I1204010 Transcript PHC 1

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SAN FRANCISCO, CALIFORNIA, June 25, 2012 10:13 a.m. * * * * * ADMINISTRATIVE LAW JUDGE VIETH: be on the record. We'll
This is the time and place
for the prehearing conference in Investigation I -- that's shorthand for Investigation -- 12-04-010. And the title of
the Investigation reads, "Order Instituting Investigation on the Commission's Own Motion into the Operations and Practices of Pacific Gas & Electric Company regarding Anti-Smart Meter Consumer Groups." I'm Jean Vieth, an Administrative Law Judge here at the Commission, and I will be conducting today's hearing. The assigned He is I am
Commissioner is Commissioner Florio. aware of the hearing. He may join us.
not absolutely certain what his schedule holds this morning. I want to apologize first to everyone regarding the confusion over the start time. Both the notice of prehearing
conference and the daily calendar reported this hearing at 10:00 o'clock. Somehow the
court reporters notice posted outside indicated 1:30, but I see that people -- some people I expected or surmised would be here
PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA
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are here, so I gather that you got proper notice. I also want to state that the Ecological Options Network told me this morning that they wished to videotape this morning's prehearing conference, and I told them that I would not permit that this morning. I had no notice of it, and I
advised both General Counsel and the Executive Director and Chief of Security. have been told General Counsel would look into the matter and would advise them on their opportunity to videotape in the future, should there be future hearings. This is an Investigation. It's an I
adjudicatory proceeding as categorized by statute, and it's the Commission in its most judicial role. It is my intention that
today's hearing go forward fairly and with decorum and civility for all. The fact that
there are serious charges alleged does not mean that we throw civility and decorum by the wayside, so I hope that's clear. And next I want to talk just very generally about prehearing conferences at the Commission. The OII specifically ordered me And
to convene a prehearing conference.
generally at the Commission, the reason for a
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prehearing conference is to ascertain who the parties are, what the issues are, particularly if one goes -- if we all go forward to evidentiary hearing, and then to set a schedule for that hearing if it's necessary to do so. Vis a vis this Investigation, my interest here today is a bit more focused. I'd like to leave this hearing understanding what facts are in dispute, my reason being if there are no material facts in dispute, there is nothing to try; what's at issue here from a legal standpoint, which requires briefs potentially if there's disputed legal issues; and what process, then, we need to develop to resolve this Investigation in a timely and orderly manner. Under statute, we have 12 months from initiation to resolve it, unless the Commission itself issues a Decision extending that time. And I'd also like to have a
clearer idea of the relief being sought. Therefore, I think the place to begin is with party status. The OII makes
the Commission's Consumer Protection and Safety Division a party. I have had several Those have
written motions for party status.
been filed, but I've not acted on them, and
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I'm gathering that there's going to be some oral motions here today. So let's go off the record just a moment. (Off the record) ALJ VIETH: Okay. Back on the record.
A little overlap here between requests for party status via these yellow appearance records and the written motions, but that's not a problem. The Commission rule that governs party status is Rule 1.4, which is entitled, And that
"Participation in Proceedings."
rule states, and I paraphrase, that one who requests party status, whether it be orally or in writing, must make a two-part showing. And the first part is that one must disclose who it is that seeks party status and the interest of the person or entity in the proceeding. Who it is and the interest.
And then the second major prong of the showing is one must state what the factual and legal contentions of that person or entity are and show that those contentions are reasonably pertinent to the issues already presented. And so I'm going to start with the oral motions. And I'm going to start with
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TURN.
Mr. Long, you are here today, but it
-- according to the form I've got, Mr. Nusbaum is going to be the lead; is that correct? MR. LONG: He'll be the attorney of I'm sort
record, that's right, your Honor.
of pinch-hitting the early stages of the case, but I'll be turning the case over to him. ALJ VIETH: So I think you understand
what I would like to hear from you this morning. MR. LONG: Sure. TURN is a We've participated
longstanding intervenor.
in numerous investigations over the years. TURN is a consumer organization concerned about the allegations presented by CPSD in its investigative report, and we're concerned and interested that this type of alleged behavior does not occur again. As to the factual and legal contentions, we are interested in supporting the contentions made by CPSD. We're
particularly interested and concerned about the allegations that higher-up officials, those who supervised Mr. Devereaux, appeared to have known about these e-mails, reviewed these e-mails. And we're interested and
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concerned about whether -- how PG&E dealt with that fact and whether appropriate actions were taken to prevent this kind of incident from occurring again. So that will
be one of the focuses of our participation. We're also interested in appropriate remedies, assuming the allegations are proven, including appropriate fines and other remedial measures. ALJ VIETH: And you would participate, No schedule has been But you intend to
how do you envision? set.
