*1 COUNSEL, OFFICE OF PEOPLE’S
Petitioner,
v. COMMISSION,
PUBLIC SERVICE
Respondent. Company,
Potomac Electric Power
Intervenor.
Washington Light Company, Gas
Intervenor.
No. 83-947.
District Appeals. of Columbia Court of
April *2 A. and Elizabeth
Brian J.H. Lederer D.C., Noel, petitioner. Washington, for D.C., Moore, Jr., Washington, Lloyd N. respondent. for D.C., Shapiro, Washington, William Dana Electric Power for intervenor Potomac Company. D.C., Carroll, in- Washington,
Lewis Company. Washington Light tervenor Gas NEBEKER, FERREN, and TER- Before RY, Judges, in chambers. Associate PER CURIAM: review, the Office petition its (OPC) asks this court to People’s Counsel reverse the refusal of the Public Service (PSC Commission)to hold Commission proceeding status conference govern OPC assess- promulgate rules requests, and to direct the Commis- ment rulemaking. proceed with formal sion intervenors move to The deny the motion petition, We dismiss § 43- dismiss and hold that D.C.Code 612(a) (1981) provide does not Commis- the utilities to assess sion with (a) private attorneys en- the fees of gaged by the OPC to conduct the OPC’s and the legal business before the PSC courts, (b) extraordinary epi- certain operating expenses and operating expenses incurred salaries to various sodic particular proceed- in connection with proceedings before Commission.” 29 ings provided appro- (1982) (to for in the normal D.C.Reg. 2819 be codified at 14 process. To the extent that the priations 801.1(a)(2)) (proposed July DCRR permit rules would proposed such assess- 1982). proposed regulation provided ments, they would be ultra vires of PSC’s (a) expense ordinary if: “[a]n *3 therefore, authority; ordering rather than expense exclusively personal for servic- go Commission to forward with these es; (b) person pro- The natural rules, proposed we order it to revise its personal vides the service is a ‘consultant’ in opinion. rules accordance with this (c) meaning Chapter; within the of this provided by The services the consultant I correspond expertise or formal train- 6, 1980, May On PSC Formal Case No. ing D.C.Reg. of that consultant.” 29 2819 jurisdic- the Commission asserted its § (1982) (to be codified at 14 DCRR 802.- promulgate governing tion to rules OPC 1(a)(1)) 2, 1982). (proposed July It also expenses against assessments for its any stated that consultant is natural “[a] § 43-612(a). utilities under D.C.Code On person that furnishes will furnish or servic- 2, 1982, July because of its conclusion “that A es to OPC. consultant should have ei- appropriate develop guide it is rules to training expertise pro- ther formal in a or determining us in whether to issue an as- (a) including, fession but not limited to: An deposit particular order in sessment a attorney qualifications meets the set who instance,” D.C.Reg. (1982), 29 2818 § paralegal working forth 110.3 or a published Commission its Notice of Pro- supervision under the direct an Rulemaking in posed this case. The Com- (1982) (to attorney.” D.C.Reg. 29 2820 scope mission defined the proposed of these § 802.2(a)) (proposed codified at 14 DCRR regulations types as to “delineate[] 2, 1982).1 July may which for seek reim- through bursement an assessment order utility.” D.C.Reg. from an affected 29 II (to 801.1) be codified at DCRR The Commission received comments con- 2, 1982). (proposed July proposed reg- cerning proposed regula- these assessment permit the petition ulations would OPC to tions, promulgate but did not final rules. “ordinary” and “ex- reimbursement Therefore, 8, 1983, April filed the OPC a traordinary” expenses arising pro- from a requesting motion to con- Commission, ceeding pending before the immediately vene a conference about the provided they are incurred connection proposed regula- status of the proceeding. proposed
with that
rule
29, 1983,
April
On
the Commission
tions.
“extraordinary”
defined
rejected
issued Order
which
episodic,
provid-
“those that are
and are not
request
to hold a status conference.
appropriations process.
ed for
How-
denial,
appeals
The OPC
this
ever,
they may
some instances include
Commission,
intervenors,
supported by
services,
equipment
the cost of
jurisdiction
dismiss for lack of
moves to
of the same or similar nature as those
refusal to hold a status confer-
because the
by appropriations.
ex-
covered
Such
appealable order. The
using
ence is not a final
pense[s] may
not be established
should be
accounting techniques to allocate basic Commission also claims that it
cost
practice
highest
provides
person
state
before the
court
1. 14 DCRR 110.3
that "[a]
any proceeding
granting
mo-
represented
the Commission of a
before
special appearance, provided
attorney
that such
at law admitted
tion
attorney
the Commission
practice
does not maintain an office within
before the District of Columbia
by any
practice
Appeals;
attorney
of Columbia for the
of law.”
admitted
District
Court
authority,
jurisdic-
we
damages
awarded
and double costs because Commission’s
have
the merits
appeal
proposed
this
is frivolous.
tion to rule on
of these
Therefore,
deny
rules.
we must
the motion
true,
It is
as the Commission ar
decline the Commis-
to dismiss. As we
gues,
procedural
that a
decision made in
appeal,
to dismiss this
we
sion’s invitation
proceedings,
the course of administrative
reject
request
damages
must also
such as the refusal to hold a status confer
double costs.
ence,
normally
immediately
would not
appealable. Washington
League,
Urban
Ill
Commission,
Inc. v. Public Service
creating
The 1975 Act
the Office
(D.C.1972). However,
A.2d
of three sec-
Counsel2 consisted
well-recognized exception
case fits within
within the
tions. The first “established
rule that
judgment
to the final
allows
of the District
Public Service Commission
agency
court
to review non-final
action
*4
known as
of Columbia ... an office to be
clearly beyond
when such action is
”
People’s
and
the ‘Office of the
Counsel’
agency’s jurisdiction.
Kyne,
Leedom v.
office[,]
provided
such
“at the head of
79
the utilities
operating expenses.
Because
incremental
of
any investigation,
Office of
revaluation,
valuation,
contemplated
proposed rule
both of
clearly beyond
proceeding
any
actions which are
nature
Pub-
these
93-614,
(codi-
(1981)).
Stat.
-612
2. Pub.L. No.
88
1975
43-406, -407,
fied
at D.C.Code §§
as amended
lie
of or
the costs
concerning
Service Commission
the utilities for
of OPC’s outside
any public
operating in
utility
the Dis-
for additional
counsel and
administrative
Columbia,
trict of
and all
expenses required
any particular
pro-
any litigation, including appeals, arising
ceeding, subject
restraint of
any
investigation, valuation,
such
finding by
any
the PSC that
“ex-
such
revaluation,
proceeding,
or from
penses” are reasonable.
Commission,
order or action of the
shall
public utility
borne
investigat-
IV
ed,
revalued,
valued,
or otherwise affect-
special
ed as a
tax
franchise
... and such
determining
meaning
with interest
...
... be
Act,
word
we are
charged
allowed for in the
to be
rates
mindful of the maxim that we must look
utility.
[Emphasis added.]
and, if
language
first to the
of the statute
The final section of the 1975Act authorized
unambiguous,
give
is clear and
effect
appropriations
carry
purposes
“to
out the
plain meaning.
2A
Sutherland,
Stat
[creating
act
the Office of the
[the]
§§ 46.01,
Statutory
utes
Construction
$100,-
a maximum
Counsel]”
46.04,
(C.
48-51,
54-56
4th ed.
Sands
year following
each fiscal
1975.3 1973);
Block,
Petry
U.S.App.D.C.
v.
It is
meaning
the word expenses,
279, 281,
(1983).
697 F.2d
See
used in the
second section of the 1975
Inc.,
Stirrups,
Varela v. Hi-Lo Powered
(hereinafter
612(a)”)
Act
“section
which we
(D.C.1980)(en banc).4
words
examina
295, 301,
U.S.App.D.C.
302 F.2d
’ ”
Co.,
Harrison v. Northern Trust
tion.”
Pop
Ginsberg
v.
(1962)
(quoting
& Sons
476, 479,
361, 363,
317 U.S.
63 S.Ct.
87 kin,
322, 323,
52 S.Ct.
U.S.
(citations
omitted);
see
L.Ed. 407
(1932)).
L.Ed. 704
a statute creates
When
Georgetown
Zoning
Citizens Ass’n
v.
mechanism,
may not read
funding
one
we
Commission,
(D.C.
392 A.2d
render the
another into it if
do so would
*6
1978) (en banc).
particularly
This is
so
stated
useless.
mechanism
yet permissible
the broader
other lit
when
we
Accordingly, it follows that
reading
produce
a
eral
the statute would
expenses
light
must read the
word
contrary
result
to the manifest
intent of
Act, providing for
third section of the 1975
Congress, as we conclude it would in this
operating
appropriated
funds to be
case.6
section,
expenses of the
and the first
giving
express authority
We are also bound to consider the
to “em
§ 612(a)
language
ploy
employees, including attorneys,
literal
in context of
...
light
necessary,”
the 1975 Act as a
and in
of its
were to
whole
whose salaries
Thus,
statute,
Technically,
expenses
5.
the word
is broader than
when either word is used
a
and
be used
refer to all the
scope
subject
question.
costs
to
fees
litigant
expenditures made
in connection
proceeding.
Wright,
with a
10
Kani;,
See,
Staats,
Miller &
e.g.,
U.S.App.D.C.
6.
Lawrence v.
205
2666
Fi;di;rai. Practici;
and Procrdurr:
Civii. 2d
341,
(1981).
