8. Reasonableness of Claimed Compensation
A. TURN
TURN's request for $71,822.16 is unopposed. It is supported by documentation that establishes the scope of the work done and the hourly rates of the professionals involved. The requested hourly rates for TURN's attorneys have all been approved by the Commission in prior proceedings and range from $190 to $280 per hour. TURN also billed through without markup the fees and charges of its energy consultant, JBS Energy Inc. The hourly rates of the professionals in that firm at the time their work began were $150 for a senior consultant, $105 for a mid-level consultant, and $95 for a lower level consultant. TURN requests that we adopt increased hourly rates for Schilberg for fiscal years 2000 and 2001 of $115 and $130, respectively, and a $115 rate for Nahigian for fiscal year 2001. We approved a $115 rate for Schilberg in D.02-06-070. While the percentage increases requested for these experts are larger than typical, TURN has supported them by providing resumes and summaries of the work experience of Nahigian and Schilberg and comparisons of their requested rates with rates paid to others offering similar expertise and services. The increased rates have been adequately documented and we approve them.
Although TURN's positions on a number of topics were shared with other commentators on the proposed rules, TURN's compensation need not be reduced simply because of those shared views. The intervenor statutes allow the Commission to award full compensation even where a party's participation has overlapped in part with the showings made by other parties. (Pub. Util. Code § 1802.5.) Moreover, as discussed in section 4, most of TURN's positions were unique to it among the intervenors or were put forward with unusual clarity. Our decision substantially embodied most of those positions; and accordingly, we award TURN the full amount of its compensation request.
B. CAUSE
Both PG&E and SCE object to the size of the CAUSE request for compensation. The utilities point to the large legal bills incurred by CAUSE and urge us to reject or reduce these bills. CAUSE defends its legal expenditures as necessary aspects of its effective participation in the proceedings.
An examination of the CAUSE compensation request reveals the following breakdown of legal fees by issue as required by D.98-04-059:
1. NOI 26.0 hours $ 6,300.00
2. Undergrounding Program 76.4 hours $15,987.50
3. Information Flow 66.0 hours $12,636.50
4. Standardized Information Format 173.05 hours $32,775.25
5. Updated Planning 66.0 hours $12,636.50
6. Mortgaging Funds 66.0 hours $12,636.50
7. Request for Fee Award 37.50 hours $ 7,288.50
We find this request troubling. To begin with, approximately 13.5% of the total fee requested ($13,588.50 of a total request of $100,770.75) is for preparation of documents that either seek permission to be compensated or seek compensation. While we recognize that the requested hours incorporate a 50% reduction, as required by our rules, we still find it remarkable that so much time should have been devoted to the preparation of relatively standardized documents.7 By way of comparison, attorneys for TURN spent 0.50 hours drafting its NOI and 12.75 hours drafting its request for compensation, which time was then halved for compensation purposes. Because the amounts requested by CAUSE for these activities are still excessive even after the hours reductions taken, we will apply a further discount of 50% to time spent preparing the NOI and the compensation request by Weissman, Johanson, Tukey, and Pak.
Second, CAUSE was represented by two law firms in succession. While we understand that the second firm had necessarily to educate itself about what its predecessor had done, we are unclear why costs for duplicated work should be passed on to the utilities and their ratepayers. Accordingly, we reduce the request by 4 hours of Mihaly's time and 4 hours of Schue's time.
Finally, CAUSE did not prevail on most of the issues on which its time was spent. We did not expand the undergrounding program although we made minor modifications to it. We did not create the position of undergrounding ombudsman or institute a Rule 20A appellate process, both of which CAUSE urged. The local governments, and not CAUSE, urged the extension of the Rule 20A mortgage period from three to five years, although CAUSE endorsed the proposal.
However, in two areas CAUSE made substantial contributions to our final decision. In part as a result of CAUSE's advocacy, we required that the Underground Utilities Conversion Planning Guide be updated. Second, we required the creation of a standardized report format for data relating to the costs and benefits of undergrounding. In this area, CAUSE took the lead, participated actively in the workshops, did much of the drafting, and coordinated its efforts with CCAE and the municipalities.
To summarize, approximately 53% of the hours for which CAUSE requests compensation, excluding hours spent preparing the NOI and the request for compensation (239.05 hours from a total of 447.45), were devoted to positions that we ultimately adopted and that CAUSE took or shared the lead in advocating. Subject to the reductions for other reasons noted above, we believe these hours qualify for intervenor compensation.
Regarding the hourly rates requested, CAUSE provides documentation from annual surveys of law firm rates and our prior fee awards to support the request for approval of a rate of $315 per hour for Weissman, Pak, and Mihaly. The documentation also includes biographical data about the individual attorneys.
