MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Public Utilities
By: Representative Staples
AN ACT TO AMEND SECTIONS 77-2-1 THROUGH 77-2-17, MISSISSIPPI CODE OF 1972, TO LIMIT THE PUBLIC UTILITIES STAFF TO SERVING AS A SUPPORT STAFF TO THE PUBLIC SERVICE COMMISSION AND PUBLIC SERVICE COMMISSION STAFF; TO AMEND SECTION 77-3-115, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 77-2-1, Mississippi Code of 1972, is amended as follows:
77-2-1. There is hereby
established a Public Utilities Staff, which shall * * * serve
as a support staff to the Public Service Commission and the Public Service
Commission staff. Such staff shall consist of the personnel positions of the
executive director, the economic and planning division, legal division,
engineering division and accounting division with a State Personnel Board
organizational code of twenty thousand (20,000) or larger which were formerly
authorized and appropriated under the provisions of Section 77-3-8, Mississippi
Code of 1972. The executive director shall establish the organizational
structure of the staff, with approval by the Public Service Commission,
and shall have the authority to create units as deemed appropriate to carry out
the responsibilities of the staff. The Public Utilities Staff shall represent
the broad interests of the State of Mississippi in supporting the Public
Service Commission and commission staff by balancing the respective
concerns of the residential, commercial or industrial ratepayers, and the state
and its agencies and departments, and the public utilities. The staff shall
consist of a sufficient number of professional, administrative, technical,
clerical and other personnel as may be necessary for the staff to perform its
duties and responsibilities as hereinafter provided. All such personnel shall
be competitively appointed by the executive director and shall be dismissed
only for cause in accordance with the rules and regulations of the State
Personnel Board. All equipment, supplies, records and any funds appropriated
by the Legislature to the Public Service Commission for and on behalf of the
Public Utilities Staff shall be transferred to such staff on September 1,
1990. The Public Utilities Staff shall be funded separately from the
Mississippi Public Service Commission. Any appropriated funds to the Public
Utilities Staff shall be maintained in an account separate from any funds of
the Public Service Commission and shall never be commingled therewith.
Notwithstanding any provision of this chapter to the contrary, the personnel positions of the data processing division and the gas pipeline safety division of the Public Utilities Staff shall be the Public Service Commission staff positions authorized under Section 77-3-8, and shall be under the control and supervision of the Public Service Commission from and after March 15, 1991. However, the Public Service Commission staff shall continue to provide at no cost administrative support in the nature of data processing and bookkeeping to the Public Utilities Staff in order to avoid duplication of services.
SECTION 2. Section 77-2-3, Mississippi Code of 1972, is amended as follows:
77-2-3. (1) The Public Utilities Staff created pursuant to Section 77-2-1 and the Public Service Commission and commission staff shall have and possess all of the rights and powers to perform all of the duties vested by this chapter, with the Public Utilities Staff limited to the role of a support staff for the commission and commission staff.
(2) The functions of the commission, with the aid and assistance of its staff and the Public Utilities Staff, shall be regulatory and quasi-judicial in nature. It may make such investigations and determinations, hold such hearings, prescribe such rules and issue such orders with respect to the control and conduct of the businesses coming within its jurisdiction. It may adjudicate all proceedings brought before it in which the violation of any law or rule administered by the commission is alleged.
(3) The primary functions of the Public Utilities Staff shall be investigative and advisory in nature, but limited by its role as a support staff for the commission and commission staff.
SECTION 3. Section 77-2-5, Mississippi Code of 1972, is amended as follows:
77-2-5. For purposes of this chapter, the terms defined in this section shall have the meaning ascribed as follows:
(a) "Regulatory function" means all duties and procedures concerning the execution and enforcement of the laws, rules, orders, directives, duties and obligations imposed for the control and government of the persons or businesses regulated, together with investigative activities incident thereto and procedures inherently administrative or executive in character.
(b) "Quasi-judicial function" means the promulgation of all orders and directives of particular applicability governing the conduct of the regulated persons or businesses, together with procedures inherently judicial.
(c) "Commission" means the Mississippi Public Service Commission.
(d) "Public Utilities Staff" means those persons employed by the Public Utilities Staff established in Section 77-2-1.
