20230509Answer to Reconsideration.pdf

SUNNYSIDE PARK UTILITIES’ ANSWER TO PETITION FOR RECONSIDERATION - 1

MARK R. FULLER (ISB NO. 2698)
DANIEL R. BECK (ISB NO. 7237)
PAUL L. FULLER (ISB NO. 8435)
FULLER & BECK
410 MEMORIAL DRIVE, SUITE 201
P.O. BOX 50935
IDAHO FALLS, ID 83405-0935
TELEPHONE: [phone]
EMAIL: [e-mail]
EMAIL: [e-mail]

ATTORNEY FOR RESPONDENT

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

DONALD SORRELLS,

Complainant,

v.

SUNNYSIDE PARK UTILITIES,
INC.,

Respondent.
______________________________
) Case No.GNR-U-22-03
)
)
)
) SUNNYSIDE PARK UTILITIES’
) ANSWER TO PETITION FOR
) RECONSIDERATION
)
)
)
)
)

COMES NOW the Respondent, Sunnyside Park Utilities, Inc.
(“SPU”), by its counsel of record, Paul L. Fuller, pursuant to
IPUC Rule 331.05, and submits the following Answer to Petition for
Reconsideration, submitted by Donald Sorrells.
1. Response to Paragraph 1.
Mr. Sorrells argues that SPU has admitted that it is subject
to IPUC regulation. SPU contests such a claim.
a. Mr. Sorrells relies upon a letter sent to Amanda Hebesha
on October 29, 2021, prior to the initiation of
litigation and prior to the filing of any Complaint
RECEIVED
Tuesday, May 9, 2023 4:48:53 PM
IDAHO PUBLIC
UTILITIES COMMISSION

SUNNYSIDE PARK UTILITIES’ ANSWER TO PETITION FOR RECONSIDERATION - 2

before the IPUC. Ms. Hebesha is not a licensed attorney
in Idaho and the letter was not part of litigation.
Having conducted additional research and discovery, SPU
has since learned that Idaho Code Section 61-125 is not
as all inclusive as originally thought. Simply put,
SPU’s statement in October 29, 2021 was in error, as has
been established by the IPUC determination.
b. Mr. Sorrells also relies upon Order No. 35737, claiming
that SPU asserted its full due process rights under the
IPUC Rules and Regulations. This assertion was in
response to Mr. Sorrells’ claims that all violations had
been cured and that there was no need for the IPUC to
further address his Complaint. SPU did not assert that
IPUC had jurisdiction in its Motion to Strike, only that
the Complaint could not be summarily dismissed prior to
addressing jurisdiction and, if jurisdiction was
established, proceeding in accordance with proper
procedure governing Complaints. Mr. Sorrells’ attempt to
sidestep IPUC Rules and Regulations, by claiming he is
now in compliance, was properly ignored by the IPUC
because the question of jurisdiction had yet to be
determined.
c. Mr. Sorrells also relies upon prior Orders issued by the
IPUC, all of which have been reconsidered and are of no

SUNNYSIDE PARK UTILITIES’ ANSWER TO PETITION FOR RECONSIDERATION - 3

further force and effect. At all times, SPU has been a
utility organized and operated for service at cost and
not for profit. SPU made some changes to its governing
documents to ease IPUC staff concerns that at some point
in the future SPU could operate for profit. Prior
decisions by the IPUC finding that SPU was subject to
its jurisdiction were based upon SPU’s failure to
provide sufficient evidence to establish that SPU
qualified for the exceptions identified in Idaho Code
Section 61-104. Once the proper evidence was provided,
the IPUC correctly found that SPU is not subject to its
jurisdiction.
2. Response to Paragraph 2.
a. Mr. Sorrells asserts that his due process rights have
been ignored. However, a pre-condition to the IPUC
addressing Mr. Sorrells’ Complaint was a determination
that the IPUC had jurisdiction. As noted in Order No.
35737, “[a]t the March 29, 2022, decision meeting,
Commission Staff (“Staff”) recommended the Commission
accept the Complaint but hold it in abeyance until the
Commission could investigate whether SPU should be
regulated by the Commission. The Commission agreed.” See
Order No. 35737, p. 1 (emphasis added). The IPUC was
required to first determine if the IPUC had jurisdiction

