BILL REQ. #:  H-1367.1 

Read first time 02/07/2005.   Referred to Committee on Technology, Energy & Communications.

     AN ACT Relating to prohibiting the utilities and transportation commission and its staff in an adjudicative proceeding from participating in settlement conferences that are not open to other parties and governing treatment of nonunanimous settlements; adding new sections to chapter 80.01 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that the participation of the utilities and transportation commission or its staff in settlement conferences that are not open to other parties undermines the public faith in the commission and that it is in the public interest to require the commission and its staff to ensure that such settlement conferences are open to all parties appearing in the proceeding. Further, it is the intent of the legislature that nonsettling parties' due process rights be protected.

NEW SECTION.  Sec. 2   A new section is added to chapter 80.01 RCW to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise:
     (1) "Commission" means the utilities and transportation commission.
     (2) "Commission staff" means the commission regulatory staff that functions as a party in adjudicatory proceedings and performs investigative, prosecutorial, and advocacy functions independently from the commission functioning in its decision-making role.
     (3) "Party" means a person who has complied with all requirements for establishing and maintaining party status in a proceeding before the commission, including applicants, complainants, petitioners, respondents, intervenors, or protestants, according to the nature of the proceeding and the nature of the parties.
     (4) "Settlement" means an agreement among two or more parties to a proceeding that is filed with the commission as a proposed resolution of one or more issues.
     (5) "Settlement conference" means a meeting called to discuss resolution of issues in a proceeding. Examples of communications not constituting settlement conferences include, but are not limited to, communications primarily for the purpose of discovery, and communications occurring before initiation of docketed proceedings.

NEW SECTION.  Sec. 3   A new section is added to chapter 80.01 RCW to read as follows:
     (1) The commission and commission staff may not participate in settlement conferences in an adjudicative proceeding without prior notification to other parties. Ten calendar days before a settlement conference with a party, the commission staff shall notify the administrative law judge and all parties on the master service list of the proposed settlement conference and shall file, with the secretary, a notice of the impending negotiation. If a prehearing conference has not yet been held in the case, notice shall be sent to all persons who regularly appear before the commission in similar adjudicative proceedings.
     (2) The notice shall contain a general description of the issues and a certification that all appropriate persons and parties are being notified. The administrative law judge assigned to the case shall review the notice to ensure all persons who reasonably should have been notified have been notified, and he or she may take any action necessary to protect the rights of persons participating or desiring to participate. The administrative law judge shall report the results of the procedural review to the commission.
     (3) Any party given notice under subsection (1) of this section may attend a settlement conference. Additional notice of continuing settlement conferences involving the same issue need only be provided to parties attending the initial conference, or who have requested continuing notice.

NEW SECTION.  Sec. 4   A new section is added to chapter 80.01 RCW to read as follows:
     (1) When a nonunanimous settlement has been presented to the commission, the nonsettling parties retain the right to conduct discovery, present evidence, a hearing, cross-examine witnesses, and present arguments on all disputed material issues of fact and law. The commission's final order shall be based upon substantial evidence in the record and shall include findings and conclusions on all disputed issues of fact, law, or discretion presented on the record.
     (2) If a nonunanimous settlement or stipulation is presented to the commission, the commission may not deny nonsettling parties the procedural rights set forth in subsection (1) of this section by dismissing them as parties or restricting their participation in the proceeding.