pur-
evident
to we hold bill; give develop companion to not intend and did not gress in 1975 did simply adopted report as its Senate to OPC. H.R.Rep. 2240, Cong., 2d own. 69th that, all, entirely clear it is not First of (1927). Congress Sess. Both houses of “le referring “legal assistance” and passed virtually no the assessment bill with assistants,” Congress contem gal the 69th legal or debate and no mention of fees hiring of outside counsel. plated the Cong.Rec. expenses. 9078 operating 67 reports in the words law Nowhere Rather, Cong.Rec. (1927). (1926); Also, the references yer attorney used. primarily provid- on the 1927 Act focused reports in to the need for the committee accountants, engineers, expert wit- ing represent “legal “to ... assistance” forthcoming in the nesses to assist public” present “to ... evidence” valuations, for the utilities had al- refer, hiring private might not to the $100,000 justify requested ready spent attorneys perform those functions for 33%, at least and the Commis- increases of Commission, hiring but rather to only with which to obtain sion had $150 clerks, hearing of legal stenographers, law presented to it to counter that information ficers, witnesses, investigators to expert by the utilities. Corporation perform in assist the however, assume, if we ing general counsel to the Even its duties as in “legal assistance” strengthened specific view is somewhat references PSC. This in that, Act reflect an reports in on the 1927 by the fact as enacted original only part of the authors legislation covered the ex tention on the assessment valuations, 612(a) read that the word investigations, revalu penses of PSC, ations, respect we are not by” broadly “made proceedings and other PSC; required to reach the same conclusion with it did not the second include legisla 43-612(a) Although covering respect “all ex OPC.11 clause of certainly a history tive of the 1927 Act is any litigation.” penses of considered, primary our focus factor to be history of the 1927 Act determining scope of the word ex significant references whatso- contained no § 612(a) applied penses Further, operating expenses. ever Congress of the 93d 1974. on the intent legislation received sum- assessment legisla- in the every indication Congress, and its There mary consideration Act that history of the 1975 purpose provide was to technical tive immediate limited role for the OPC. The im- envisioned a investigations for several assistance referring the 1926 ap- reports, important valuations. committee minent and appointment of a Peo- authorizing not Act House committee did pears that time, permit significant expense the 1927 Act to assessments underslood the most At expenses. might attorney's any operating litigation been the fees of con- fees or well have experts specifi- since new evidence sultants and permitted Act did not We note also that the 1927 appeal. Eight Counsel; presented to be cally include the Office of the later, provisions years were con- the assessment though hearings both the were held on and even appeals. expenses of cover certain strued to legislation and the OPC bill Washington Ry. v. District Colum- & Elec. Co. legislative his- in the is no cross-reference there bia, App.D.C. 77 F.2d (The tory the other. OPC had either Act to *8 (1935). was added the same The second clause earlier, three months on created less than been eliminating year part de novo review as of a bill 69-529, 15, 44 Stat. Pub.L. No. December 1926. appeals decisions. Pub.L. from Commission (1926).) 920 882, (1935). 74-349, 3, One Stat. 884 § No. 49 report on the 1935 the House brief statement in assessability of is limited to the 11. Our decision simply explains a re- this amendment bill not, not, expenses. de- We do and need OPC’s then-existing No. law. H.R.Rhr statement of authority scope as- the termine the PSC’s However, 665, (1935). Cong., 4 1st Sess. 74th expenses 612. sess for its own under § Congress that the 1935 there is no indication
1087 staff, expanded provide Counsel, cept was state that the committees pie’s including attorneys, separate to authorize original thinking the and con- “[drew] OPC, provide for the and to appropriations Congress initially when it enacted cerns of H.R.Rep. authority.15 Cong., assessment No. 93d this law.” S.Rep. (1974); 1349, 93d 2 No. 2d Sess. then, it was made clear in the com- Even (1974). very brief Cong., 2d Sess. during the committee reports mittee report original on the committee that, impos- hearings because it would be Corporation simply that the Act12 states to seek redress for all of for the OPC sible PSC) (then representing the was Counsel of its constit- many divergent concerns the give proper present time to unable to private citi- uency, intervention broad people to the complaints of the Commission permitted zens would continue to courts, and that “an officer” and the encouraged after the OPC was established. and in appointed, within the PSC should be Congress intended Had attorney provided then place of the one operat- virtually unlimited Counsel to have Commission,13 speak people for the unlimited numbers ing resources in matters of rates services. to him under private attorneys available § 612, Act, subject only to a PSC determination original House bill Like the 1926 case, given it in a the OPC14 of “reasonableness” introduced in 1974 to reestablish Coun- single expected coun- would not have appointment for the of a called sel, PSC, hiring great selectivity use serv- express with no sel to have to within the advocate; and it authority. ing as the consumers’ authority and no assessment continuing emphasized the through House bill would not have as the moved proceedings.18 process original that the con- need for intervenors (1926). purpose. Cong., and introduced a new bill for 12. H.R.Ri:i>.No. 69th 1st Sess. (1974). Cong., How- H.R. ever, 93d 2d Sess. provided appointment for the 13. The 1926 Act provisions for assessments the additional attorney “in of the of a lieu private intervenors were deleted [PSC]_” provided law for the reported the bill to the full when the Committee House. (1974). Cong., 14. H.R. 93d 2d Sess. authority likely that the assessment 18.It seems separate appropriations and assessment 15. The was deleted from the final com- for intervenors grant powers some were intended to its cost mittee bill because of concerns about independence from the Commis- measure controversy might generate; of and the course, hiring changes, even these OPC's sion. But same kinds of concerns these extensive as Commis- was not as discouraged that would have enactment authorized, sion’s, as was the since it was not encompass operating provisions agents under to hire with no § Commission outside counsel for and the fees of they compensated express limitation that opening n. In his remarks OPC. See 19. infra appropriated funds. bill, concerning Represent- the full House ”[a]ny explained sections ative Adams 4; 1485, supra, No. No. S.Ria\ 16. H.R.Ria’. com- were removed controversial were 1349, supra, at 4-5. during its deliberations.” mittee Cong.Riic. (1974). and the Senate Both the House Utility People's For the Rates and language reports to the effect Hearings contain H.R. committee that, Commission: Public Service relating must laws to the PSC because the House Committee on the Dis- 16782 Before construed, 12-13, Columbia, liberally specific as- intervenor Cong., 2d Sess. trict 93d Stratton, unnecessary. (statements provisions How- were sessment of William R. 22-23 ever, City Chairman, report also stated the House Public Service clarify Columbia, prompt Neely, take action to Council should Mason Vice and H. District recommended, respect Chairman). scope to intervenors. 612 with § The Commission S.Rhp. 5-6; 93-1485, supra at No. legislation proposal, H.R.Ria’. the OPC an alternative to 93-1349, regard supra at 6. We do not permit scope assessments of 612 to extend report language of an intent on as indicative private in PSC intervenors 612 should be favorably part sponsors of the 93d proceedings. were The bill’s Rather, logi- read in the broadest of terms. accept recommen- the Commission's inclined dation, inference, particularly of the sense reestablishing cal in view in addition to *9 1088
Moreover, have they viewed as noncon- and would considered the bill the bill was controversial.19 During the House debate on troversial. Act, Adams, Representative 1975 given The level of attention the Con- bill, manager of sponsor House and Act gress the 1975 likewise indicates “I do this explained: not think bill is con- being sweep- viewed as it was not a .... It reenacts section that troversial ing scope in as the Commission and OPC previously in District of was Columbia Act believe. The 1975 was introduced Cong.Rec. (1974). 120 Fur- Code.” 37265 entirely last three considered within the ther, principal sponsors of the Act 1975 Congress (during months the 93d which for OPC assessments under estimated con- a full recess was taken for month’s “$25,000 only range from 612 would elections); congres- gressional and final $50,000 year.” per H.R. assessments it the last place sional on took on action S.Rep. Rep. 1485, 9; 1349, swpra at No. 20, day the lame-duck 1974—of —December these
supra Nearly legisla- 9. all of passed with session.20 The Senate the bill Mathias, Eagleton Rep- tors —Senators Saturday during absolutely no debate Adams, Breckinridge, Fra- resentatives legislative history indicates session. The were, experienced attorneys and shepherded ser —were proposal the OPC was surely charged well aware of the fees through days Congress the 93d in its final they Had Washington law firms. intended of the among because of concern members access to the the OPC have extensive House Committee on the District Colum- Washington utility might law firms under services bia that residential customers § 612(a), proceedings their of the represented estimates level rate higher, following have been scheduled for the month on assessments would 19. gests fecting been members expense involved tential cost loquy for OPC. proposal sion passage. nism for City cation that counsel penses sel fees members committee members. cific reference (infra Mr. intervene reimbursing private trict of Columbia paid.... Mr. electric bill. ... urgency It was result of a Council in the rejected since if Stratton: It Smith: almost Congress there to fund intervenors counsel apparent The were left 1088-1089), the intervenor there intervenors if his took text were which because every by Representative large [Wjhat report language this compromise on the resolve, realizing controversy: aware was of the bill place during counsel intended to be assessed might no from controversial might want to come in and class of this single fees were intervenors, limitations, no of concern about its Nor do wc view the counsel (infra is that legislation even be their appropriation fees your interest proposal may resident of consumers. n. were discussion controversy was thoughts among Smith to coun- 19) I that its inclu- issue for the hearings as there was issue intervenors? would think litigation was going high very impede as an indi- committee committee enacted the ex- mecha- among as his A col- about likely have sug- Dis- spe- po- af- 20. vember Ri;c. until (October 17, 1974). possible these ments); 26, 30, ments). ary expressed vention, asked Hearings tory provisions 1974) (House some sort of reasonable limitation but of difficult Mr. Smith: I think that these would appear. Mr. regulations number of counsel or intervenors Mr. ings might go Mr. thority Mr. Hearings colloquy, November the close problems." in the amount Stratton: Smith: Not Stratton: Smith: 1974); 25, 1974) (House passage); [*] to draft to "minimize Commission to concern as to whether it (1974) (Senate passage, H.R. on H.R. questions.... Act was could be Cong.Riíc. [*] one of the [I]f concurrence in Senate 120 of business on October Absolutely, Absolutely. on language adequate to "handle 16782, Id. set legislation Cong.Rhc. forever. 1974. 120 [*] some limitation signed adopted time because supra submit the amount cost." Id. committee [*] supra into law were at 22. in order to to do Cong.Ri:c. (December proposed statu- adjournment (September 37269 at 26. He your that could Following all be sort would be members on Janu- on inter- this, 17, 1974 give it amend- amend- on the money Cong. draw hear- (No- au- ...
1089 all requested by major experts” three engage increases local “outside on mat- technical utilities.21 industry ters and on economics “to look factors, into ... allocation of re- ... rate Considering Congress the haste which of design questions.” turn rate [and] legislation, enacted the 1975 there is no 16782, 14, Hearings on H.R. 31. supra at any reason to believe that Members of Con- said gress ever Not a word was about then “legal read the references to the PSC reports assistance” in following the committee on practice assessing for out- Act, 1927 or understood the assessment legal side any operating counsel for ex- provisions they adopted for OPC to cover penses.23 any legal operating expenses. fees and Accordingly, the House and com- Senate only judicial opinion concerning the reports simply (tracking mittee stated § coverage 612(a) available to the 93d testimony) PSC Chairman’s that OPC Congress legal made no mention of either would be able to assess for the kinds same operating fees or It held only costs. that as the committees understood the most traditional of court costs—“the were assessed PSC: “the costs printing costs of the record and the brief witnesses, accountants, expert special upon appeal” ... ... within pur- —were other extra incurred costs as a result [a] provision. view assessment Wash- H.R.Rep. particular proceeding_” No. Ry. ington & v. Electric Co. District of S.Rep. 1485, 4; supra 1349,supra at No. at Columbia, 246, supra, App.D.C. 64 at 77 added). (emphasis There is no indication at F.2d 369. Congress that told that was the Commis- know We from the history § 612(a) sion construed to include assess- that only Congress knew Commission (or legal ments for fees that the expert assessed for witnesses and account- advised, would ever have been so view ants, heard Maryland’s practice conceded Commission’s at speak length at about need for ade- time relying instead D.C.Code quate funding expert witnesses and fees). 43-606 legal to assess Con- consultants,22 and believed the new gress would have had no reason whatever OPC would need independent authority to prac- to believe that the Commission had a Cong. expert obtain “such witnesses.” assessing tice of operating of its (1974). Rec. 37267 expenses. The then Chairman of the PSC testified Moreover, hearings all references in the at committee legislative history 1974-75 used its assessment to OPC’s cases, in rate employ operating expenses accountants and staff suggest 1485, fees, 3-4; Maryland supra H.R.Rhr No. at was S.Ria>.No. consultant's that the 21. 1349, ("Reasons supra seeking at For Immediate Con- Counsel was funds additional Action"). gressional explained The committees for outside consultants. Since the committee $100,000 reports reports in their had indicated in the Act state that the it complete requests operating rate hike for OPC was “in line with the costs of action H.R.Ri;i>. office,” January just Maryland the new D.C. Home State No. office, 8; government supra supra Rule took that the new S.Riti’. $100,000 government leg- would be to enact in- unable reasonable to infer that was provide operating islation time to be of assistance tended for salaries to local costs, provision residents. and the cover additional, predictable expenses special- less ized Hearings consultants. supra on H.R. at 67-79. In 22. Maryland, People's Counsel office consisted fact, attorneys, part-time employed two on a Chair- basis. the then Chairman and Vice Counsel, Maryland People’s like dur- man of the PSC mentioned outside counsel $100,000 nearly per year, ing hearings only expressing funded at their includ- the 1974 ing 612(a) applied charged testimony salaries. The heard committee doubts that to the fees largest single budget Hearings, Maryland supra item intervenors. at 23-24. *11 expenses,” from the so that he by items covered arated ... dichotomy between the go get have to out to by covered “not business appropriations and the items would Cong.Rec. assessments, paid,” suggests attorney that to be and order be that was operating expenses again emphasizing would cov- the bill de- work appropriations pro- purposes that by signed ered the standard for limited the original for provided cess.24 The House serve limited bill meant to role. was attorney, presum- the services of one reports the committee indicated Both ably through appropria- to be funded expenses the Office of that basic “[t]he committee amend- tions. When the Senate salaries, rent, Counsel, including People’s independent ed to the the bill make supplies, telephones, equipment” PSC, hiring (including the addi- of staff appropriations be covered “the standard attorneys) tional was still limited the H.R.Rep. supra process.” No. ceiling appropria- authorization for overall S.Rep. 7-8; 1349, supra 6-7. Such tions. reports explain the kinds of went on to During the the debate the bill addition these items to be funded “[i]n House, explaining sponsor, through the bill’s expenses,” the basic essentially the include, the of the was cost example, cost bill for provisions, “would secretary, witnesses, hiring lawyer one and one expert rate hiring the costs of possi- the no mention whatsoever of economists, safety engineers made design bility being hired. outside counsel specific specialized other consultants “They hiring not simply He stated: During initial rate cases.” at 9.25 Id. going one into an elabo- more than bill, in distin House consideration Cong.Rec. rate 37267. When staff.” 120 guishing appropriated funds those the House considered the Senate amend- assessed, sponsor again bill's ments, following place on colloquy took explained that “the the House floor: cases such incurred various witnesses, costs, expert and so forth” McClory: is it limited as far as court
Mr. ... assessed). (but People’s employ or appropriated Counsel can were not to be who Cong.Rec. far as additional staff? It is reasonable to it unlimited as 37267. that the kinds of Con conclude imposed by Diggs: A limitation is Mr. gress to assess under intended OPC operation level for the the authorization § 612(a) nature to those must be in similar of this office. his specifically in the mentioned Cong.Rec. addition, prin- 41849. tory. explained cipal supporter of the House bill debate, Representa- “reg- point At one in the given was that the Counsel appears “carefully sep- tive made a comment which salary,” ular Gude [appropriated] or to their argument either to their utilities commissions could also be made Con- advocates, hiring gress expressly limit which did did not attor- and those two consumer funds, neys by appropriated percentage as it OPC to a set so based the assessment do, under 43-204 respect knew how (1973), since D.C.Code gross With utilities' revenues. attorneys by hiring the Commis- states, reports explicitly those five each of However, it been thus limited. sion had necessary so, how, whether, and if outside con- mentioned specify addi- Commission's Thus, fees were funded. since sultant attorneys paid ap- might be from funds tional altogether type of assessment different chose at the propriated since time the Commission authority had no useful the committee Corporation represented it was particular in these other states for models attorneys. no staff and had Yet it is to be assessed. kinds apparent from this section of the committee comparison used for cost 25. Of the five states report primary provision that the focus was the reports, only purposes in committee both the expert consultants. provided any direct assessment two suggest through that the should appro- utilities be as- and handled normal Likewise, operating processes sessed OPC’s incremental priation ex- .... penses particular related proceedings: overhead of administrative Counsel, which will not be met provides The bill operating ex- provisions pass-through H.R.
