A. Strict Enforcement of the Rules
Several parties have suggested adding language to this clause to specify that the Commission's determinations must be consistent with statutes and rules, or to define the word "transaction." References to the need to act consistently with the law are implied and need not be added. Efforts to define "transaction" are susceptible to problems if we were to inadvertently fail to mention a type of transaction. However, the language in this clause can be made clearer by avoiding ambiguous words such as "transaction" and "occurrence." PG&E Energy Services has offered the following revision, which we will adopt:
"The Commission shall strictly enforce these rules. Each act or failure to act by a utility in violation of these rules shall be considered a separate violation."
B. Standing
This clause, in proposed form, has three provisions: one allows any person or corporation to initiate a complaint; the second allows for complaints to be filed by "whistleblowers" who maintain anonymity; the third would allow the Consumer Services Division to utilize a new pleading, by filing a Request for Investigation.
Some parties would like to tighten the first provision, to allow only persons or corporations directly aggrieved by a rules violation to initiate a complaint. This would be inconsistent with Rule 9 of the Rules of Practice and Procedure, which allows "any corporation or person" to file a complaint. We have benefited in our enforcement efforts from the ability to entertain complaints from any person or entity that has discovered potential wrongdoing, regardless of the direct interests involved. We want to allow for input from any person or corporation to aid in the enforcement of these rules as well.
The "whistleblower" provision is an important tool in an environment where even one with a direct complaint about a utility's conduct may need to preserve a cooperative ongoing relationship with the company. However, some parties raise valid concerns about the difficulty of defending themselves in complaint proceedings in which they are unable to face their accusers. This would occur where a "whistleblower" elects to preserve his or her anonymity. We will revise this provision to state that where a "whistleblower" makes such a choice, the matter will only be further pursued if the Commission chooses to initiate its own investigation into the matter. The new language will read as follows:
"`Whistleblower complaints' will be accepted and the confidentiality of complainant will be maintained until conclusion of an investigation or indefinitely, if so requested by the whistleblower. When a whistleblower requests anonymity, the Commission will continue to pursue the complaint only where it has elected to convert it into a Commission-initiated investigation. Regardless of the complainant's status, the defendant shall file a timely answer to the complaint."
The third provision would enable the Consumer Services Division to file a Request for Investigation in reaction to audit results or other information that suggests that a violation may have occurred. Our intent here was to add this tool to the Division's current powers in order to require the utility to follow the same procedures that would apply to resolving complaints. We will remove this provision, as well as provision C.6., because these provisions are largely unnecessary. The Consumer Services Division can advise the Commission on the need to initiate investigations whenever it determines that there is a probable violation of the rules. In addition, we always expect the utilities to work cooperatively with the Division to explore any concerns that may arise. We remove these provisions in order to avoid confusion about the Division's ability to continue using its traditional approaches to uncovering, and responding to, potential violations of statutes, rules and orders.
C. Procedures
C.1 Filing Complaints
In its entirety, this provision states that "[a]ll complaints shall be filed as formal complaints with the Commission." As formal complaints, all of the normal rules of service and notice would apply. PG&E Energy Services proposes adding a clause that requires same-day service on the utility and any affiliate involved in the alleged violation. We will require the complainant to provide a copy of the complaint to the designated officer (discussed below) who should be in the best position to provide quick notice to relevant affiliate personnel. This provision is revised to state:
"All complaints shall be filed as formal complaints with the Commission and shall provide a copy to the utility's designated officer (as described below) on the same day that the complaint is filed."
C.2. Dispute Resolution Process
This section describes the obligations and options available to parties involved in a dispute concerning compliance with the affiliate transactions rules. Many parties have suggested changes to this section.