SUNNYSIDE PARK UTILITIES’ ANSWER TO PETITION FOR RECONSIDERATION - 4

over SPU prior to addressing the merits of the
Complaint. Having found the IPUC lacked jurisdiction,
the IPUC has no authority to consider the substance of
Mr. Sorrells’ Complaint. Mr. Sorrells has no due process
rights under the IPUC because the IPUC has no
jurisdiction over SPU.
3. Response to Paragraph 3.
a. Mr. Sorrells complains of ex parte communication between
SPU and IPUC Staff. Ex parte communication in
administrative proceedings is governed by Idaho Code
Section 67-5253, which prohibits the “presiding officer”
from communicating directly with any party. SPU never
communicated with any of the IPUC Commissioners.
Sorrells provides no evidence to show ex parte
communication occurred. All communication by SPU counsel
was with IPUC’s attorney, and did not violate any
prohibition on ex parte communication. Although IPUC
colloquially refers to its assigned attorney as “Staff”,
the attorney is actually employed by the Office of the
Idaho Attorney General, not the Idaho Public Utility
Commission, further divesting such communication from
any ex parte prohibition.
4. Response to Paragraph 4.
a. SPU objects to Mr. Sorrells’ assertion that SPU was

SUNNYSIDE PARK UTILITIES’ ANSWER TO PETITION FOR RECONSIDERATION - 5

“gaming the system”. As previously discussed, at all
times SPU was organized and operating at cost and not
for profit. All changes made by SPU were to reflect this
reality, not alter the reality for “gaming” purposes.
During review of each reconsidered Order, the IPUC never
asserted that SPU was a for-profit corporation, only
that SPU had failed to establish that the non-profit
exception applied. Once SPU was able to properly
identify IPUC’s concerns regarding future transactions,
SPU provided the IPUC with the information necessary to
establish that SPU was and would remain a non-profit
entity and that there was no risk of SPU directors
pursuing profits in the future. The investigative
process worked to establish the non-profit exception
applied to SPU.
5. Response to Paragraph 5.
a. Mr. Sorrells’ request for reconsideration should be
denied. SPU has established that it is organized and
operated at cost and not for profit, precluding IPUC
jurisdiction. Mr. Sorrells has provided no evidence or
argument to contradict SPU’s non-profit status. Absent
evidence from Mr. Sorrells that SPU is operated for
profit, the IPUC has no jurisdiction. Mr. Sorrells
cannot provide such evidence because none exists. SPU

SUNNYSIDE PARK UTILITIES’ ANSWER TO PETITION FOR RECONSIDERATION - 6

was never under the IPUC’s jurisdiction because SPU has
never operated for profit.
CONCLUSION
It is requested that the IPUC deny Mr. Sorrell’s Motion for
Reconsideration. Mr. Sorrells fails to establish or even argue any
basis for the IPUC to exercise jurisdiction over SPU or that he
has been deprived of any due process right.
DATED this 9th day of May, 2023.
/s/ Paul L. Fuller
Paul L. Fuller
Attorney for Sunnyside Park Utilities, Inc.

SUNNYSIDE PARK UTILITIES’ ANSWER TO PETITION FOR RECONSIDERATION - 7

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the following
described pleading or document on the persons listed below on this 9th day of May, 2023:
Document Served: SUNNYSIDE PARK UTILTIES’ ANSWER TO
PETITION FOR RECONSIDERATION

Persons Served:

Paul B. Rippel Via Email
Austin O. Allen
HOPKINS RODEN CROCKETT
HANSEN & HOOPES, PLLC
428 Park Ave.
Idaho Falls, ID 83402
[e-mail]
[e-mail]

/s/ Paul L. Fuller
Paul L. Fuller
FULLER & BECK LAW OFFICES, PLLC