20131230Petition for Clarification.pdf

Brad M.Purdy
Attorney at Law
Bar No.3472
2019 N.17th St.
Boise,ID.$3702
[phone] (Land)
bmpurdv@,hotrnail .com
Attorney for Petitioner
Community Action Partnership
Association of Idaho
CASE NO.PAC-E-13-04
COMMUNITY ACTION PARTNER
SHIP ASSOCIATION OF IDAHO’S
)PETITION FOR CLARIFICATION
COMES NOW,Community Action Partnership Association of Idaho (hereinafter
“CAPAI”)and,pursuant to Rule 325 of the Commission’s Rules of Practice and Procedure,
IDAPA 31.01.01.325,hereby petitions the Commission for clarification of final Order No.
32946 issued on December 6,2013 in the above-captioned proceeding.
I.BACKGROUND
1.On October 24,2013,the Commission issued Order No.32910 in this case in
which the Commission deferred its ruling on CAPAI’s Petition for Intervenor Funding stating
that the petition “does not provide us with enough specific information to decide whether CAPAI
should be allowed to recover all of its intervenor funding.”Order No.32910 atp.14.The
Commission further ruled that while it is “sensitive to attorney-client communications between
CAPAI and its attorney,”that “additional detail for recovery of attorney fees would be helpful.”
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F;;2:(7
1•
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )
OF PACIFICORP DBA ROCKY MOUNTAIN )
POWER TO INITIATE DISCUSSIONS WITH )
INTERESTED PARTIES ON ALTERNATIVE )
RATE PLAN PROPOSALS )
CAPAI’S PETITION TO INTERVENE 1
2.Regarding its request for additional detail,the Commission identified seven (7)
categories of work by CAPAI’s legal counsel into which CAPAI could specify the number or
percentage of its overall hours worked.Those categories included:1)reviewing and
investigating the Application,2)discovery,3)participating in the settlement conferences,4)the
discovery dispute (Motion to Compel),5)witness/hearing preparation,6)the hearing,and 7)
preparing the intervenor funding petition and reply.”Id.The Commission reserved its final
ruling on CAPAI’s funding petition and directed CAPAI “to submit a more particularized
statement of costs and fees.”Id.
3.On November 5,2013,CAPAI filed a Supplement to Petition for Intervenor
funding providing the Commission with the additional detail required,breaking CAPAI’s
expenses out into the seven specific categories identified by the Commission in Order 32910.In
its Supplement,CAPAI noted that the information requested by the Commission and provided by
CAPAI was,by necessity,somewhat subjective because CAPAI and its legal counsel could not
have anticipated the Commission’s request for greater specificity than that required by
procedural rule 162 of the Commission’s procedural rules [IDAPA 31.01.01.162]pertaining to
the required contents of intervenor funding petitions and could not have anticipated the seven
specific categories identified by the Commission in its final order.
4.On December 6,2013,the Commission issued Order No.32946 awarding CAPAI
the sum of twelve thousand dollars ($12,000.00)in intervenor funding.In explaining its ruling,
the Commission found that “not all of CAPAI’s efforts materially contributed to the effective
resolution of this case,including but not limited to the ‘costs associated with CAPAI’s Motion to
Compel and associated pleadings.”Order No.32946 atp.3 [quoting Rocky Mountain Power
Opposition to Intervenor funding].
CAPAI’S PETITION TO INTERVENE 2
5.Order No.32946 concluded with the following statement of guidance to CAPAI
regarding how its legal counsel should structure his billing for matters pertaining to CAPAI as it
pertains to future petitions for intervenor funding:
We urge counsel to develop or obtain a system to more accurately track
and document his professional services related to Commission
proceedings.Such actions would greatly assist the Commission in
evaluating and expediting the resolution of future requests for intervenor
funding.
Ici
II.CLARIFICATION
A.Introduction:
For the reasons set forth below,CAPAI seeks clarification of the Commission’s statement
that it urges counsel to “develop or obtain a system to more accurately track and document his
professional services related to Commission proceedings.”Id.Regarding the Commission’s
apparent perspective that CAPAI’s legal counsel does not already maintain such a system,and
without waiving any confidential attorney-client information,CAPAI offers the following.
