Civil Division - New Castle County
March 7, 1996
Dr. Robert J. McMahon
The Public Service Commission
1560 S. duPont Highway
Dover, DE 19901
Re: The Number of Votes Needed for Final Action by the Public Service Commission
Dear Dr. McMahon:
You have asked for this Department's opinion concerning the number of affirmative votes required to carry a final motion before the five-member Public Service Commission.(1) We understand that your inquiry was prompted by a chain of events that occurred during your meeting on November 22, 1995. At this meeting, the four members of the Commission who were present were considering a rate increase sought by a local utility. We understand that during deliberations a Commissioner moved to impose a certain proportion of environmental clean-up costs on the utility. The Chairman then seconded the motion. When the question was called, two Commissioners voted "aye". The two other Commissioners present abstained. At that time, the Deputy Attorney General assigned to the Commission indicated that, in his view, the motion had failed. He articulated the position that 26 Del. C. § 107 required all actions of the Commission to be concurred in by members of the Commission.
Because the ruling at the November meeting could be construed to run counter to the prior advice coming from this office, we have looked at the issue in light of legislative action and court decisions since 1975. In so doing, we are mindful of Chancellor Allen's admonition that, in the arena of the number of votes needed for action by a deliberative body, "it is more important that it be settled than that it be settled in any particular way." Smith v. Sussex County Council, Del. Ch., 632 A.2d 1387, 1388 (1993). While such might suggest that the wisest course is to adhere to the past practice, this Department does have an obligation to advise the Commission about how the courts can be expected to resolve the issue if a Commission's action might now be called into question.
For the reasons set forth below, we believe that if this matter were to be litigated today, a court would conclude that the rule adopted by the legislature is one where final action by the Commission requires an affirmative vote by at least a majority of the entire membership of the Commission. Thus, we believe Commission action requires the affirmative vote of at least three members. We find that this result follows, if not from the language and context of section 107 of the PUA, then, most assuredly, from the 1976 addition of section 303(b), as later interpreted in Delmarva Power and Light Co. v. Public Service Commission, Del. Supr., 508 A.2d 849 (1986).
This Department's 1975 opinion read the provisions of 26 Del. C. § 107 (1989)(2)
as defaulting to the the "common law" rule: final decisions can be carried by a majority of the legal votes cast, a quorum being present. See Federal Trade Commission v. Flotill Products, 389 U.S. 179, 183 (1967). See generally P. Mason, Manual of Legislative Procedure § 510 (1975) ("Mason").(3)
1. Pre-PUA History
From 1951 to 1969, the number of votes required for Commission action was not an issue. During that time, the General Assembly had explicitly rejected the "common law" rule for the then three-member Commission. Under the provisions of 48 Del. Laws ch. 371 § 3 (1951), eventually codified as 26 Del. C. § 106 (1953), the Commission was composed of three members. Two members of the Commission constituted a quorum who had to act unanimously. That necessity of two affirmative votes applied whether the Commission was acting originally or was sitting to ratify some action originally undertaken by a single Commissioner. See also 48 Del. Laws ch. 371 § 3, subsequently codified as 26 Del. C. § 181 (1953) (determination or order made by single Commissioner "shall not become and be effective until approved and confirmed by at least a quorum of the Commission").(4)
The General Assembly enlarged the number of voting Commissioners to five in 1969. At the same time, it rewrote prior section 106 to read:
A majority of the members of the Commission shall constitute a quorum and shall be sufficient for any action by the Commission.
57 Del. Laws c. 182 § 2 (1969). There is nothing to indicate that the legislature sought to alter the previous deliberative rule. Rather, the change in language appears to have been made to conform to the Commission's expanded membership which was also enacted in the same bill. Indeed, the 1969 amendment left intact the provisions of then section 181, a section which still required orders entered by a single Commissioner to be "approved and confirmed" by "at least" a quorum of the Commission.
Most importantly, wording similar to that used by the General Assembly in the 1969 amendment has not been viewed as an adoption of the "common law" rule. At about the same time, the legislature also created the Environmental Appeals Board. To govern its actions, the General Assembly provided:
A simple majority of the Board shall constitute a quorum. A simple majority of the Board shall be required for overriding the decision of the Secretary.
7 Del. C. § 6007© (1975), as added by 59 Del. Laws ch. 212 (1973). In Texaco Refining and Marketing v. Wilson, Del. Supr., 570 A.2d 1146, 1147 (1990) (per curiam), the Court held that the second sentence under the provision had to have a meaning independent of the first sentence's description of a quorum. To avoid a repetitious construction, the Court read the second sentence (although it did not mention voting) to impose a rule that a Secretary's decision could be rejected only by the affirmative votes of a simple majority of all the members of Board, not just a majority of those voting. 570 A.2d at 1147.
When the PUA was enacted in 1974, its procedural provision mirrored the 1969 version of section 106. Much like the original 1951 act, the new PUA provision explicitly referred to proceedings before a single Commissioner. The parties could agree that a single Commissioner could hear testimony with any final decision subject to "approv[al] by a majority of the members of the Commission." 26 Del. C. § 107 (1989). Somewhat at odds with this provision, the PUA also repeated the provision, originally added in 1951, which granted a single Commissioner the power to conduct investigations and hearings (without the need for consent) but mandated that any determination or order had to be approved and confirmed by at least a quorum of the Commission. 26 Del. C. § 501© (1989).
