Case Background
On
February 28, 2018, Florida Public Utilities Company (FPUC or Company) filed its
petition for Limited Proceeding to Recover Incremental Storm Restoration Costs.
FPUC requested to recover approximately $2 million for the incremental
restoration costs related to several hurricanes and tropical storms named by
the National Hurricane Center during the 2016 and 2017 hurricane seasons, and
to replenish its storm reserve subject to true-up.
The
Office of Public Counsel (OPC) intervened in this docket on March 22, 2018. On
August 14, 2018, Order No. PSC-2018-0404-PCO-EI was issued establishing hearing
dates and procedures to be followed. On November 26, 2018, a prehearing
conference was held. On December 4, 2018, Order No. PSC-2018-0567-PHO-EI
(Prehearing Order) was issued to outline the procedures to be used at the
December 11, 2018 hearing. On December 7, 2018, OPC filed a
Motion for Reconsideration
of the Decision in Prehearing Order No. PSC-2018-0567-PHO-EI to Strike All or
Part of Issues 7 and 10 (Prehearing Motion). On December 11, FPUC filed a
Response in Opposition to OPC’s Prehearing Motion.
A formal hearing was held on
December 11, 2018. At the hearing, the Commission voted to deny OPC’s Prehearing
Motion, and to accept and approve the parties’ proposed stipulations. By Order
No. PSC-2019-0114-FOF-EI (Final Order), issued on March 26, 2019, the
Commission found that FPUC prudently incurred $426,261 in net recoverable storm
restoration costs, and that the appropriate amount to recover these costs and
to replenish FPUC’s storm reserve is $1,927,648.
On April 3, 2019, OPC filed a timely Motion
for Reconsideration of Order No. PSC-2019-0114-FOF-EI (Posthearing Motion). In
the Posthearing Motion, OPC requested that the Commission reconsider its
decisions: (1) authorizing FPUC’s recovery for additional compensation related
to its Inclement Weather Exempt Employee Compensation Policy (Inclement Weather
Policy); and (2) striking, in whole or in part, Issues 7 and 10. On April 5,
2019, OPC filed a Request for Oral Argument on its Posthearing Motion
(Request). On April 10, 2019, FPUC filed a Response in Opposition to Citizens’
Motion to Reconsider Portions of Order No. PSC-2019-0114-FOF-EI and Response to
Separate Request for Oral Argument (Response in Opposition).
The
Commission has jurisdiction over this matter pursuant to Sections 366.04,
366.041, 366.05, 366.06, and 366.076, Florida Statutes (F.S.), and Rules
25-6.0143, 25-6.0431, and 25-6.044, Florida Administrative Code (F.A.C.).
Issue 2:
Should the Commission grant OPC's Posthearing Motion
to reconsider the decision to authorize FPUC’s recovery of $69,632 pursuant to
Rule 25-6.0143, F.A.C.?
Recommendation:
No. OPC’s Posthearing Motion to reconsider the
decision to authorize FPUC’s recovery of $69,632 pursuant to Rule 25-6.0143,
F.A.C., should be denied because it does not meet the required standard for a
motion for reconsideration. OPC has failed to identify a point of fact or law that
was overlooked or that the Commission failed to consider in rendering Order No.
PSC-2019-0114-FOF-EI. (Dziechciarz, Weisenfeld)
Staff Analysis:
By Final Order No. 2019-0114-FOF-EI,
issued on March 26, 2019, the Commission authorized FPUC to recover $69,632 in costs
incurred under FPUC’s Inclement Weather Policy pursuant to Rule 25-6.0143,
F.A.C. Rule 25-6.0143(1)(f)2., F.A.C., states:
The
types of storm related costs prohibited from being charged to the reserve under
the ICCA methodology include, but are not limited to, the following: ... Bonuses
or any other special compensation for utility personnel not eligible for
overtime pay[.]
In the Final Order, the Commission found that:
We interpret the prohibition on recovery for bonuses
or any other special compensation under Rule 25-6.0143, F.A.C., as prohibition
on giving bonuses or other incentives on a discretionary basis, with no
guidelines regarding the distribution or amount of the additional compensation
received ... [T]he “extra compensation” is not a “special” compensation or a
bonus, but rather an additional supplemental compensation for eligible
employees, who have performed beyond their regular duties. Thus ... the “extra
compensation” in this case is not a prohibited cost, but an incremental cost.
Rule 25-6.0143(1)(d), F.A.C., allows utilities to charge for “costs that are
incremental to costs normally charged to non-cost recovery clause operating
expenses in the absence of a storm.”
