In the Matter of the Verified Application and Petition of Laclede Gas Company to Change its Infrastructure System Replacement Surcharge in its Laclede Gas Service Territory Missouri Gas Energy USW Local 11-6 Missouri Public Service Commission v. Office of Public Counsel

In the
Missouri Court of Appeals
Western District
IN THE MATTER OF THE )
VERIFIED APPLICATION AND )
PETITION OF LACLEDE GAS ) WD79349
COMPANY TO CHANGE ITS )
INFRASTRUCTURE SYSTEM ) OPINION FILED:
REPLACEMENT SURCHARGE IN ) September 27, 2016
ITS LACLEDE GAS SERVICE )
TERRITORY; )
)
MISSOURI GAS ENERGY; )
)
USW LOCAL 11-6; )
)
MISSOURI PUBLIC SERVICE )
COMMISSION, )
)
Respondents, )
)
v. )
)
OFFICE OF PUBLIC COUNSEL, )
)
Appellant. )
Appeal from the Public Service Commission
Before Division Two: James E. Welsh, Presiding Judge, Cynthia L. Martin, Judge and
Gary D. Witt, Judge
The Office of Public Counsel ("OPC") appeals the Missouri Public Service
Commission's ("Commission") order approving the petition of Laclede Gas Company
("Laclede Gas") to change its Infrastructure System Replacement Surcharge ("ISRS").
Laclede Gas submitted two ISRS petitions on August 3, 2015, one for Laclede Gas and one
for its operating unit, Missouri Gas Energy ("MGE"), (collectively "Laclede"). The
petitions contained proposed rate schedules and supporting documentation for eligible
infrastructure investments for March 1, 2015 through June 30, 2015. The petitions also
contained requests for rate increases based on estimated expenditures for July and August
2015 with no supporting documentation. The OPC contends that the Commission's order
granting the petitions was unlawful because it could not award Laclede recovery for the
July and August expenditures because the required documentation was not provided at the
time the petitions were filed. We affirm.
Procedural and Factual Background
Laclede is a natural gas provider which operates as Laclede Gas in Eastern Missouri
and MGE in Western Missouri. Both operate as a "gas corporation" and "public utility"
under section 386.020.1 Both are subject to the jurisdiction of the Commission, as provided
in Chapters 386 and 393. The Commission is a state administrative agency responsible for
the regulation of public utilities in Missouri, including gas corporations, pursuant to
sections 386.040 and 386.250(1). State ex rel. MoGas Pipeline, LLC v. Mo. Pub. Serv.
Comm'n, 366 S.W.3d 493, 496 (Mo. banc 2012). The Commission has a staff ("Staff")
1
All statutory citations are to RSMo 2000 as currently updated, unless otherwise noted.
2
charged with representing the Commission and state in all Commission investigations,
contested cases, and other proceedings, unless it timely files a notice of intention not to
participate in proceedings. The OPC is a state agency that, in its discretion, represents
consumers in utility proceedings before the Commission and in appeals of Commission
orders. Office of Pub. Counsel v. Empire Dist. Elec. Co., 307 S.W.3d 220, 221 (Mo. App.
S.D. 2010); sections 386.700 and 386.710.
The ISRS statutes authorize a method for gas corporations to recover the cost of
certain government-mandated infrastructure system replacement projects outside of a
general rate case. See sections 393.1009, 393.1012, 393.1015. On August 3, 2015, Laclede
filed separate ISRS petitions for Laclede Gas and MGE seeking to recover certain
infrastructure investments made during the period from March 1 through June 30, 2015, as
well as estimated infrastructure replacement costs through August 31, 2015 (collectively
"Petitions"). The Petitions included necessary supporting documentation for the work
completed through June 30, 2015. The replacement costs for July and August, 2015 were
estimates and did not include supporting documentation for those costs. The July estimated
costs were revised and supported by documentation in a supplemental filing on August 14.
The August estimates were revised and supported by documentation in supplemental
filings on September 14 by Laclede Gas, and September 15 by MGE.
