Consumer advocates seek limits on Florida utility regulators’ off-the-record communications

Florida’s utility regulators focus on ethics

TALLAHASSEE, Fla. — It was like going back to the future for Florida utility regulators Tuesday as consumer advocates urged a ban on most off-the-record communications as recommended by a statewide grand jury 18 years ago.

The Public Service Commission held a staff workshop on the issue Tuesday amid complaints the panel and its employees have been too cozy with regulated utilities.

The discussion started with a look back at the 1992 grand jury recommendations — most not adopted — that would make the five-member commission operate more like a court.

“It was amazing to read that for the first time,” said Commissioner Nathan Skop. “It looks like it was written last night.”

The issue resurfaced this year as the commission began considering major rate increases sought by the state’s two largest electric utilities, Florida Power & Light Co. and Progress Energy Florida.

The commission’s lobbyist resigned in September after disclosing he attended a party hosted by an FPL executive. Other staffers were disciplined for giving utility officials personal identification numbers, or PINs, so they could exchange smartphone text messages with employees or commissioners.

Prosecutors and the Florida Department of Law Enforcement investigated but found no criminal wrongdoing, State Attorney Willie Meggs said in October. The FDLE on Tuesday released a report confirming that result and disclosing the investigation came in response to a complaint by Skop. The commission’s inspector general also found no violation of the panel’s regulations.

State law prohibits commissioners from having private communications with utilities and other parties to rate cases. That ban does not apply to staff members, but a commission rule bars them from relaying information they obtain to commissioners.

The 1992 grand jury report, though, noted the rule can be sidestepped by including off-the-record information in staff recommendations to the full commission.

The grand jury recommended a ban on all such “ex-parte” communications with commissioners and staff except for emergencies, brief follow-ups after meetings or phone calls and correspondence. The latter, though, would have to be shared with the Public Counsel’s Office, which represents consumers.

Public Counsel J.R. Kelly said that recommendation should be adopted along with another one to extend the ban to other matters besides rate cases to make the commission more court-like and restore public confidence in the panel.

“You would never call up a federal judge’s aide, or circuit judge’s aide, or a Division of Administrative Hearing Officer’s aide and say ‘Hi, I’d like to set up a meeting and come talk to you about an issue in a case,’” said Jon Moyle, a lawyer for industrial power consumers. “It’s not done.”

Skop and Chairman Matthew Carter, the only commissioners at the workshop, said they support limiting off-the-record communications.

Lawmakers also should consider another grand jury recommendation for stiff fines on utilities that violate the ban, Skop said. The grand jury suggested 0.1 percent of annual profit on equity. That would be $100,000 if a company made $100 million.

Kelly looked beyond the grand jury report to suggest doing away with staff recommendations. He said that would result in a more open process and leave decision-making where it belongs — with the commissioners.

Moyle said he found Kelly’s idea intriguing, noting the commission rarely disagrees with its staff, but Carter dismissed the proposal.

“Staff’s function is as an impartial arbiter,” Carter said. “Staff doesn’t have a dog in the fight.”

Skop said he liked having staff recommendations but found the Kelly’s proposal interesting and wanted to find out more about it.