20230221Decision Memo.pdf

DECISION MEMORANDUM 1

DECISION MEMORANDUM

TO: COMMISSIONER ANDERSON
COMMISSIONER HAMMOND
COMMISSIONER LODGE
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL

FROM: CLAIRE SHARP
DEPUTY ATTORNEY GENERAL

DATE: FEBRUARY 21, 2023

SUBJECT: IN THE MATTER OF ISLAND PARK WATER COMPANY’S FAILURE
TO COMPLY WITH IDAHO PUBLIC UTILITIES COMMISSION
REPORTING REQUIREMENTS AND REGULATIONS; CASE NO. ISL-W-
23-01.

BACKGROUND
Island Park Water Company, Inc. (“Island Park” or “Company”) operates a “Water system”
as a “Water corporation” as defined by Idaho Code §§ 61-124 and 61-125 and is a public utility
subject to the jurisdiction of the Idaho Public Utilities Commission (“Commission”) under Idaho
Code § 61-129. The Company operates under Certificate of Public Convenience and Necessity
No. 317. Island Park’s service area comprises seven separate water systems located in Fremont
County, Idaho.
The Commission ordered the Company to appear at a Show Cause Hearing on February
22, 2023. Order No. 35675. At its February 10, 2023, Decision Meeting, the Commission agreed
to include additional issues at the Show Cause Hearing and reset the hearing date to March 13,
2023. Order No. 35682. On February 14, 2023, Dorothy McCarty, owner and operator of Island
Park, (hereinafter “Ms. McCarty”) filed a request to dismiss the Show Cause Hearing (“Motion”).
THE MOTION
On February 14, 2023, Ms. McCarty filed a request to dismiss the Show Cause Hearing set
for February 22, 2023. Ms. McCarty alleges that she has submitted additional documents to satisfy
the Commission’s Audit Request, and that she has a medical handicap that makes her unable to
attend the Show Cause Hearing.
DECISION MEMORANDUM 2

STAFF’S POSITION
Commission Staff (“Staff”) believes that Ms. McCarty is acting as an unlicensed attorney
in a quasi-judicial proceeding. Further, Staff believes the Commission should not waive the
requirement of representation in this matter, and Ms. McCarty should therefore be prohibited from
representing the Company at the Show Cause Hearing or filing motions on behalf of the Company.
Commission rules require a partnership or corporation to be represented by a licensed
attorney for quasi-judicial proceedings, including “matters such as formal complaints, petitions,
motions, applications for modified procedure or technical/evidentiary hearings.” IDAPA
31.01.01.43.02(b). Although there is a limited exception for participation in administrative
proceedings in IDAPA 31.01.01.43.01, that limited exception does not apply to a Show Cause
Hearing before the Commission. IDAPA 31.01.01.043.02(b) clearly states that “[a] partnership or
corporation shall be represented by a licensed attorney.”
Enforcement of the Commission’s rule is not discretionary, and the Commission does not
have the authority to define and regulate the practice of law. See Idaho State Bar Ass'n v. Idaho
Pub. Utilities Comm'n, 102 Idaho 672, 673, 637 P.2d 1168, 1169 (1981).
[A] business entity, such as a corporation, limited liability company, or partnership,
must be represented by a licensed attorney before an administrative body or a
judicial body.

Medrain v. Lee, 166 Idaho 604, 608, 462 P.3d 132, 136 (2020) (internal citations and quotation
omitted). Representation of another person before a public agency or service commission
constitutes the unauthorized practice of law where the proceedings before those tribunals are held
for purposes of adjudicating the legal rights or duties of a party. Indian Springs, L.L.C. v. Indian
Springs Land Investment, L.L.C., 147 Idaho 737, 215 P.3d 457, 464-465 (2009).
In this case the Company is a corporate entity as registered through the Idaho Secretary of
State’s website. However, the Company is not represented by counsel, and the Idaho State Bar
directory of attorneys does not list Ms. McCarty as an attorney licensed to practice law in Idaho.
Thus, Staff believes that Ms. McCarty is acting as an unlicensed attorney, the Commission may
not waive the requirement of representation in this matter using Rule of Procedure IDAPA
31.01.01.13, and Ms. McCarty is therefore prohibited from representing the Company at the Show
Cause Hearing or filing motions on behalf of the Company.

DECISION MEMORANDUM 3

STAFF RECOMMENDATION
Staff recommends that the Commission reject Ms. McCarty’s request to dismiss the Show
Cause Hearing, as she would be acting as an unlicensed attorney and she is prohibited from
representing the Company at the Show Cause Hearing or filing motions on behalf of the Company.
COMMISSION DECISION
Does the Commission wish to accept or reject Ms. McCarty’s request to dismiss the Show
Cause Hearing?

Claire Sharp
Deputy Attorney General

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