OPC requested a hearing on the ISRS Petitions alleging, inter alia, that Laclede was
not entitled to recover for the July and August costs because they were not properly
documented at the time the Petitions were filed on August 3, 2015. A hearing was held on
October 15, 2015 ("Hearing"). Following the Hearing, the Commission found that the use
3
of estimated costs supported by later submitted documentation was not a violation of the
ISRS statutes or regulations. The Commission's Staff was able to fully review the Petitions
and determine their validity prior to its report submission deadline to the Commission.
Finally, the Commission found that OPC failed to make an effort to seek discovery of any
July and August projects or otherwise challenge those projects and was thus not prejudiced
by any late amendments to the Petitions.
On November 12, 2015, the Commission issued its Report and Order ("Report and
Order") granting to Laclede Gas and MGE the requested ISRS tariff changes with some
modifications based on issues raised by the Commission's Staff and OPC.
OPC filed an Application for Rehearing on both Petitions on November 30, 2015,
and the Commission issued its order denying each on December 16, 2015. This appeal
followed.
Discussion
OPC raises three issues on appeal, all related to the Commission's inclusion of
recovery for the July and August infrastructure projects in the Petitions.
Standard of Review
"This Court reviews the decision of the PSC rather than that of the circuit
court." State ex rel. Praxair, Inc. v. Missouri Pub. Serv. Comm'n, 344
S.W.3d 178, 184 (Mo. banc 2011). Appellate review of a PSC order is two-
pronged: first, to determine whether the PSC's order is lawful; and second,
to determine whether the PSC's order is reasonable. [State ex rel. MoGas
Pipeline, LLC v. Mo. Pub. Serv. Comm'n], 366 S.W.3d [493,] 495–96; see
also section 386.510. The appellant bears the burden of proof to demonstrate
that the PSC's order is unlawful or unreasonable. State ex rel. AG
Processing, Inc. v. Pub. Serv. Comm'n of State, 120 S.W.3d 732, 734 (Mo.
banc 2003); section 386.430, RSMo 2000. The lawfulness of the PSC's order
is determined "by whether statutory authority for its issuance exists, and all
4
legal issues are reviewed de novo." Office of Public Counsel v. Missouri
Pub. Serv. Comm'n, 409 S.W.3d 371, 375 (Mo. banc 2013) (quoting AG
Processing, Inc., 120 S.W.3d at 734). This Court need not reach the issue of
the reasonableness of the PSC's order if it finds the order unlawful. MoGas
Pipeline, LLC, 366 S.W.3d at 496. The PSC's order is determined to be
reasonable when "the order is supported by substantial, competent evidence
on the whole record; the decision is not arbitrary or capricious[;] or where
the [PSC] has not abused its discretion." Id. (quoting Praxair, Inc., 344
S.W.3d at 184).
In Matter of Verified Application & Petition of Liberty Energy (Midstates) Corp., 464
S.W.3d 520, 523–24 (Mo banc 2015).
I.
OPC's first point on appeal alleges that the Commission erred in approving increases
to Laclede's ISRS Petitions because Laclede failed to comply with the filing requirements
of Section 393.1015 and 4 CSR 240-265(20), rendering the Commission's judgment both
unlawful and unreasonable. We begin with the question of lawfulness.
OPC claims that the plain language of the ISRS statutes and applicable regulations
require that, at the time an ISRS petition is filed, the utility supports its petition with all
supporting documentation in final form. Although Laclede presented supporting
documentation for the Petitions, OPC claimed that because the projects for July and August
were not fully documented, were based upon budgeted2 amounts at the time of the filing of
the Petitions, and actual costs were not submitted until later, Laclede was in violation of
2
The parties debate the term used to describe the July and August information provided by Laclede at the
time the Petitions were filed. Laclede characterize the documentation as proforma estimates of the ISRS
investments for the months of July and August. The OPC characterize the Petitions as containing no supporting
documentation but instead only including cost estimates for the two months in question. We will use the term
"budgeted" information throughout this opinion to describe the July and August documentation provided by
Laclede.
