20210709Decision Memo.pdf

DECISION MEMORANDUM 1

DECISION MEMORANDUM

TO: COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL

FROM: MATT HUNTER
DEPUTY ATTORNEY GENERAL

DATE: JULY 9, 2021

SUBJECT: IN THE MATTER OF KAREN ERICKSON’S PETITION THAT THE
IDAHO PUBLIC UTILITIES COMMISSION REQUIRE PUBLIC
UTILITIES TO COMPLY WITH THE AMERICANS WITH
DISABILITIES ACT; CASE NO. IPC-E-21-22.

On June 14, 2021, Karen Erickson filed1 a two-page petition with the Commission. The
Petition may reasonably be understood to make two requests. First, Ms. Erickson asks that the
IPUC require public utilities to comply with the federal Americans with Disabilities Act (“ADA”)
and provide disabled persons equal access to utility services. Second, Ms. Erickson asks the IPUC
to comply with the accessibility requirements of the ADA. For background, the Petition directs the
Commission to review Ms. Erickson’s informal complaints with Consumer Assistance.
1. Ms. Erickson’s informal complaints
In 2021, Ms. Erickson initiated two informal complaints with Consumer Assistance.
The first of these informal complaints, initiated on March 31, 2021, claimed the City of Nampa
and Idaho Power Company were withholding utility services from Ms. Erickson and failing to
provide reasonable accommodations to her. In an April 4, 2021, email to the IPUC, Ms. Erickson
asked the IPUC to provide her with reasonable accommodations as required under the ADA,
specifically “information in an accessible format, the ability to communicate, the right [to] ask
questions and receive a response in a format I can understand.” In multiple detailed emails to the
IPUC, Ms. Erickson explained that her disability makes it so that she cannot talk on the phone,
receive mail or email, or receive text messages. Based on Ms. Erickson’s descriptions in emails

1 Ms. Erickson’s document was handed to Commission Staff during a June 14, 2021, meeting. Ms. Erickson asked
that Staff file the document with the Commission as a petition.
DECISION MEMORANDUM 2

and in-person conversations with Consumer Assistance, Ms. Erickson appears to assert she can
only communicate in-person or by means of certain adaptive technologies2. Despite Staff’s efforts
to reach Ms. Erickson regarding her informal complaint via email and mail, Staff was unable to
communicate with Ms. Erickson until she appeared at the IPUC office on June 8, 2021. Because
of its inability to reach Ms. Erickson, and because of Staff’s belief that the IPUC is not the
appropriate entity to enforce the ADA, Staff closed the first informal complaint on April 28, 2021.
At the June 8, 2021, meeting with Staff, Ms. Erickson stated that she had come to the
Commission because Idaho Power Company disconnected her power for non-payment. During the
conversation, Ms. Erickson received and read a text, and explained that the text said Idaho Power
Company had turned her power back on. Ms. Erickson then stated that she wanted Idaho Power
Company to refrain from disconnecting her service while her ADA-based tort claim against Idaho
Power Company was ongoing. Following this meeting, Staff opened a second informal complaint
for Ms. Erickson for the purpose of checking whether Idaho Power Company would accommodate
Ms. Erickson’s request. Ms. Erickson has since had several meetings with Staff, all in-person.
OVERVIEW OF THE ADA
The ADA broadly prohibits discrimination against individuals with disabilities. 42
U.S.C. § 12101. Disability is defined under the ADA as a “physical or mental impairment that
substantially limits one or more major life activities of such individual; a record of such an
impairment; or being regarded as having such an impairment….” 42 U.S.C. 12102. The ADA can
be divided into four titles:
• Title I: employment (42 U.S.C. §§ 12111 to 12117).
• Title II: programs and services offered by public entities (42 U.S.C. §§ 12131 to 12165).
• Title III: public accommodations and services operated by private entities (42 U.S.C. §§
12181 to 12189)
• Title IV: miscellaneous provisions (42 U.S.C. §§ 12201 to 12213).