penses
subject
should
to annual appropria-
investigation
procedure
incident to the
recommend,
tion.
accordingly,
We
operations of the Public Service Commis-
*12
provision
of a
inclusion
bill
sion
public utility
connection with a
appropriations
specifically
authorize
operating in the
District
Columbia
office of
People’s
Counsel.
be borne by
public utility
shall
itself.
S.Rep.
1349, supra
(emphasis
No.
at 11-12
Cong.Rec.
120
(emphasis
37268
add-
added).26
ed). However, Representative Gude, who
was not one
bill,
Ordinarily,
of the
Congress
co-authors of the
went on to
presumed
state that
appropriation
know the
construction
$100,000 per year
defray
“is
given
prior
such ex- has been
statutory provi
penses
salaries,
rental,
sions,
equipment,
office
to know their history,
it
when
the like.”
Id. Thus
is not
incorporates
it
clear
them
legislation.
into later
what he meant
his
Pons,
earlier reference
575, 578,
v.
Lorillard
434 U.S.
98
operating expenses, and
not
868,
we do
find it
866,
(1978);
S.Ct.
neys in connection retained the OPC proceedings, or for with PSC the OPC’s VI extraordinary operating ex- incremental policy we Finally, address penses incurred with such connection *13 question should construe of whether we obtaining legislative in lieu proceedings, § 612(a) allow assessments for direct way as all other appropriations the usual attorney’s operating and ex fees certain government agencies The do. Commission prefer penses requires OPC because proposed revise rules ac- is directed to its statutory ential treatment to fulfill its man The dismiss is denied. cordingly. motion to impossible interpretation an date. Such So Ordered. in view the limited which the role 93d Congress perceived the OPC would ass FERREN, dissenting: Judge, Associate discussed, we have
ume.27 As
Con
creating
recog
in 1975
gress
OPC
I
set
respectfully dissent
reasons
nized
limitations and never intended
its
Judge
forth in Part IV of
Newman’s
Chief
representa
provide legal
be able
affirming
opinion
majority,
the division
divergent
interest.
every
tion
consumer
order, Washington
the Commission’s
participation by
Active
intervenors was
v.
Light
Gas
Co. Public Service Commis-
Moreover,
contemplated.
now that
Columbia, Nos.
sion
the District
longer
no
has
limitations
OPC
on
1982),
-303,
(Oct. 4,
81-302,
slip op. at
-305
appropriations,
People’s
under
and
case
opinion
28. That
was vacated
1979,
3,
supra
Act of
note
Authorization
1983,
September
banc. On
reheard en
arbitrary monetary
there are no
restraints
the en
court affirmed
Commis-
banc
staff, including
hiring
attor
court,
OPC’s
equally-divided
sion’s
an
order
vigorously
neys,
represent
as
opinions.
without
satisfy
legisla
as it wishes.
It need
divi-
appendix
I
hereto
attach
as
process.
in the
scrutiny
appropriations
tive
dissent, well
the en
opinion
sion
and
as
order,
jurisdictions,28
Light,
Like courts in other
we
su-
Washington
banc
Gas
published
impose
utility,
pra,
yet
loath
these have not
been
are
tax
opinion series.
beyond
slip
this court’s
subject only to a PSC determination
mentioned,
statutory
autho-
supra,
mission not within
As
n.
27.
we have
be,
extent,
Newark,
rization);
N.J.Super.
to some
v.
207
did intend that
independent
State
Div.1965),
(Law
N.J.Super.
Our decision
aff’d,
of the Commission.
A.2d
objective,
since the OPC's
is consistent with
operating expenses
(App.Div.1966) (municipality held
appropriations. created originally Like the PSC, Congress was early years, represented Ninety-third
In its *15 Counsel, that the substantial Corporation apparently the convinced through the ad- segregation advocacy and only advancing ratepayer of the PSC’s public institution utility improve utility regulation. roles the judicative of would interests matters history regulation process.1 a Perceiving publicly the need for funded a con- large 1975 amendments indicates with a measure of of the consumer advocate levels, costs, utility operations and other report on the 1975 fuel 1. The House committee regulatory utility commission The local amendments states: .... admirably the inde- in its role as had served developing enacting legislation In making judicial body responsible pendent for 1913, Congress recognized re- that the in sponsible regulatory the comprehensive and detailed decisions must commission However, complex procedures. has rate fashion, judicial many a bal- act in instances simultaneously the not been able to serve varying ancing independent an manner the vigorous interests. defender of local consumer appearing viewpoints public groups of before 1485, Cong., [H.R.Ri-p. 2-3 No. 2d Sess. 93d necessarily independent posture has This it. (1974).] vigorously the Commission from inhibited protecting report that in reestab- The Senate indicates viewpoints and consumers’ the lishing those was motivated proceedings. Their function has in rate needs same concerns. development a insure the rather to been original legislation established presents complete the record which full and in 1913 ... the Public Utilities Commission rate-making considerations and other facts provide appoint- in 1926 to was amended meaningful determina- to a fair and relative Ser- in the Public such, of additional counsel ment complex As of the issues involved. tion People's Counsel called the vice Commission separate of- created the amendment proceed- hearings judicial intervene at or counsel, fice, the views advocate provided concerning ings matters services regard to and needs of local consumers with However, by public the utilities. rates, rates, utility service distribution these ty consumers have always borne the cost maintaining cern for independence advocacy of the utilities’ interests before supervision.2 ultimately As Commission, paid which are out rate enacted, the amendments included several 1927, Since have revenues.4 the utilities provisions independence that foster non-appro- required been to bear PSC’s example, OPC. For Counsel is priated expenses regu- investigation appointed by Mayor for a fixed term of § years. 1981, 43-406(b). three D.C.Code 3, 1927, lation. Act of Mar. Pub.L. No. While the statute states that the OPC ex- 69-707, (1927), 44 Stat. 1351 codified at § ists within PSC, 1981, D.C.Code 43- 1981, 43-612(a). D.C.Code Con- 406(a), organizations the two sepa- receive gress the expenses adjudi- decided that 1981, appropriations.3 rate D.C.Code 43- cation, investigation, advocacy incurred 406(a). charged should also be to the utili- However, appropriations cover ties, ultimately utility financed part utility regulation. of the cost of Utili- through Reorganiza- Counsel proper party proceedings.” was abolished become a in these 5, approved 1485, tion Plan No. reported (1974). in 1952. The bill Cong., No. H.R.Rhi1. 93d 2d Sess. 10 Committee, by this re-enacts Title point The Senate committee concurred in that D.C.Code, drawing upon Section of view. original thinking and concerns of Con- function, truly People's order [I]n gress initially when it enacted the law. [S. independent. Council [sic] must An effec- Cong., (1974).] Ri:i>. No. 93d 2d Sess. argue tive consumer advocate must able to support his case on the merits and the inter- testimony committee, 2.In before the House protecting. By very ests he nature Maryland’s People’s emphasized Counsel the im- advocate, People's an his function as portance independence. continually taking positions will course, Of I would have one caveat that I controversial matters. No. 93d [S.Ri-i’. urge either on the Committee subse- (1975).] Cong., 2d Sess. 5 quent agencies District of Columbia adequately financial commitment to independent fund the 3. While he and Public Service Commission go along office has to with creat- personnel, wish to utilize same share ing the office also. I think if that even we did cooperate, specific offices otherwise consumers, not save one nickel authorization contained bill in the is intended system having independent itself of provide representative protec- Counsel with within the Com- mission, against any problems operating independently, might tion arise is most im- portant. [Utility People's taking positions Rates and from his which he believes to Hearings people’s Public Service Commission: be in the interest and which arc effec- Comm, on H.R. 16782 the House on the tively contesting the decisions of the Public Before Columbia, Cong., District 93d 2d Sess. [S.Riíp. Service Commission. 93d (1974) (statement Gary Alexander).] R. (1975).] Cong., 2d Sess. 5 reappeared response ques- The same theme tioning. concurring dissenting opinion, In his *16 suggest The Chairman: Does that that un- Judge objects strenuously Kern to the that fact bill, counterpart People’s der the that Counsel required legal consumers are to bear substantial to should be answerable the Public Service representation fees the for of their own interests independent? or Commission to be What However, objection before no the Commission. you suggest? ratepayers required is that made fact independent Mr. to be Alexander: has opposing to the bear costs of those with the Public Service Commission. There is no (i.e., higher utility interests an interest in that, question may you that about so want to charges) utilities and their shareholders. —the specific Merely consider a fact term. the Certainly Congress permitted the to redress appointed by Mayor may he is the lead not to through legislative judgment balance any conflict within the itself. Commission I public there should be a consumer advocate important point think the ple's is to have the Peo- PSC, independent legal and and that its position independent within Counsel the by other costs should be borne its beneficiaries. Commission. [Id. 74-75.] job scope Con- Our is to determine the of what The stated that the bill would Committee “in done, gress interpose prefer- has our own adequate, independent pro sure that is an there See ences. note 5 infra. allowing public cess for the and its interests to
appropriation account known as “miscel- deposit trust fund ...” laneous tax The 1975 charges5 rather than levies. provided by in for disbursed the manner (italicized language added amendments expenditures law for other ... for such here) ex- scope that extended the the approved by purposes may as the by pense provisions to cover costs incurred Commission; or Public Service the OPC. certified People’s respect by the Counsel expenses, including The the (italics expenses. his indicate lan- [Id. Counsel, of People’s the Office of 1975).] guage added in revaluation, valuation, any investigation, proceeding any by or nature the Pub- Shortly after the Office of the ex- lic Service Commission ... and all reinstituted, began Counsel was it submit- any litigation, including ap- penses ting directly to “assessment orders” utili- arising any investiga- peals, from ties, approval. without PSC These de- tion, valuation, revaluation, proceed- or with, but, complied mands were ing, any or action of the order or concedes, OPC’s asserted authori- Commission, shall be borne ty legally binding make orders nev- valued, revalued, investigated, utility Then, acknowledged by er the utilities. special as a otherwise affected franchise 1978, challenged alleged PEPCO au- _ Supp., 43- tax [D.C.Code thority before the PSC means of mo- 612(a).]6 quash tion assessment order. combined of the PSC and The 685, Formal denied Case Commission rate valuation or ground the motion on the that the PSC had may per- of one not exceed one-half case jurisdiction expense no to review OPC as- utility’s existing cent of valuation. 685, Hearing, p. sessments. Formal Case investiga- all combined other 1978). seq. (February appeal 187 et No percent of a are limited to one tenth tions was taken. per year.7 Id. procedure outlines a The same section challenge alleged assess- OPC’s ex- the collection disbursement of power ment which forms basis utilities, which was penses borne Washington present appeal was initiated provide a role also modified Light. April On WGL sub- Gas the OPC. a Petition for a Declara- mitted to the PSC valuation, Uncertainty, pursu- tory to Remove investigation, Order any such When peti- 1-1508. The
