissioners shall comply with the requirements of the State Ethics Act, Chapter 13 of Title 8. The commissioners must attend a workshop within six weeks of being elected concerning the Code of Judicial Conduct and the State Ethics Act.
(B) Each year, the commissioners and their employees must attend a workshop of at least six contact hours concerning ethics and the Administrative Procedures Act."
SECTION 3. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-65. (A) For purposes of this chapter, the term 'proceeding' means the same as defined in Section 58-3-400(A)(1).
(B) There is established in the Public Service Commission an advisory staff and an advocacy staff. Each staff shall consist of legal, professional, administrative, technical, and clerical personnel necessary for the respective staff to perform its obligations as described in this section.
(C)(1) The advocacy staff shall:
(a) provide legal representation of the public interest before the state regulatory agencies that fix rates or prices for consumer products or services under Title 58 or enact regulations or establish policies related to that interest;
(b) monitor existing regulations, rate structures, and policies of special interest to consumers and report to the public through the news media proposed changes under consideration and the effect of those changes on the lives of the citizens of the State; and
(c) evaluate and act upon requests from consumers concerning the matters set forth in subitems (a) and (b) except that proceedings initiated by the advocacy staff must be brought on behalf of the public at large and not for individuals. Initiation or continuation of a proceeding is at the sole discretion of the advocacy staff.
(2) The advocacy staff also shall represent the public interest of South Carolina before the commission. For purposes of this chapter, 'public interest' means:
(a) concerns of the public users and consumers of public utility services, regardless of the class of customer;
(b) economic development and job attraction and retention in South Carolina; or
(c) preservation of the financial integrity of the state's public utilities and the continued investment in and maintenance of utility facilities.
(3) If the advocacy staff determines that it is in the interest of consumers affected by the commission, it may file with the commission a petition requesting the commission to commence or complete a proceeding respecting an organization whose operations substantially affect the consumer interest. The petition must state facts that claim to establish the need for the proceeding and a brief description of the substance of the order or amendment desired as a result of the proceeding. Within sixty days after the filing of the petition, the commission must either grant or deny the petition. If the commission grants the petition, it promptly must commence or complete the proceeding, as requested by the petition. If the commission denies the petition, it must publish the reasons for the denial. If the commission denies the petition made pursuant to this section or if it fails to grant or deny the petition within sixty days, the advocacy staff may commence a civil action in the circuit court to compel the commission to commence or complete the proceeding as requested in the petition. The action may be filed by the advocacy staff thirty days after the denial of the petition or, if the commission fails to grant or deny the petition within sixty days, within thirty days after the expiration of the sixty-day period. If the petitioner demonstrates to the satisfaction of the court that the failure of the commission to commence or complete the proceeding as requested in the petition was unreasonable, the court shall order the commission to commence or complete the proceeding as requested in the petition. In an action pursuant to this section, the court may not compel the commission to take action other than the commencement or completion of a proceeding. The remedies pursuant to this subsection are in addition to and not instead of other remedies provided by law. The advocacy staff is a party in interest for purposes of Section 58-27-310.
(4) The administrator shall hire a director of the advocacy staff who is solely responsible for supervision, direction, and control of the advocacy staff.
(5) The advocacy staff may intervene and be a party of record in a proceeding before the commission.
(D) The advisory staff shall provide research and technical support to the commission and advice and recommendations to the commission on all matters. The commission shall hire a director of the advisory staff who is solely responsible for supervision, direction, and control of the advisory staff.
(E) The commission shall hire an administrator who shall:
(1) insure all pleadings filed with the commission are processed in compliance with the commission's approved policy and procedures manual;
(2) insure all notices related to filings are prepared in compliance with the commission's approved policy and procedures manual;
(3) coordinate the scheduling of all hearing dates.
(F) All expenses associated with the advisory staff and the advocacy staff are expenses of the Public Service Commission and must be borne by the public utilities pursuant to Section 58-3-100."
SECTION 4. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-400. (A) Except as provided in subsection (B), a commissioner or member of the advisory staff may not communicate, directly or indirectly, with a person and a person may not communicate, directly or indirectly, with a commissioner or member of the advisory staff regarding an issue in a proceeding pending before the commission without first providing reasonable notice and an opportunity for all parties to participate in the communication. For the purposes of this section:
(1) 'Proceeding' means a contested case to be adjudicated, decided, arbitrated, or promulgated by the commission.
(2) 'Person' means a party to a proceeding pending before the commission, a member of the advocacy staff, the administrator, a representative of a party to a proceeding pending before the commission, individuals, corporations, partnerships, limited liability companies, members of state government, public and elected officials, and other persons or entities.
