South Carolina General Assembly
115th Session, 2003-2004

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Bill 208

Indicates Matter Stricken
Indicates New Matter


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken

Indicates New Matter

AMENDED

April 9, 2003

S. 208

Introduced by Senators McConnell, Moore, Malloy and Waldrep

S. Printed 4/9/03--H.

Read the first time April 8, 2003.

            

A BILL

TO AMEND SECTION 1-3-240, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THOSE OFFICERS WHO ARE SUBJECT TO REMOVAL BY THE GOVERNOR, SO AS TO INCLUDE THE EXECUTIVE DIRECTOR OF THE OFFICE OF PUBLIC STAFF; BY ADDING SECTION 8-13-935 SO AS TO REVISE THE PROCEDURES APPLICABLE TO CANDIDATES FOR THE PUBLIC SERVICE COMMISSION WHO SEEK THE PLEDGE OF A MEMBER OF THE GENERAL ASSEMBLY; TO AMEND PART 6 OF CHAPTER 6 OF TITLE 37, RELATING TO THE DEPARTMENT OF CONSUMER AFFAIRS' DIVISION OF CONSUMER ADVOCACY, SO AS TO REVISE THE DIVISION'S JURISDICTION; TO AMEND ARTICLE 1, CHAPTER 3 OF TITLE 58, RELATING TO THE GENERAL PROVISIONS APPLICABLE TO THE PUBLIC SERVICE COMMISSION, BY ADDING SECTION 58-3-5 SO AS TO PROVIDE DEFINITIONS, AND, AMONG OTHER THINGS, REVISE THE QUALIFICATIONS APPLICABLE TO CANDIDATES FOR THE COMMISSION, STAGGER THE TERMS OF MEMBERS OF THE COMMISSION, PROVIDE THAT A MEMBER OF THE GENERAL ASSEMBLY OR AN IMMEDIATE FAMILY MEMBER OF A MEMBER OF THE GENERAL ASSEMBLY MAY NOT BE ELIGIBLE FOR ELECTION TO THE PUBLIC SERVICE COMMISSION DURING THE MEMBER'S TERM OF OFFICE AND FOR A PERIOD OF FOUR YEARS AFTER HE CEASES TO BE A MEMBER OF THE GENERAL ASSEMBLY; BY ADDING SECTION 58-3-25 SO AS TO PROVIDE THAT A PERSON WHOSE BUSINESS IS REGULATED BY THE COMMISSION MAY NOT SERVE AS A MEMBER OF THE COMMISSION; BY ADDING SECTION 58-3-30 SO AS TO PROVIDE THAT COMMISSIONERS ARE BOUND BY THE CODE OF JUDICIAL CONDUCT; BY ADDING SECTION 58-3-135 SO AS TO ESTABLISH REQUIREMENTS FOR ALL FINAL COMMISSION ORDERS AND DECISIONS; BY ADDING SECTION 58-3-140 SO AS TO PROVIDE PROCEDURES AND REQUIREMENTS RELATING TO PROHIBITED AND PERMITTED COMMUNICATIONS BY MEMBERS AND STAFF OF THE COMMISSION INCLUDING EX PARTE COMMUNICATIONS BY THESE PERSONS; BY ADDING SECTION 58-3-145 SO AS TO PROVIDE PROCEDURES FOR A PARTY SEEKING RELIEF FROM AN ALLEGED IMPROPER COMMUNICATION; BY ADDING SECTION 58-3-150 SO AS TO PROVIDE THAT A FORMER COMMISSIONER MAY NOT BE EMPLOYED BY A PUBLIC UTILITY FOR A PERIOD OF ONE YEAR FOLLOWING HIS SERVICE ON THE COMMISSION; BY ADDING ARTICLE 5 TO CHAPTER 3, TITLE 58 SO AS TO ESTABLISH THE PUBLIC SERVICE COMMISSION AND OFFICE OF PUBLIC STAFF REVIEW COMMITTEE AND TO PROVIDE FOR ITS MEMBERSHIP, POWERS, AND DUTIES; BY ADDING CHAPTER 4 TO TITLE 58 SO AS TO CREATE THE OFFICE OF PUBLIC STAFF AS A SEPARATE STATE AGENCY AND PROVIDE FOR ITS JURISDICTION, POWERS, DUTIES, AND RESPONSIBILITIES; AND TO REPEAL SECTIONS 58-3-67 AND 58-3-93 EFFECTIVE JULY 1, 2004.

Amend Title To Conform

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 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. In enforcing the provisions of this section, the State Ethics Commission shall follow the procedures set forth in Rule 502 of the South Carolina Appellate Court Rules.

(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 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.

(2)    The advocacy staff may intervene and be a party of record in a proceeding before the commission.

(3)    The director of the advocacy staff shall be appointed by a committee consisting of five members, one of whom must be appointed by the Speaker of the House of Representatives from the membership of the House, one of whom must be appointed by the Speaker of the House of Representatives from the general public, one of whom must be appointed by the President Pro Tempore of the Senate from the membership of the Senate, one of whom must be appointed by the President Pro Tempore of the Senate from the general public, and one of whom must be appointed by the Governor who shall chair the committee.

The members of the committee shall serve at the pleasure of their appointing authority and shall be a continuing body. After appointing the director of the advocacy staff and approving the director's initial compensation, the committee shall conduct an annual performance review of the director.

The director of the advocacy staff is solely responsible for supervision, direction, and control of the advocacy staff. The salary of the director of the advocacy staff shall be established in the same manner as are other salaries at the commission, subject to the approval of the five-member committee.

(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)    In addition to his other responsibilities, the executive director of the commission shall:

(1)    ensure all pleadings filed with the commission are processed in compliance with the commission's approved policy and procedures manual;

(2)    ensure 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 executive director, a representative of a party to a proceeding pending before the commission, individuals, corporations, partnerships, limited liability companies, members of state government, and public and elected officials.

(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 executive director to the State Ethics Commission for disciplinary proceedings or action provided by law. In enforcing the provisions of this section, the State Ethics Commission shall follow the procedures set forth in Rule 502 of the South Carolina Appellate Court Rules.

(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 executive director of the commission with commissioners on administrative matters.

(I)    In addition to all other penalties or sanctions authorized by this section, the violation or the appearance of violating the prohibitions against ex parte communications contained in this section by any candidate for election or reelection to the commission after 2003 must be considered by the joint screening committee when determining the qualifications of candidates in those elections."

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 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.    (A)    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 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.

(B)    If a family member, as defined in Section 2-17-10(6), runs for an office which is elected by the General Assembly, the member of the General Assembly related to the family member shall abstain from voting for that person."

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.

(C)    Notwithstanding any other provision of law, candidates for election to the Public Service Commission in 2003, within five days after the effective date of this section, must file a Statement of Economic Interest with the State Ethics Commission. The Statement of Economic Interest must also contain a supplemental statement showing all contributions from any person in any amount to support his candidacy for election to the commission in 2002 or 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 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    9.    Section 58-3-60 of the 1976 Code is repealed.

SECTION    10.    If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    11.    Section 58-3-70 of the 1976 Code is amended to read:

"Section 58-3-70.    The chairman and members of the commission shall receive annual salaries payable in the same manner as the salaries of other State officers are paid. Each commissioner shall devote full time to his duties as a commissioner, and shall not engage in any other employment, business, profession, or vocation during the normal business hours of the Public Service Commission."

SECTION    12.    This act takes effect upon approval by the Governor.

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