(e) "Public Service Commission staff" means those persons employed by the Public Service Commission pursuant to Section 77-3-8, Mississippi Code of 1972.
SECTION 4. Section 77-2-7, Mississippi Code of 1972, is amended as follows:
77-2-7. (1) An executive director of the Public Utilities Staff shall be appointed, on or before July 1, 1990, by the Governor, from recommended candidates to be selected by the Public Service Commission, with the advice and consent of the Senate, to serve for a term of six (6) years. On or before May 15, 1990, the Public Service Commission shall submit to the Governor a list of not less than three (3) and no more than six (6) qualified candidates for the position of executive director. The Governor shall appoint the executive director from the list of qualified candidates nominated. Within sixty (60) days prior to the expiration of the term of the executive director, the Public Service Commission shall submit the names of candidates to the Governor in the manner provided herein. Whenever any vacancy shall occur in the position of executive director, the Public Service Commission shall nominate and the Governor shall appoint an executive director, as provided herein, to fill the unexpired term. The executive director shall serve at the will and pleasure of the Governor.
(2) The executive director of the Public Utilities Staff shall hold at least a bachelor's degree and shall have extensive managerial experience with a thorough knowledge of public utility economics and the principles of utility service and rate construction. The executive director of the Public Utilities Staff shall possess the ability to analyze quantitative and qualitative data and to develop and adjust regulatory strategies or policies to attain commission objectives. The salary of the executive director shall be set by the State Personnel Board and shall be such that it is comparable to salaries of those holding similar positions in other state and federal agencies and commensurate with the duties and responsibilities imposed on this official position which affects the broad interests of the State of Mississippi. Nothing herein shall be construed to prevent reappointment of the executive director for consecutive terms.
SECTION 5. Section 77-2-9, Mississippi Code of 1972, is amended as follows:
77-2-9. (1) The executive director shall have general charge of the operations and administration of the Public Utilities Staff, as a support staff for the Public Service Commission and the commission staff. It shall be the duty and responsibility of the executive director to supervise and manage the offices and personnel on the Public Utilities Staff and formulate written policies and procedures for the effective and efficient operation thereof. The executive director shall be responsible for hiring persons on the staff who meet established qualifications for comparable positions of duty and responsibility. The Public Utilities Staff as formerly created in Section 77-3-8, Mississippi Code of 1972, which consists of the Economic and Planning Division, Legal Division, Engineering Division, Accounting Division and Administrative Services Division, and has a State Personnel Board organizational code of twenty thousand (20,000) or larger, is abolished from and after August 31, 1990. All such former employees shall be eligible to be rehired by the executive director for positions on the Public Utilities Staff created pursuant to Section 77-2-1. Such former employees shall not, by virtue of abolishing such staff, lose any vacation or sick leave benefits previously accrued and, if rehired, shall continue vacation and sick leave as if they had not been terminated. For a period of one (1) year after July 1, 1990, the personnel actions of the Public Utilities Staff shall be exempt from State Personnel Board procedures in order to give the Public Utilities Staff flexibility in making an orderly, effective and timely transition to the mandated reorganization.
(2) The following personnel and members of the Public Utilities Staff shall be competitively appointed by the executive director and shall have at least the knowledge, skills and abilities set forth herein. These requirements shall not be waived, and possession thereof shall be certified by the State Personnel Board:
(a) A chief engineer who is a graduate licensed engineer and who has a thorough knowledge of engineering principles as applied to the design, construction, operation, maintenance and expansion of utility facilities and rate structure determination. The chief engineer shall possess a thorough knowledge of techniques and practices of public utility service and regulation and shall have the ability to evaluate same and to formulate accurate conclusions therefrom.
(b) A certified public accountant who possesses a thorough knowledge of standard accounting procedures, techniques and systems with specific reference to the utility industry. Such accountant shall be experienced in public utility accounting and shall have a thorough knowledge of the financial and organizational structure of public utility companies to include knowledge of the methods by which financing of major additions and extensions to utility operations is acquired.