(B) Notwithstanding the provisions of subsection (A), a commissioner or a member of the advisory staff may communicate with other commissioners and other members of the advisory staff regarding matters and proceedings pending before the commission.
(C) During the ninety-day period immediately preceding the filing with the commission of any pleadings, applications, or other documents that initiate a proceeding before the commission, a person who is aware that such a proceeding is to be initiated may not communicate, directly or indirectly, with a commissioner or member of the advisory staff regarding an issue involved in the proceeding. If a prohibited communication is made during that time, the commissioner or member of the advisory staff shall disclose the communication in the manner provided in subsection (D); except that a commissioner or member of the advisory staff may communicate, directly or indirectly, with a person regarding any fact, law, or other matter that is or may become an issue in a proceeding before the commission for the purposes of an educational briefing by the person if all members of the commission, all members of the advisory staff, all members of the advocacy staff, and all parties are invited to attend the briefing through the issuance of a Formal Notice of Briefing. Notice of the briefing must be published on the commission's website ten days before the educational briefing.
(D)(1) If a commissioner or member of the advisory staff makes or receives a communication in violation of this section, he must place the following on the record of the proceeding:
(a) the substance of the prohibited communication;
(b) all written or electronic documentation of the prohibited communication;
(c) the identity of each person who participated in the prohibited communication;
(d) the date and time of the communication.
(2) The commission or member of the advisory staff also shall advise all parties that these matters have been placed on the record pursuant to item (1). Within ten days after receipt of notice of the prohibited communication, a person who desires to rebut the content of the prohibited communication must request and be granted the opportunity to rebut its contents on the record of the proceeding.
(E) If necessary to eliminate the effect of a prohibited communication received in violation of this section, a commissioner or member of the advisory staff who receives the prohibited communication may be prohibited from participating in the proceeding by the chairman or by the commissioners upon a majority vote of those present and voting and the portions of the record pertaining to the prohibited communication may be sealed by protective order.
(F) A commissioner or member of the advisory staff, member of the advocacy staff, party, or other person must report a wilful violation or repeated nonwilful violations of this section by a commissioner, a member of the advisory staff, a member of the advocacy staff, or the administrator to the State Ethics Commission for disciplinary proceedings or action provided by law.
(G) A person who wilfully violates this section may be fined by the State Ethics Commission not more than one thousand dollars.
(H) This section does not prohibit communication by the administrator of the commission with commissioners on administrative matters."
SECTION 5. Section 58-3-20 of the 1976 Code, as last amended by Act 493 of 1994, is further amended to read:
"Section 58-3-20. (A) The Public Service Commission shall be is composed of seven members to be elected by the General Assembly in the manner prescribed by this chapter for terms of four years and until their successors are elected and qualify. For an election for a term beginning after June 30, 2004, the elected members shall have a high school degree or equivalent.
(B) In screening persons for election to the Public Service Commission for a term beginning after June 30, 2004, the joint committee shall consider the knowledge and experience of the appointees in the following fields:
(1) energy issues;
(2) telecommunication issues;
(3) consumer protection and advocacy issues;
(4) water and wastewater issues;
(5) finance and economics; or
(6) business operation or administration.
(C) Beginning in 2003, the members of the Public Service Commission must be elected to staggered terms. In 2003, the members representing the second, fourth, and sixth congressional districts must be elected for five-year terms, ending in 2008 and until their successors are elected and qualified. In 2003, the members representing the first, third, and fifth congressional districts and the state at large must be elected for three-year terms, ending in 2006 and until their successors are elected and qualified. After that, members are elected for terms of four years and until their successors are elected and qualified.
(D) The General Assembly shall must provide for the election of the seven member seven-member commission and elect its members thereto based upon the congressional districts established by the General Assembly. The elections held in 2003 must be based on the congressional districts established pursuant to the official United States Census of 1990 2000. The elections held after 2003 must be based on the congressional districts established pursuant to the latest official United States Decennial Census. If the number of congressional districts is less than seven, additional members shall must be elected at large to provide for a seven member seven-member commission."
SECTION 6. Section 58-3-24 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 58-3-24. After January 1, 1981, no A member of the General Assembly shall must not be elected to the Public Service Commission while that person the member is serving in the General Assembly; nor shall that person the member of the General Assembly be elected to the Public Service Commission for a period of four years one year after he the member either:
(1) ceases to be a member of the General Assembly; or
(2) fails to file for election to the General Assembly in accordance with Section 7-11-15."
SECTION 7. (A) The members of the Public Service Commission elected in 2003 shall take the oath of office required by Section 58-3-30 of the 1976 Code within three days after certification of their election, Sundays excepted.