Standard of Review
The appropriate standard of review in a
motion for reconsideration is whether the motion identifies a point of fact or
law that was overlooked or that the Commission failed to consider in rendering
its Final Order. Stewart Bonded
Warehouse, Inc. v. Bevis, 294 So. 2d 315 (Fla. 1974); Diamond Cab Co. v.
King, 146 So. 2d 889 (Fla. 1962); and Pingree v. Quaintance, 394 So.
2d 161 (Fla. 1st DCA 1981). In a motion
for reconsideration, it is not appropriate to reargue matters that have already
been considered. Sherwood v. State,
111 So. 2d 96 (Fla. 3d DCA 1959), citing State ex. rel. Jaytex Realty Co. v.
Green, 105 So. 2d 817 (Fla. 1st DCA 1958).
OPC’s Posthearing Motion for Reconsideration
OPC asserts that the purpose of a motion
for reconsideration is to bring to the attention of the administrative agency
some point that it overlooked or failed to consider when it rendered its order
in the first instance. Thus, OPC argues that the Commission has misinterpreted
the language of Rule 25-6.0143, F.A.C., by finding that the additional
compensation of $69,632 contemplated by FPUC’s Inclement Weather Policy is not
a bonus or special compensation, but rather an additional supplemental
compensation that is permissible for storm cost recovery under the Rule. OPC
alleges that the Commission was incorrect to focus its analysis on whether the
additional compensation was discretionary.
OPC submits that the language of Rule
25-6.0143, F.A.C., does not focus on the discretionary nature of the payment,
but rather on the classification of the employee as it relates to eligibility
for overtime pay. OPC also contends that the Commission’s definition of a bonus
as a discretionary payment appears to ignore how bonuses are treated under the
Fair Labor Standards Act. Because of this, OPC asserts that the question before
the Commission is not whether the additional compensation is a “bonus,” but
rather: (1) whether the employee who received additional compensation was
ineligible for overtime pay, and (2) whether the additional compensation was
“special compensation.” OPC contends that the payments under FPUC’s Inclement
Weather Policy constituted “special compensation” to employees who were
ineligible for overtime, and therefore the payments should be disallowed.
OPC asserts that FPUC acknowledged that
the employees who receive compensation under the Inclement Weather Policy are
ineligible for overtime pay. OPC argues that because the Inclement Weather
Policy was designed for “exempt employees,” they are necessarily ineligible for
overtime, and thus the payments are prohibited by Rule 25-6.0143(f)2., F.A.C.
OPC argues that this fact contradicts the Commission’s treatment of the payments
and requires reconsideration.
OPC further asserts that the Commission’s
definition of “special compensation” renders the word “bonus” in Rule
25-6.0143(f)2., F.A.C., superfluous. OPC argues that the rules of statutory
construction dictate that a deciding body must give the words of a rule or
statute their plain meaning, and that significance and effect must be given to
every word or phrase in the rule. OPC argues that since “special compensation”
is not defined in the Florida Administrative Code, it is helpful to review the
definition in the dictionary. According to Merriam-Webster’s online dictionary,
“special” is defined as “being other than the usual: additional, extra.”
OPC concludes that therefore “special
compensation” constitutes any compensation beyond a salaried employee’s regular
or ordinary salary. To support this argument, OPC cites to case law that
discusses the relationship between salary, overtime, fixed compensation, and
irregular compensation. OPC concludes that storm payments to employees who are
ineligible for overtime pay are either part of the employee’s standard
compensation, or are a kind of special compensation, both of which are excluded
under Rule 25-6.0143(f)2., F.A.C.
FPUC’s Response in Opposition
FPUC asserts in its Response in Opposition
that OPC’s Posthearing Motion must be denied, because it fails to identify any
mistake of fact or law in the Commission’s decision, or anything that was
overlooked in rendering the decision. FPUC contends that OPC simply disagrees
with the Commission’s conclusions, which is not sufficient to meet the standard
required for reconsideration.
FPUC argues that OPC’s assertion that the
Commission gave undue weight to the discretionary aspect of the payments under
FPUC’s Inclement Weather Policy overlooks the fact that the Commission
considered what constitutes “special compensation” and “bonus” payments with
respect to exempt employees. FPUC notes that the Commission recognized that a
supplemental payment recognized in an employee’s base salary package does not
necessarily constitute “special compensation,” a “bonus,” or “base rate
recoverable regular payroll.”
