X. Comments on Proposed Decision
The proposed decision of the Commissioner in this matter was mailed to the parties in accordance with Pub. Util. Code § 311 and Rule 14.2(a) of the Commission's Rules of Practice and Procedure. Comments were filed by Aglet, Greenlining and Disability Rights Advocates. Reply comments were filed by SCE and TURN.2 We first summarize these comments and then respond.
Aglet requested we confirm that the step increases discussed herein apply to intervenor representatives in the 13-plus year experience level. Aglet also commented that we should continue adjusting hourly rates on a calendar year, as opposed to a fiscal year, basis.
Greenlining commented that the hourly rate ranges generally should be higher, and more in line with what utilities pay their outside representatives. Greenlining also recommended a 3% COLA be established for the next three years, with a general re-examination of rates thereafter. Disability Rights Advocates commented on the hourly rates, stating that sole reliance on a COLA and the proposed step increases do not provide adequate opportunities for representatives to move up through a given range.
In its reply, SCE states that Greenlining and Disability Rights Advocates ignore the difference between the rates utilities pay in-house and outside representatives. SCE explains that current hourly rates and those proposed in this order are based on a blended rate of both in-house and outside rates. Lastly, SCE states a mechanism is already in place for gathering hourly rate data, and recommends we adopt the proposed rate ranges with no modifications.
In its reply, TURN supported the comments of Disability Rights Advocates and Aglet regarding the inadequacy of proposed COLA and step increases. TURN also supported Aglet regarding rate increases being effective on a calendar year basis. TURN also had concerns over inclusion of 2007 rates should be included in this proceeding, and the source of those rates.
Responding first to Aglet, we confirm that our step increase proposal would apply to all intervenor representatives at every experience level, including 13-plus years, subject to the maximum rate for the experience level. Responding to Greenlining and Disability Rights Advocates (as well as to TURN's reply comments), we note that we have used a blended rate, as described by SCE, to set hourly rates. We agree with SCE that the arguments from Greenlining and Disability Rights Advocates are not persuasive and do not support a change of the use of blended rates in this interim decision. However, we will further address the rate-setting methodology in the next phase of this rulemaking, and encourage all parties to participate in the process.
We next address annual hourly rate adjustments. No party supported, and Aglet and TURN opposed, our proposal for adjusting hourly rates on a fiscal year basis. Our proposal was prompted by the timing of utility compensation reports, which are filed annually in April. Because we have relied today on the Social Security Administration's COLA, which is released annually in late fall, it appears that such reliance would be consistent with a calendar year adjustment of hourly rates. Calendar year adjustment has been our long-standing practice, and we will retain it. If further adjustments must be made on the basis of the utility reports, which are filed in the spring, those adjustments can be addressed on a mid-year basis.
Lastly, we respond to TURN's reply comments regarding 2007 rates. The reasons for establishing rate levels for 2007 (avoiding delay and uncertainty), and the source for those rates (Social Security Administration COLA for calendar year 2007), were addressed earlier in today's decision (see Section IV - COLA Adjustments for 2007).
In sum, we find no reason to modify the Commissioner's proposed order in this matter, except to continue annual hourly rate adjustments on a calendar year basis.
XI. Assignment of Proceeding
This proceeding is assigned to Commissioner Michael R. Peevey, and Administrative Law Judges Steven Kotz and Kenneth Koss.
1. The purpose of this rulemaking is to refine the process for determining the hourly rates to be used in calculating intervenor compensation awards for work performed in 2006.
2. It is also necessary to refine the process for determining hourly rates for intervenors for 2007.
3. The computation of compensation and hourly rates paid to intervenors takes into account the market rates paid to representatives of comparable training and experience offering similar services.
4. Cost-of-living data readily available to the public from several federal agencies shows the general rate of inflation for 2006 to be approximately 3%, and also 3% for 2007.
5. The Social Security Administration annually releases COLA data in the late fall, with any increases effective on a calendar year basis.
6. For work performed in 2006, a 3% COLA above rates adopted for 2005 is reasonable.
7. For work performed in 2007, a 3% COLA above rates adopted for 2006 is reasonable.
8. Establishing three rate range levels for experts, and the corresponding rates, effective with work performed in 2007, based on years of applicable experience, is reasonable, and similar to the five levels already established for attorneys.