revaluation, proceeding begun ant to D.C.Code other rather than the may tion asserted that said Public Service binding sole to make question for the OPC has utility call (in the form of orders to make or sums assessments deposit such reasonable sum fund). commission, deposits into miscellaneous trust opinion of said argued may utilities not be money so It also necessary ... may deem catego- of certain treasury required to bear the cost deposited to be paid April expenditures. ries of On PEPCO to the credit of United States interest, light fixed the percent of the fact has Expense payments, plus 7.In six regulatory process, costs limit on overall utility operating expenses charged exceeded, Judge limit has not been and this charged to *17 provided rates custom- the high is costs arc too not view that these Kern’s relevant to the task 1981, 43-612(a). D.C.Code ers. at hand. When interpose spoken, it to a differ- has is not us in the contained 6. Due to a recent amendment scheme, congressional opinion. the Under ent Act of Reimbursement Fee Public Utilities fixed, upper limit the Commission— the is while 11, 1980), 3-206, D.C.Reg. (July codi- Act delegated responsibility the to not court—is this 43-612, the cost fied at D.C.Code expenditure level within the actual determine now appropriations for OPC are expense through its assessment bounds those by the utilities. also borne decisions. by order Commission certi- fication of petitioned expenditures the PSC in Formal Cases 680 actual or an- ticipated legality expenditures 706 to rule on the by two assess- OPC. cases, growing ment orders out of those 9.Assuming that the Commission finds pay. which PEPCO had to On refused process assessment current- 10, 1979, August the Commission consoli- ly in op- effect is unlawful either as pending disputes concerning dated all OPC by People’s erated Counsel or as expense assessments into Formal Case 718. Commission, permitted by what, Chesapeake Telephone & Potomac Co. any, if relief can the Commission permitted support to intervene grant? by the stands taken A other utilities. briefing argument, After the Commis- prehearing conference at was held which presented sion ques- answers to these nine issues were formulated for decision. tions in Order 7211. It ruled that: Whether, 1. in the an absence of order Commission, People’s Counsel has authori- People’s 1. The Counsel no may require utility deposit to a funds deposit ty require utility to a to funds by for use Office a for OPC use without (OPC). (Nov. Order 7211 at 4 order. PSC 2. Whether the Commission has au- 1980). thority, on petition utility, a from a may 2.&3. The PSC review the reason- to review the reasonableness of an an request ableness of OPC for funds request by made utility, request at the of a and must do OPC. enforcing request. so before an OPC
3. Whether the Commission can lawful- Id. 4-5. ly enforce an assessment order may required pay 4. Utilities reviewing OPC without the reason- private by attorneys engaged cost requested ableness of the assess- Id. 5. OPC. ment. operating 5.&6. “Basic or sal- utility required 4. a pay Whether is already through appro- aries” financed independent attorneys the fees of en- priations may against not be assessed gaged they utilities are even when incurred perform legal services. connection with Commission proceed- a a utility required 5. Whether is a pay However, ing. “extraordinary incre- proportional share of the costs of mental incurred OPC in supplies, op- services basic and other proceeding with a connection before erating expenses of OPC. Commission,” “may ... in- utility required 6. a pay Whether a services, equipment clude the costs of proportional share of the salaries the same and salaries which are of employees of OPC. by ap- similar nature those covered utility required pay 7. Whether propriation,” are assessable. To be investigation the costs of an initiated “extraordinary incre- classified as an by People’s and conducted Council an expense” expenditure mental must investigation pend- when such is not provided in the episodic not ing before the Commission. appropriations process. Id. at 6. Commission, may 8. To what extent required pay 7. Utilities not complaint utility, inquire on a from a investigations costs of that are into the method and manner which pending not the PSC. Id. at 6. before expends paid it funds responsi- has While the Commission result of the issuance of a mis- ordering deposits into the bility for deposit cellaneous trust fund order fund, inquire into the trust Counsel or *18 1098
However,
argues
PEPCO
that the issues
presented
appeal
solely
on
are
matters of
expendi-
or
manner
disbursement
law,
interpretations
the fund.
and that Commission
ture of monies drawn from
past
anticipated
question
certification of
are
OPC
of the statutes
“neither
expenditures
deposits
covered
fund
controlling
special
nor entitled
defer-
but to the
made not
PSC
ence.”
public authority that administers the
In
involving
cases
construction
trust fund.
Id.
7.
Act,
has accorded
this court
Public Utilities
may grant prospective re-
9. The PSC
weight
the views
the PSC.
substantial
lief.
at 7.
Id.
responsibility for
“Although the ultimate
The
all OPC
Commission ordered that
determining
interpretation of a
correct
to it
requests
assessment
be forwarded
[citing FTC v.
statute rests with the courts
documentation,
supporting
along with
429, 431,
223, 226,
Texaco, 393
89 S.Ct.
U.S.
rulings.
reviewed in accord with its
],
21
is settled
L.Ed.2d 394
‘[i]t
Application
submitted an
Recon-
weight
give great
the courts should
5,
2, 3,
6,
points
The
sideration of
7.
regulatory
of a
reasonable construction
seeking
similar
recon-
utilities filed
motions
charged
adopted by
agency
statute
4, 5,
rulings
In
sideration of
6.
Order
”
of that
with the enforcement
statute’
12, 1981),
(January
7243
the Commission
v.
(quoting
Co.
Institute
Investment
Having
paved
motions.
thus
denied the
1091,
617, 626-27, 91
Camp, 401 U.S.
S.Ct.
review,
way
judicial
appeals
1097,
(1971)). Watergate
the decisions Improvement Associates v. Public Service thority requests and to review assessment 778, Commission, D.C.App., 326 A.2d 785 independent non-assessability of inves- (1974). give appellate court should “[A]n 7). (numbers 2, tigation expenses 3 and given interpretation ‘great deference rulings on appeal WGL PEPCO agency charged with the statute the ... 5,4, 6, questions which concern the ” v. Tail- (quoting its administration’ Udall assessability private attorneys’ fees 801, man, 1, 792, 380 U.S. S.Ct. By “extraordinary expenses.” incremental (1965)). Poto- Chesapeake L.Ed.2d 616 & appeals March these an Order of Telephone Public Service Com- mac Co. v. petitioner consolidated and were mission, D.C.App., A.2d in the others. each was made an intervenor (1977). retains the while this court Thus addition, permitted P inter- C & was authority ultimate to establish what appeals.8 in all three vene means, “a view is sub- statute PSC’s proceeding to a discussion of Before Youak- stantial factor to be considered.” merits, scope of review a word about the 231, 235, Miller, 96 S.Ct. v. 425 U.S. imof governing review in order. statute (1976). 1399, 1402, 47 L.Ed.2d sharp distinction decisions draws determinations of matters agency between subject and fact. The former
of law Authority Utilities I. to Order review, latter are to be set aside while the Expense Payments Make unreasonable, arbitrary, capri- if only does not have The PSC ruled that “OPC 43-906. cious. D.C.Code orders; this power to issue assessment primary that it has maintains Commission authority to has the exclusive questions determining responsibility orders_”9 7211 at 5. issue PSC Order arising the Public Service Commis- under interpretation of result Law, It based this on subject to “limited review”. sion that il has the The Commission also stated 9. also filed motion to strike four 8. PEPCO judicial review, enforcement exclusive to seek grounds for which is denied. OPC's orders, a is not matter appeal. presented PSC Order 7211
1099 trict Columbia v. National Bank of of § 43-612(a) Washington, D.C.App., light in of the 431 complete statuto A.2d 4 (1981). OPC ry concededly scheme. is not explicitly given the authority to payments. order 43-612(a) Section states that OPC’s ex- This in itself conclusive, is not since the penses for certain itsof activities shall be Public Service Commission is Law to be by borne utility involved. liberally carry construed to pur- out its provides a means for the collection of these poses. D.C.Code But only 43-103. funds from the utilities and their disburse- any express absence of funding ment to OPC. The PSC is authorized to implied mechanism would an power be re- require payments utilities to make into a quired in order carry out the intent that fund known as trust “miscellaneous fund expenses be borne by the utilities. When deposit.” As no distinction is made be- Congress has clearly established one meth- deposits expenses tween for the of the od and not indicated that it merely op- is People’s Commission and those of the suggested, tional or we are liberty not at Counsel, it is clear the same mecha- procedure invent a of our own. applies nism only both cases. The OPC role regards mentioned the disbursement presumption exclusivity Of course money may the fund. It withdraw by convincing could be overcome evidence by money certifying expenses. Neither record that nor the utilities contend such Only fact intended otherwise. one of the certification must made be to the Commis- by support cited OPC in of its statements approved sion by it. position directly of the addresses issue procedure No funding other for the procedure. by It was not made (other expenses appropriation) than but Congress, Member then Chair- §in mentioned 43-612 elsewhere in the PSC, man of the in a letter to Stratton OPC, however, statute. contends that this Eagleton proposed regarding Senator omission is merely oversight part on the amendments. Congress, which intended that the statu- stands, Under section it now tory merely op- assessment mechanism be may utility Commission assess the tional. Counsel would have the involved incurred court imply to make direct Commission connection with of its against assessments the utilities from the proceedings. These are assessments de- statutory mandate that its “shall posited into a fund trust and disbursed suggestion be borne” the utilities. That upon authority of the Commission. is untenable. like the Commission government institutions, and other is a pow-
creature statute and has Under bill given by independent authority ers as are statute. Chesa- would have to as- Cf. peake Telephone utility partic- & Potomac v. Public sess the for his Co. Commission, (refer- supra ipation proceeding, at 1089 Service in Commission A. ring powers). to the PSC’s Priest, See disbursements would made his Principles Utility Regulation subject certification Public (1969). persuasive approval the absence of This is Commission. “[I]n contrary, evidence to the we not em- it: the prefer we have powered plain prior beyond meaning impose approval look should not over language construing legis- a statute’s nor activities Stokes, power expenses. lative v. veto over intent.” United States have a his (1976). independence that of- D.C.App., A.2d We believe the Dis- question its activities infra. III, financed assessments addressed in Part *20 independence
OPC was to ensure its from PSC control. It cites the fixed tenure and have the requires fice that the incumbent head, Mayoral appointment sepa- of its its responsibility for its activi- appropriation, rate and numerous state- ties, including expenditure of rate- legislative in ments record as evidence conducting in payers’ in the case funds argues of this concern. It that the exist- their 93d behalf. [S.Rep. No. autonomy, ence of certain areas of OPC (1974).] Cong., 2d Sess. expenses, the certification of originator not the Chairman was proves completely that OPC must also be plan.11 No proponent even a OPC independent in other areas such as issuance views, testimony expressed like other But is non of assessment orders. a Congress adopted no that there is evidence sequitur, resting premise on false that Inferring approval congres- them. independence all-or-nothing proposi- is an enterprise; a sional silence is dubious it, As “In- puts tion. equally likely to be due lack of comment is dependence very pregnancy. is much like inattention, preoccupation to with other It or it There no either exists does not. matters, or other reason. Our refusal partial states either condition known congressional is find intent an unstated It perfectly man.” is that Con- conceivable position the fact that reinforced gress would have concerns in addition apparently Stratton expressed by Chairman independence, might that of in some is different from that now advocated ways conflict it an and force accom- statutory lan- and conflicts with the is appears, modation. For all that “in- guage. When he refers to the OPC’s example, what occurred here. For Con- assess”, appar- he dependent authority to gress might have been concerned with ently term in the same uses the “assess” rate-payers fairness to the utilities and paragraph. At preceding as in the sense allowing OPC unfettered discretion power to clearly meant the point, he budget, preferred set its own and therefore fund. payments into the trust OPC order (rath- adjudicative that a more neutral and does not contest the Commission’s exclu- adversarial) body er than like the PSC payments, as power sive to order such un- Regardless make assessments. to have done Stratton seems Chairman motivation, derlying nothing we find incon- neither advocated his letter. The writer a statutory giving sistent a scheme OPC even showed he had considered OPC’s nor very large degree autonomy, but retain- fund mech- position the trust present —that ing rely on limited areas where it must optional it the author- and that has anism Commission action. His payments itself. ity to order direct indicates reference to “disbursements” fund he referred trust contrary: Duty Authority II. PSC Assess than direct transfers transactions rather of OPC Re- the Reasonableness
from the utilities.