3. The Fuel Adjustment Amendment
Two years after the enactment of PUA, the General Assembly enacted a statute which focused on fuel adjustment clauses ("FAC"'s). Moved by large fuel adjustment charges approved at what it perceived to be proceedings lacking the "benefit of the adversary proceedings normally required for rate changes," the legislature added language to "level up" the procedures to be followed in fuel adjustment applications. See Delmarva Power and Light v. Public Service Commission, Del. Supr., 508 A.2d 849, 857-60 (1986). Under the new provision, in FAC proceedings "[a]s in other applications" before the PSC, the burden of proof was on the utility; the Commission was to consider the evidence "as it would . . . in any other rate making procedure;" and the Commission could not authorize a change in any adjustment "except by affirmative vote of the majority of all members appointed to the said Commission." 60 Del. Laws ch. 431 § 1 (1976), now codified as 26 Del. C. § 303(b) (1989).
As the Supreme Court would recognize, the purpose of the fuel adjustment amendment was not to impose a higher burden in those proceedings; rather, "the purpose was to subject FAC applications to review by the Commission in adversary public proceedings, but otherwise under proceedings no different from those applicable to a rate case application under restated section 303(a)." Delmarva,508 A.2d at 858 (emphasis added). See also id., 508 A.2d at 858 ("Hence, in our view, the hearing rules remain the same for both the Commission and the public utility in an FAC proceeding under section 303(b) as in an ordinary rate case application under section 303(a)"). Id. Most importantly, by its language, the FAC amendment required that in these newly equalized proceedings the Commission must act by affirmative votes from three commissioners, not just a majority of a quorum.
Even if one argues that the General Assembly sought to move to the "common law" rule, first in 1969 and then in the PUA in 1974, the legislature which enacted the FAC amendment in 1976 clearly had a different view of what was, or should be, the appropriate number of votes. The FAC amendment reflects that the legislature then saw the "majority of all members" rule as the one which should be used across the board in rate-making hearings. While subsequent legislatures cannot provide the intent for the words used by prior legislatures, the General Assembly, in enacting the FAC amendment, was attempting to prospectively bring a measure of equality to the various matters heard by the Commission. Thus, by articulating the "majority of all members" rule as the governing standard for one species of those "equal" proceedings, the legislature was viewing this as the standard to be used in all matters.
Finally, use of the common law rule approach leads to a regime where varying rules have to be used in different dockets. While varying rules, such as super-majority rules in some instances, are not unknown in other legislative arenas, the lines for such differing voting majorities are usually drawn based on subject-matter categories. But here the lines would follow a somewhat less logical course. For example, normal rate cases (which may include consideration of "fuel costs") would be governed by the "common law rule." But a change in those rates, sought periodically for fluctuating fuel costs, would require a vote by a majority of all members. Similarly, a rate case originally heard by a single Commissioner, would require more votes on review than one heard by a non-Commissioner hearing examiner. It is hard to conceive of reasons why the voting rules should be different in those contexts.
We acknowledge that the "common law" majority of a quorum approach has appeal: it insures that business gets done free of concerns that abstentions and absences can be used to simply stop actions. But, the common law rule can, in theory, allow resolution of major policy questions to turn on the vagaries of members' schedules. In addition, the common law rule makes abstentions confusing. As noted before, under the common law rule, abstentions have the effect of acquiescing to the affirmative -- they lower the number of votes needed. However, abstentions can easily be portrayed to the public as "negative" votes, i.e., "I did not vote for that." A system where abstentions technically lead one way but can be explained as something else should not be encouraged. Smith, 632 A.2d at 1289.
Therefore, we conclude that section 107 should be read like section 303(b) as requiring the affirmative votes from three appointed Commissioners for any action of the Commission.
If you have any further questions, please do not hesitate to contact our office.
Very truly yours,
John K. Welch
Deputy Attorney General
Gary A. Myers
Deputy Attorney General
Michael J. Rich
cc/encl.: All Commissioners, Public Service Commission
Malcolm Cobin, Assistant State Solicitor
Elizabeth Bacon, Opinion Administrator
1. We concluded in Att'y Gen. Op. No. 93-IO37 (attached) that the word "affirmative" should be construed as "yes" votes.
2. Such section reads:
A majority of the members of the Commission shall constitute a quorum and shall be sufficient for any action by the Commission; provided, however, that a single Commissioner may sit for the purpose of hearing testimony in any matter provided:
(1) The parties consent; and
(2) Any final decision in the matter must be approved by a majority of the members of the Commission.
3. Under the common law formulation, the failure of a present member to vote, as it reduces the number needed for approval, has the same effect as an "aye" vote. Mason §516(1). As such, abstentions may, in some situations, allow passage without affirmative votes by a majority of the quorum. For example, if the applicable quorum is three members, one member may constitute a majority (and support final action) if the two other members, although present, decline to vote.
4. These statutory provisions did not, as the common law rule would, ignore abstentions. The statutory provisions required "unanimous" action by a quorum and confirmation "by at least a quorum."
It is not surprising that the General Assembly rejected the common law rule. The constitutional draftsmen had rejected it for the passage of legislation. Del. Const. art. II, § 10 (1987). See Rash v. Allen, Del. Supr., 76 A. 370, 395-96 (1910) (Woolley, J., dissenting).
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