To support a claim for a specific hourly rate, the intervenor needs to show two things: that the requested rate is a competitive market rate for professionals with relevant qualifications and experience; and that the individual professional requesting compensation is entitled, by virtue of qualifications and experience, to charge that rate. CAUSE has carried this burden in connection with the rates sought, which we approve. Rates for Mihaly and Schue were adopted in D.02-05-005 and we rely on them here. The law firm rate surveys and individual biographies demonstrate that Weissman and Pak each have substantial knowledge and experience, and that requested rate is supported by market data. Weissman and Pak were both attorneys and/or administrative law judges for the Commission prior to entering private practice. Each of them has outstanding educational and professional credentials as well as extensive experience in regulatory matters.
The final hourly rates for which approval is sought are $100 for Karen Johanson and Joan Tukey. We have previously approved this rate for Johanson in D.00-02-044 and we approve it again here. We have not previously been asked to approve a rate for Tukey. However, her background and experience mirrors that of Johanson, with whom she co-founded CAUSE, and we approve that rate for her today.
Out-of-pocket expenses incurred by CAUSE personnel to attend public hearings and for document copying are also on the high side, but none appears to be so excessive as to warrant further reduction.
In summary, we think that the fee request filed by CAUSE is excessive with respect to hours claimed, and have adjusted the final compensation award as follows:
Professional |
Time Requested |
Time Allowed |
Rate Allowed |
Year |
Fees Allowed |
Total |
Weissman |
164.40 |
84.20 |
315 |
2000 |
26,523.00 |
$ 26,523.00 |
Pak |
12.60 |
6.30 |
315 |
2002 |
1,984.50 |
1,984.50 |
Mihaly |
35.00 |
13.20 |
315 |
2000 |
4,158.00 |
4,158.00 |
Mihaly |
0.20 |
0.10 |
315 |
2002 |
31.50 |
31.50 |
Schue |
50.25 |
24.55 |
165 |
2000 |
4,050.75 |
4,050.75 |
Schue |
12.10 |
6.05 |
165 |
2002 |
998.25 |
998.25 |
Johanson |
178.70 |
102.30 |
100 |
2000 |
10,230.00 |
10,230.00 |
Johanson |
10.60 |
5.30 |
100 |
2002 |
530.00 |
530.00 |
Tukey |
45.10 |
19.80 |
100 |
2000 |
1,980.00 |
1,980.00 |
Tukey |
2.00 |
1.00 |
100 |
2002 |
100.00 |
100.00 |
Expenses |
6,073.05 | |||||
Total |
$ 56,659.05 |
C. CCAE
This fee request parallels that of CAUSE in several respects, not surprisingly in that the two organizations coordinated their appearances during the proceedings. However, as CCAE admits in its fee application, the Commission did not adopt any of its recommendations and deferred consideration of life cycle costs and other matters it had addressed in workshops and comments. As we noted above, in unusual cases we can award intervenor compensation even if we reject the positions advanced by the intervenor. Typically, this occurs when the intervenor presents an analysis of an issue that provides us with new insight, so that even if we do not adopt the intervenor's recommendation, its presentation has enhanced our understanding. In this case, we are unable to say that the participation of CCAE provided that kind of helpful analysis. As the utilities have pointed out in their comments on the intervenor petitions in this proceeding, the safety and reliability case for undergrounding has yet to be made. Undergrounding remains, at this point in time, primarily an aesthetic issue about which the comments of CCAE, based on unproven assumptions about safety and reliability, were not helpful.
In one area, we find that CCAE, in common with CAUSE and others, did provide useful inputs to us, namely, in their advocacy of the development of standardized data collection formats for cost, safety, and reliability data. While CCAE can hardly claim full credit for this point, we believe it is entitled to some credit and our award reflects that belief.
Peter Frech is the sole professional for whose time CCAE seeks compensation, so it is to his time records that we now turn. As a preliminary matter, we note that over half of the time for which full compensation is requested was for attendance at prehearing conferences (PHCs), PPHs, and workshops, 114.75 hours out of 224.50 total. Another 20.25 hours were spent in meetings with other intervenors (primarily CAUSE). The remaining 89.50 hours were devoted to preparing submissions on issues of interest to CCAE.
(1) Time Allocated to Specific Issues
Approximately half of the time allocated to specific issues was allocated to matters in which we considered and acted on a position put forward by CCAE. The remaining half of the allocated time was devoted to matters we deferred for later consideration. As to the latter, we believe it appropriate to defer the request for compensation until such time as the subsequent proceedings are held, and we reduce the award accordingly. CCAE requested compensation for 89.50 hours allocated to specific issues. We hold that 48.75 hours allocated to specific issues are eligible for compensation at this time.8
(2) Meetings With Other Intervenors
Meetings with CAUSE were designed to eliminate duplication of effort and coordinate responses to us. An examination of CAUSE's professional time records is generally in agreement with the time records submitted by Frech. To the extent that attending such meetings achieved the goal of coordination and avoided duplication of effort, it is an activity entitled to compensation.