Expense
Ordering
quests Before
its
specific support for
to the lack of
Due
Deposits
relies
power,
its
view of
§ 43-612,12the Commission
Relying
that it
on
heavily
general principles
on more
that,
exercising
power to
ruled
before
statutory language
finds embodied
expense
it
review
deposits,
must
history.
argues
order
requests.
creating
reasonableness
prime purpose
challenge
funding
based on
since neither involved
preferred
of consumer
11. He
ratepayer
promoting
Chesa-
of an assessment.
as a means
"unreasonableness”
intervenors
advocacy.
Cong.,
Telephone
2d Sess.
S.Rhp.
peake
93d
v. Public Serv.
and Potomac
Co.
Stratton).
(statement
Comm’n,
(1975):
of William R.
D.C.App.,
Wash-
339 A.2d
Columbia,
ington Ry. Electric Co. v. District
&
in a
cites two cases
also
12. The Commission
(1935).
App.D.C.
HOI T.L.J., part meaningless.” In re D.C.App., Disposition governed by of this (1980). issue 413 A.2d No such incon- § 43-612(a). language The Commis- sistency Having exists here. exercised its sion is there authorized to “call power limited review point when utility question deposit of such deposited, funds are there is no need it opinion reasonable sum or sums as repeat process they when are dis- Commission, may said deem neces- concedes, bursed. As PSC disbursement is *21 sary_” D.C.Code 1981. Orders essentially process, a ministerial involving only thus be if are they made reasonable. course, review, no substantive Of OPC Someone must make that determination. rightfully certify could not and receive Congress clearly intended PSC to be money expenses deposits for which no stamp more than a rubber or conduit for approved. were If, requests. People’s OPC as the contends, Congress meant OPC’s view to OPC, course, attempt must to recon- Commission, it conclusive chose a position with cile its the fact that the stat- highly way of saying obscure it. The term requires deposited ute the amounts to be “reasonable” is used in a connection with “reasonable” “necessary.” Initially, definition of the function of Commission’s above, position as indicated it took the that ordering deposits. Congress If had fact judgment Counsel’s say, meant OPC to have the final it could requests reasonableness its would be easily expressed have that intent Presumably conclusive. he would refrain words as “such sums as the Coun- submitting requests he found unrea- certify sel shall as reasonable and neces- brief, reply In sonable. the Office’s it sary.” By convincing reading far the more takes the tack that the determinations of the statute is that the Commission must “necessity” “reasonableness” and are in- satisfy itself that sums ordered are Commission, deed for but that these reasonable. This conclusion is reinforced requirements concern timing opinion words “as of said deposit orders, not their substance or total Commission, it may necessary.” deem According procedure amount. this light clause, it implausible this is power approval does not amount to a judgment OPC’s as to the reasonableness requests, only an over OPC but authoriza- requests of its would be conclusive. “management tion for the exercise of dis- argues OPC that freedom from PSC re- deposits cretion” as to when should be expense view of the substance of appli- made the trust fund account. Neither congressionally- cations is essential to its interpreta- the Commission nor findwe this independence. mandated reasoning is persuasive. tion It is true that the statute support the same as that used of an deposits may “from states ordered independent power. The short- any point time to time” at the com- after comings approach, discussed Part investigation proceed- mencement of the I, repeated. need not be ing sought. But for which deposited Counsel further maintains that the sums ordered to be approval requests deposit PSC must neces- or- be “reasonable” “deemed sary” by ders is inconsistent with the disbursement It is difficult to Commission. procedures parties spreading all in which concede the how the of the amounts conceive plays possible proceeding role.13 could be no “Whenever over the course reasonable, interpreted should be as a harmoni- if the themselves are statute excessive, part been perhaps ous whole” and “one of a statute must should not have imagine not be construed so as to render another incurred all. is also hard deposits. expenses OPC not fund See PSC Order 7211 at 7. 13. Certification of made trust Commission, but to the custodians reported direct assessment of cost —a against company, charged to be with the was concerned eventually operating their timing payments reasonableness of the paid provi- of their their and not with the reasonableness customers. Such impose such a substance. We will sion is in the statutes of Michi- contained interpretation convincing without strained Minnesota, gan, and Missouri. [S.Rep. support evidence record to (1926).] Cong., 1st 69th Sess. cited, it. have we found None has been nor any. two of the quotes then the statutes of mentioned, emphasizes three states significance to the statutes OPC attaches they not contain the word “reason- do per- that have who of other states officials assumptions if one makes able.” Even form similar to that of the Peo- a function shed sub- of these statutes details that these ple’s Counsel. The conclusion of the D.C. light meaning on the stantial were used as “models” statutes *22 Code, provisions pre- in fact in is based and that those when it was first created in following utility the Senate commissions respective the statement clude their Report: the of as- overseeing reasonableness they than opera- expenses, hinder rather
Many require States the cost of sessed tion of utilities commissions their The fact that aid OPC’s case. companies “reasonable,” under their by to be borne the even to chose insert the word by effected either jurisdiction. This is “models,” in its though appear it does not fee imposing a franchise tax or license of serves, emphasize to anything, if that Con- compa- of the percentage a of the income it gress what said. meant nies; by decision penalty in case of requires We that the statute conclude against companies proceedings in- the of consider the reasonableness charges; by the PSC to relating stituted to their Therefore, not we need proposed hereby requests.14 the bill OPC the method subsidiary arguments contrary, the will can we are confident that PSC 14. OPC’s several proceedings adequate steps rejected lengthy to the without discussion. take oversee protect If as to the interests of all involved. so People’s PSC is a Counsel asserts that review by possibility ever come the raised OPC should regulatory redundancy due the existence of certification, adequate opportunity pass, will be expense there D.C. other checks such as procedures, deal with it that time. and the G.A.O. audit. See audit case, subject to it and the PSC are is not the OPC notes that D.C.Code 47-411. Such ceilings accounting total of procedures common on the combined serve func- two since these designed integrity expenses. it unfair for the rather It contends that tions to maintain fiscal expenses expendi- because the Com- appropriateness PSC to review OPC review the of than to drawing upon the mission has an interest tures. support nonre- People’s funds. But this docs that the PSC has same Counsel maintains requests, expenses viewability then of OPC could expertise of OPC no in the assessment OPC PSC, of funds available to Even assum- control the amount and lacks standards for decision. ing fact, true, judicial equally justify “unfair.” which would this were it would not Moreover, ceiling favor a militates in repeal statutory existence of common scheme. expenses having single body experience review determin- does have Commission utility budgets so as ing the Commission and both the reasonableness conflicting currently developing assessments. standards avoid affirms that it is PSC Finally, Counsel stresses that the expense requests. unappealed contrary decision reject review of reached a also the contention that We months earlier. require prejudgment another case about fourteen of cases would (Feb. Hearing, perfectly PSC Formal Case 685 pending It is See before the Commission. However, 1978). is not con- Commission possible hir- to consider the reasonableness is entitled attorneys passing that decision. ing strained change or consultants without mind, provides expla- long it may ultimately so opinions they its the theories or precedent. departure from its own nation for its present before the PSC. 8.9 at 198 spectre 2 K. See (2d raises the un- Davis, Administrativk Law 1979). changing agency course ed. its discovery ”[A]n utilities of OPC’s warranted analysis indicating that supply a product must reasoned prehearing of ex- work in the course being policies deliber- prior are and standards pense disputes. Until we see evidence
H03 investigations Congress’ OPC is that fail- rule on the utilities’ contention ure to make clear such an intent is due to power independent of OPC to make or final amending inadvertence in the section. Pri- assessments, subject only potential sub- 1975, advocacy or to functions the kind review, sequent court due violate performed by entirely now OPC were process. PSC, province represented through Corporation Arguably Counsel. in- Assessability Expenses III. The simply tent the amendments was Pending Investigations OPC Not major part transfer a of this function to an Before office, independent affecting without determined are utilities scope expenses. of reimbursable Since an required to bear those OPC investigation of a utility under the incurred in are connection with mat- jurisdiction might perform of the PSC es- pending investiga- ters before the PSC or sentially the role as an same earlier investi- tions it. initiated PSC Order 7211 at 6.15 gation Commission,” “of argu- costs investigations Unrelated OPC ex- ought However, thus ably to be covered. in the holding, cluded. In so it lan- relied on the of persuasive absence evidence this § 43-612(a) guage of italicized here. Congress’ intent, possibility must rejected. expenses, including Counsel, Office points only single sentence valuation, any investigation, revalua- legislative record, below, italicized tion, proceeding nature says indicates an intent to include *23 the Public Service of or independent investigations. How- concerning any public utility operating in ever, context, provides when in read it Columbia, the District of ex- and all support. best weak penses any litigation, including ap- of peals, arising any investiga- from Section of H.R. amends the tion, valuation, revaluation, pro- or expenses provide of D.C.Code the ceeding, or order any or action of People’s any investigation, the Commission, by the shall be borne the valuation, revaluation, appeal, litigation, utility_ [D.C.Code 1981.] proceeding the Public Com- or of Service concerning public utility oper- mission face, clearly On its the specifies section Columbia, ating in the of shall be District expenses must be related to the activi- by public utility borne the involved. Sub- ties of the “Commission.” A ar- colorable expenses 2b these section states gument be could made that this instance prior payment. must be certified “Commission” should read to the be include expenses provides Present law OPC, thereby bringing independent OPC itself of Public Service Commission investigations within the section. Accord- valuations, investigations, revalua- ing creating section utilities proceedings tions or other of Office “within the exists Commission.” against utility in- 1981, 43-406(a). be assessed shall But used D.C.Code of ex- These include the costs 43-612, it volved. other instances within is accountants, witnesses, special or pert clear that “Commission” and “Office of the incurred result of employed other extra costs as a People’s Counsel” are in a mutu- investiga- particular proceeding or ally A exclusive fashion. somewhat expenses argument of stronger for the of tion. The basic salaries inclusion ignored...." there ately changed, casually as to which not Great- 15. This issue Corp. v. disagreement er Boston Television Federal Communi- Commis- within Commission. Comm'n, (D.C.Cir. cations 444 F.2d Long sioner dissented. 1977). original The PSC order the order provide adequate reconsideration indication change of a and considered deliberate in course. expenses, including Counsel, of the Office paid the Public Service Commission valuation, revaluation, any investigation, pro- appropriations through standard nature the Pub- proceeding or cess .... concerning lic of or Service Commission provisions Section Under utility operating the Dis- any public costs incurred types these same Columbia, expenses of and all trict in- result any litigation, including appeals.... vestigative rate casework could or The basic against utility. assessed [D.C.Code 1981.] salaries categories is whether certain question by the would be covered Counsel Office term are covered expenditures appropriations current authorization “expenses” against assessable and thus Public Service Commission. [S. utilities. Rep. Cong., 93d 2d Sess. 5-6] costs”, types of referring to the “same Attorneys’Fees A. Private expert wit- Report contrasts “costs of fees ruled that the The Commission accountants, nesses, other extra special attorneys to assist private engaged OPC particular a result of that costs incurred as paid by must particular proceedings it with “basic proceeding investigation,” 7211 at the utilities. Order expenses.” It does not indi- salaries and statutory limi- express relied on the lack types of items would cate that these on the tation on kinds not in a matter if incurred reimbursable assessing practice un- longstanding PSC pro- investigation or with a PSC connected private attorneys the same statute der ceeding. suggested that the OPC has also The Commission by the hired Commission. to conduct very of its existence Congress amended the that when reasoned investigations awaiting Commis- without prevail- aware of the it was section strongly requires, or least sion action interpretation and would ing administrative cost. assessability of their supports, language if intend- qualifying have added case, since such investi- But that *24 autho- place limits on OPC’s ed to stricter appropria- funded out of gations expenses. rized tions, at the level which OPC albeit prefer. might language of the statute broad The thus conclude that Commission We particular exclusions are inclusive. No The correctly. interpreted the statute qualifi even alluded to. No enumerated or to had of the 1975 amendments draftsmen “expenses” the term placed cations are junctures language at several insert new and rela except those of reasonableness for the reestablishment account pending proceeding.16 The tionship to a for com- Congress intended If had OPC. litigation” is any “all phrase investigations to independent OPC pletely instructive, attorneys’ particularly because utilities, easily by it could funded expense. litigation archetypical fees intent such words expressed that have if, as the rather anomalous It would be Peo- investigations Office as “or maintain, Congress included utilities legisla- In the absence of ple’s Counsel”. expansive phrase expecting litiga all while otherwise, indicating we cannot record tive staff at performed tion salaried to be was inadvertent. their omission assume paid appropriations. torneys out of op Assessability At- Private IV. The history of the Nothing in the “Extraordinary torneys’ Fees and amendments original section or of the 1975 Expenses” Incremental litiga- “all indicates that litiga- to mean “all understood 43-612(a) tion” was reads: Section III, supra. II & 16. See Parts