5
the statute and regulations, barring recovery for those two months. Laclede responded, and
the Commission agreed, that nothing in the statutes or regulations prevents budgeted
information from being used at the time of a petition filing, updated later with actual costs,
so long as an appropriate review of the ISRS petition is permissible. The Commission
found that "[s]o long as Staff has sufficient time to perform an effective review of ISRS
eligibility within the sixty days allowed by the ISRS statute, the budgeted July and August
documents, along with actual expense records provided after the filing of the petitions are
acceptable."
Section 393.1015.1(1) requires that:
At the time that a gas corporation files a petition with the commission seeking
to establish or change an ISRS, it shall submit proposed ISRS rate schedules
and its supporting documentation regarding the calculation of the proposed
ISRS with the petition, and shall serve the office of public counsel with a
copy of its petition, its proposed rate schedules, and its supporting
documentation.
The Commission's rules establishing what constitutes "supporting documentation" is
established in 4 CSR 240-3.265(20), which mirrors the requirements of section
393.1015.1(1), and then states that "at a minimum" an ISRS petition "shall include" a list
of twelve types of documentation. Most applicable in this appeal are subsections (K) and
(L), which state:
(K) For each project for which recovery is sought, the net original cost of the
infrastructure system replacements (original cost of eligible infrastructure
system replacements, including recognition of accumulated deferred income
taxes and accumulated depreciation associated with eligible infrastructure
system replacements which are included in a currently effective ISRS), the
amount of related ISRS costs that are eligible for recovery during the period
in which the ISRS will be in effect, and a breakdown of those costs
6
identifying which of the following project categories apply and the specific
requirements being satisfied by the infrastructure replacements for each:
....
(L) For each project for which recovery is sought, the statute, commission
order, rule, or regulation, if any, requiring the project; a description of the
project; the location of the project; what portions of the project are
completed, used and useful; what portions of the project are still to be
completed; and the beginning and planned end date of the project.
OPC argues that the use of the phrase "[f]or each project for which recovery is sought"
makes clear that, all supporting documentation must be submitted at the time of the
petition, not simply a substantial portion. To determine the legality of the Report and
Order, we must determine whether the ISRS statutes and regulations prohibit budgeted cost
expenditures from being used in supporting documentation. We find they do not.
The purpose of the information provided to the Commission in the ISRS petition is
so that the Staff "may scrutinize the petitioning gas corporation's information to confirm
the costs are in accordance with the ISRS code provisions and confirm the proposed
charges are calculated properly." Liberty Energy Corp., 464 S.W.3d at 522.3
"Missouri courts have long recognized that when the decision involves the exercise
of regulatory discretion, the [Commission] is delegated a large amount of discretion, and
'many of its decisions necessarily rest largely in the exercise of a sound judgment.'" State
ex rel. Sprint Mo., Inc. v. Pub. Serv. Comm'n, 165 S.W.3d 160, 164 (Mo. banc 2005)
(quoting State ex rel. Dyer v. Pub. Serv. Comm'n, 341 S.W.2d 795, 802 (Mo. 1960)).
"Under these circumstances, the reviewing court will not substitute its judgment for that of
3
We recognize that the OPC takes issue with the characterization that it is only the Commission Staff that
has a duty to scrutinize an ISRS petition. However, because the role of the OPC within an ISRS case is at issue in
OPC's second point on appeal, we will delay discussion.
7
the [Commission] on issues within the realm of the agency's expertise." Id. However, this
Court exercises independent judgment regarding the Commission's interpretation of a
statute and must correct erroneous interpretations of law. State ex rel. Union Elec. Co. v.
Pub. Serv. Comm'n, 399 S.W.3d 467, 477 (Mo. App. W.D. 2013). The PSC "is a body of
limited jurisdiction and has only such powers as are expressly conferred upon it by the
Statutes and powers reasonably incidental thereto." State ex rel. Cass Cty. v. Pub. Serv.