(3) Attendance at PHCs, PPHs, and Workshops
Subject to the general requirement of productivity, participation in PHCs and Commission-sponsored workshops are activities that qualify for intervenor compensation. Attendance at PPHs is generally not an activity for which an intervenor can claim compensation. PPHs are intended to provide an opportunity for presentations by the public at large rather than parties, so intervenors cannot be said to have made a contribution by their attendance. 5.50 hours of Frech's time were spent attending a PPH and we reduce the request by that amount, leaving a balance of 99.75 hours of unallocated time. We apply to this balance the same 50% discount we have applied to the time allocated to specific issues and award compensation for 49.875 hours.
CCAE also asks us to approve an hourly rate of $180 for Frech. As we noted above, we approve hourly rates that reflect the prevailing market for persons of similar qualifications and experience. Frech is an engineer with extensive experience analyzing the electric and magnetic fields created by power lines and other sources of electromagnetic radiation. He holds both engineering and business degrees and has been a business consultant specializing in electric and magnetic fields since 1988. His qualifications and experience are comparable to those of experts for whom we have approved similar hourly rates, and we approve this rate.
The following summarizes the results of the preceding paragraphs:
Professional |
Time Requested |
Time Allowed |
Rate Allowed |
Year |
Fees Allowed |
Total |
Peter Frech |
224.50 |
118.875 |
180 |
2000-2 |
21,397.50 |
$ 21,397.50 |
Peter Frech |
46.50 |
46.50 |
90 |
2000-2 |
4,185.00 |
$ 4,185.00 |
Expenses |
$ 1,182.13 | |||||
Total |
$ 26,764.63 |
D. 19SN
In allowing 19SN to seek intervenor compensation, ALJ Brown required that the fee request separate the activities of UDI on its own behalf from those it undertook on behalf of 19SN. In its fee request, 19SN states that such separation is not possible because most of the positions advanced by UDI were held in common by the two organizations. Instead, 19SN and UDI propose to seek reimbursement for one-half of the total fees incurred as a practical alternative to attempting to unscramble the egg of their combined appearance. In that connection, 19SN voluntarily reduced its fee request by 50% from $66,190, representing the total value of professional time expended on the proceeding, to $33,095. To achieve this voluntary reduction, 19SN reduced the number of hours recorded by attorney Connie Easterly from 255 to 127.50 and the number of hours recorded by consultant Roger Poynts from 72.7 to 36.35. 19SN has also voluntarily reduced its request for expense reimbursement from $1,009 to $504.50.
To determine the reasonableness of this compensation request, we have compared the time and expenses of 19SN with those of the other applicants. In doing so, we have recognized that 19SN, alone among the intervenors, represents that very large segment of the public which finds the current method of undergrounding project selection and allocation of Section 20A funds to be arbitrary at best. While we did not ultimately adopt the positions put forward by 19SN, we feel they were effective spokespersons for that portion of the public. 19SN reminded us that undergrounding is an intensely local matter that affects neighborhoods, or parts of neighborhoods, one at a time. It is a source of considerable friction between the "haves" and "have nots" when Section 20A funds are doled out. Part of our responsibility to the public is to adopt rules that make the process as fair and transparent as possible. Several of the actions we took, such as updating the undergrounding guide and including arterial streets as factors in the undergrounding planning process, were responsive to the arguments of 19SN.
As we noted in our discussion of the CCAE fee request, attendance by an intervenor at a PPH is not usually compensated because parties to formal proceedings are not usually allowed to speak at PPHs.9 Accordingly we reduce Easterly's requested hours by 14 and Poynts by 1. We also reduce out-of-pocket costs by $262.50 (requested for the cost of attendance at various PPHs). Although we are mindful that 19SN did not follow ALJ Brown's directions with regard to the segregation of time by issue, we believe that its voluntary 50% reduction in total compensation requested is a reasonable alternative and, coupled with the above adjustment, reduces its request to an amount that is consistent with the value of the contribution made.
UDI has specified the hourly rates of its principals as $160 and $210, respectively, for Roger Poynts and Connie Easterly, the only two professionals acting on behalf of 19SN, and requested that we approve these rates. Poynts is a civil engineer and land surveyor who has participated in Commission proceedings for more than a dozen years. In D.00-12-005 we approved a rate of $145/hour for his work in 1997-98. We approve the $160 rate requested for this proceeding. Easterly has also participated in Commission proceedings in years past and was approved at the rate of $175/hour in the same decision. Her current rate of $210 is in the mid-range of rates for attorneys of her background and experience and we approve it for this proceeding.
The following table summarizes the effects of these adjustments:
Professional |
Time Requested |
Time Allowed |
Rate Allowed |
Year |
Fees Allowed |
Total |
Easterly |
101.4 |
87.4 |
210 |
2000 |
$ 18,354.00 |
$ 18,354.00 |
Easterly |
26.1 |
26.1 |
210 |
2001 |
5,481.00 |
5,481.00 |
Poynts |
36.35 |
35.35 |
160 |
2001 |
5,656.00 |
5,656.00 |
Expenses |
242.00 | |||||
Total |
$ 29,733.00 |