FPUC contends that after consideration the
Commission disagreed with, and therefore rejected, OPC’s argument that the
supplemental compensation should be disallowed. The Commission found that the
Inclement Weather Policy requires that FPUC supplement the compensation for
employees who are not eligible for overtime when they perform storm-related
work that exceeds their normal hours and job functions. Accordingly, FPUC
argues that because this supplemental compensation is part of the standard pay
and benefits package for all employees who fall under the Inclement Weather
Policy, it is neither “special,” nor is it a “bonus” that can be awarded at
FPUC’s discretion. FPUC further contends
that OPC’s argument constitutes a re-argument, which is not proper in the
context of a motion for reconsideration.
FPUC also notes that OPC’s argument that
the supplemental compensation should be excluded from storm cost recovery
because it is part of the standard compensation package for exempt employees
(and thus should be recovered, if at all, through base rates recoverable
through payroll) is untimely. FPUC contends that this argument fails to meet
the standard for reconsideration because it improperly expands the actual
language of Rule 25-6.0143, F.A.C., and assumes a dichotomy not contemplated in
the Rule. OPC’s argument that the supplemental compensation should be excluded
because it is part of the standard compensation package does not identify a
mistake of fact or law in the Commission’s analysis, but instead asks the
Commission to reconsider its interpretation of Rule 25-6.0143, F.A.C., which is
not appropriate. FPUC also notes that there is no evidence in the record to
support that the supplemental compensation should be categorized as “base rate
recoverable through payroll.”
FPUC argues that Rule 25-6.0143, F.A.C.,
does not require that payments made to exempt employees must, in all
circumstances under the Rule, either be excluded from recovery as part of the
employees’ standard compensation package, or excluded as “special compensation”
or bonus payments. Rather, FPUC argues, Rule 25-6.0143, F.A.C., clarifies that
payroll already being recovered through base rates cannot also be eligible for
recovery as a storm cost, and that bonuses or other discretionary incentives
likewise cannot be recovered as a storm cost. FPUC argues that Rule 25-6.0143,
F.A.C., does not preclude recovery of other categories of compensation, such as
non-discretionary, supplemental compensation that is not otherwise recovered through
base rates. FPUC reiterates that OPC failed to identify a mistake of fact or
law that could serve as the basis for reconsideration.
Analysis
In its Posthearing Motion, OPC failed to
meet the standard of review for a motion for reconsideration because it did not
cite to any point of fact or law that was overlooked by the Commission in
rendering its decision to allow FPUC to recover the supplemental compensation
under Rule 25-6.0143, F.A.C. Instead, OPC improperly uses its Posthearing Motion
to reargue the merits of matters that have already been considered.
Regarding the recovery of supplemental
compensation as established in FPUC’s Inclement Weather Policy, OPC takes issue
with how the Commission used the non-discretionary nature of the compensation
to facilitate its analysis in interpreting Rule 25-6.0143, F.A.C. OPC also
cites to the Fair Labor Standards Act, Merriam-Webster’s online dictionary,
Black’s Law Dictionary, and several cases (none of which are authoritative) to
support its contention that FPUC’s supplemental compensation is “special,” and
thus prohibited from storm cost recovery. OPC conflates its submission of
dictionary definitions and terms from case law with actual points of fact or
law that the Commission failed to consider. Nowhere in its Posthearing Motion
does OPC note a point of fact or law that was overlooked by the Commission in
rendering its decision on this matter. In fact, OPC cites to the Commission’s
analysis in its Posthearing Motion, thus showing that the Commission carefully
considered whether the payments were discretionary (to ascertain if they were
“bonuses”), and whether the payments were contemplated on a standard basis in a
standard manner (to ascertain if they were “special”). OPC merely disagrees
with the Commission’s interpretation of “special compensation,” and is asking
the Commission to review and reweigh the evidence, which is not a proper basis
for reconsideration.
Conclusion
Staff recommends that OPC did not
meet the standard of review for reconsideration in its Posthearing Motion to
reconsider the decision to authorize FPUC’s recovery of $69,632 pursuant to
Rule 25-6.0143, F.A.C. OPC failed to identify a point of fact or law that was
overlooked or that the Commission failed to consider in rendering Order No.
PSC-2019-0114-FOF-EI.
Issue 3:
Should the Commission grant OPC's Posthearing Motion
for reconsideration of the denial of the Prehearing Motion to reconsider the
decision to strike, in whole or in part, Issues 7 and 10?
Recommendation:
No. Staff recommends that Final Order No.