H05 The need for more legal assistance would expenses except lawyers.” few tion have been irrelevant if expense assess- lawyers appear suggest references ments were not provide meant to funding contrary: was their cost under- legal services. report The same cited justifying expense stood to included. In an instance in which the Commission at- assessment, report the Senate on the bill tempted and get failed to a special appro- creating specifically 43-612 invoked priation for “special valuation counsel” as need for additional lawyers. evidence that there should be a separate Commission, The Public Utilities as at non-appropriation funding procedure fi- constituted, present prepared is not nance expenses. Selection of ex- thorough undertake extensive and val- ample suggests that the Senate committee accounting, uation for the reason that its special intended counsel to be funded engineering, assistants are so through expense assessment. Id. they limited number that could not Testimonial appended letters report conclude a valuation within a reasonable also called funding of attorneys.17 neglecting time without their other year duties. Last there awas revalua- Whether of the was aware properties tion telephone practice hiring outside law- company, and was manifest that the yers when the was section extended company’s presented very case was much clear. The cover the OPC in 1975 less comprehensively effectively more be- that, PSC states at least since it has fore the Public it- Utilities Commission private attorneys perform hired investi- self, as well as in the court work, gative and assessed utilities for their taken, appeal was than that of the cost. When the 1975 amendments were public. Senate, under the PSC consideration provided during Unless funds are informed the Committee on the Chairman present Congress, session the commis- District Columbia of the Commission's sion to proceed gas will have in the com- § 43-612, “liberal which enabled it use” panies’ case year as it did last in the engage experts special “to and undertake case, telephone with the aid of assistants S.Rep. 1349, 93d investigative work.” already overtaxed and practically no (letter Cong., 2d Sess. 20 William proper funds available for a check of the Stratton). However, specifi- R. he did not physical inventory accounts cally attorneys. refer to utilities. provi- utilities maintain that other necessary Legal prop- assistance is sions of the Public Service Commission erly present evidence not before the *25 modify Law what would be the otherwise also, commission itself but in of case § scope correctly of They suggest 43-612. appeal from its valuation or rate deci- parts statutory that sion, various of a scheme adequately represent public to harmoniously should be highly before courts in technical construed so as Rep. Cong., proceeding. unnecessary inconsistency. 69th avoid re [S. No. (1926) (emphasis added).] T.L.J., 1st Sess. 2-3 supra. legal The finest assistance available “The Commission should also have funds Third. begin- employ expert legal very charge for available assistance from the to take of case purpose preparing presenting this presented of ning, that evidence so Cong., case 69th to the courts." S.Riu>. complete, adequate, and be commission will Bell, (letter court, 1st Sess. 5 of J.F. Commis- presented proper to be in form Chairman). sion exhausting legal all measures to see ... present adequately properly To the side justice public as to is done as well following are of the in this case the company. (letter E.R. of William [Id. needed: Covcll).] § 43-406(c) be read
tained in should § 1973, 43-204, appropriations as-enacted con- confined to the extent D.C.Code § § 43-406(a). 43-612,18 may in currently authorized the authorized Since OPC repre- Corporation attorneys except to advise and hire as financed Counsel not It attorney expenses states that an annual fee appropriations, sent the PSC. cannot § paid this service will be compensation in for 43-612. under contrasts assessed pro- appropriations. It further out of PSC interpretation this with its of the view vides that: power engage attorneys. Commission’s view, any if the Commission has may, commission time it Under this two
The attorneys necessary, employ independent deems other to hire sources § first, to the attorneys. at law additional assistants said contained in 43- The general performance for hiring counsel explicitly of law- authorizes extraordinary legal services for or they such paid yers provides to be spe- at such behalf commission funds. Section appropriated 43-606 compensation cial as- such additional hiring “agents” to authorizes the assist may pre- sistants as the commission work, without limi- the Commission’s scribe, compensation which said shall be compensation. Al- tation on the source of paid provided appropriations out of the though lawyers explicitly are not men- for the the commission. tioned, disputes they one no [M.] compensated the section and hired under § legal repre- This not govern section does under 43-612. This from funds assessed which is covered meaning sentation to ascribe enables PEPCO some (a) succeeding section. Subsection explicit litigation inclusion of § requires § 43-406 that the Coun- 43-612, insisting while that OPC attor- lawyer practice sel himself be admitted neys cannot be funded thereunder. this before court. D.C.Code 1981. Subsec- (c) quite tion makes clear that Office Commission, find this line we Like the may hire its own express condi- No unpersuasive. argument in-house staff. attorneys is hiring of OPC tion on the is authorized to The § (c). 43-406(a) or in either contained compensation fix employ and specif- explanation for the more reasonable including attorneys, as are employees, § is to 43-406 attorneys ic mention perform necessary to the functions vest- Commission, that, unlike the clear make Act, prescribe their ed in him this may appear on his People’s Counsel authority and duties. Corpora- call on the than behalf rather own utilities, statutory According representation.19 tion Counsel contemplates legal representa- scheme dealing with that subsections fact mere exclusively performed staff
tion will creation involved subjects two attorneys through appropriations. hired hiring staff— appropriations OPC— Accordingly, expense assessments of single section in a be collected happen to litigation only be costs would 43-612 for silently condi- imply that one is does expenditures than attor- other available the invo- anything, If the other. tioned neys’ fees. the conclu- strengthens 43-406 cation attorneys by OPC hiring of unqualified au- PEPCO contends that the sion *26 section The by appropriations. con- attorneys for OPC to hire not limited thorization 43-406, the section § enactment of arrangement 19. Since the altered has now been 18. This dealing representation of PSC has legal Service Commission General Public 22, 3-331, (Dec. D.C.Reg. supra. 90 Act 28 Act of modified. See note been 1980). system, legal and advice Under new provided representation is its the PSC Corporation Counsel. own staff rather than 1981, 43-405. § See D.C.Code
H07 any anee others if expressly denies even very express contains a clear and limitation provided elsewhere the statute. on the of funding, notably source absent in
§ 43-406. Neither is there evidence that analogy make much an The utilities funding the mode of was meant somehow attorneys’ award of fees to judicial carry over from one section to other. prevailing private litigants. Under rule,” may generally a court not “American legislative history provides
The no evi- prevailing party absent grant fees to a dichotomy dence of a between the kinds of statutory Alyeska express authorization. expenses PSC, assessable Pipeline Society, v. Service Wilderness or between appellate administrative and ex- 240, 248-72, 1612, 1617- 95 S.Ct. U.S. penses. Language in the House both Moreover, (1975). a L.Ed.2d 141 Reports Senate PEPCO cites else- —which in such general term like “costs” statutes contrary: where—confirms the that assess- ordinarily is construed to cover attor- not expenses judicial able appeals. include (1965). neys’ fees. 20 AM.JuR.2d Costs 2 H.R. Section of 17450 amends the D.C. transplant The have us utilities would provide Code that the modification to body of doctrine without any investigation, Counsel in of administrative assessments context valuation, revaluation, litigation appeal, a institution. While there to finance proceeding of the Public Service Com- parallels, differ are some the two areas concerning public utility mission oper- private significantly. litigant civil nor- ating Columbia, in the District shall own mally sues to vindicate his interest by the public utility borne involved. damages, out of which he can cover seeks Rep. Cong., 93d 2d Sess. [H.R. No. expenses. noting It is worth litigation his Rep. (1974), 114; App. S. possibility funding pri- that the Cong., (1974), 93d 2d (emphasis Sess. case-by-case parties vate on basis added).]20 an alternative to creation of considered as attempt utilities to bolster their ar- OPC, contrast, rejected. the OPC and gument by quoting excerpts legis- from the ratepayers on not works behalf does lative record which indicate that OPC of its receive a direct benefit virtue employ would legal repre- own staff to publicly All of its are success. sent consumer But these interests. cita- funded; particu- issue whether only is only tions undisputed: establish what is from an assessment —a lar costs come meant OPC to maintain its only appropria- tax—or franchise legal They own staff. not do establish the as is background, tion. With this there proposition they for which quoted, priori presump- any little if basis an a OPC was to be limited to this means of general regarding ex- language tion that engaging legal nothing There services. penses attorneys’ include fees. does not provision inconsistent in the of two means magic “attorney” is not such a The word obtaining legal representa- counsel and Congress’ invoke it failure to formula utility position tion. The flaw is that legislative purpose. The must defeat the they implicitly contrary: assume goes beyond statutory language explicitly express funding legal one form of assist- in the “expenses” used the narrow sense statutory 20. WGL’s analysis attorneys "agents” differs somewhat as under 43-606 and assess PEPCO, cost, from that of but arrives at similar con- lawyers may for their but insists that such regards clusions OPC. It only does not stress a investigators, rep- serve as advisors or litigation expenditures distinction between litigation” resentatives. “All expenses. deny other It would apparently assessments for thus be limited to such items legal representation PSC, both to OPC filing theory and the as court fees. This differs from theory in-house staffs of PEPCO's extent of the Commis- by Congress each were intended hiring authority, to be their sole sion’s not at issue advocates before the reject Commission and the here. As concerns we it for the *27 may courts. WGL concedes that the PSC hire same reasons. illustrative, may not have exclusive. of statutes, that Members by referring to been case court costs award generally investigations. and the witnesses before them The utilities related to greatest for assess- as con- believed that the need themselves concede such items non-legal accepted if of consult- sultants covered. Even we ments was in the area are ants, engineers. But premise 43-612 was meant to economists or as language scope, true, have a narrow does not not amount to even if belief does provide choosing understanding a basis for what items to were to an that assessments categories exclude. Thus we conclude that the Com- legally particular confined reading “expenses” mission’s of broader of services.
