Judges: WRITTEN BY: Don Stenberg, Attorney General Mark D. Starr, Assistant Attorney General
Filed Date: 5/21/2002
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Timothy J. Texel, Director Power Review Board QUESTION: Whether the Power Review Board can legally accept oral or written statements or documents from interested individuals during a public meeting convened after the Board has held an evidentiary hearing on whether to approve new generation or transmission facilities.
CONCLUSION: No.
The Nebraska Power Review Board is described as an independent board consisting of five members, none of whom may within the four years preceding his or her appointment have been a director, officer, or employee of any electric utility or an elective state officer. Members are appointed by the Governor, subject to approval of the Legislature. Neb. Rev. Stat. §
The Power Review Board has been charged with implementing the State's electrical policy. This policy includes the avoidance and elimination of conflict and competition between public power districts and other public or quasi-public electricity suppliers, the avoidance and elimination of duplication of facilities and resources which otherwise might result from such competition, and the facilitation of the settlement of rate disputes between suppliers of electricity. Neb. Rev. Stat. §
Your question has arisen in the context of the Board's administration of this group of subjects and, more particularly, in connection with the Board's duties to approve or disapprove applications from electric suppliers seeking to construct or acquire electric generation facilities or any transmission lines or related facilities carrying more than 700 volts. Neb. Rev. Stat. §
It is possible for the board to issue its approval without a hearing, "upon the filing of such waivers as it may require, if in its judgment the finding required by section
285 NAC 2 (1989) is the chapter of the Board's rules which addresses the application process envisioned by section
You have advised that although it is not required by law or by the Board's rules, the Board publishes notice of the application in a newspaper with general circulation in the area where the proposed facility is to be located. The example you provided of such a notice reveals that it also served as a notice of the Board's hearing on the application, advising that at that time the Board will receive testimony and other evidence regarding the application. A portion of the notice reads as follows:
Any interested persons may attend the hearing. Parties wishing to be heard or to protest said application, or in any way participate in the hearing, must file a Petition to Intervene with the Board prior to the time of the hearing. Any interested parties granted intervention may appear, file objections, and offer evidence regarding this application.
The Board's practice is to hold the hearing in conjunction with its regular meeting. After attending to other business, the Board recesses the meeting and conducts the hearing. At the conclusion of the hearing, the Board reconvenes its public meeting and considers the application which was the subject of the hearing. Perhaps from past experience, you foresee times where a person or entity who has not intervened and who has not participated in the evidentiary hearing will ask to address the Board concerning the application at the public meeting, wanting either to speak toward the matter or provide written statements or documentation. You add that occasionally someone will send a letter addressing the application and ask that it be included in the hearing record or provided to the Board at its meeting.
The Board is understandably reluctant to foreclose public comment at this juncture, but is also concerned about taking action which may violate the rights of the applicant or intervenors to a fair hearing, thereby jeopardizing the Board's disposition of the application.
Discussion
The Board's primary focus at the hearing on the Application is economic; that is, whether the applicant can most economically and feasibly supply the electric service which is proposed and whether the service is really needed in view of the existing service's capacities. Neb. Rev. Stat. §
It has been held that matters decided by the Power Review Board after evidentiary hearing are contested cases within the meaning of the Administrative Procedures Act (APA). City of Lincoln v. Nebraska Public Power Dist.,
In contested cases, "[a]ll evidence including records and documents in the possession of the agency of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference." Neb. Rev. Stat. §
Comments made during the public meeting held after the hearing was concluded may come within the prohibition against ex parte communication. Consideration is not permitted of such comments or letters which had not been offered and introduced in the hearing, at least if they are factual or evidentiary in nature.
There may be countervailing considerations, though. The Legislature has declared that "[e]very meeting of a public body shall be open to the public in order that citizens may exercise their democratic privilege of attending and speaking at meetings of public bodies, except as otherwise provided by the Constitution of Nebraska, federal statutes, and sections
Therefore, this office is of the view that the requirements of the APA pertaining to contested cases would take priority and that evidence should not be entertained beyond that which was offered and received at the hearing.
We acknowledge that it seems somewhat odd to close the door to public comment when "public convenience and necessity" is one of the things to be considered by the Board and where the matter being addressed can have such far reaching impact. Some have criticized the use of the trial model in administrative settings because it excludes such opportunity for comment. See Charles H. Koch, Jr., Administrative Law and Practice, § 1.2 at p. 8 (2nd ed. 1997). The Board, by rule, has softened the exclusionary impact by establishing a procedure whereby persons may apply to intervene in the case. This provides them an opportunity to provide input within the context, and with the protections attendant to, a formal hearing. If the door is to be opened further, legislative action may be required. Another option would be to obtain on-the-record consent to entertain public comment. If all parties to the hearing agree to permit it, then they probably would have no basis to complain about it later, especially if an opportunity was afforded them for rebuttal.
Don Stenberg Attorney General
Mark D. Starr Assistant Attorney General
Approved:
_____________________________ Attorney General
In Re Nebraska Public Power District , 191 Neb. 556 ( 1974 )
Federal Land Bank v. Midwest Electric Membership Corp. , 223 Neb. 897 ( 1986 )
City of Auburn v. Eastern Nebraska Public Power District , 179 Neb. 439 ( 1965 )
Nebraska Public Power District v. Nebraska Safe Energy ... , 215 Neb. 8 ( 1983 )
McQuinn v. Douglas County School District No. 66 , 259 Neb. 720 ( 2000 )