AN ACT Relating to the structure of the utilities and transportation commission; amending RCW 43.10.067, 80.01.010, 80.01.030, 80.01.080, 80.01.100, 80.04.110, 80.04.165, 80.04.170, 80.04.190, 80.04.200, and 80.04.420; adding new sections to chapter 41.06 RCW; adding a new chapter to Title 80 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) The office of consumer advocate on utilities and transportation is created.

(2) The governor shall appoint a competent attorney licensed to practice in the state of Washington to serve as the consumer advocate for a four-year term. The consumer advocate or any attorney employed by the consumer advocate are not employees of the office of the attorney general or of the governor. The appointment shall be subject to the confirmation of the senate. Vacancies may be filled in the same manner the original appointment was made. One person shall not serve as consumer advocate for more than two terms.

(3) The consumer advocate may be removed by the governor on the same grounds and in the same manner as provided for commissioners under RCW 80.01.010.

(4) The consumer advocate shall not, during the term of office, be or become a candidate for any other public office or trust, engage in any occupation or business which interferes, or is inconsistent, with the duties of consumer advocate, serve on or under any committee of any political party, and shall not have been an officer of a political party for the one-year period immediately before appointment.

(5) The salary of the consumer advocate shall be fixed by the governor under chapter 43.03 RCW.

NEW SECTION. Sec. 2. (1) The consumer advocate shall:

(a) Investigate the legality of all rates, charges, rules, and practices of all persons under the jurisdiction of the utilities and transportation commission, and institute civil proceedings before the commission or any court to correct any illegality on the part of any person. In any investigation, the person acting for the office of the consumer advocate may ask the commission to issue subpoenas, and compel the attendance and testimony of witnesses and the production of papers, books, and documents, at the discretion of the commission.

(b) Act as attorney for and represent all consumers generally and the public generally in all proceedings before the utilities and transportation commission.

(c) Institute as a party judicial review of any decision of the utilities and transportation commission, if the consumer advocate deems judicial review to be in the public interest.

(d) Appear for all consumers generally and the public generally in all actions instituted in any state or federal court which involve the validity of a rule or order of the utilities and transportation commission.

(e) Act as attorney for and represent all consumers generally and the public generally in proceedings before federal and state agencies and related judicial review proceedings and appeals, at the discretion of the consumer advocate.

(f) Appear and participate as a party in the name of the office of consumer advocate in the performance of the duties of the office.

(2) The consumer advocate shall not represent the commission or the views of the commission unless the consumer advocate has the prior express written authorization of the commission.

NEW SECTION. Sec. 3. The consumer advocate may employ attorneys, legal assistants, secretaries, clerks, and other staff including accounting, engineering, and other expert assistants as the consumer advocate finds necessary for the full and efficient discharge of the duties and responsibilities of the office. The consumer advocate may employ consultants as expert witnesses or technical advisors under contract in any proceeding in which the consumer advocate is a party. The employees shall be covered under the state civil service law, chapter 41.06 RCW, unless specified otherwise.

NEW SECTION. Sec. 4. The consumer advocate shall have free access to all the files, records, and documents in the office of the utilities and transportation commission except:

(1) Personal information in confidential personnel records of the utilities and transportation commission.

(2) Records which represent and constitute the work product of the general counsel of the utilities and transportation commission, and records of confidential communications between commissioners and their general counsel, where the records relate to a proceeding before the utilities and transportation commission in which the consumer advocate is a party or a proceeding in any state or federal court in which both the utilities and transportation commission and the consumer advocate are parties.

(3) Financial statements which are confidential.

NEW SECTION. Sec. 5. All documents required by statute or rule to be served on parties in proceedings before the utilities and transportation commission and all notices, petitions, applications, complaints, answers, motions, and other pleadings filed pursuant to statute, order, or rule with the utilities and transportation commission shall also be served on the consumer advocate.

NEW SECTION. Sec. 6. All classified employees of the utilities and transportation commission are transferred to the jurisdiction of the consumer advocate on utilities and transportation. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the office of the consumer advocate on utilities and transportation to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter including but not limited to reassignment or termination in accordance with the rules governing state civil service.

NEW SECTION. Sec. 7. A new section is added to chapter 41.06 RCW to read as follows:

In addition to the exemptions set forth in RCW 41.06.070, the provisions of this chapter shall not apply in the utilities and transportation commission to the employees of the utilities and transportation commission.