(B) Any member elected at the 2003 election is considered eligible for reelection notwithstanding any other provision of this act.
SECTION 8. Part 6 of Chapter 6, Title 37 of the 1976 Code is amended to read:
Section 37-6-601. There is hereby created in the Department of Consumer Affairs the Division of Consumer Advocacy with duties and organizations as hereinafter provided.
Section 37-6-602. The consumer advocate may be the Administrator of Consumer Affairs or he may be appointed by the Administrator administrator with the approval of the Commission on Consumer Affairs. The consumer advocate shall must be an attorney qualified to practice in all courts of this State with a minimum of three years' practice experience.
Section 37-6-603. The Division of Consumer Advocacy shall must be staffed and equipped to perform the functions prescribed in Section 37-6-604. The expenses of the office shall must be paid from appropriations provided annually in the State General Appropriation Act.
Section 37-6-604. (A) The Except as provided in subsection (B), the functions and duties of the Division of Consumer Advocacy are:
(1) To to provide legal representation of the consumer interest before the state and federal regulatory agencies which undertake to fix rates or prices for consumer products or services or to enact regulations or establish policies related thereto and to provide legal representation of the consumer interest concerning Certificates of Need for health facilities and services, as required for an activity under Section 44-7-160, health care licensing procedures, and other health related-matters.
(2) To to monitor existing regulations, rate structures, and policies of that agency of special interest to consumers and report to the public through the news media proposed changes therein under consideration and the effect of those changes on the lives of the citizens of the State.
(3) The annual report required of the Commission on Consumer Affairs must include a report on the activities of the Division of Consumer Advocacy.
(4) To to evaluate and act upon requests from consumers concerning the matters set forth in items (1) and (2) above, except that any proceedings initiated by the advocate must be brought on behalf of the public at large and not for individuals; initiation or continuation of any proceedings must be at the sole discretion of the consumer advocate.
The annual report required of the Commission on Consumer Affairs must include a report on the activities of the Division of Consumer Advocacy.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003. Matters or appeals pending before state regulatory agencies on June 30, 2003 shall be handled by the Consumer Advocate until June 30, 2005, when responsibility for such matters shall be transferred to the advocacy staff of the Public Service Commission. Matters or appeals pending before federal regulatory agencies on June 30, 2003, shall be handled by the consumer advocate until June 30, 2005, when responsibility for such matters shall be transferred to the South Carolina Attorney General pursuant to Section 58-3-120.
Section 37-6-605. In the performance of his assigned functions the advocate shall must have reasonable access to records of all state agencies which are not classified by law as confidential, and all state agencies shall must cooperate with the advocate in the performance of his duties. In addition, the advocate shall must have reasonable access to confidential records and information, provided he enters a proprietary agreement to insure ensure their confidentiality. The South Carolina Department of Insurance and advocate also shall have access to records, information, and data of the insurance companies as well as all of their sister affiliates, subsidiaries, and parent companies. During the course of a rate making or other proceeding before the South Carolina Department of Insurance or the Public Service Commission, the Consumer Advocate, as a party of record, may request in writing, in addition to all other methods of discovery as provided by law for proceedings before the South Carolina Department of Insurance or the Public Service Commission, the issuance by the director of the Department of Insurance or the executive director of the Public Service Commission of an order compelling a witness or company to either produce or allow inspection of documentary evidence relevant to the matter before the South Carolina Department of Insurance or the Public Service Commission. If the executive director issues or refuses to issue the order, the aggrieved party may appeal to the full commission. The written request, in addition to showing a general relevance and reasonable scope of the evidence sought, must also specify with particularity the books, accounts, papers, records, or other materials of the business desired and the facts expected to be proved thereby. For good cause shown, in lieu of a written request, the request for such an order may be made orally upon the record to the presiding officer at the hearing. Any objections to the issuance of the order must be filed with the commission within three days of being notified of the written request or such the order. Any objections so filed must list the specific grounds for objection. The commission shall rule on the objections within ten days or the objection is denied.
Section 37-6-606. (1)(A) Whenever the advocate determines that it would be in the interest of consumers affected by regulatory agencies, he may file with the appropriate regulatory agency a petition requesting it to commence or complete a proceeding respecting any organization whose operations substantially affect the consumer interest.
(2)(B) The petition shall set forth must state facts which it is claimed claim to establish the need for the proceeding and a brief description of the substance of the order or amendment desired as a result of the hearing proceeding.
(3)(C) The regulatory agency may hold a public hearing or may conduct such investigation or proceeding as it deems considers appropriate in order to determine whether or not such the petition should be granted.
