You asked for a description of “Chinese wall” provisions in Department of Public Utility Control (DPUC) proceedings where there may be conflicts among or within agencies.

SUMMARY

DPUC contested cases proceedings can involve the participation of assigned members of DPUC staff and the Office of Consumer Counsel (OCC) as parties and the attorney general, who generally participates as an intervenor. In these cases, the ex parte provisions of the Uniform Administrative Procedure Act (UAPA) apply. These provisions prohibit private communications between the DPUC commissioners adjudicating the case and other participants in the case (including the DPUC staff who participate as a party).

The attorney general represents the DPUC in the case of an appeal, while the OCC represents itself when it appeals DPUC decisions. We have found no cases where the assigned staff or the attorney general has appealed a DPUC decision. In one recent case in which OCC appealed a DPUC decision in federal court, the court denied the attorney general's motion to be granted amicus status, noting that OCC adequately represented the interests cited by the attorney general and the potential for a conflict of interest on the part of the attorney general.

DPUC PROCEEDINGS

The DPUC is responsible for regulating a variety of energy and telecommunications companies. DPUC handles much of its business in proceedings that are contested cases under the UAPA. In most instances, the cases are heard by a panel of three DPUC commissioners; particularly complex proceedings are heard by all five commissioners. The attorney general represents DPUC if its decision in any contested case is appealed.

Under CGS § 16-19j, the DPUC commissioners can require one or more members of the DPUC staff to be made a party in any proceeding. The commissioners must do so in the case of rate cases involving utility companies with more than 75,000, which include all of the electric and gas companies, AT&T, and the major water companies. The commissioners also must make members of the staff parties to certain other proceedings. The commissioners can waive these requirements by sending a written notice of intent to the parties stating their reasons for not appointing the staff. Even in these cases, the commissioners must appoint staff as parties to the proceeding upon the request of any party. The assigned staff members are called the Prosecutorial Unit, although in practice staff members are designated parties on an ad hoc rather than continuing basis. The staff members routinely cross-examine witnesses and can file exhibits.

The ex parte communications provisions of the UAPA (CGS § 4-181) apply to these proceedings as well as other contested cases. This means that:

1. the commissioners hearing the case cannot communicate, directly or indirectly, with any person or party in the proceeding regarding any matter of fact or law without notice and opportunity for all parties to participate; and

2. the participants and anyone else with a direct or indirect interest in the outcome of the case cannot communicate, directly or indirectly, with the commissioners or with other DPUC staff members in connection with any issue in the case without notice and opportunity for all parties to participate.

These prohibitions do not apply when the communications are required for the disposition of ex parte matters required by law. In practice, the DPUC executive director issues a notice to DPUC staff when individuals are assigned to the Prosecutorial Unit, reminding them of the ex parte provisions.

As a party, the Prosecutorial Unit could in theory appeal a DPUC decision, but DPUC staff are unaware of this happening since CGS § 16-19j was adopted in 1984.

Under CGS § 16-2a, OCC serves as an advocate for consumer interests with respect to the companies regulated by DPUC. OCC is within the DPUC for administrative purposes only. It may participate as a party in all DPUC contested cases and appear in and participate in regulatory and judicial proceedings that involve Connecticut consumers. OCC can appeal any decision, order, or authorization arising from a state regulatory proceeding whether or not it participated in the proceeding. When OCC appeals a DPUC decision or participates in other judicial proceedings, it is represented by attorneys from its staff.

Finally, the Office of the Attorney General itself sometimes participates in DPUC proceedings, most commonly major rate cases. We have not found any cases where the office has directly appealed a DPUC decision. In 2007, the office moved to intervene as an amicus in a federal case appealing a DPUC decision dealing with AT&T's provision of video services. The case had been brought by the OCC and the cable TV trade association. The federal denied the motion, finding that the OCC adequately represent the interests championed by the attorney general. It also found that OCC is charged with representing the very interests the attorney general had identified, specifically consumer interests in matters that may affect Connecticut consumers with respect to utilities and other companies regulated by DPUC. In a footnote, the court noted that there was “at least the appearance” of conflict, since the Attorney General's office was representing DPUC in the case, and DPUC's interests were opposed to those advocated in the proposed amicus memorandum. We have attached the judge's ruling on this motion.

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