B.Explanation of CAPAI Legal Counsel’s Tracking/Documentation of Professional
Services:
CAPAI’s legal counsel tracks and documents his professional services for PUC-related
matters through the monthly creation of two separate documents,an “invoice”and a “statement.”
As counsel works throughout any given day,he maintains temporary,hand-written notes of the
tasks he performs and the amount oftime spent on each task.These temporary notes are then
converted at day’s end to a formal,type-written invoice entry.Counsel breaks down the tasks he
completes in increments of one-tenth of an hour,a customary practice within the local,private
sector legal profession.Because it would create an invoice of unmanageable size for counsel to
include the time for every single task completed during a given day on that day’s invoice entry,
CAPAI’S PETITION TO iNTERVENE 3
he simply totals the work done at the end of each day and includes that amount in the final
monthly invoice which is then sent to the client.A written description of the actual tasks
completed throughout every day worked,however,does appear in the invoice.
CAPAI’s invoices are often several pages long.Counsel’s invoice entries include,among
many other things,the details of internal discussions with CAPAI personnel including litigation
and client strategy.Counsel maintains invoices of considerable detail for numerous reasons not
only related to intervenor funding petitions.first and foremost,the client needs to understand
precisely what work counsel is performing and billing them for budgeting and strategy/objective
reasons.Furthermore,CAPAI is a unique intervenor in that its activities are somewhat regulated
and restricted by the federal government,it is essential that CAPAI’s executive director and
billing officer ftiliy understand the nature of counsel’s work on every case.Finally,detailed
invoices serve as a summary of work performed in a case,the date a particular meeting or
telephone call occurred and what was discussed,and other useful information.
To create his monthly billing statement,counsel simply takes the total hours worked as
stated in the invoice and transfers that figure to the statement where it is multiplied by counsel’s
stated hourly rate to calculate total attorney fees.Counsel’s stated hourly rate is $150.00 which,
incidentally,is considerably below his non-public interest rate,market rate for his experience
and expertise,and the Commission’s intervenor funding rate of $185.00 for the purposes of Case
No.IPC-E-13-16,Order No.32846 at p.1$.finally,the statement adds any expert fees and out-
of-pocket expenses including significant copy or postage costs for a total expense for the case.
The statement is typically a one page document.
C.Specific Billing System Desired by Commission:
CAPAI’S PETITION TO fNTERVENE 4
Counsel respectfully submits,therefore,that there is no failure on his part to fully and
thoroughly track and document his professional services.Any perspective that the Commission
might have in this regard would understandably be the result of attorney-client confidentiality,
the fact that procedural rule 162 does not require the disclosure of timesheets/invoices,and the
fact that the Commission has never specifically required timesheets/invoices or expressed any
concerns of the nature voiced in this case regarding counsePs billing practices.Thus,the
Commission has never seen nor been provided with counsel’s method of tracking and
documenting his professional services.Counsel is unaware of any method of tracking and
documenting professional services that can possibly be more detailed than actually tracking
every single task performed throughout a given day,documenting those completed tasks in a
written invoice,and totaling the time worked every single day of the month on which work was
completed.CAPAI respectfully seeks clarification as to whether the Commission has a specific
alternative system of tracking and documenting professional services.
D.Confidentiality:
Because CAPAI typically seeks funding only in formal,contested case proceedings,
[Rule 25,IDAPA 31.01.01.025]the timesheets maintained by its legal counsel will be similar in
content to timesheets maintained by any attorney in any litigated matter and,if disclosed,would
reveal litigation strategy and other sensitive information such that disclosure of it would
undoubtedly violate CAPAI’s rights to the attorney-client privilege and might well constitute a
violation of the Rules of Professional Responsibility adopted and enforced by the Idaho State Bar
Association.CAPAI respectfully seeks clarification,therefore,as to whether the Commission is
requiring the inclusion of CAPAI’s actual timesheets to future funding petitions and,if so,what
specific information those timesheets must contain.