Comm'n, 259 S.W.3d 544, 547 (Mo. App. W.D. 2008). "Neither convenience, expediency
or necessity are proper matters for consideration in the determination of whether or not an
act of the commission is authorized by statute." Id. at 548. "Once an agency exercises its
discretion and creates the procedural rules under which it desires to have its actions judged,
the agency denies itself the right to violate those rules." Fowler Land Co., Inc. v. Mo. Dep't
of Nat. Res., 460 S.W.3d 502, 507 (Mo. App. S.D. 2015). Yet, "[s]ome deference . . .is
appropriate when the issue involves an agency['s] interpretation of its own regulation."
Collins v. Dep't of Soc. Serv., Family Support Div., 141 S.W.3d 501, 504 (Mo. App. S.D.
2004). This does not mean that the Commission has the authority to exercise discretion
when a statute is unambiguous or to ignore its own rules.
OPC argues that section 393.1015.1(1) only allows for ISRS costs that are properly
documented at the time of the petition to be considered by the Commission. The statute
states that "[a]t the time that a gas corporation files a petition . . . it shall submit . . . its
supporting documentation . . . ." Section 393.1015.1(1). The OPC takes the position that
the statute leaves no room for supplementing the petition at a later time to submit additional
documentation. It also argues that this position is supported by the Commission's rules,
8
found in 4 CSR 240-3.265(20), which require that the supporting documentation contain
"at a minimum" a laundry list of information, including certain costs associated with "each
project for which recovery is sought." See 4 CSR 240-3.265(20)(K) and (L). Specifically,
OPC notes that while the Commission found that Laclede had complied with the
requirements of 4 CSR 240.3.265(20)(L), it made no mention of the requirements of
subsection (20)(K).
A review of the exhibits provided with the Petitions demonstrate that, while the
information provided for July and August constituted the budgeted amount, the Petitions
substantially complied with the statute and regulations to provide information sufficient
for the Staff and OPC to begin its review. There is nothing in the rules that prevent the
supporting documentation in the Petitions to be updated as information becomes available.
In fact, the testimony of both the Staff and OPC indicated that, as a normal part of the
review procedure, supplemental material is provided by the utility to support its petition.
Certainly, the language of section 393.1015 states that an ISRS petition must include
documentation at the time of filing and sets forth a list of the information to be included.
Laclede provided that information to the extent and in the form then available. As the
Commission notes, section 393.1015.11 directs the Commission to develop rules to
implement the ISRS recovery process, "but only to the extent such rules are consistent with,
and do not delay the implementation of," the statutory provisions. To hold the Commission
to the OPC's interpretation of 4 CSR 240-3.265(20)--that no supplemental information can
be given past the petition filing--would be inconsistent with the mandate of subsection 11
of 393.1015.
9
We are not persuaded that the limited nature and time period for an ISRS case, in
and of itself, necessarily requires a finding that it may not contain a "true-up" period similar
to that performed in a general rate case. OPC cites to Commission's comments in its Final
Order of Rulemaking published in conjunction with the regulations set forth in 4 CSR 240-
3.265. The Commission noted that the ISRS statute:
does not permit sufficient time to allow for a thorough review of the petition,
development of data requests, a twenty (20) day turn around on responses,
analysis of these initial data requests responses, a potential second round of
data request, another twenty (20) day turn around on response, a staff
recommendation, testimony rounds, hearings and a Commission decision.
Mo. Reg., Vol. 29, No. 8, p. 665 (April 15, 2004). We do not see this comment as excluding
supplemental petition filings. The Commission recognized that the ISRS review process
was limited in time and scope and thus steps needed to be taken to provide for "timely
processing of the ISRS petitions, cost true-ups and prudency reviews permitted by the
statutes." Id. To accept the OPC's interpretation would unnecessarily frustrate the ISRS
petition process. Otherwise eligible projects would be automatically excluded for the
smallest of filing deficiencies instead of allowing the accepted practice that is currently
utilized by Staff, utilities, and the OPC, where supplemental discovery and materials freely
flow between the parties allowing a thorough and complete review of ISRS petitions. We
find that the Commission does have the discretion to allow a party to supplement its ISRS
petition after it has been filed. We believe that the Commission's Report and Order was
consistent with the statute, regulations, and the Commission's stated purpose for its rules
regarding both.
