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Ethics In Practice Before The Washington Utilities and Transportation Commission

Ethics In Practice Before The Washington Utilities and Transportation Commission. What Makes Administrative Agencies Unique?. Our place in the basic model of government makes us unique. Separation of Functions. Our basic model of governance—checks and balances Executive Legislative Judicial.

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Ethics In Practice Before The Washington Utilities and Transportation Commission

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  1. Ethics In PracticeBefore TheWashington Utilitiesand Transportation Commission

  2. What Makes Administrative Agencies Unique? Our place in the basic model of government makes us unique.

  3. Separation of Functions Our basic model of governance—checks and balances • Executive • Legislative • Judicial

  4. Administrative agencies are subject to all three branches. • Executive • Administrative agencies are housed within the executive • Legislative • Administrative agencies are created by, and subject to, the delegation or withdrawal of power by the legislature • Judicial • Administrative agencies’ actions are subject to review in state and federal courts

  5. Administrative agencies model all three branches. • Executive Branch • Regulation and enforcement • Legislative Branch • Rulemaking • Judicial Branch • Adjudication

  6. There Is Conflict Inherent to This Model • Executive and legislative functions • Subject to statutory requirements, Commissioners can meet individually or collectively with regulatory staff, policy staff, executive branch officials, legislators, corporate interests, and any other public or private interest • Judicial function • The ex parte problem

  7. The Ex Parte Principle Ex Parte = “For One Party"

  8. WAC 480-07-310 Subject to certain exceptions, a presiding officer serving in an adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in a pending proceeding, with any person who has a direct or indirect interest in the outcome of the proceeding, without notice and opportunity for all parties to participate in the communication.

  9. ALJ’s Are the Guardians of This Process§ Who will watch the watchers? (Qui custodiet ipsos custodes?) We, into whose hands the law is entrusted, we will watch the watchers (Nos, in quas manus leges commissae sunt, custodes custodiemus.) Juvenal, 54 A.D.

  10. Our Role As ALJ • We must protect against ex parte contacts and protect due process if they occur • Our ethical responsibility extends to the Commissioners and their advisors

  11. Commissioners and Their Advisors • We must ensure that every person on the adjudicative decision-making team knows the rules of ethics that govern the judicial function. • We must protect against any breach of ethics by those involved in the adjudicative decision-making process.

  12. Procedural Aspects • “Judge, I just have a procedural matter to discuss with you…” • Where do we draw the line?

  13. Contacts on same or related subject matter before an adjudication commences Consider the Commissioners’ roles—how much disclosure is required? • Pre-adjudication contacts • Cross-functional exposure

  14. Close Callsand Tough Calls • What if we aren’t sure a contact meets the definition? • What if the contact is made anonymously? • What do we do if there is a potential for personal or political embarrassment?

  15. How do we respond to an ex parte contact? Make a Record

  16. How do we respond to an ex parte contact? Provide an Opportunity for Response

  17. How do we respond to an ex parte contact? • Recusal • Sanctions • Report Violation to Appropriate Authorities

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