(4)(D) Within sixty days after the filing of the petition described in item (1) of this section subsection (A), the regulatory agency shall must either grant or deny the petition. If the agency grants the petition, it shall must promptly commence or complete the proceeding, as requested by the petition. If the agency denies the petition it shall must publish the reasons for such the denial.
(5)(E) If the regulatory agency denies the petition made under this section (or if it fails to grant or deny such the petition within sixty days), the petitioner may commence a civil action in the circuit court to compel the regulatory agency to commence or complete the proceeding as requested in the petition. Any such The action may be filed by the petitioner thirty days after the denial of the petition or, if the agency fails to grant or deny the petition within sixty days, within thirty days after the expiration of the sixty-day period.
(6)(F) If the petitioner can demonstrate demonstrates to the satisfaction of the court that the failure of the agency to commence or complete the proceeding as requested in the petition was unreasonable, the court shall must order the agency to commence or complete the proceeding as requested in the petition.
(7)(G) In any action under this section, the court shall have has no authority to compel the agency to take any action other than the commencement or completion of a proceeding.
(H) The remedies under this subsection shall be are in addition to and not in lieu of other remedies provided by law.
(I) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003.
Section 37-6-607. (A) The advocate shall be deemed is considered to have an interest sufficient to maintain actions for judicial review and may, as of right, and in the manner prescribed by law, intervene or otherwise participate in any civil proceeding which involves the review or enforcement of an agency action that the consumer advocate determines may substantially affect the interests of consumers.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003.
Section 37-6-608. (A) To the extent necessary to carry out the consumer advocacy responsibilities, the advocate may in addition to a regular staff, employ temporary, professional, technical, or research specialists to assist in preparing and presenting cases. The compensation paid to such persons may be commensurate with compensation generally paid by the regulated industry for such these specialists, but shall not exceed the appropriation made for such purposes.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003.
Section 37-6-609. (A) Decisions of the Consumer Advocate consumer advocate respecting whether, when, or how to initiate, continue, or intervene in proceedings under Sections 37-6-601 to 37-6-608, shall must be in the sole discretion of the Consumer Advocate consumer advocate except as modified by order of a Court court of competent jurisdiction.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003."
SECTION 9. Section 8-13-930 of the 1976 Code, as added by Act 248 of 1991, is amended to read:
"Section 8-13-930. No A candidate for an office elected by the General Assembly may not seek directly or indirectly the pledge of a member of the General Assembly's vote until the qualifications of all candidates for that office have been determined by the appropriate joint committee to review candidates for that office and until the joint committee has formally released its report as to the qualifications of its nominees to the General Assembly. No A member of the General Assembly may not offer a pledge until the qualifications of all candidates for that office have been determined by the appropriate joint committee to review candidates for that office and until the joint committee has formally released its report as to the qualifications of its nominees to the General Assembly. The formal release of the report of qualifications shall occur no earlier than forty-eight hours after the nominees have been initially released to members of the General Assembly."
SECTION 10. Section 58-3-60 of the 1976 Code is repealed.
SECTION 11. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
HARRY F. CATO for Committee.
Minimal (Some additional costs expected but can be absorbed)
EXPLANATION OF IMPACT:
Public Service Commission
The commission indicates there will be no fiscal impact on the General Fund of the State, however, there will be a minimal cost to federal and/or other funds. The cost associated with the restructuring of the Public Service Commission into the advisory staff and the advocacy staff is a cost that the regulated utilities will fund.
Department of Consumer Affairs
A review of this bill by the department indicates there will be no impact on the General Fund of the State or on federal and/or other funds.
State Ethics Commission
A review of this bill by the commission indicates there will be no impact on the General Fund of the State or on federal and/or other funds.