not error. Finally, quote the utilities recitations in “Extraordina- Assessability B. The of legislative of kinds of ” record various Expenses ry Incremental expense services for which assessments assessability of question Like contemplated. were fees, calls this issue private attorneys’ expenses provides Present law “expenses” as term a construction the Public itself Service Commission ruled The Commission used 43-612. valuations, investigations, revalua- operating pay need basic utility that a not proceedings other of utilities tions or already covered expenses or salaries against utility in- shall be assessed those costs appropriations even when volved. These include the costs ex- pro- pending with a connection incurred accountants, witnesses, special pert or How- at 5-6. ceeding. PSC Order as result other extra costs incurred a ever, share pay proportional a must particular investiga- or proceeding expenses” any “extraordinary incremental tion. pending a participation in associated provisions Under Section defining two Thus there are proceeding. types by the these same of costs incurred assessa- category characteristics investiga- a Counsel as result (1) already cov- expenses: they are ble or rate casework could be assessed tive (2) they are appropriation, and ered against utility. The basic salaries i.e., ongoing, associat- episodic, than rather expenses or investi- proceeding a particular ed with the current Office would covered (e.g., included gation. type of item appropriations for the authorization for services) advice, secretarial paper, Commission_ Rep. Public Service [S. prepare (e.g., use contrasted with its (1974).] Cong., 2d 5-6 No. 93d Sess. hearing), is testimony particular rate expenses, In addition these basic not decisive. permitted D.C. will be specific to assess incurred A, As in subpart supra, discussed against the utility proceedings company expense ex- assessment statute includes no include, for ex- involved. These press limits on the kinds of items that are hiring expert ample, costs of witness- However, reimbursable. “of” the clauses economists, es, design safety engi- rate “arising investigation, “any from” valu- specialized other consultants in neers and ation, revaluation, proceeding” clearly 96; App. specific rate cases. [Id. place purposes limit for which Rep. Cong., 93d 2d Sess. 9 No. H.R. funded items be used. The (1974).] history interpretation is consistent with the Rep. made example, PSC. For listing of such S. From the consultants, Cong., 93d 2d without Sess. 7 expert witnesses states: lawyers, they the concurrent mention be ex- latter were meant to
infer that the The basic of the Office of Peo- examples appear cited Counsel, But the ple’s including salaries, rent, cluded.
H09 In contrast to the conception PSC’s supplies, telephones, equipment, will the distinction between assessable non- by Congress under the appropriated expenses, assessable use, based on their bill; contained that authorization propose the utilities approach an that fo- budget is for a maximum authorization type cuses on the of item involved. If a $100,000 each fiscal for this office for certain kind of item is in appropri- included year.... ations, it appear could not also ex- pense request. This proves thesis far too Certainly Congress did not mean for as- Any much. kind capable of item is already sessments to be made items being funded appropriation, including paid for. But it does not follow that the those which are clearly particu- allocable to could never be other kinds items listed lar proceedings. If approach were tak- report The same states that than “basic.” logical conclusion, en to its no item would assessable “include costs of assessable, a accountants, result which Congress ob- witnesses, expert special or viously did not intend. indisputable a incurred as result other extra costs Congress that meant provi- investiga- assessment particular proceeding or sions increase the total amount of funds Certainly “extra costs” tion.” Id. at 5. available to OPC and the Commission. The equipment, supplies could well include utilities prefer to have components are also kinds items which limited items, to a small number of such as expenses” or overhead. of “basic expert certain witnesses. But there is no Moreover, explaining the bill on the justification limitation, for such a nor a floor, sponsors indi- House one its chief reasonable for determining, basis as a mat- expenses” “operating associated cated that law, ter of what items are includable. The proceed- particular investigations statute makes no enumeration. As noted subject ings would be to assessment. above, the examples cited I understand that the estimate of history clearly indicative, not exclusive. city of cost to the the Office $100,000'per year, some Counsel will be approximately the same
figure which is urges PEPCO that the salaries of Peo- Maryland experience in has been the ple’s Counsel employees can under no cir- out, point I wish for that same office. cumstances be considered extraordinary however, that not all the actual cost will (and assessable), therefore respects even public as in that borne included performed work particular oper- provides that the figure. The bill proceedings. It reasons representa- ating expenses tion of the Counsel before the proceeding any investigation [or ]21 is a normal and ongoing function and that operations Public incident associated staff work is definition not in connection with Service Commission an incremental cost. The Commission deci- utility in the District of public operating sion did not draw such a distinction be- shall be Columbia borne independent tween contractors and salaried utility This is consistent with itself. employees. It indicated that both “costs of expenses of present provision law services” and “salaries” potentially were itself in- Utilities Commission the Public assessable items. PSC Order 7211 at 6. volving investigations, evaluations The Commission’s view is a in- reasonable are to be proceedings of utilities other terpretation of the statute. There is no against utilities concerned. assessed indication that intended to fix Cong.Rec. (remarks type limits on the of employment [93 relation- Gude) (emphasis added).] Congressman ship to be maintained between stood, language words, light Congres- it is clear in bill’s place of the bracketed proceeding." reports procedure.” were “or "of Whether the intended words sional Record misspoke or recorder misundcr- Gude Mr. *29 particular proceedings by apportioned thereby in- accounting, artful means of persons hired with assessed funds.22 Cer- by the utility creasing total cost borne utili- point from the of view of the the tainly bill, the it make 7211 at As the ratepayer paying or should Order 6. ties. or le- al- particular proceedings no difference whether the economist expenses of gal being paid is with a by appropriation, advisor funded our hold- ready financed payroll through a bill for supra, II, check or services I confirm the ings Parts instances, may it even rendered. some prevent ex- of the Commission to power that be in the utilities’ interest of part the travagance and waste on permitted hiring outside to choose between expense by verifying the reasonableness employees consultants additional requests. particular proceedings. That work on We conclude person if a that the be the case staff would would Commission was correct ruling perform given efficiently more than a task it may assess inde- pendent outsider, experience attorneys’ the or famil- due to fees and other reason- able iarity working full time expenses which comes incurred in connection particular, related, particular mat- with a regulatory on PSC investigation or pro- course, positions ceeding, ters. for OPC Of salaries unless they are already covered as- by appropriation could not be funded an appropriation. Assessable are sessed. not otherwise confined to specific catego- ries of items. fear Underlying position the is a utilities’ ex- firm boundaries on OPC’s without Affirmed. budget pense its total will be assessments Kern, concurring Judge, Associate expenditures. excessive or harbor wasteful I part: Although dissenting in part and adequate safeguards But to ad- there gen- affirmance majority’s agree with imposition dress those risks without accept I erally, am conclusion unable arbitrary particular items limits on (OPC) People’s Office may be The PSC has al- which assessed. carry attorneys may independent hire ready put People’s Counsel on notice bill the utilities duties and then out OPC’s will not allow the the Commission for such costs. and their customers operating the Office to fixed impact exchange This is shown on the utilities. 22. WGL cites an floor only Gude, sponsor Congressman be em- as evidence that staff could a House remarks of through appropriated bill, ployed funds. portion the use of immediately followed which reserving right quoted by WGL. McCLORY. Further the record Mr. wording object, as who the Peo- is it limited as far be concerned about Some employ $50,000 ple’s it unlimited as authorizing Counsel can or is a 3 of the bill section staff? far as additional year appropriation for and not to fiscal imposed by the DIGGS. A limitation is Mr. $100,000 year This the fiscal exceed operation of this level for the authorization language appear in the House version did not office. bill, funding for the inasmuch as How is that? Mr. McCLORY. much that which Counsel over above 1975, it months of Mr. DIGGS. For first investi- by the utilities would be borne $100,000 $50,000 limitation for is subsequent and there valued, revalued, gated, or otherwise effected years. fiscal [93 Cong.Rhc. tax have been special a franchise (1974).] budget Service in the of the Public included However, context, ap- it when read in becomes of section Commission. The Senate version parent not the that the focus of attention was presumably it an Office because establishes 43-612, utility liability but extent of under Counsel, a sets limitation original Treasury. The OPC staff to the cost of appropriated for that office. to be provided only for an individual bill had Congress that Certainly is the these intent salary grade. specified a The Sen- with appropriated are not to funds to be authorized hiring ate the bill to authorize amended funds, they rather are authoriz- be Federal but himself, People's Counsel in addition to the staff appropriated money out in the ed to budget provided authorization Treasury credited to the of Columbia. District expressed on the The concern floor Office. added) (1974) (emphasis ]. [93 Cong.Rkc effect, apparently not the on the fiscal centered
HU Rather, duties. Congress authorized Peo- E. The late Adlai Stevenson in one of the ple’s Counsel to hire his own staff pearls speeches cast he before appropriations obtained the usual campaign in his electorate memorable 1952 budgetary way every publicly-found- for President recounted—in order make agency required ed to follow. point involving anecdote the Duke of —an Wellington. Duke, according The Iron large impelled to its PSC was in measure *30 Governor, the to a companion commented by what it character- surprising conclusion inspecting after his in troops array: full practice” to “longstanding ized as its own They may frighten not enemy, by engage independent fees at- for substantial sir, gad frighten they me.1 duties. torneys carry statutory out its to found Proceeding premise this PSC from itSo is that the OPC has a remark- hired Congress, when “no conclude that basis” to array Washington able of law to do firms OPC, creating deny what meant to legal battle with the Public Service Com- PSC, view, already in had: authori- its own (PSC) mission and the on local utilities be- independent attorneys and bill ty to hire half of the utilities’ customers. While ultimately custom- and their the utilities frightened by former not be le- say is to residents OPC, ers—which gions lawyers thus by assembled District of Columbia.2 latter —the utilities’ customers who will ultimately pay legal in the bills form In this tight government time of budgets higher certainly fright- should be rates — and declining appropriations easy it is to presented ened. The bills recently by concern, why see express PSC would as it legal troops OPC’s shock for services ren- did Order No. over “difficulties electrifying: Pepeo, dered are example, For system inherent in a engaging lawyers for alone, received bills for the services inde- depended that solely upon appropriations.” pendent attorneys by retained short, perceives obtaining PSC ap- expenses, related in the amount of more propriations lawyers for itself and for $1,000,000 than in less three than months process the traditional budgetary stated, As 1981. these bills are made a through Council Congress and then the part the rate base to passed on far simply billing is more arduous than higher consumer the form of rates. utilities its customers. No reasonable (PSC), The Public Service Commission disagree perception. man could with this its Order ruled that the utilities However, as inevitable under our form “required pay indepen- the fees of government, Congress made the ulti- attorneys engaged dent by People’s Coun- mate rely decision OPC must perform legal sel to services.” rea- PSC’s funding legal operations appro- its ordering son for so was “because the Con- priation normally course followed —the gress However, meant them to be.” there publicly agencies funded such as OPC. nothing legislative the statute or its history bespeaks part an intent on the history of creation OPC’s to authorize OPC to retain inaccuracy pre- demonstrates of PSC’s independent legal carry counsel to out its mise in opinion its under review here that Repub- 1. Stevenson had been chided significant various 2. PSC has indeed billed sums to the speakers campaigning lican on behalf of Gener- attorneys utilities and their customers for the judgment” testifying al Eisenhower for “bad carry has retained fee basis out its own reputation Alger as Hiss in the latter’s example, during peri- duties. For an 11-month perjury. sensational trial In the Governor's od, PSC billed the utilities their customers speech October 23rd in Cleveland he recalled $1,000,000 slightly less than ren- services the anecdote and observed “to General [Ei- lawyers dered almost different and law although troops senhower] frighten his do firms and similar entities. they ought frighten us him [Eisen- Major Campaign Speeches hower]." of Adlai B. (Random 1952) p. Stevenson House staffing increases in
I think some modest order, going to recom- are in and we are practice knew” Congress “well process budget ... mend them attorneys PSC hire for fee and then added.) (Emphasis year. customers for assess the utilities their bills rendered. Breckinridge then asked Congressman concerning prac- testimony PSC’s own PSC look to whom did the PSC Chairman: hearing proposal tice on the in 1974 in the area of economics advice in the “for revealing. then create OPC is most (App. responded industry”? The Chairman precision Chairman of testified with 147): the size of the PSC staff follows isIt experts. engage outside we [T]here 147): (App. at case.... rate usually in the context always had have years we recent [I]n people ... are in our securities [F]ive utility, every just about rate cases
division, regulates brokerage expert available had we have so Washington; industry here in three ... *31 into ... to look that context us within engaged testing in the are calibra- juris- among the ... allocation factors meters; engineer of there is an ... tion rate questions, dictions, return rate of handling con- person We have a ... of stuff. kind That design questions. of (Emphasis complaints. have six or sumer We ... added.) stenography, filing, people in ... seven keeping colloquy the records main- appropriately following the There ensued tained. 147): at (App. suffer You MR. BRECKINRIDGE. who attorneys have two We [full time] or inhibi- limitations financial from no delegated corporation us are of acquisition those regard tions counsel’s office. expert services? ¡¡< H< H< ik No, sir; we because MR. STRATTON. accounting And then have bu- we an a rate case context that in the do of
reau, paid utility. are whom members against assessment of four through that we raise assess- funds in the statute as is a There limitation keep a against We ment utilities. years, over the how much to assess utility, ... in each resident accountant that. we but haven’t reached insuring system ac- ... a uniform of is a That rou- MR. BRECKINRIDGE. counting. any rate part your practice tine of is a have a chief accountant who We case? GS-15. (Em- Absolutely. MR. STRATTON. added.)
