N.Y. Public Service Law § 25-a: Combination gas and electric corporations; administrative sanctions; recovery of penalties

§ 25-a. Combination gas and electric corporations; administrative

sanctions; recovery of penalties. Notwithstanding sections twenty-four

and twenty-five of this article: 1. Every combination gas and electric

corporation and the officers thereof shall adhere to every provision of

this chapter and every order or regulation adopted under authority of

this chapter so long as the same shall be in force.

2. (a) The commission shall have the authority to assess a civil

penalty against a combination gas and electric corporation and the

officers thereof subject to the jurisdiction, supervision, or regulation

pursuant to this chapter in an amount as set forth in this section. In

determining the amount of any penalty to be assessed pursuant to this

section, the commission shall consider: (i) the seriousness of the

violation for which a penalty is sought; (ii) the nature and extent of

any previous violations for which penalties have been assessed against

the corporation or officer; (iii) whether there was knowledge of the

violation; (iv) the gross revenues and financial status of the

corporation; and (v) such other factors as the commission may deem

appropriate and relevant. The remedies provided by this subdivision are

in addition to any other remedies provided in law.

(b) Whenever the commission has reason to believe that a combination

gas and electric corporation or such officers thereof should be subject

to imposition of a civil penalty as set forth in this subdivision, it

shall notify such corporation or officer. Such notice shall include, but

shall not be limited to: (i) the date and a brief description of the

facts and nature of each act or failure to act for which such penalty is

proposed; (ii) a list of each statute, regulation or order that the

commission alleges has been violated; and (iii) the amount of each

penalty that the commission proposes to assess.

(c) Whenever the commission has reason to believe that a combination

gas and electric corporation or such officers thereof should be subject

to imposition of a civil penalty or penalties as set forth in this

subdivision, the commission shall hold a hearing to demonstrate why the

proposed penalty or penalties should be assessed against such

combination gas and electric corporation or such officers.

3. Any combination gas and electric corporation determined by the

commission to have failed to reasonably comply as shown by a

preponderance of the evidence with a provision of this chapter,

regulation or an order adopted under authority of this chapter so long

as the same shall be in force shall forfeit a sum not exceeding the

greater of one hundred thousand dollars or two one-hundredths of one

percent of the annual intrastate gross operating revenue of the

corporation, not including taxes paid to and revenues collected on

behalf of government entities, constituting a civil penalty for each and

every offense and, in the case of a continuing violation, each day shall

be deemed a separate and distinct offense.

4. Notwithstanding the provisions of subdivision three of this

section, any such combination gas and electric corporation determined by

the commission to have failed to reasonably comply with a provision of

this chapter, or an order or regulation adopted under the authority of

this chapter specifically for the protection of human safety or

prevention of significant damage to real property, including, but not

limited to, the commission's code of gas safety regulations shall, if it

is determined by the commission by a preponderance of the evidence that

such safety violation caused or constituted a contributing factor in

bringing about: (a) a death or personal injury; or (b) damage to real

property in excess of fifty thousand dollars, forfeit a sum not to

exceed the greater of:

(i) two hundred fifty thousand dollars or three one-hundredths of one

percent of the annual intrastate gross operating revenue of the

corporation, not including taxes paid to and revenues collected on

behalf of government entities, whichever is greater, constituting a

civil penalty for each separate and distinct offense; provided, however,

that for purposes of this paragraph, each day of a continuing violation

shall not be deemed a separate and distinct offense. The total period of

a continuing violation, as well as every distinct violation, shall be

similarly treated as a separate and distinct offense for purposes of

this paragraph; or

(ii) the maximum forfeiture determined in accordance with subdivision

three of this section.

5. Notwithstanding the provisions of subdivision three or four of this

section, a combination gas and electric corporation determined by the

commission to have failed to reasonably comply by a preponderance of the

evidence with a provision of this chapter, or an order or regulation

adopted under authority of this chapter, designed to protect the overall

reliability and continuity of electric service, including but not

limited to the restoration of electric service following a major outage

event or emergency, shall forfeit a sum not to exceed the greater of:

(a) five hundred thousand dollars or four one-hundredths of one

percent of the annual intrastate gross operating revenue of the

corporation, not including taxes paid to and revenues collected on

behalf of government entities, whichever is greater, constituting a

civil penalty for each separate and distinct offense; provided, however,

that for purposes of this paragraph each day of a continuing violation

shall not be deemed a separate and distinct offense. The total period of

a continuing violation, as well as every distinct violation shall be

similarly treated as a separate and distinct offense for purposes of

this paragraph; or

(b) the maximum forfeiture determined in accordance with subdivision

three of this section.

6. Any officer of any combination gas and electric corporation

determined by the commission to have violated the provisions of

subdivision three, four, or five of this section, and who knowingly

violates a provision of this chapter, regulation or an order adopted

under authority of this chapter so long as the same shall be in force

shall forfeit a sum not to exceed one hundred thousand dollars

constituting a civil penalty for each and every offense and, in the case

of a continuing violation, each day shall be deemed a separate and

distinct offense.

7. Any such assessment may be compromised or discontinued by the

commission. All moneys recovered pursuant to this section, together with

the costs thereof, shall be remitted to, or for the benefit of, the

ratepayers in a manner to be determined by the commission.

8. Upon a failure by a combination gas and electric corporation or

officer to remit any penalty assessed by the commission pursuant to this

section, the commission, through its counsel, may institute an action or

special proceeding to collect the penalty in a court of competent

jurisdiction.

9. Any payment made by a combination gas and electric corporation or

the officers thereof as a result of an assessment as provided in this

section, and the cost of litigation and investigation related to any

such assessment, shall not be recoverable from ratepayers.

10. In construing and enforcing the provisions of this chapter

relating to penalties, the act of any director, officer, agent or

employee of a combined gas and electric corporation acting within the

scope of his or her official duties or employment shall be deemed to be

the act of such corporation.

11. It shall be a violation of this chapter should a director, officer

or employee of a public utility company, corporation, person acting in

his or her official duties or employment, or an agent acting on behalf

of an employer take retaliatory personnel action such as discharge,

suspension, demotion, penalization or discrimination against an employee

for reporting a violation of a provision of this chapter of an order or

regulation adopted under the authority of this chapter, including, but

not limited to, those governing safe and adequate service, protection of

human safety or prevention of significant damage to real property,

including, but not limited to, the commission's code of gas safety.

Nothing in this subdivision shall be deemed to diminish the rights,

privileges or remedies of any employee under any other law or

regulation, including but not limited to article twenty-C of the labor

law and section seventy-five-b of the civil service law, or under any

collective bargaining agreement or employment contract.