A Case for Professional Intervenors

As the FTC announced that it is developing guidelines for arriving at costs for intervenors, we are left to wonder what they have up their sleeves. The statement issued by them and reported in the media is cause for concern for two reasons. First it seems overloaded with emotionalism and it would appear that insufficient thought went into what was released.

Second, the point was made in last week's article that the FTC itself determines who may or may not be an Intervenor and also a cut-off point is at their discretion. So the padding of intervenors is not possible unless the FTC sanctions it. Having put this out of the way let us therefore look at the role and contribution of the Intervenors to determine where or why they are deserving of costs.

The Intervenor must first be knowledge-based and up-to-date on the matter at hand. Furthermore, the many aspects of the matter require deep study. For example, the Accounts, the Technology, Government Policy, Legislation, Case Law, Procedural Rules, and a consumer position to bring to bear on all of these.

When we examine the different professionals who appeared on behalf of the Applicant, they had an Accountant, an Engineer, a Consultant on Rate Making, a Marketing Manager, two Attorneys-at-Law and their General Manager who is reportedly a distinguished Engineer and Accountant that came up through the ranks.

The question is, could the average layman perform against these trained professionals with any success? The answer seems obvious. What can be said is that as an intervenor, you had to learn and learn quickly. You had to be eternally vigilant not to let these professionals get away with seemingly logical answers which tend to erode your case.

The stated role of the Intervenor is to assist the Commission and my interpretation of assistance is not to be advisors on law, accountancy or technology but to intervene from a consumer's perspective, showing where consumers are being disadvantaged and to what extent rate proposals are fair and warranted.

The role of the Intervenor is also to complete the setting of an adversarial arrangement. That is how our law functions; you have a Plaintiff and a defendant or a Prosecutor and the Accused with a Magistrate or Judge sitting as Umpire. In a rate hearing you have the Applicant and the Intervenor with the FTC sitting in judgment. Hence the Intervenor is critical to the entire scenario.

In this role the Intervenor has two elements vital to his performance. First are the expenses associated with preparation, expenses associated with being organised, expenses associated with research, and expenses related to appearance at the hearing.

Secondly, is the question of time to prepare, to research, for filing and compiling materials in categories, and time to be present at the hearing and flowing from this is the mental energies expended in all of these areas along with the vigilance and focus to follow the evidence presented and formulate queries and rebuttals that assist the consumers' case during proceedings.

The Intervenor will find that he has to familiarize himself with accounting systems, learn the procedural rules, learn the format to draft and submit motions (and note that Intervenors are not granted additional time for being laymen or to catch up), read everything possible about the technology, research case law, learn how to cross-examine witnesses and generally prepare himself to participate in every aspect of the exercise.

This is certainly a case for developing a cadre of Intervenors to represent consumers at Rate Hearings. I would go so far as to say that there needs to be a course(s) for Intervenors to help prepare them for some of the challenges they will encounter as laymen. Therefore what is it worth to the consumers to have such skilled persons working on their behalf?

The strength of the Intervenors in the last rate hearing lies in the fact that, collectively, they represented a multi-skilled and multi-sectoral team, which rendered them as knowledgeable and as forceful as the team of experts they went up against.

If there is a plan to drag the Intervenors over the coals to see what they strictly spent and only to reimburse expenses that could be proven, that would be gross injustice perpetrated by the mighty hand of Government against weak citizens, who do not have the resources to expend on a court battle to ensure that the FTC do not consider extraneous matter in coming to its decision on costs.

Roosevelt O. King
Secretary General - BANGO
e-mail: bango@socamail.com