NEW SECTION. Sec. 8. A new section is added to chapter 41.06 RCW to read as follows:

In addition to the exemptions set forth in RCW 41.06.070, the provisions of this chapter shall not apply in the office of the consumer advocate on utilities and transportation to the consumer advocate, any attorneys hired by the consumer advocate, any confidential secretaries which secretaries shall meet the minimum qualifications for the class of secretary II as determined by the state personnel board, and other exempt staff as the consumer advocate shall reasonably request.

Sec. 9. Section 43.10.067, chapter 8, Laws of 1965 as amended by section 1, chapter 268, Laws of 1981 and RCW 43.10.067 are each amended to read as follows:

No officer, director, administrative agency, board, or commission of the state, other than the attorney general, shall employ, appoint or retain in employment any attorney for any administrative body, department, commission, agency, or tribunal or any other person to act as attorney in any legal or quasi legal capacity in the exercise of any of the powers or performance of any of the duties specified by law to be performed by the attorney general, except where it is provided by law to be the duty of the judge of any court or the prosecuting attorney of any county to employ or appoint such persons: PROVIDED, That RCW 43.10.040, and RCW 43.10.065 through 43.10.080 shall not apply to the administration of the judicial council, the judicial qualifications commission, the state law library, the law school of the state university, the consumer advocate on utilities and transportation under chapter 80.-- RCW (sections 1 through 5 of this 1985 act), or the administration of the state bar act by the Washington State Bar Association.

The authority granted by chapter 1.08 RCW((~~, RCW 44.24.050,~~)) and RCW 44.28.140 shall not be affected hereby.

Sec. 10. Section 80.01.010, chapter 14, Laws of 1961 as amended by section 4, chapter 307, Laws of 1961 and RCW 80.01.010 are each amended to read as follows:

There is hereby created and established a state commission to be known and designated as the Washington utilities and transportation commission, and in this chapter referred to as the commission.

The commission shall be composed of three members appointed by the governor, with the consent of the senate. Not more than two members of said commission shall belong to the same political party.

((The members of the first commission to be appointed after taking effect of this section shall be appointed for terms beginning April 1, 1951, and expiring as follows: One commissioner for the term expiring January 1, 1953; one commissioner for the term expiring January 1, 1955; one commissioner for the term expiring January 1, 1957. Each of the commissioners shall hold office until his successor is appointed and qualified. Upon the expiration of the terms of the three commissioners first to be appointed as herein provided,)) Each ((~~succeeding~~)) commissioner shall be appointed and hold office for the term of six years. One of such commissioners to be designated by the governor, shall, during the term of the appointing governor, be the chairman of the commission.

Each commissioner shall receive a salary as may be fixed by the governor in accordance with the provisions of RCW 43.03.040.

Any member of the commission may be removed for inefficiency, malfeasance or misfeasance in office, upon specific written charges filed by the governor, who shall transmit such written charges to the member accused and to the chief justice of the supreme court. The chief justice shall thereupon designate a special tribunal composed of three judges of the superior court to hear and adjudicate the charges. Such tribunal shall fix the time, place and procedure for the hearing, and the hearing shall be public. The decision of such tribunal shall be final and not subject to review.

If the tribunal specified herein finds the charges of the governor to be true, the governor shall have the right to immediately remove the commissioner from office, to declare the position of the commissioner vacant, and appoint another commissioner to the position in accordance with the provisions of the law.

Any vacancy arising in the office of commissioner shall be filled by appointment by the governor, and an appointee selected to fill such vacancy shall hold office for the balance of the full term for which his predecessor on the commission was appointed.

If a vacancy occurs while the senate is not in session, the governor shall make a temporary appointment until the next meeting of the senate, when he shall present to the senate his nomination or nominations for the office to be filled.

Sec. 11. Section 80.01.030, chapter 14, Laws of 1961 and RCW 80.01.030 are each amended to read as follows:

The commission shall appoint and employ a secretary ((~~and such accounting, engineering, expert~~)) and an accounting assistant, engineering assistant, other clerical assistants, and such other qualified assistants including policy analysts and two attorney-advisors for each commissioner, as may be necessary to carry on the administrative work of the commission.

The secretary shall be the custodian of the commission's official seal, and shall keep full and accurate minutes of all transactions, proceedings and determinations of the commission and perform such other duties as may be required by the commission.

The commission may deputize one or more of its assistants to perform, in the name of the commission, such duties of the commission as it deems expedient.

The staff members of the commission shall be exempt under the state civil service law, chapter 41.06 RCW.