(c) A director of economics and planning who holds at least a bachelor's degree in economics and possesses a thorough knowledge of the principles and techniques of economic and financial research and statistical analysis. The director of economics and planning shall have a thorough knowledge of the sources of economic, financial and statistical information and the methods of utilizing these sources, as well as considerable knowledge of capital markets with specific reference to utility financing. This employee shall be experienced in conducting analyses of the utility industry, the economy, cost of money, availability and cost of fuel and energy and other related matters within the authority of the commission.
(d) Supportive technical personnel consisting of rate analysts, accountants, inspectors and statisticians as authorized and appropriated by the Legislature.
(e) A general counsel, who shall be a member of The Mississippi Bar, shall have practiced law for a minimum of five (5) years and who shall possess considerable knowledge of utility regulation generally and of the case law, statutory law and the common law relating thereto.
(3) It shall be the duty and responsibility of the Public Utilities Staff by and through the executive director, as a support staff for the Public Service Commission and the commission staff, to:
(a) In uncontested matters review, investigate and make appropriate written recommendations to the commission with respect to the reasonableness of rates charged or proposed to be charged by any public utility and with respect to the consistency of such rates with the public policy of assuring an energy supply adequate to protect the public health and safety and to promote the general welfare;
(b) Review, investigate and make appropriate written recommendations to the commission with respect to the service furnished or proposed to be furnished by any utility;
(c) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all commission proceedings affecting the rates or service of any public utility;
(d) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, petition the commission to initiate proceedings to review, investigate and take appropriate action with respect to the rates or service of public utilities. Receipt of such petition shall be spread on the minutes of the Public Service Commission. The commission shall, within thirty (30) days of receipt of such petition, spread upon its minutes and forward to the Executive Director of the Public Utilities Staff a response detailing actions taken or proposed to be taken;
(e) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all certificate applications filed and provide assistance to the commission in making the analysis and plans required;
(f) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all proceedings wherein any public utility proposes to reduce or abandon service to the public;
(g) Make studies with respect to standards, regulations, practices or service of any public utility; however, the Public Utilities Staff shall have no duty, responsibility or authority with respect to the enforcement of natural gas pipeline safety law, or the federal railroad safety laws, rules or regulations;
(h) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all commission proceedings with respect to transfers of franchises, mergers, consolidation and combination of public utilities;
(i) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public and the public utilities, review and investigate contracts of public utilities with affiliates or subsidiaries;
(j) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, advise the commission with respect to regulations and transactions;
(k) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public and the public utilities, review and make recommendations to the commission on all miscellaneous uncontested filings;
(l) Advise the Public Service Commission in writing as to the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities in all major rate cases and automatic adjustment clauses;
(m) When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, review and investigate the justness and reasonableness, to both the public and the public utility, of rates charged or proposed to be charged by any public utility, the rates of which are subject to regulation under the provisions of this chapter; and
(n) Accumulate evidence and other information from public utilities and other sources as required or as may be requested by the Public Service Commission.
(4) The Executive Director of the Public Utilities Staff shall employ the resources of the staff to furnish to the commission, in a timely and expeditious manner, such information and reports or conduct such investigations and provide such other assistance as may be required in order to enforce the laws providing for the regulation of public utilities.
(5) All written recommendations and reports provided to the Public Service Commission from the Public Utilities Staff shall bear the signature of the executive director, who shall maintain a record thereof, including the date such recommendation or report was submitted to the commission.
(6) In no event shall the duties and responsibilities of the Public Utilities Staff be exercised with regard to matters not within the jurisdiction and powers of the Public Service Commission.
(7) In no event shall the duties and responsibilities of the Public Utilities Staff be exercised outside the role of a support staff of the Public Service Commission and commission staff.
SECTION 6. Section 77-2-11, Mississippi Code of 1972, is amended as follows:
77-2-11. (1) A person who serves as (a) Commissioner of the Public Service Commission, (b) Executive Director of the public utilities staff, or (c) Executive Secretary of the commission shall not, while employed with or within one (1) year after leaving the commission or Public Utilities Staff, accept employment with, receive compensation directly or indirectly from, or enter into a contractual relationship with an entity, or an affiliate company of an entity, that was subject to rate regulation by the commission at the time of his departure.