2019-0114-FOF-EI, issued on March 26, 2019, already disposed of OPC’s
Prehearing Motion, and therefore the Commission should not entertain this facet
of OPC’s Posthearing Motion. (Dziechciarz, Weisenfeld)
Staff Analysis:
At the prehearing
conference, held on November 26, 2018, OPC, FPUC, and staff discussed whether
Issue 7 should be struck in part, and whether Issue 10 should be struck in its
entirety.
Issue
7 was phrased:
In connection with the restoration
service associated with electric power outages affecting customers as a result
of Hurricanes Matthew and Irma, were the contractor rates of up to $509 per hour that FPUC paid for storm recovery
activities reasonable and prudent, in incurrence and amount? If not, what
amount should be approved? (emphasis added)
Issue 10 was phrased:
As a result of the evidence in this
case, what action, if any, should the Florida Public Service Commission take to ensure contractor rates
charged to utilities are reasonable and prudent?
In
Prehearing Order No. PSC-2018-0567-PHO-EI, issued on December 4, 2018, the
prehearing officer memorialized the decision she made at the prehearing conference
to exclude the words “of up to $509 per hour” from Issue 7, and to strike Issue
10 in its entirety. On December 7, 2018, OPC submitted its Prehearing Motion to
reconsider this decision. At the hearing, held on December 11, 2018, the
Commission denied OPC’s Prehearing Motion, and found that the Prehearing Motion
failed to identify a point of fact or law that the prehearing officer
overlooked or failed to consider. By Final Order No. PSC-2019-0114-FOF-EI,
issued on March 26, 2019, the Commission disposed of OPC’s Prehearing Motion.
Rule
Rule
25-22.060(1)(a), F.A.C., states:
Any party to a proceeding who is adversely affected by
an order of the Commission may file a motion for reconsideration of that order.
The Commission will not entertain any motion for reconsideration of any order
that disposes of a motion for reconsideration.
OPC’s Posthearing Motion for Reconsideration
OPC requests that the Commission “reconsider
its prehearing decision to strike, in whole or in part, Issues 7 and 10.” OPC
asserts that Issue 7 was reworded and Issue 10 was stricken, both without
explanation. OPC argues that without legal justification provided, OPC cannot
assert a point of law or fact that was overlooked or misapprehended, and that
the Commission’s decision to withhold the explanation precludes a successful
argument against the action.
FPUC’s Response in Opposition
FPUC argues that a motion for
reconsideration of a decision that disposes of a motion for reconsideration should
not be entertained pursuant to Rule 25-22.060(1)(a), F.A.C. FPUC also argues
that OPC is still unable to point to a mistake of fact or law related to the
exclusion of the phrase “of up to $509 per hour” from Issue 7. FPUC notes that
exclusion of the phrase had no material impact on the issues addressed in this
docket, nor did it hinder OPC’s ability to make its arguments.
Similarly, with the exclusion of Issue 10
from the Prehearing Order, FPUC argues that OPC has failed to identify a proper
basis for reconsideration. FPUC notes that the hearing transcript clearly
reflects that the Commission considered OPC’s Prehearing Motion, but decided
that OPC had not identified a mistake of fact or law in the prehearing officer’s
decision and thus, accordingly, OPC’s Prehearing Motion was denied. FPUC argued
that the Commission also identified that this docket was not the appropriate
vehicle for addressing a broad policy question with potential impacts that
extend beyond the parties to this proceeding.
Analysis
Regarding the Commission’s decision to deny OPC’s
Prehearing Motion, Rule 25-22.060(1)(a),
F.A.C., states that the Commission will not
entertain any motion for reconsideration of any order that disposes of a motion
for reconsideration. OPC
argues that it is seeking clarification of the Commission’s decision on this
point because no explanation was given. However, at the prehearing conference, in
which OPC participated, the prehearing officer clearly articulated that the
language to be stricken from Issue 7 was an effort to reduce bias, and Issue 10
was stricken because it was not appropriate for this docket.
The Final Order disposed of OPC’s Prehearing Motion regarding Issues 7 and 10,
and therefore staff does not recommend that the Commission entertain this facet
of OPC’s Posthearing Motion.
Conclusion
Staff recommends that OPC’s Posthearing Motion be denied. The Final Order disposed of OPC’s Prehearing
Motion to reconsider the prehearing officer’s decision regarding Issues 7 and
10, and therefore staff does not recommend that the Commission entertain this
facet of OPC’s Posthearing Motion.
Issue 4:
Should the docket be closed?
Recommendation:
Yes, this docket should be closed after the time for
filing an appeal has run. (Dziechciarz, Weisenfeld)
Staff Analysis:
Yes, this docket should be closed after the time for
filing an appeal has run.