Sec. 12. Section 80.01.080, chapter 14, Laws of 1961 and RCW 80.01.080 are each amended to read as follows:

((The transportation revolving fund and the public utilities revolving fund are abolished as of April 1, 1949, and as of such date there is created in the state treasury a "Public Service Revolving Fund" to which shall be transferred all moneys which then remain on hand to the credit of the transportation revolving fund and the public utilities revolving fund, subject, however, to outstanding warrants and other obligations chargeable to appropriations made from such funds.)) From and after April 1, 1949, regulatory fees payable by all types of public service companies shall be deposited to the credit of the public service revolving fund. All expense of operation of the Washington utilities and transportation commission and the consumer advocate on utilities and transportation shall be payable out of the public service revolving fund.

Sec. 13. Section 80.01.100, chapter 14, Laws of 1961 and RCW 80.01.100 are each amended to read as follows:

It shall be the duty of the attorney general to represent and appear for the ((~~people of the state of Washington and the~~)) commission ((in all actions and proceedings involving any question under this title or Title 81 RCW, or under or in reference to any act or order of the commission; and it shall be the duty of the attorney general generally to see that all laws affecting any of the persons or corporations herein enumerated are complied with, and that all laws, the enforcement of which devolves upon the commission, are enforced, and to that end he is authorized to institute, prosecute and defend all necessary actions and proceedings)) at the request of the commission.

Sec. 14. Section 80.04.110, chapter 14, Laws of 1961 and RCW 80.04.110 are each amended to read as follows:

Complaint may be made by the commission of its own motion, by the consumer advocate on utilities and transportation, or by any person or corporation, chamber of commerce, board of trade, or any commercial, mercantile, agricultural or manufacturing society, or any body politic or municipal corporation, by petition or complaint in writing, setting forth any act or thing done or omitted to be done by any public service corporation in violation, or claimed to be in violation, of any provision of law or of any order or rule of the commission: PROVIDED, That no complaint shall be entertained by the commission except upon its own motion or motion of the consumer advocate on utilities and transportation, as to the reasonableness of the schedule of the rates or charges of any gas company, electrical company, water company, or telephone company, unless the same be signed by the mayor, council or commission of the city or town in which the company complained of is engaged in business, or not less than twenty-five consumers or purchasers of such gas, electricity, water or telephone service: PROVIDED, FURTHER, That when two or more public service corporations, (meaning to exclude municipal and other public corporations) are engaged in competition in any locality or localities in the state, either may make complaint against the other or others that the rates, charges, rules, regulations or practices of such other or others with or in respect to which the complainant is in competition, are unreasonable, unremunerative, discriminatory, illegal, unfair or intending or tending to oppress the complainant, to stifle competition, or to create or encourage the creation of monopoly, and upon such complaint or upon complaint of the commission upon its own motion or the consumer advocate on utilities and transportation, the commission shall have power, after notice and hearing as in other cases, to, by its order, subject to appeal as in other cases, correct the abuse complained of by establishing such uniform rates, charges, rules, regulations or practices in lieu of those complained of, to be observed by all of such competing public service corporations in the locality or localities specified as shall be found reasonable, remunerative, nondiscriminatory, legal, and fair or tending to prevent oppression or monopoly or to encourage competition, and upon any such hearing it shall be proper for the commission to take into consideration the rates, charges, rules, regulations and practices of the public service corporation or corporations complained of in any other locality or localities in the state.

All matters upon which complaint may be founded may be joined in one hearing, and no motion shall be entertained against a complaint for misjoinder of complaints or grievances or misjoinder of parties; and in any review of the courts of orders of the commission the same rule shall apply and pertain with regard to the joinder of complaints and parties as herein provided: PROVIDED, All grievances to be inquired into shall be plainly set forth in the complaint. No complaint shall be dismissed because of the absence of direct damage to the complainant.

Upon the filing of a complaint, the commission shall cause a copy thereof to be served upon the consumer advocate on utilities and transportation and the person or corporation complained of, which shall be accompanied by a notice fixing the time when and place where a hearing will be had upon such complaint. The time fixed for such hearing shall not be less than ten days after the date of the service of such notice and complaint, excepting as herein provided. Rules of practice and procedure not otherwise provided for in this title may be prescribed by the commission.

Sec. 15. Section 80.04.165, chapter 14, Laws of 1961 and RCW 80.04.165 are each amended to read as follows:

After any order has been made by the commission, the consumer advocate on utilities and transportation and any public service company affected thereby may apply for a writ of review as provided in RCW 80.04.170, or within ten days after service of the order, file with the commission and serve upon all other parties to the proceeding a petition for reconsideration of said order or any part thereof. The petition shall be in such form as the commission may prescribe and shall set forth specifically the portion or portions on which reconsideration is requested and the grounds and reasons therefor.