(2) An entity or an affiliate company of an entity that is subject to rate regulation by the commission, or a person acting on behalf of the entity or its affiliate, shall not negotiate or offer to employ or compensate a commissioner of the Public Service Commission, Executive Director of the Public Utilities Staff or the Executive Secretary of the commission, while the person is so employed or within one (1) year after the person leaves that employment.
(3) A person who is employed with the Public Utilities Staff shall not, within one (1) year, after leaving the Public Utilities Staff, accept employment with, or receive compensation, directly or indirectly, from the Public Service Commission or the Public Service Commission staff.
(4) A person who is employed with the Public Service Commission or Public Service Commission staff, shall not, within one (1) year, after leaving the commission or Public Service Commission staff, accept employment with, or receive compensation, directly or indirectly, from the Public Utilities Staff.
(5) A person who violates this section is subject to a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) for each violation. The Attorney General may bring an action in circuit court to collect the penalties provided in this section.
SECTION 7. Section 77-2-13, Mississippi Code of 1972, is amended as follows:
77-2-13. (1) A Public Service Commissioner, commission or Public Utilities Staff employee, or consultant assisting the commission in investigating, compiling, evaluating and analyzing the record shall not communicate, directly or indirectly, regarding any issue in a contested proceeding other than communications necessary to procedural aspects of maintaining an orderly process, with any commission employee or consultant who has participated in the proceeding in a public advocacy or prosecutorial capacity, any party, his agent or other person acting on his behalf who has a direct or indirect pecuniary interest in the outcome of the proceeding, without notice and opportunity for all parties to participate.
(2) A commission or Public Utilities Staff employee, or consultant who has participated in investigating, compiling, evaluating and analyzing the record in a public advocacy or prosecutorial capacity; any party, his agent or other person acting on his behalf who has a direct or indirect pecuniary interest shall not communicate, directly or indirectly, regarding any issue in a contested proceeding other than communications necessary to procedural aspects of maintaining an orderly process, with any commissioner, employee or consultant assisting the commissioners in investigating, compiling, evaluating and analyzing the record, or any person who is, or may reasonably be expected to be, involved in the decisional process of the proceeding, without notice and opportunity for all parties to participate.
(3) The provisions of this section shall not apply to the following:
(a) Commissioners may communicate with one another regarding any proceeding;
(b) Commissioners, either individually or as a group, may receive aid in investigating, compiling, evaluating and analyzing the record from legal counsel, other employees or consultants of the commission or Public Utilities Staff who have not participated in the proceeding in a public advocacy or prosecutorial capacity; and
(c) Commissioners may communicate, either individually or as a group, with the general public about matters not regarding a contested proceeding.
(4) The commission shall, in the event of a violation of this section, take whatever action is necessary to ensure that such violation does not prejudice any party or adversely affect the fairness of the proceedings to include, but is not limited to, the following:
(a) A Public Service Commissioner, consultant, or employee of the commission or Public Utilities Staff who is or may reasonably be expected to be involved in the investigation, compilation, evaluation, analysis or decisional process of a contested proceeding who receives an ex parte communication in violation of this section shall place on the public record of the pending matter all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the ex parte communication was received. The chairman of the commission shall advise all parties that these matters have been placed on the record. Upon request made within ten (10) days after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a written rebuttal statement on the record. Portions of the record pertaining to ex parte communications or rebuttal statements do not constitute evidence of any fact at issue in the matter unless a party moves the admission of that portion of the record for purposes of establishing a fact at issue and that portion of the record is so admitted.
(b) If necessary to eliminate the effect of an ex parte communication received in violation of this section, a commissioner who receives the communication may be disqualified, and the portions of the record pertaining to the communication may be sealed by protective order.
(c) The commission may, in its discretion, require, to the extent consistent with the interests of justice and the policy of underlying statutes, the communicator to show cause why his claim in the contested case should not be dismissed, denied, disregarded or otherwise adversely affected as a result of such violation.
(d) Any person found guilty of violating any provision of this section shall be guilty of a misdemeanor and shall be punished by imprisonment not to exceed six (6) months or a fine not to exceed One Thousand Dollars ($1,000.00), or both.