Here, the Petition raises issues under Title II—programs and services offered by public entities.
A public entity is any state or local government, or any department, agency, special
purpose district, or other instrumentality of a state or local government. 42 U.S.C. § 12131. Under
the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” Id. at § 12132. To avoid

2 The adaptive technologies Ms. Erickson asserts would assist her were only meaningfully described at an in-person
meeting on June 7, 2021.
DECISION MEMORANDUM 3

discriminating against individuals with disabilities, a public entity “shall furnish appropriate
auxiliary aids and services where necessary to afford individuals with disabilities, including
applicants, participants, companions, and members of the public, an equal opportunity to
participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28
C.F.R. § 35.160 (emphasis added).
An individual who believes it has been subjected to discrimination because of disability
may file a civil action. 42 U.S.C. § 12133 (enforcement against a public entity); 42 U.S.C. § 12188
(enforcement against a private entity). Additionally, the U.S. Attorney General has broad
investigative authority under the ADA. 42 U.S.C. §§ 12117 and 12188.
When an individual believes it has been subjected to discrimination because of
disability by a public entity, federal regulations provide an administrative process. The individual
may file a complaint with a designated agency: a federal agency tasked with enforcing the ADA.
28 C.F.R. § 35.190. When a complaint is received, the designated agency has authority to
investigate whether the public entity has violated the ADA. Id.; see §§ 35.170 to 35.178 (describing
the administrative procedure to be followed in the event of a complaint). The Civil Rights Division
of the U.S. Department of Justice has general jurisdiction over these investigations and provides
guidance to the designated agencies. See 28 C.F.R. § 35.190.
STAFF RECOMMENDATION
As earlier noted, Ms. Erickson’s Petition makes two requests: 1) that the IPUC require
public utilities to comply with the ADA and provide disabled persons equal access to utility
services, and 2) that the IPUC comply with the accessibility requirements of the ADA.
While Ms. Erickson states her first request as a general request, her Petition and
communications with Staff have alleged an ADA violation by only one Commission-regulated
public utility, and the alleged violation have been against Ms. Erickson alone. Staff believes the
IPUC is not the appropriate entity to investigate an alleged ADA violation. An individual who
believes it has been subjected to discrimination because of disability may file a civil action. 42
U.S.C. § 12133 (enforcement against a public entity); 42 U.S.C. § 12188 (enforcement against a
private entity). Additionally, the U.S. Attorney General has broad investigative authority under the
ADA. 42 U.S.C. §§ 12117 and 12188. When an individual believes it has been subjected to
discrimination because of disability by a public entity, federal regulations provide an
administrative process. 28 C.F.R. § 35.190. Therefore, the ADA clearly describes by what means
ADA-based claims may be made.
DECISION MEMORANDUM 4

Certainly, the IPUC has broad statutory authority to require a public utility to comply
with federal law where it relates to the provision of adequate service and the maintenance of fair,
just, and reasonable rates. See Idaho Code § 61-501. It would be reasonable for the IPUC to address
repeated ADA violations by a public utility. However, the IPUC is ill-suited to investigate an ADA
claim from a single utility customer, and the IPUC is not statutorily required to conduct such an
investigation.
Regarding the second request, Staff believes the IPUC is ADA compliant. It is unclear
to what Ms. Erickson refers in her Petition when she writes that the IPUC “itself has not complied
with ADA requirements for accessibility.” Throughout the informal complaint process, Staff took
all reasonable steps to contact Ms. Erickson to determine what, if any, reasonable accommodations
she required to participate in the IPUC’s informal complaint process. Ms. Erickson only responded
to Staff’s inquiries when she appeared at the IPUC office on June 8, 2021. Staff has met with Ms.
Erickson every time she visits the IPUC office, updating her on her informal complaint and
answering her questions. Staff also inquired at the June 8, 2021, meeting about what auxiliary aids
might be helpful to Ms. Erickson, and since that time has diligently worked to find an auxiliary
aid that fits her needs. As noted by Ms. Erickson in her Petition, “…I was impressed by the
willingness of [IPUC] employees to make a significant effort to accommodate me.” Staff intends
to continue to work with Ms. Erickson to determine what reasonable accommodations she requires
to participate in and enjoy the services, programs, or activities of the IPUC.
Therefore, Staff recommends the Commission dismiss Ms. Erickson’s Petition. The
IPUC is not the appropriate entity under the ADA to investigate an ADA claim. Likewise, Staff
does not know to what Ms. Erickson refers when she claims (without explanation) that the IPUC
is not compliant with the ADA’s accessibility requirements. Staff believes the IPUC is ADA
compliant. The Petition should therefore be dismissed.
COMMISSION DECISION
Does the Commission wish to dismiss the Petition? If the Commission does not wish
to dismiss the Petition, does the Commission wish to issue notice of the Petition and set a
procedural schedule?

Matt Hunter
Deputy Attorney General

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