Approved By:
Don Addy
Office of State Budget
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 58-3-27 SO AS TO PROHIBIT MEMBERSHIP ON AND RESTRICT EMPLOYMENT BY THE PUBLIC SERVICE COMMISSION OF A PERSON ASSOCIATED WITH A REGULATED BUSINESS; BY ADDING SECTION 58-3-35 SO AS TO PROVIDE FOR ETHICS STANDARDS AND REQUIREMENTS FOR PUBLIC SERVICE COMMISSIONERS; BY ADDING SECTION 58-3-65 SO AS TO ESTABLISH AN ADVISORY STAFF AND AN ADVOCACY STAFF FOR THE COMMISSION AND DESCRIBE THEIR RESPONSIBILITIES; AND BY ADDING SECTION 58-3-400 SO AS TO PROHIBIT EX PARTE COMMUNICATIONS WITH AND BY A COMMISSIONER OR ADVISORY STAFF IN CONNECTION WITH A PENDING PROCEEDING; TO AMEND SECTION 58-3-20, AS AMENDED, RELATING TO ESTABLISHMENT OF THE PUBLIC SERVICE COMMISSION, SO AS TO PROVIDE FOR QUALIFICATIONS, SCREENING, AND TERMS OF MEMBERSHIP; TO AMEND SECTION 58-3-24, AS AMENDED, RELATING TO PERSONS INELIGIBLE TO SERVE ON THE PUBLIC SERVICE COMMISSION, SO AS TO ALLOW A MEMBER OF THE GENERAL ASSEMBLY TO SERVE FOUR YEARS AFTER HE HAS NOT FILED FOR REELECTION TO THE GENERAL ASSEMBLY; TO AMEND PART 6, CHAPTER 6, TITLE 37, RELATING TO THE DIVISION OF CONSUMER ADVOCACY OF THE DEPARTMENT OF CONSUMER AFFAIRS, SO AS TO DELETE ANY RESPONSIBILITIES OF THE DIVISION IN CONNECTION WITH THE PUBLIC SERVICE COMMISSION; TO AMEND SECTION 8-13-90, RELATING TO SEEKING OR OFFERING PLEDGES OF VOTES, SO AS TO PROHIBIT THE DIRECT OR INDIRECT SEEKING OF A PLEDGE OR COMMUNICATION ABOUT SCREENING UNTIL CANDIDATES FOR THE OFFICE ARE DETERMINED; AND TO REPEAL SECTION 58-3-60 RELATING TO EMPLOYMENT OF STAFF FOR THE PUBLIC SERVICE COMMISSION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-27. (A) Unless otherwise provided by law, a person may not serve as a member of the Public Service Commission if the Public Service Commission regulates a business with which that person is associated.
(B) If the Public Service Commission regulates a business with which an employee of the Public Service Commission is associated, the employee annually must file a statement of economic interests, notwithstanding the provisions of Section 8-13-1110.
(C) A person may not be an employee of the Public Service Commission if the commission regulates a business with which he is associated and this relationship creates a continuing or frequent conflict with the performance of his official responsibilities."
SECTION 2. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-35. (A) The commissioners are bound by the Code of Judicial Conduct as contained in Rule 501 of the South Carolina Appellate Court Rules, except as provided in Section 58-3-400. The State Ethics Commission is responsible for enforcement and administration of those rules pursuant to Section 8-13-320. In addition, the commissioners shall comply with the requirements of the State Ethics Act, Chapter 13 of Title 8.
(B) Each year, the commissioners and their employees must attend a workshop of at least six contact hours concerning ethics and the Administrative Procedures Act."
SECTION 3. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-65. (A) For purposes of this chapter, the term 'proceeding' means the same as defined in Section 58-3-400(A)(1).
(B) There is established in the Public Service Commission an advisory staff and an advocacy staff. Each staff shall consist of legal, professional, administrative, technical, and clerical personnel necessary for the respective staff to perform its obligations as described in this section.
(C)(1) The advocacy staff shall:
(a) provide legal representation of the consumer interest before the state and federal regulatory agencies that fix rates or prices for consumer products or services or to enact regulations or establish policies related to that interest;
(b) monitor existing regulations, rate structures, and policies of special interest to consumers and report to the public through the news media proposed changes under consideration and the effect of those changes on the lives of the citizens of the State; and
(c) evaluate and act upon requests from consumers concerning the matters set forth in subitems (a) and (b) except that proceedings initiated by the advocate must be brought on behalf of the public at large and not for individuals. Initiation or continuation of a proceeding is at the sole discretion of the consumer advocate.
(2) The advocacy staff also shall represent the public interest of South Carolina before the commission. For purposes of this chapter, 'public interest' means:
(a) concerns of the public users and consumers of public utility services, regardless of the class of customer;
(b) economic development and job attraction and retention in South Carolina; or
(c) preservation of the financial integrity of the state's public utilities and the continued investment in and maintenance of utility facilities.