10
If the Commission had found that the Staff could not adequately conduct its review
because of the budgeted information or the delay in the filing of the supplemental
documentation or had the Commission awarded the ISRS based on the budgeted
information without the proper actual cost documentation being considered, this Court's
ruling may be different and an abuse of discretion may have been found. However, such
is not the case.4 Nothing in section 393.1015.1(1) or 4 CSR 240-3.265(20) prevents the
Commission from accepting budgeted information at the time a petition is filed, to be later
timely supplemented with updated documentation, so long as such acceptance does not
prevent a full and through review of the ISRS petition.5 This brings the Court to the second
step in our review process.
Review of the Commission's order is a two-step process. Having first determined
that the Commission's Report and Order was lawful, we must now determine whether it
was reasonable. OPC argues that, by allowing certain documentation to be updated, they
4
The same is true for OPC's argument that, had the ISRS remained unchallenged, the ISRS change would
have gone into effect before the finalized August costs were available and thus, the ISRS would have included
budgeted information. The ISRS scheme was challenged and, thus, that is not the case before us and we will not
speculate as to whether such a situation would have been found proper.
5
OPC's argument regarding filing requirements under section 393.1015 states at two points that the July
and August plant additions were not 'in service and used and useful' as required for ISRS eligibility under filing
requirements of section 393.1009. In a corresponding footnote, OPC makes no mention of July and states that it was
"likely" that the August replacements occurred after the Petitions were filed on August 3. The only support for this
contention cited is Laclede's testimony regarding the actual August expenditures exceeding the budgeted amounts.
This issue was not properly raised in a Point Relied On. Rule 84.04(d)(2) prohibits arguments that are not included
in a party's Point Relied On. "The function of this rule is to give notice to the opposing party of the precise matters
which much be contended with and to inform the court of the issues presented for review." Moseley v. Grundy Cty.
Dist. R-V Sch., 319 S.W.3d 510, 512 (Mo. App. E.D. 2010). Even were this Court to review the claim ex gratia,
despite not having been properly raised, we have before us no argument or evidence regarding any specific project
or dates of service. The statement itself is equivocal where OPC notes that the August projects were "likely" not in
use with no relevant citation to the record. OPC does not even raise an argument that the shortened time period
prevented investigation into whether the August projects were "in use." As such, we will not, and cannot, consider
such a claim.
11
lacked the ability to properly review those projects, which renders the Commission's
decision unreasonable. OPC argued to the Commission that the budged number is "just a
number."
[T]hat doesn't really tell us anything. Doesn't tell us where they are, why
they think those are going to be installed, what the project numbers are so we
can send a DR, saying let's see those projects. We have no idea.
While these statements may be true, it does not automatically follow that this prevented
adequate review. Essentially, the OPC argues that without project numbers they could not
request follow-up information on the budgeted projects. But, there is no indication as to
why this should be the case. The July and August projects were all of the same type and
character of the other projects of the ISRS Petitions--replacement of deteriorated gas
pipeline--which parties agree were projects eligible for ISRS recoupment. Under these
circumstances, we see no reason why the OPC could not have requested additional
materials on the planned projects--such as location and reason for installation--prior to
receiving the updated materials by simply referencing the July and August budgeted
projects. Taking this approach would have alleviated any concern on the part of the OPC
that it could not adequately request discovery prior to the scheduled Hearing. Further, Staff
testified at the Hearing that, at times, they coordinate with the OPC to allow joint hearings.
This coordination allows for a faster review process.