(5) A proceeding shall be considered contested in the following:
(a) Upon the initiation of any proceedings requiring a party to show cause why any action by the commission should not be taken;
(b) In a rate change proceeding when a rate filing is suspended; and
(c) In any adversarial proceeding, when any objection or contest is filed by any party.
A contested proceeding remains pending until the commission has issued its final order, and the time to petition for reconsideration has expired or the commission has issued an order finally disposing of an application for reconsideration, whichever is later.
SECTION 8. Section 77-2-15, Mississippi Code of 1972, is amended as follows:
77-2-15. Nothing in this
chapter prevents the Public Utilities Staff, the Public Service Commission
staff or the commission from entering into agreements with other agencies to
coordinate and share services, to conduct joint projects or investigations on
matters within the authority and jurisdiction of the parties thereto, or to
temporarily assign staff to such projects. No cooperative effort shall
interfere with the independence and integrity of * * * the commission, the Public Service
Commission staff, the Public Utilities Staff or any other agency that is a
party.
SECTION 9. Section 77-2-17, Mississippi Code of 1972, is amended as follows:
77-2-17. (1) All valid rules, orders and directives heretofore enforced, issued or promulgated by the Public Service Commission shall remain and continue in force and effect until repealed, modified or superseded by duly authorized rules, orders or directives of the Public Service Commission.
(2) The Public Service Commission shall ensure that the Public Utilities Staff, upon request, shall have access to and copies of all data filed with the Public Service Commission in connection with any proceeding before the commission.
SECTION 10. Section 77-3-115, Mississippi Code of 1972, is amended as follows:
77-3-115. (1) Proceedings on a petition submitted pursuant to Section 77-3-113 shall be disposed of in accordance with the provisions of Section 77-3-47 and applicable commission procedural rules, except that the provisions of this Section 77-3-115, to the extent applicable, shall control.
(2) Within seven (7) days after the filing of a petition, the commission shall issue a scheduling order, which sets a hearing date and provides for a decision on the issuance of a financing order not more than one hundred twenty (120) days after the date the petition is filed.
(3) When deemed necessary by the Executive Director of the Public Utilities Staff and the Public Service Commission, the staff shall conduct an independent investigation as to the electric public utility's petition for a financing order subject to and within the time limitations prescribed in this article.
(4) Not more than one hundred twenty (120) days after the date the petition is filed, the commission shall issue a financing order or an order denying the petition.
(5) Any party to the commission proceeding may petition the commission for reconsideration of an order granting or denying a petition for the issuance of a financing order not more than seven (7) days after the date the order is issued. The commission shall rule on the petition for reconsideration not more than fourteen (14) days after the filing of such petition. A failure by the commission to act upon such petition for reconsideration within the specified time period shall be deemed a denial of the petition for reconsideration, and the order of the commission granting or denying a petition for the issuance of a financing order shall be deemed final.
(6) Any judicial review shall be as provided in Section 77-3-72; provided, however, that any person, other than the electric public utility that is the subject of the financing order, seeking to appeal a financing order issued pursuant to this article, or any prudence determination related thereto, shall not perfect its appeal unless and until a bond of sufficient amount to protect the customer savings projected to be realized through the issuance of rate reduction bonds as determined by the commission in the financing order pursuant to Section 77-3-117(b) is filed with the commission prior to expiration of time provided under Section 77-3-72 for the filing of a notice of appeal. If an appeal of an order granting or denying a petition for the issuance of a financing order is perfected pursuant to the procedure provided above, the electric public utility shall be authorized to establish a regulatory asset for the purpose of deferring a return on the qualifying facility cost intended to be financed by the rate reduction bond proceeds equal to the utility's weighted average cost of capital until such time as there is a final financing order for which the time for all appeals has expired. A financing order shall provide that any and all deferred return of the electric public utility during the pendency of an appeal may be financed as qualifying costs pursuant to the provisions of this article.
(7) The filing of a petition by an electric public utility, the issuance of a financing order, the issuance of rate reduction bonds and the implementation or adjustment of a rate reduction bond charge under this article shall not constitute a change in rates pursuant to Section 77-3-37 or 77-3-39.
SECTION 11. This act shall take effect and be in force from and after July 1, 2018.