Restructure nominating council

November 1, 2009

http://www.palmbeachpost.com/opinion/content/
opinion/epaper/2009/11/01/sunday_webletters_1101.html

The public agrees that we need a responsible, independent, ethical and competent Florida Public Service Commission. You know it. I know it. The governor and the Florida Cabinet know it. The Legislature knows it. But knowing and doing are a long way apart.

Consumers who rely on the PSC to make fair and impartial decisions have lost faith in a system that was legislatively created and allows for input from the public and all interested parties. Gov. Crist has said, "I think that the experience indicates to me that the PSC has kind of lost (its) way when it comes to protecting consumer interest."

Should we go back to an elected commission - that was the system until 1978 - or stay with the appointed commission? Does it make a difference either way? I do not support returning to an elected Public Service Commission. Who do you think would make the significant contributions to the campaigns? Even if we implemented public financing, the soft-money loopholes that plague our system would result in the same dysfunctions.

Currently, a nine-member nominating council made up mostly of legislators screens the applicants for commission seats and makes recommendations to the governor. A nominating council restructured to more fairly represent the range of interests affected by the PSC's decisions and to emphasize certain skills would provide for a more neutral commission.

Such a council might include: the public counsel, who represents consumers before the PSC; the Florida Board of Accountancy; the chairman of the Construction Industry Licensing Board; the president of the Florida Bar Association; the president of the Florida Chamber of Commerce; the president of the League of Cities; a representative of organized labor; a representative of an organization serving senior citizens; and representatives of public-interest organizations.

Such appointments could be rotated between the Cabinet and the Legislature. Yes, it would seem that we cannot entirely avoid the political aspect of the process. The commission acts both in a quasi-judicial and legislative capacity. In Virginia and Alabama, the commissioners are administrative law judges. I doubt that there would be support for doing the same in Florida. As an alternative, however, where the PSC is acting in its quasi-judicial capacity - such as in contested utility rate cases - the commissioners would by law be appointed and act as administrative law judges.

Administrative law judges are not subject to control, supervision or direction by any party, department or commission of state government. They are also subject to the ethical canons of judges requiring them to uphold the integrity and independence of their position while avoiding any appearance of impropriety. Hal McLean of the Office of Public Counsel said he would prefer "the PSC to have a more formal judicial format," adding that he would "welcome any effort by the Legislature to have commissioners act more like judges."

The Legislature created the PSC to serve and protect the interests of consumers, not cater to utility companies. However, both consumers and the utilities are entitled to impartial, non-political due process. It is obvious that more changes need to be made if we are to have some balance at the PSC.

Editor's note: Walt Dartland is executive director of the Consumer Federation of the Southeast and a former deputy Florida attorney general.