(3) If the advocacy staff determines that it is in the interest of consumers affected by regulatory agencies it may file with the appropriate regulatory agency a petition requesting the commission to commence or complete a proceeding respecting an organization whose operations substantially affect the consumer interest. The petition must state facts that claim to establish the need for the proceeding and a brief description of the substance of the order or amendment desired as result of the proceeding. Within sixty days after the filing of the petition, the commission must either grant or deny the petition. If the commission grants the petition, it promptly must commence or complete the proceeding, as requested by the petition. If the commission denies the petition it must publish the reasons for the denial. If the commission denies the petition made pursuant to this section or if it fails to grant or deny the petition within sixty days, the advocacy staff may commence a civil action in the circuit court to compel the commission to commence or complete the proceeding as requested in the petition. The action may be filed by the advocacy staff thirty days after the denial of the petition or, if the commission fails to grant or deny the petition within sixty days, within thirty days after the expiration of the sixty-day period. If the petitioner demonstrates to the satisfaction of the court that the failure of the commission to commence or complete the proceeding as requested in the petition was unreasonable, the court shall order the commission to commence or complete the proceeding as requested in the petition. In an action pursuant to this section, the court may not compel the agency to take action other than the commencement or completion of a proceeding. The remedies pursuant to this subsection are in addition to and not instead of other remedies provided by law.
(4) The advocacy staff is not subject to the supervision, direction, or control of the commission or the advisory staff. The advocacy staff shall report to the executive director of the commission who serves at the pleasure of the commission and is solely responsible for the supervision, direction, and control of the advocacy staff.
(5) The advocacy staff may intervene and be a party of record in a proceeding before the commission.
(D) The advisory staff shall provide research and technical support to the commission and advice and recommendations to the commission on all matters. The commission shall hire a director of the advisory staff who is solely responsible for supervision, direction, and control of the advisory staff.
(E) All expenses associated with the advisory staff and the advocacy staff are expenses of the Public Service Commission and must be borne by the public utilities pursuant to Section 58-3-100."
SECTION 4. Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-400. (A) Except as provided in subsection (B), a commissioner or member of the advisory staff may not communicate directly or indirectly with a person and a person may not communicate directly or indirectly with a commissioner or member of the advisory staff regarding an issue in a proceeding pending before the commission without first providing reasonable notice and an opportunity for all parties to participate in the communication. For the purposes of this section:
(1) 'Proceeding' means a contested case to be adjudicated, decided, or arbitrated by the commission.
(2) 'Person' means a party to a proceeding pending before the commission, a member of the advocacy staff, the executive director, a representative of a party to a proceeding pending before the commission, individuals, corporations, partnerships, limited liability companies, members of state government, public and elected officials, and other persons or entities.
(B) Notwithstanding the provisions of subsection (A), a commissioner or a member of the advisory staff may communicate with other commissioners and other members of the advisory staff regarding matters and proceedings pending before the commission.
(C) During the ninety-day period immediately preceding the filing with the commission of any pleadings, applications, or other documents that initiate a proceeding before the commission, a person who is aware that such a proceeding is to be initiated may not communicate, directly or indirectly, with a commissioner or member of the advisory staff regarding an issue involved in the proceeding. If a prohibited communication is made during that time, the commissioner or member of the advisory staff shall disclose the communication in the manner provided in subsection (D); except that a commissioner or member of the advisory staff may communicate, directly or indirectly, with a person regarding any fact, law, or other matter that may become an issue in a proceeding before the commission for the purposes of an educational briefing by the person if all members of the commission, all members of the advisory staff, all members of the advocacy staff, and all parties are invited to attend the briefing. Notice of the briefing must be published on the commission's website ten days before the educational briefing.
(D)(1) If a commissioner or member of the advisory staff receives a communication in violation of this section he must place the following on the record of the proceeding:
(a) the substance of the prohibited communication;
(b) all written or electronic documentation of the prohibited communication; and
(c) the identity of each person who participated in the prohibited communications.
(2) The commission or member of the advisory staff also shall advise all parties that these matters have been placed on the record pursuant to item (1). Within ten days after receipt of notice of the prohibited communication, a person who desires to rebut the content of the prohibited communication must request and be granted the opportunity to rebut its contents.
(E) If necessary to eliminate the effect of a prohibited communication received in violation of this section, a commissioner or member of the advisory staff who receives the prohibited communication may be prohibited from participating in the proceeding and the portions of the record pertaining to the prohibited communication may be sealed by protective order.
(F) A commissioner or member of the advisory staff, member of the advocacy staff, party, or other person must report a wilful violation of this section by a commissioner or member of the advisory staff to the State Ethics Commission for disciplinary proceedings or action provided by law.
(G) A person who wilfully violates this section may be fined not more than one thousand dollars.
(H) This section does not prohibit communication by the executive director of the commission with commissioners on administrative matters."
SECTION 5. Section 58-3-20 of the 1976 Code, as last amended by Act 493 of 1994, is further amended to read:
"Section 58-3-20. (A) The Public Service Commission shall be is composed of seven members to be elected by the General Assembly in the manner prescribed by this chapter for terms of four years and until their successors are elected and qualify. For an election for a term beginning after June 30, 2004, the elected members shall have a high school degree or equivalent.