phasis Thus, time Con practice at the the PSC array accountants And then the of six assess to use the gress created OPC was added.) (Emphasis him. who work for experts process "engage outside ment may Strat- It be seen that PSC Chairman factors, ... ... to look into allocation ... his no all in detailed ton made reference at design ques of rate rate return [and] any practice description the PSC staff said the PSC a word was tions.” Not retaining lawyers as- independent description painstaking in his Chairman In an- sessing retaining their cost to the utilities. practice about PSC’s legal an question PSC had for work and independent attorneys swer to the whether 147): staff, (App. utilities thereafter3 replied billing he then adequate opine acknowledged so assess "a on to Order No. PSC against reading authorizing the statute" since "the OPC to assess reasonable statute spe- legal necessary repre- of its "does not utilities "certain” cifically work sheer volume of attorneys independent refer for to fees adequately be- interest sent However, expense.” went assessable PSC
1H3 the appropriations for the Public Service Report Neither Senate nor the House Commission.” (Emphasis added.) 92-3; 114-15) (App. accompanying the majority’s explanation for refer legislation
proposed to create an Office of Reports ence in Committee as- Counsel ever prac- mentioned sessability expenses only “expert hiring tice attorneys and then “special accountants” is assessing witnesses” their fees to the utilities. Rath- “illustrative, er, the that such reference was Reports “[pjresent noted the law But, majority’s ... exclusive.” conclusion of the Public Service ignore Reports say Commission itself what the Committee investigations, valua- tions, ignorance of revaluations ascribes a considerable proceedings or other sponsors utilities shall against principal real world to the assessed the utility legislation involved. Eagleton, These include the Sena expert costs —Senator witnesses, Mathias, Congressman special accountants, or tor other Adams and Con extra costs gressman Breckinridge. incurred as a legislators result These particular proceeding or investigation. experienced attorneys The were all and were basic salaries and of the Public well Washington aware of the fees of law paid Service Commission through Were firms. the cost of such fees to appropriations standard process.” expert is be assessed in addition to witness worthy of note that congressional ref- residing es and the accountants utili erence to practice PSC’s assessing ties, they never would have estimated in *32 “expert “special witnesses” and account- reports their “Peo simply ants” testimony tracked the of the $25,000 ple’s only incur Counsel would then PSC Chairman that the of use assess- $50,000 year.” in per (App. at assessments ment was experts” for “outside on 119.) alloca- 96; tion, rate of return design rate ques- and Adams, of the floor the House Mr. On and special tions accountants resi- Bill, manager explained (App. the at the of dent in each of utilities. 121): congressional committees on went creating I do not believe bill [the OPC] reports 92-3; in note their (App. 114-15) at Any sections that were is controversial. that under creating the Act OPC “these by were removed the Com- controversial type same by People’s costs incurred the of during its mittee deliberations. Counsel as a result investigative or rate legislation casework enable could be Had this been intended to against assessed the utility. of the The basic inflict the consumers salaries and OPC to People’s the a million dollars worth of fees District Counsel Office of by assessing covered the that amount current authorization in three months yond capabilities People’s Counsel a which selection will have to be made from attorneys.” among many and OPC staff repre- causes who seek his choices, sentation. He will have make necessity While it has been said that is the represent every because he can’t interest invention, reading mother of this innovative resources, no matter vast his how but because legislative history the statute conflicts interests are often in these themselves con- OPC’s creation. The Senate Committee rec- flict. 91) ognized (App. "People’s at Counsel ... represent will not be able to all interests of all predicated 4. This estimate was of the the cost added.) (Emphasis People’s consumers.” noted, practice, engage PSC which as was to and expected selectivity Counsel was to use some expert then assess for outside witnesses for responsibility the exercise consumers; his on behalf of (2) the ratc cases and four resident accountants. then PSC Chairman com- "Normally,” according sponsors to these of OPC in a mented statement affixed to the Senate 96, 119), legislation (App. at assessments 110): Report (App. at $100,000” "highest cases, "are under and the amount they very There bewill will come $224,500.” Counsel, the PSC has ever assessed was early People’s in the career of the be responsible repre-
Counsel “would people utility the'reby increasing senting District to a rate of Colum- base, hearings at sponsors would have made at bia Commission and single solitary judicial attorney involving least reference to proceedings the interest as an regarding public fees assessable cost. consumers utility ser- Again, single vices.” not a mention was Congressman The ever-watchful Gross made the House that OPC was authoriz- 123) queried Congressman (App. at Adams engage attorneys. However, ed to outside in floor any debate as to the extent of Diggs 128) point Chairman did (App. out at possi- against utility company Counsel “was authorized Adams, response, ble under the bill. Mr. employ compensation and fix employees distinguished “expenses” between necessary perform vested functions (App. “salaries in a rate case.” He stated $100,000 in him.” An authorization was 123): fixed year for the fiscal We have estimated that if the paid were case it would not exceed majority’s largest years amount in recent effect pernicious ... $100,000. $75,000 transmogrify between is to decision per representative
This amounts to about cents [legal] resi- “a user, congres- expert dential if such witnesses are as envisioned people,” added.) necessary testify. Office, (Emphasis pay- into the sional creators attorneys private firms and master of law explain He went on to According the District. within regular appears salary Counsel “has a many differ- briefs, participating isOPC before the we Commission ... can- [N]ow fee retained proceedings and has ent Corporation not use the Counsel’s office partici- lawyers to arrangement scores of Corporation repre- because the given Even proceedings. in such pate sents the Public Service Commission ... Peo- ability of the concededly considerable cost of such counsel is the same as [t]he Counsel, one and he *33 cannot ple’s going though they were to hire a lawyer. work hire oversee talking same time We are not about the many of so cases many different may cases in so be incurred for various his witnesses, attorneys are not expert who as for court costs and so different forth, people of represent but of an “the the cost individual who is also staff and ” hearings going represent people.... Columbia at District of proceedings”— in judicial Commission proviso After added a the Senate explana- phrase Diggs’ use Chairman Bill which a three-year established term for of Peo- function House of the tion to fixed the Counsel and maxi- clearly Since the ple’s Counsel. salary mum of a GS-16 his result, respectfully I such a not intend did office, District Committee Chairman House dissent.5 128) Diggs explained (App. Moreover, sug- history
5. I note kind of instinctive test Mr. Justice Stewart Ohio, 94) gested (App. indicates basic in Jacobellis v. 378 U.S. "[t]he Counsel, 1676, 1681, (1964) (concur- including S.Ct. of the Office of sala- L.Ed.2d ries, rent, telephones, equipment” ring), pornography: supplies, determining what Thus, by appropriations. extraordinary I PSC expense know an will be covered disa- will incremental gree majority say, when it sees Needless to Con- the conclusion in Part it. gress, oper- opinion appropriating public IV.B of its also that utilities and their monies for ating “extraordinary governmental pay PSC and OPC customers must incremental and all other proceeding they agencies, expenses” pending when never intended that PSC could deter- casually "episodic” expenses. Apparently, mine we must so what inflict rely upon ability employ District PSC to same consumers.
1H5 TUCK, Appellant, Edward DISTRICT OF COLUMBIA COURT OF APPEALS v. 81-302, 81-303,
Nos. and 81-305 STATES, UNITED Appellee. Washington Light Company, Gas No. 81-1575. People’s Counsel,
Office of District of Columbia Court of Appeals. Company, Potomac ElectRic Power Argued May 1983. PETITIONERS, Decided May V.
Public Service Commission of the respondent. Columbia,
District Telephone
Chesapeake & Potomac
Company, intervenor.
ON PETITIONS FOR REHEARING
EN BANC
(Argued Sep- Decided March 30, 1983)
tember Judge,
Before Newman, Kern,* Ne- Chief Pryor, Belson, beker, Mack, Ferren, ** Kelly, Judges, As Associate
Terry, Judge, Retired.
sociate
JUDGMENT order of appeal from an petitions of the Dis- Public Service “Commission”) (the came
trict of Columbia upon the sitting en banc the court
before and the record administrative
certified *34 parties and briefs of the
pleadings On consideration argued by counsel.
were
thereof, isit that Order and ADJUDGED
ORDERED by an is affirmed of the Commission court.
equally-divided the Court:
For I. Herman
/s/ Alan
Alan I. Herman
Clerk * **Judge participate Kelly in the deci- Judge Judge Nebeker did not was an Associate argument. court at the time of oral Her status these cases. sion of Retired, changed Judge, to Associate on March