If the commission does not grant or deny the petition within ten days from the date of filing, it shall be deemed denied. Application for a writ of review may be made as provided for in RCW 80.04.170, within thirty days after the date of service of the order denying the petition or if no order of denial is entered within thirty days after the date when the petition shall be deemed denied. Should the commission grant the petition for reconsideration, it shall thereafter take such further proceedings and issue such further order or orders as may be appropriate, and application for a writ of review as provided in RCW 80.04.170, may be made within thirty days after the date of service of the order on reconsideration.

A writ of review applied for within the time provided herein may include for review the original order and all supplemental orders relevant thereto: PROVIDED, That an order limited to granting a petition for reconsideration may not be reviewed.

Sec. 16. Section 80.04.170, chapter 14, Laws of 1961 and RCW 80.04.170 are each amended to read as follows:

Any complainant or any public service company affected by any findings or order of the commission or the consumer advocate on utilities and transportation, and deeming such findings or order to be contrary to law, may, within thirty days after the service of the findings or order upon him or it, apply to the superior court of Thurston county for a writ of review, for the purpose of having the reasonableness and lawfulness of such findings or order inquired into and determined. Such writ shall be made returnable not later than thirty days from and after the date of the issuance thereof, unless upon notice to all parties affected further time be allowed by the court, and shall direct the commission to certify its record in the case to the court. Such cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it. Upon such hearing the superior court shall enter judgment either affirming or setting aside or remanding for further action the findings or order of the commission under review. The reasonable cost of preparing the transcript of testimony taken before the commission shall be assessable as part of the statutory court costs, and the amount thereof, if collected by the commission, shall be deposited in the public service revolving fund. In case such findings or order be set aside, or reversed and remanded, the court shall make specific findings based upon evidence in the record indicating clearly all respects in which the commission's findings or order are erroneous.

Sec. 17. Section 80.04.190, chapter 14, Laws of 1961 as amended by section 4, chapter 107, Laws of 1971 ex. sess. and RCW 80.04.190 are each amended to read as follows:

The commission, the consumer advocate on utilities and transportation, any public service company, or any complainant may, after the entry of judgment in the superior court in any action of review, prosecute an appeal to the supreme court or the court of appeals of the state of Washington as in other cases.

Sec. 18. Section 80.04.200, chapter 14, Laws of 1961 and RCW 80.04.200 are each amended to read as follows:

Any public service company affected by any order of the commission, and deeming itself aggrieved, or the consumer advocate on utilities and transportation may, after the expiration of two years from the date of such order taking effect, petition the commission for a rehearing upon the matters involved in such order, setting forth in such petition the grounds and reasons for such rehearing, which grounds and reasons may comprise and consist of changed conditions since the issuance of such order, or by showing a result injuriously affecting the petitioner or the general public in the case of the consumer advocate which was not considered or anticipated at the former hearing, or that the effect of such order has been such as was not contemplated by the commission or the petitioner, or for any good and sufficient cause which for any reason was not considered and determined in such former hearing. Upon the filing of such petition, such proceedings shall be had thereon as are provided for hearings upon complaint, and such orders may be reviewed as are other orders of the commission: PROVIDED, That no order superseding the order of the commission denying such rehearing shall be granted by the court pending the review. In case any order of the commission shall not be reviewed, but shall be complied with by the public service company, such petition for rehearing may be filed within six months from and after the date of the taking effect of such order, and the proceedings thereon shall be as in this section provided. The commission, may, in its discretion, permit the filing of a petition for rehearing at any time. No order of the commission upon a rehearing shall affect any right of action or penalty accruing under the original order unless so ordered by the commission.

Sec. 19. Section 80.04.420, chapter 14, Laws of 1961 and RCW 80.04.420 are each amended to read as follows:

In all court actions involving any rule or order of the commission, where the commission ((~~has~~)) and the consumer advocate on utilities and transportation have not been made ((~~a party~~)) parties, the commission and the consumer advocate on utilities and transportation shall be served with a copy of all pleadings, and shall be entitled to intervene. Where the fact that the action involves a rule or order of the commission does not appear until the time of trial, the court shall immediately direct the clerk to notify the commission and the consumer advocate on utilities and transportation of the pendency of such action, and shall permit the commission and the consumer advocate on utilities and transportation to intervene in such action.

The failure to comply with the provisions of this section shall render void and of no effect any judgment in such action, where the effect of such judgment is to modify or nullify any rule or order of the commission.

NEW SECTION. Sec. 20. Sections 1 through 5 of this act shall constitute a new chapter in Title 80 RCW.

NEW SECTION. Sec. 21. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.