(B) In screening persons for election to the Public Service Commission for a term beginning after June 30, 2004, the joint committee shall consider the knowledge and experience of the appointees in the following fields:
(1) energy issues;
(2) telecommunication issues;
(3) consumer protection and advocacy issues;
(4) water and wastewater issues;
(5) finance, economics, and statistics;
(6) accounting;
(7) engineering;
(8) law; or
(9) business operation or administration.
(C) Beginning in 2003, the members of the Public Service Commission must be elected to staggered terms. In 2003, the members representing the second, fourth, and sixth congressional districts and the state at-large district must be elected for four-year terms, ending in 2007 and until their successors are elected and qualified. In 2003, the members representing the first, third, and fifth congressional districts must be elected for two-year terms, ending in 2005 and until their successors are elected and qualified. After that, members are elected to terms of four years and until their successors are elected and qualified.
(D) The General Assembly shall must provide for the election of the seven member seven-member commission and elect its members thereto based upon the congressional districts established by the General Assembly. The elections held in 2003 must be based on the congressional districts established pursuant to the official United States Census of 1990 2000. The elections held after 2004 must be based on the congressional districts established pursuant to the latest official United States Decennial Census. If the number of congressional districts is less than seven, additional members shall must be elected at large to provide for a seven member seven-member commission."
SECTION 6. Section 58-3-24 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 58-3-24. After January 1, 1981, no Beginning in 2004, a member of the General Assembly shall must not be elected to the Public Service Commission while that person the member is serving in the General Assembly; nor shall that person the member of the General Assembly be elected to the Public Service Commission for a period of four years after he the member either:
(1) ceases to be a member of the General Assembly; or
(2) fails to file for election to the General Assembly in accordance with Section 7-11-15."
SECTION 7. Part 6 of Chapter 6, Title 37 of the 1976 Code is amended to read:
Section 37-6-601. There is hereby created in the Department of Consumer Affairs the Division of Consumer Advocacy with duties and organizations as hereinafter provided.
Section 37-6-602. The consumer advocate may be the Administrator of Consumer Affairs or he may be appointed by the Administrator administrator with the approval of the Commission on Consumer Affairs. The consumer advocate shall must be an attorney qualified to practice in all courts of this State with a minimum of three years' practice experience.
Section 37-6-603. The Division of Consumer Advocacy shall must be staffed and equipped to perform the functions prescribed in Section 37-6-604. The expenses of the office shall must be paid from appropriations provided annually in the State General Appropriation Act.
Section 37-6-604. (A) The Except as provided in subsection (B), the functions and duties of the Division of Consumer Advocacy are:
(1) To to provide legal representation of the consumer interest before the state and federal regulatory agencies which undertake to fix rates or prices for consumer products or services or to enact regulations or establish policies related thereto and to provide legal representation of the consumer interest concerning Certificates of Need for health facilities and services, as required for an activity under Section 44-7-160, health care licensing procedures, and other health related-matters.
(2) To to monitor existing regulations, rate structures and policies of that agency of special interest to consumers and report to the public through the news media proposed changes therein under consideration and the effect of those changes on the lives of the citizens of the State.
(3) The annual report required of the Commission on Consumer Affairs must include a report on the activities of the Division of Consumer Advocacy.
(4) To to evaluate and act upon requests from consumers concerning the matters set forth in items (1) and (2) above, except that any proceedings initiated by the advocate must be brought on behalf of the public at large and not for individuals; initiation or continuation of any proceedings must be at the sole discretion of the consumer advocate.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58 of the South Carolina Code of Laws, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003. Matters or appeals pending on June 30, 2003 shall be handled by the Consumer Advocate until June 30, 2005, when responsibility for such matters will be transferred to the advocacy staff of the Public Service Commission.
Section 37-6-605. In the performance of his assigned functions the advocate shall must have reasonable access to records of all state agencies which are not classified by law as confidential, and all state agencies shall must cooperate with the advocate in the performance of his duties. In addition, the advocate shall must have reasonable access to confidential records and information, provided he enters a proprietary agreement to insure ensure their confidentiality. The South Carolina Department of Insurance and advocate also shall have access to records, information, and data of the insurance companies as well as all of their sister affiliates, subsidiaries, and parent companies. During the course of a rate making or other proceeding before the South Carolina Department of Insurance or the Public Service Commission, the Consumer Advocate, as a party of record, may request in writing, in addition to all other methods of discovery as provided by law for proceedings before the South Carolina Department of Insurance or the Public Service Commission, the issuance by the director of the Department of Insurance or the executive director of the Public Service Commission of an order compelling a witness or company to either produce or allow inspection of documentary evidence relevant to the matter before the South Carolina Department of Insurance or the Public Service Commission. If the executive director issues or refuses to issue the order, the aggrieved party may appeal to the full commission. The written request, in addition to showing a general relevance and reasonable scope of the evidence sought, must also specify with particularity the books, accounts, papers, records, or other materials of the business desired and the facts expected to be proved thereby. For good cause shown, in lieu of a written request, the request for such an order may be made orally upon the record to the presiding officer at the hearing. Any objections to the issuance of the order must be filed with the commission within three days of being notified of the written request or such the order. Any objections so filed must list the specific grounds for objection. The commission shall rule on the objections within ten days or the objection is denied.
