991006_bp.doc

DECISION MEMORANDUM

TO: COMMISSIONER HANSEN
COMMISSIONER SMITH
COMMISSIONER KJELLANDER
MYRNA WALTERS
DON HOWELL
STEPHANIE MILLER
TONYA CLARK
RON LAW
BILL EASTLAKE
CAROL COOPER
WORKING FILE

FROM:

DATE: October 6, 1999

RE: CASE NO. IPC-E-99-9; IDAHO POWER COMPANY’S MOTION TO
DISMISS COMPLAINT OF FLOYD AUDETTE

On August 27, 1999, Mr. Floyd Audette filed a complaint with the Commission regarding Idaho Power’s treatment of Mr. Audette’s requested line extension to property he owns in Boise County, Idaho. The history of Mr. Audette’s complaint is contained in the decision memorandum submitted by Carol Cooper on August 24, 1999, a copy of which is attached. Based upon the information contained in Mr. Audette’s complaint as well as the decision memorandum, the Commission issued a summons and complaint against Idaho Power on August 27, 1999. The Company eventually filed a Motion to Dismiss Mr. Audette’s complaint.

Idaho Power Motion
In its Motion, Idaho Power contends that an informal complaint concerning “this matter” was made by Mr. Audette on August 27, 1997. The Company argues that the 1997 complaint was informally resolved and “the matter was closed” on September 15, 1997. Motion at p. 1. In support of the foregoing contentions, Idaho Power states that it is relying on the “records” of the Idaho Public Utilities Commission. Id.
Idaho Power states that Mr. Audette was to be considered a “developer/subdivider” for purposes of his line installation request. Id. at p. 2. On October 5, 1998, Mr. Audette remitted to Idaho Power the cost of the line installation which was based in part, the Company contends, on a line installation for a subdivision with Audette being the subdivider/developer. The construction of that line was completed by Idaho Power in October 1998. Idaho Power argues that, due to the fact that Audette took no action either at the time of the resolution of his informal complaint in 1997, or for a reasonable period after he tendered his money for the construction of the line and Idaho Power constructed the line in 1998, his complaint filed in 1999 is “not timely and should be dismissed.” Motion at p. 2.
In its Motion, Idaho Power concedes that Rules 21 through 24 of the Commission’s Rules of Procedure (IDAPA 31.01.01) clearly provide that an informal complaint proceeding does not exhaust a complainant’s administrative remedies. Nonetheless, the Company argues, it is apparent from a reading of those rules that if a matter is resolved and actions are taken by both parties in reliance on the resolution of the informal proceeding, that matter cannot at a later time be relitigated in a formal complaint setting. The Company does not specify which of those rules, or which portions of those rules support this contention. Rather, Idaho Power states that:
A fair reading of the Commission’s rules would indicate that a party has pursued an informal complaint process will not be barred from filing a formal complaint. On the other hand, that party should not be permitted to conduct an informal complaint proceeding, obtaining resolution, act under that informal resolution, with the other party relying upon that action, and then at a later date file a formal complaint to relitigate the same issue.

Motion at pp. 2-3.
Idaho Power concludes that allowing such a procedure “will have a chilling effect on the informal resolution of disputes.” Motion at p. 3.
In the alternative, Idaho Power argues that if the Commission chooses not to dismiss Mr. Audette’s complaint at this time, then it should at least require a more definite statement setting forth the facts in a more detailed manner leading up to the filing of the formal complaint. Furthermore, the Company suggests that the Commission require that Mr. Audette describe the evidence he will present in support of his allegation that Idaho Power was advised at the time the informal complaint was resolved that Mr. Audette desired to pursue the matter by way of a formal complaint to be filed at a later date.

Staff Analysis
Rule 21 of the Commission’s Rules of Procedure defines informal proceedings as:

. . .proceedings in cases authorized by statute, rule or order of the Commission to be conducted using informal procedures, i.e., procedures without a record to be preserved for later Commission or judicial view, without the necessity of representation according to Rule 43, without formal designation of parties, without the necessity of providing officers, or without other formal procedures required by these rules for formal proceedings.

Rule 23 provides that “any person participating in an informal proceeding must be given an opportunity for a later formal administrative proceeding before the Commission, at which time the parties may fully develop the record before the Commission.”
Finally, Rule 24 states that “unless all parties agree to the contrary in writing, informal proceedings do not substitute for formal proceedings and do not exhaust administrative remedies, and informal proceedings are conducted without prejudice to the right of the parties to present the matter formally to the Commission.” Rule 24 further provides that the Commission Staff will consider and investigate informal complaints “without prejudice to the right of the interested persons to present the matter formally to the Commission” unless all affected persons agree otherwise.
In her decision memorandum of August 24, 1999, Ms. Cooper posits that “Rule H [Idaho Power’s line extension rule] is ambiguous with respect to determining who is a developer, what constitutes a subdivision, and whether individuals owning several non-contiguous lots are to be treated as an individual applicant or a subdivision.” Decision Memorandum at p. 3. Because of this ambiguity, Ms. Cooper recommended that “Idaho Power be required to clarify their line extension tariff, to the extent possible, regarding the line extension policies in undeveloped subdivision.” Id. Staff ultimately recommended that this matter be handled as a formal complaint because Mr. Audette “disagrees with the informal resolution by Staff.” Id.
In the event the Commission denies Idaho Power’s Motion, Staff recommends that, first, Idaho Power be required to file an answer to the complaint to the best of its ability. Then, the Commission could request Mr. Audette to provide a more detailed written statement in support of his complaint, attaching any documents he deems relevant and any information the Commission seeks. Idaho Power and the Commission Staff could be given the opportunity for reply by Mr. Audette.

Commission Decision
Does the Commission find that Mr. Audette somehow exhausted his administrative remedies or otherwise put himself in a position that he is not entitled to seek a formal resolution by the Commission pursuant to Rules 21-24 of the Commission’s Rules of Procedure?
If not, how does the Commission wish to process this case so that more detailed evidence is obtained as suggested by Idaho Power? Through written comments? Formal hearing?

vld/M: IPC-E-99-9

DECISION MEMORANDUM 4