CAPAI’$PETITION TO INTERVENE 5
E.Are Criteria Required in Order No.32910 Applicable to Future Funding Petitions:
CAPAI understands that the Commission felt that it needed additional information based
on the unique aspects of the current proceeding and attempted to provide that information to the
best of its ability.The seven categories identified in Order No.32910 are,obviously,specific to
this case and CAPAI assumes that the Commission is not suggesting that these same seven
criteria form the basis for the future time-keeping system urged by the Commission.For
example,prior to the current proceeding,CAPAI has never found it necessary to file a motion to
compel a utility to comply with discovery requests.CAPAI has no reason to expect that such
motions will become common in the future.CAPAI respectfully seeks clarification as to
whether its interpretation of Order 32946 in this regard is accurate.
F.Equality in Enforcement:
CAPAT notes that the only administrative rule currently in existence that identifies the
information required to be included in a funding petition in contained in procedural rule 162 and
that there has not been any contention that CAPAI has not complied with that rule.If it is the
Commission’s intention to expand upon that administrative rule,then CAPAT respectfully seeks
clarification as to whether any funding petition content requirement imposed on CAPAI will be
imposed equally on all intervenors seeking funding.
G.Conclusion:
CAPAI desires to provide the Commission with whatever non-privileged information it
can and counsel will certainly to amend the nature of future funding petitions if he is provided
with clear guidance on how to accomplish this.Though CAPAI does not wish to presume to
know what the Commission deems necessary,one possible means of providing greater detail
includes maintaining a shadow set of timesheets for funding petition purposes from which all
CAPAI’S PETITION TO 11’TTERVENE 6
privileged information has been removed or redacted.Regardless,should the Commission deem
it worthy,CAPAI would fully cooperate in any manner of collaborative discussion regarding
what is required to be included in funding petitions outside of that stated in Rule 162.
DATED,this 30th day of December,2013.
CAPAI’S PETITION TO iNTERVENE 7
CERTIFICATE OF SERVICE
I,the undersigned,hereby certif’that on the 30th day of December,2013,served a copy
of the foregoing document on the following by electronic mail and/or U.S.mail,first class
postage.
Ted Weston
Rocky Mountain Power
201 South Main,Suite 2300
Salt Lake City,UT 84111
[e-mail]
Daniel E.Solander
Rocky Mountain Power
201 South Main,Suite 2300
Salt Lake City,UT 84111
[e-mail]
E]ectronic Service Only:
Data Request Response Center
PacifiCorp
datarequest(iipacificorp.com
Neil Price
Deputy Attorney General
Idaho Public Utilities Commission
472 W,Washington ($3702)
P0 Box 83720
Boise,ID 83 720-0074
[e-mail]
Randall C.Budge
Racine,Olson,Nyc,Budge &Bailey
201 E.Center
P0 Box 1391
Pocatello,ID 83204-1391
E-Mail:rcb@,racinelaw.net
Brubaker &Associates
16690 Swingley Ridge Rd.,#140
Chesterfield.MO 63017
bcollinst’consuItbai.com
James R.Smith
Monsanto Company
P.O.Box 816
Soda Springs,ID $3276
CAPAI’S PETITION TO INTERVENE $
[e-mail]
Eric L.Olsen
ASSOCIATION,INC:Racine,Olson,Nye,Budge &Bailey
(Exhibit Nos.30 1-400)201 E.Center
P0 Box 1391
Pocatello,ID 83204-1391
[e-mail]
Anthony Yankel
29814 Lake Road
Bay Village,OH 44140
tony(.yankel .net
Benjamin J.Otto
Idaho Conservation League
710 N.6th St.
Boise,ID $3702
[e-mail]
Ronald Williams
Williams Bradbury,P.C.
1015W.Hays St.
Boise,ID 83702
[e-mail]
Don Schoenbeck
RCS,Inc.
900 Washington St.,Suite 780
Vancouver,WA 98660
[e-mail]
Tim Buller
Agrium,Inc.
3010 CondaRd.
Soda Springs,ID $3276
[e-mail]
Ken Miller
Snake River Alliance
Box 1731
Boise,ID $3701
E-Mail:kmi1ler,snaheriveralliance.org
Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
CAPAI’S PETITION TO INTERVENE 9
472 W.Washington St.
Boise,ID $3702
[e-mail]
Brad M.Purdy
CAPAI’S PETITION TO INTERVENE 10