Section 37-6-606. (1)(A) Whenever the advocate determines that it would be in the interest of consumers affected by regulatory agencies, he may file with the appropriate regulatory agency a petition requesting it to commence or complete a proceeding respecting any organization whose operations substantially affect the consumer interest.
(2)(B) The petition shall set forth must state facts which it is claimed claim to establish the need for the proceeding and a brief description of the substance of the order or amendment desired as a result of the hearing proceeding.
(3)(C) The regulatory agency may hold a public hearing or may conduct such investigation or proceeding as it deems considers appropriate in order to determine whether or not such the petition should be granted.
(4)(D) Within sixty days after the filing of the petition described in item (1) of this section subsection (A), the regulatory agency shall must either grant or deny the petition. If the agency grants the petition, it shall must promptly commence or complete the proceeding, as requested by the petition. If the agency denies the petition it shall must publish the reasons for such the denial.
(5)(E) If the regulatory agency denies the petition made under this section (or if it fails to grant or deny such the petition within sixty days), the petitioner may commence a civil action in the circuit court to compel the regulatory agency to commence or complete the proceeding as requested in the petition. Any such The action may be filed by the petitioner thirty days after the denial of the petition or, if the agency fails to grant or deny the petition within sixty days, within thirty days after the expiration of the sixty-day period.
(6)(F) If the petitioner can demonstrate demonstrates to the satisfaction of the court that the failure of the agency to commence or complete the proceeding as requested in the petition was unreasonable, the court shall must order the agency to commence or complete the proceeding as requested in the petition.
(7)(G) In any action under this section, the court shall have has no authority to compel the agency to take any action other than the commencement or completion of a proceeding.
(H) The remedies under this subsection shall be are in addition to and not in lieu of other remedies provided by law.
(I) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58 of the South Carolina Code of Laws, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003.
Section 37-6-607. (A) The advocate shall be deemed is considered to have an interest sufficient to maintain actions for judicial review and may, as of right, and in the manner prescribed by law, intervene or otherwise participate in any civil proceeding which involves the review or enforcement of an agency action that the consumer advocate determines may substantially affect the interests of consumers.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58 of the South Carolina Code of Laws, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003.
Section 37-6-608. (A) To the extent necessary to carry out the consumer advocacy responsibilities, the advocate may in addition to a regular staff, employ temporary, professional, technical, or research specialists to assist in preparing and presenting cases. The compensation paid to such persons may be commensurate with compensation generally paid by the regulated industry for such these specialists, but shall not exceed the appropriation made for such purposes.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58 of the South Carolina Code of Laws, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003.
Section 37-6-609. (A) Decisions of the Consumer Advocate consumer advocate respecting whether, when, or how to initiate, continue, or intervene in proceedings under Sections 37-6-601 to 37-6-608, shall must be in the sole discretion of the Consumer Advocate consumer advocate except as modified by order of a Court court of competent jurisdiction.
(B) After June 30, 2003, the division is not responsible for representing consumers in matters arising under Title 58 of the South Carolina Code of Laws, including matters pending before state or federal regulatory agencies or courts, with the exception of matters pending on June 30, 2003, or any appeals of those matters pending on June 30, 2003."
SECTION 8. Section 8-13-930 of the 1976 Code, as added by Act 248 of 1991, is amended to read:
"Section 8-13-930. No A candidate for an office elected by the General Assembly may not seek directly or indirectly the pledge of a member of the General Assembly's vote or directly or indirectly contact a member of the General Assembly regarding screening for the office until the qualifications of all candidates for that office have been determined by the appropriate joint committee to review candidates for that office. No A member of the General Assembly may not offer a pledge until the qualifications of all candidates for that office have been determined by the appropriate joint committee to review candidates for that office."
SECTION 9. Section 58-3-60 of the 1976 Code is repealed.
SECTION 10. This act takes effect upon approval by the Governor.
This web page was last updated on Thursday, June 25, 2009 at 9:37 A.M.