9. Beginning with 2007 work, establishing for individual intervenor representatives two annual "step increases" of 5% within each experience level, and capped at the maximum of that level, is reasonable.
10. Beginning with 2007 work, allowing intervenor representatives with a rate last authorized at least four years prior to the pending request to seek a new rate as if that individual was new to Commission proceedings is reasonable. In such cases, allowing intervenors to restore a linkage of a requested rate with previously approved rate is also reasonable if the Commission expressly linked the two rates in the past, and the intervenor shows that the original basis for the linkage remains valid.
11. It is reasonable that intervenors disclose the credentials of their representatives in order to justify the requested rates.
12. The compensation data we use from the utilities to determine hourly rates becomes available (and is reported to us pursuant to General Order 77-M) each year in the spring.
1. For work performed in 2006, intervenors should be authorized an hourly rate COLA of 3% above rates adopted for 2005.
2. For work performed in 2007, intervenors should be authorized an hourly rate COLA of 3% above rates adopted for 2006.
3. Beginning with work performed in 2007, the authorized rates for experts should be categorized into the following three levels, or rate ranges, based on years of applicable experience: 0-6 years; 7-12 years; and 13-plus years. The corresponding rates included in the table, herein, should be adopted for these experience levels.
4. Beginning with 2007 work, individual intervenor representatives should be allowed to request annual "step increases" to their hourly rate of no more than 5%, limited to two step increases within each identified experience level, and capped at the highest rate for any given experience level.
5. Beginning with 2007 work, intervenor representatives with a rate last authorized at least four years prior to the pending request should be able to seek a new rate as if that individual were new to Commission proceedings. In such cases, intervenors may restore a linkage of a requested rate with previously approved rate if the Commission expressly linked the two rates in the past, and the intervenor shows that the original basis for the linkage remains valid.
6. The rate requested by an intervenor for its outside consultant may not exceed the rate billed to the intervenor by the consultant, even if the consultant's rate is below the floor for the corresponding experience level.
7. Intervenors should disclose the credentials of their representatives in order to justify requested rates.
8. We should continue to adjust the hourly rates of intervenors on a calendar year basis.
9. Today's order should be effective immediately.
INTERIM ORDER
IT IS ORDERED that:
1. For work performed in 2006, intervenors are authorized an hourly rate Cost-of-Living-Adjustment (COLA) of 3% above rates adopted for 2005.
2. For work performed in 2007, intervenors are authorized an hourly rate COLA of 3% above rates adopted for 2006.
3. Beginning with work performed in 2007, the authorized rates for experts shall be categorized into the following three levels, or rate ranges, based on years of applicable experience: 0-6 years; 7-12 years; and 13-plus years. The corresponding rates included in the table, herein, are adopted for these experience levels.
4. Beginning with work performed in 2007, individual intervenor representatives are authorized to request annual "step increases" to their hourly rate of no more than 5%. Step increases shall be limited to two per individual within each identified experience level, and in no event result in rates above the highest rate for any given experience level.
5. Beginning with work performed in 2007, intervenor representatives with a rate last authorized at least four years prior to the pending request may seek a new rate as if that individual were new to Commission proceedings. In such cases, intervenors may restore a linkage of a requested rate with previously approved rate if the Commission expressly linked the two rates in the past, and the intervenor shows that the original basis for the linkage remains valid.
6. The rate requested by an intervenor for its outside consultant may not exceed the rate billed to the intervenor by that consultant, even if the consultant's rate is below the floor for the corresponding experience level.
7. Intervenors shall fully disclose in their requests for compensation the credentials of their representatives in order to justify requested rates.
8. Annual hourly rate adjustments shall continue on a calendar year basis.
9. This rulemaking shall remain open to address further issues.
This order is effective today.
Dated January 11, 2007, at San Francisco, California.
MICHAEL R. PEEVEY
President
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
Commissioners
2 Because of the New Year's Day holiday, and the declared national day of mourning on January 2, 2007 with no postal service, we accepted comments filed on or before January 3, 2007, as timely. Due date for replies was January 8, 2007.