Beyond not being as limited in time as it would initially appear, OPC presents no
compelling argument why they could not complete a review of the updated materials after
they were provided by Laclede. The Commission found that the Staff began by reviewing
the expense records provided at the time the Petitions were filed, later moving to the July
12
and August expenses as records were supplemented. Despite not having all the records
with the filing of the Petitions, the Staff had "sufficient time to conduct a review of the
work papers and work orders associated with the true-up information provided by Laclede
for the months of July and August." As OPC notes, the Commission only addressed these
findings to the Staff's review and not the review of the OPC. OPC, however, presents no
compelling argument as to why they were unable to conduct a similar review in the time
allotted.6 OPC contends that, following the supplementation of the August costs, it only
had seventeen days for review, which is insufficient for the filing of discovery requests to
fully investigate Laclede's requests. The OPC auditor reviewing the case testified that: "I
personally was working on a couple other cases at the time, and this one kind of got pushed
to the wayside for a little while and -- yeah, I guess I didn't have enough time." While we
appreciate that OPC had a truncated time period during which to conduct its review, there
was no testimony that such a review was not possible had the review been prioritized,
utilized a second auditor, or begun based on the budgeted information as the Staff did.
We find that the Commission was not prohibited from accepting supplemented or
true-up materials from Laclede after the filing of the Petition, in the Commission's
discretion. Further, we find that under the particular circumstances of this case, the
Commission did not abuse its discretion in finding that the Staff had sufficient time to
review the Petitions and make recommendations. There was no basis for OPC failing to
6
To the extent that the Commission only inquired as to its Staff's ability to timely review the supplemented
materials, we find that a better practice would have been to inquire both of the Staff and the OPC. Although not
required by statute, this may alleviate the need for future litigation should the Commission choose to continue to
allow budgeted materials which are later timely and properly supplemented with actual figures to be included with
ISRS petitions.
13
do the same. Therefore, the Commission did not error in including Laclede's ISRS costs
for July and August in its Report and Order.
Point denied.
II.
OPC's second point on appeal contends that the Commission erred in approving
Laclede's ISRS Petitions because it violated OPC's right and obligation to represent the
public under sections 386.710 and 393.1015 by denying to it due process. "The procedural
due process requirement of fair trials by fair tribunals applies to an administrative agency
acting in an adjudicative capacity." State ex rel. AG Processing, Inc. v. Thompson, 100
S.W.3d 915, 919 (Mo. App. W.D. 2003).
At issue in this allegation is the question of OPC's role in an ISRS review process.
The OPC is charged with the duty, in its discretion, to "represent and protect the interest of
the public in any proceeding before or appeal from the public service commission." Section
386.710.1(2).
OPC took issue with the Commission's Order which concluded:
Budgeted (estimated) project information meets the statutory and regulatory
requirement for the initial petition filing. So long as Staff has sufficient time
to perform an effective review of ISRS eligibility within the sixty days
allowed by the ISRS statute, the budgeted July and August documents, along
with the actual expense records provided after the filing of the petitions are
acceptable.
OPC notes that the Order focuses exclusively on the Staff's ability to perform an
effective review without any reference to the OPC. While we certainly recognize that the
Commission failed to mention the OPC's ability for review in its Order, simply failing to
14
mention the office does not mean that the OPC was denied its rights to represent the public
in this case. Both the OPC and Staff were given the same amount of time from the filing
of the Petitions, July supplement, and August supplement to review the materials.
Certainly, the Commission cannot completely remove the OPC's ability to enter into a
proceeding and represent the public. See State ex rel. Office of Pub. Counsel v. Pub. Serv.
Comm'n, 236 S.W.3d 632, 637 (Mo. banc 2007) (allowing OPC a mere one hour and twenty
minutes to file in a proceeding was unreasonable and required the Commission to vacate
its tariff award); State ex rel. Office of Pub. Counsel v. Pub. Serv. Comm'n, 409 S.W.3d
522, 527-28 (Mo. App. W.D. 2013) (only granting OPC two days in which to request
rehearing and file an appeal was a violation of OPC's due process rights). However, in this
case the OPC has failed to establish that the reduction in time to seventeen days to complete
review on two limited areas of the ISRS Petitions rose to the level of denying OPC an
ability to protect the public's interests.
