Lawyers love to sprinkle their discourse with Latin phrases, thereby giving them a veneer of erudition.
That’s how terms such as “ex parte” worm their way into law. A literal translation would be “from party,” but a legal one is a communication from one side of an issue to judges or other officials.
The phrase is getting a workout these days as politicians ponder whether to restrict ex parte communications with members of two powerful state agencies, the Public Utilities Commission and the Coastal Commission.
The two handle issues involving many billions of dollars each year – the PUC overseeing utilities, the Coastal Commission handling development proposals in a “coastal zone.”
Both have been embroiled in controversy in recent months over ex parte communications with their members.
The most sensational involved the former president of the PUC, Michael Peevey, who cut on a deal on closure of the San Onofre nuclear power plant during a private meeting with a Southern California Edison executive in a hotel room in Warsaw, Poland.
Peevey, a former Southern California Edison president himself, eventually stepped down and the PUC fined the utility for violating rules against unreported ex parte conversations. It has now reopened the agreement, which placed most of San Onofre’s financial burden on ratepayers.
When the Coastal Commission voted earlier this year to fire its executive director, Charles Lester, his supporters accused members of privately conspiring with developers.
The controversy generated a bill, which has passed the Senate and is pending in the Assembly, that would prohibit ex parte communications by Coastal Commission members unless they are fully disclosed, with stiff penalties for violation.
Gov. Jerry Brown and legislators unveiled a PUC reform bill this week that would increase the potential penalties for violating restrictions on ex parte communications and, in reaction to the Peevey case, prohibit former utility executives from serving on the commission for two years after ending their employment.
The focus on ex parte dealings reflects conflict between two imperatives – that complicated utility policies and development proposals often require private negotiations to be resolved, but that those with business before regulatory agencies should not enjoy potentially corrupting access to decisionmakers that their rivals, or the public, don’t have.
The PUC reform package would reconcile the two by barring ex parte communications in trial-like “adjudicatory proceedings” while allowing them in “quasi-legislative proceedings” that don’t involve specific cases, and, with prompt disclosure, in rate-setting cases.
One should remember, however, that legislators are constantly immersed in ex parte communications with special interest lobbyists as they write bills and decide how to vote on them. And one of the unresolved aspects of the San Onofre scandal is a court battle over release of private communications between Brown’s office and PUC members.
Do as we say, not as we do?