6. Hours and Costs Related to and Necessary for Substantial Contribution
We first assess whether the hours claimed for the customer's efforts that resulted in substantial contributions to Commission decisions are reasonable by determining to what degree the hours and costs are related to the work performed and necessary for the substantial contribution.
We disallow compensation for several tasks, based both on PacifiCorp's comments and on our own analysis, as discussed below. The awarded amount is $83,988.68 less than the requested amount.
6.1. Flat 5% Administrative Fee
First, it is inappropriate to compensate the Mackintoshes for a flat 5% administrative fee assessed them by their law firm. We have held that the hourly rate charged by their attorneys should cover all overhead and administrative costs, and we do not allow an additional award for administrative overhead. See, e.g., D.98-11-049, 1998 Cal. PUC LEXIS 805, § 5.1.3 ("Professional fees assume overheads and are set accordingly. We therefore deny additional recovery for clerical work."). The Mackintoshes acknowledge this fact: "In preparing their request, the Mackintoshes have acknowledged time spent on activities for which the Commission has not previously permitted compensation, such as administrative and clerical time."6
Of course, individual documented costs such as copying, overnight delivery and the like are compensated for below, as they always are in our intervenor compensation awards, but we see no basis for an additional charge for clerical and other administrative work, and deny this aspect of the claim. This disallowance is $11,404.38.
6.2. Self-Interested Efforts
We agree with PacifiCorp that efforts the Mackintoshes expended purely on determining their own legal rights are not compensable as part of their substantial contribution to this proceeding. The affected issues involve whether PacifiCorp could take the Mackintoshes' property through an eminent domain proceeding, and whether the Mackintoshes had an obligation to give PacifiCorp a right of entry to their property. Efforts spent on the issue of a ½ acre permit exemption were also exclusively in the Mackintoshes' self interest.
With respect to the eminent domain issue, we disallow one third of the 7.90 hours attorney Berninger spent on various issues on September 13, 2006, and one third of the 4.30 hours attorney Woodruff's timesheets show for various tasks on November 1, 2006. This is our best estimate of the time spent. With respect to the right-of-entry issue, we disallow 18.20 hours by attorney La Londe and 3.40 hours by attorney Woodruff in 2006. With respect to the permit exemption issue, we disallow one half of 3 hours of attorney Berninger's and one half of 1.80 hours of attorney Woodruff's work on September 18, 2006.
6.3. Intervenor Compensation Matters
The Mackintoshes spent an excessive amount of time on preparing their intervenor compensation request, and we therefore disallow a portion of this time.
The Mackintoshes' attorneys spent 138.8 hours of work on the compensation request. We consider 138.8 hours for intervenor compensation matters excessive, especially given the extra work the request required of us. To bring this amount more in line with what we normally award to intervenors for this type of work, we disallow two-thirds of the claimed time.
6.4. Miscellaneous Items
The intervenors report more than 35 hours of work on their opposition to PacifiCorp's January 31, 2007 Motion to Shorten Comment and Review Period. We find that spending this amount of time on preparing the seven-page response to the procedural motion excessive. We adjust the time by reducing by one-half the 23.8 hours spent on the opposition by attorney James and the 11.2 hours by attorney Woodruff.
We also agree with PacifiCorp that the Mackintoshes' expenses on an unsuccessful attempt to organize neighbors to challenge PacifiCorp's project are not compensable. We disallow 0.60 hours of attorney La Londe's time and 1.20 hours of Woodruff's time in 2006 spent on these attempts.
PacifiCorp argues that the intervenors' expenses to attend the Commission's business meeting on March 15, 2007, at which they could not have spoken as parties to the proceeding, are not compensable. We agree and disallow 4 hours of Woodruff's time in 2007 and related costs for him and the Mackintoshes.
6.5. Large Number of Attorneys Used on Proceeding
The Mackintoshes used a large number of attorneys on this case-at least 14 by their own admission. They attribute this fact both to the complexity of the case and attorney turnover at the Meyers Nave law firm. The intervenors do deduct approximately 13.9 hours of work by various attorneys from the total law firm bill. However, this amount does not, in our view, adequately account for the start-up and learning time that must have been necessitated by each of the new attorneys. (The total number of attorney hours Meyers Nave billed was in the hundreds.) While the "learning curve" time of one or even a few attorneys may sometimes be compensable, compensating for the learning time of 14 attorneys is excessive for a case of this size.
Thus, we reduce the amount of attorney fees by varying percentages as reflected in the Amendment to Comments of Don and Judy Mackintosh on the Proposed Decision Granting Intervenor Compensation filed on May 23, 2008. The turnover is not attributable to the case or to PacifiCorp's conduct, and it therefore seems inappropriate to charge ratepayers for the related spending.
We have in the past reduced requests where the time billed reflects inefficiency. For example, in D.06-04-018, we reduced attorney hours by 20% where two sets of lawyers worked on the same documents. We have also reduced requests where the time billed reflects a learning curve.7 We find that a similar reduction here is reasonable for the professionals who did not work on the case over a long period of time.
6.6. Mackintosh Request for $6,000
As part of their request, the Mackintoshes include $6,000 for time and fees associated with Mr. Mackintosh's expertise as a long-time employee of PG&E. PacifiCorp appropriately objected to the lack of documentation of this award, and the Mackintoshes therefore submitted a log with their reply brief in support of compensation. There are two matters at issue here: 1) whether Mr. Mackintosh is entitled to compensation at all, and 2) the reasonableness of the amount requested for his time.
The Mackintoshes claim that if not for Mr. Mackintosh's professional experience, they could not have come up with transmission design alternatives for the line. Neither party briefs the issue of whether a customer who intervenes in part out of self-interest may recover an award for his own time as well as that of his attorneys and experts. Since the Mackintoshes bear the burden of proof that they are entitled to compensation, we find that they have failed to meet the burden in this instance. They did not provide any evidence that Mackintosh qualified as an expert eligible for compensation. Further, Mr. Mackintosh acted at least in part out of self-interest. We believe $6,000 is appropriately deducted from the award.
6.7. Well Data
We disagree with PacifiCorp about the compensability of time spent on matters related to whether the Mackintoshes would submit well logs and test borings from their property. While the Mackintoshes ultimately did not submit such data because they were concerned that the tests would damage their springs-an issue litigated at the hearings of this case-the reason they were planning to submit the data relates to an issue that we find relevant to the Mackintoshes' substantial contribution.
When a party makes a substantial contribution to the outcome of a proceeding, we do not necessarily deduct amounts for issues on which they did not prevail. Here, in effect they did prevail in establishing that the land from which the well logs and test borings would have been taken was the inappropriate site for a transmission line. Even though they prevailed for reasons unrelated to the test borings, the issue of well logs and test borings did have some bearing on the decision not to route the line through the Hoy Valley. Thus, we do not impose a deduction here.
6 Request at 26.
7 D.95-08-051, 61 CPUC2d 142, 1995 Cal. PUC LEXIS 656, at *21 (reduced number of hours and hourly rate due to learning curve); D.02-04-007, 2000 Cal. PUC LEXIS 1112, § 4.1 (25% reduction in hours claimed for learning time).