OPC further argues that, although it had seventeen days from the filing of the August
supplement to the end of the sixty-day review period to review the materials, due process
was violated because such timing prevented discovery. Because Laclede is given twenty
days to respond to discovery, OPC would not have obtained necessary documents prior to
the Hearing. Although this may generally be the case, as the Commission points out,
however, the Commission may, in its discretion, reduce the time period for responding to
such requests. In fact, the Report and Order notes that, in this case, the Commission
adopted a schedule that limited the time to respond to discovery to five business days after
October 2. We will not speculate as to the validity of the Report and Order had,
15
hypothetically, the Commission denied OPC discovery by refusing to adjust the response
time from Laclede. That is not the case before this Court. Before this Court is no concrete
argument or evidence that OPC was denied due process in its review of the ISRS Petitions.
It received the same information as the Staff at the same time. The Staff began its review
with the finalized projects and had sufficient time to review the July and August projects
once the budgeted numbers were supplemented with the finalized amounts. The only
testimony from the OPC regarding its inability to complete a review was because its auditor
had other cases and this case "got pushed to the wayside for a little while." Under such
circumstances, we will not overturn the Commission's Report and Order as a violation of
due process.
Point denied.
III.
OPC's final point on appeal alleges that the Commission's Report and Order was
unreasonable because the costs for July and August are not supported by competent and
substantial evidence. It alleges that "no actual details associated with the July and August
costs were filed with the [Commission] and no actual cost documentation or calculations
are included in the case record."
An order is reasonable if it is supported by substantial competent evidence on the
whole record, the decision of the Commission is not arbitrary or capricious or where the
Commission has not abused its discretion. Praxair, Inc., 344 S.W.3d at 184. Evidence
and all reasonable supporting inferences are viewed in the light most favorable to the
Commission's order. State ex rel. Pub. Counsel v. Pub. Serv. Comm'n, 289 S.W.3d 240,
16
246-47 (Mo. App. W.D. 2009). Documents "not contained in the legal file are not part of
the record and will not be considered on appeal." In re Trust of Nitsche, 46 S.W.3d 682,
684 (Mo. App. S.D. 2001). "Nevertheless, a statement of fact asserted in one party's brief
and conceded as true in the opposing party's brief may be considered as though it appears
in the record." Id.
The argument between the parties is over the semantics of the term "filed." All
parties are in agreement that Laclede supplemented its July and August budgeted costs with
actual costs as they became available on August 14 and September 14 and 15. The
Commission's Order specifically notes that "actual expenses" were provided to the Staff on
those dates. OPC does not challenge the accuracy of the Commission's findings. Nor does
OPC argue that it did not actually receive the actual expenses on the same dates as the
Staff. It appears, however, that the updated documentation may not have been formally
filed as an amendment to the Petitions with the Commission. To the extent this matters, it
is only to determine whether there was sufficient evidence upon which the Commission
could decide its Report and Order.
Laclede argues that section 393.1015 requires no formal "filing" of supporting
documentation but only that such documentation be "submitted." Further, to the extent it
was necessary to be part of the formal record, the Staff Report and Recommendation was
verified, entered into the record, and the respective affiants that contributed to the report
were subject to cross examination. The supplemented information was referred to and
relied on in the Report and Order and became part of the official record.
17
We need not decide whether the section 393.1015 requirement of submission
requires a formal filing. The parties all agree that the supplemental information was
provided to the proper parties, including OPC. It was analyzed and reviewed by the Staff
in making its Recommendation and Report. The Commission relied on the information in
deciding its Report and Order.
To the extent that OPC challenges the sufficiency of the supplemented documents,
they were not included in the legal file. OPC was responsible for preparing the legal file
with all necessary evidence required for our review. Rule 81.12.7 We cannot review
whether they were sufficient where they have not been included in the legal file. This
Court will not overturn the Order of the Commission as unsupported by substantial
evidence simply because OPC failed to include all evidence considered by the Commission
in the legal file and chose instead to argue on appeal that it was merely "submitted" and
not "filed."
Point denied.
Conclusion
We find that the Commission did not err on any of the grounds raised by OPC. We
affirm the Report and Order of the Commission.
__________________________________
Gary D. Witt, Judge
All concur
7
All rule references are to Missouri Supreme Court Rules (2016).
18