I understand that.
participate actively? MR. LONG: actively. We do intend to participate
We don't know whether we want to We would say at CPSD presented a
present testimony or not. this time it's unlikely. good report.
We have not had an opportunity
to review the unredacted version of the report yet, so we do not know all the facts yet. ALJ VIETH: And you would intend to
coordinate with CPSD to avoid duplication? MR. LONG: ALJ VIETH: Yes, we would. Very well. Then I'll grant
your motion for party status. MR. LONG: ALJ VIETH: Thank you. Next, I have --
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Off the record a moment. (Off the record) ALJ VIETH: Okay. Back on the record. I have three written motions.
One from a Joshua Hart, who also completed an appearance this morning, one from the EMF Safety Network, and one from CARE, which has also completed a yellow form. I'm sorry.
They're no longer called appearance forms. That's outdated nomenclature. Apologies.
The reason I haven't granted any of the written motions, in my judgment they're substantively defective. They don't answer
all the parts of the rules, but we can solve that this morning. We can address the parts What I've
that your written motion does not.
seen in the CARE and the EMF and the Joshua Hart motion is an identification of who each of you is and that you're interested in the staff report. In fact, most of those motions
cite portions of the staff report. But that doesn't tell me what your issues of concern are. It doesn't tell me --
it doesn't address at all the second part of the rule, which is the factual and legal contentions you wish to focus on. And it
doesn't tell me how -- and at this point without a schedule -- you envisage
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participating.
Is that clear?
I'd be happy
to try to explain this better or in greater detail if it seems fuzzy. MR. HOMEC: I'm Martin Homec, and I'm
representing Mr. Hart and CARE in this proceeding. ALJ VIETH: And Mr. Homec, you're no
doubt familiar with Rule 1.4? MR. HOMEC: ALJ VIETH: time. Yes. Let's take them one at a
Why don't we take your representation And if it's amenable to the
of Joshua Hart?
two of you and he wishes to address these questions, he certainly may. MR. HOMEC: Okay. I'll just speak
separately so the court reporter -ALJ VIETH: Absolutely. Speak
separately so the court reporter has a chance of taking down a transcript. Thank you for
remembering those words here from your days in the past. MR. HOMEC: ] Mr. Hart's organization was
the organization that was impacted by the allegations. There are e-mails and other
documents which we believe show that their privacy was invaded, their strategy was divulged, by some wrong activities by defendant. So what we would like to ask for
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is remediation or some remedy for that damage that was done that divulged strategy to the opponents of this particular anti SmartMeter campaign, and to do that we need discovery. And we believe that there's -- that there's more that we haven't seen and we would like the Commission to order Pacific Gas and Electric and other interested parties to provide all the e-mails and all the documents to Joshua Hart to review and then set up a new prehearing conference when we know the scope of the offense and what remedies we need. ALJ VIETH: Okay. I see. If I grant
party status -- well, let me back up from that. By statute what happens after this
prehearing conference, and you probably know this, Mr. Homec, is that the assigned Commissioner must issue a scoping memo, and the scoping memo will indicate the issues within the scope of this Investigation and the schedule. If I grant party status, you will be obliged to participate, if you choose to participate at all, within the scope of that scoping memo and in accordance with the schedule of that scoping memo. So I have
heard what you have said here today, and what
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I understand is you essentially want to expand the scope of the Investigation somewhat. MR. HOMEC: ALJ VIETH: Yes. And have you done some
preliminary research into the Commission's ability to offer the sorts of remedies you're seeking? MR. HOMEC: ALJ VIETH: I have. And you think those are
remedies the Commission can order as opposed to the Court? MR. HOMEC: ALJ VIETH: You know that? MR. HOMEC: better -ALJ VIETH: MR. HOMEC: By statute we cannot. Without the discovery we Right. So some of them are Some of them, yeah -We cannot award damages.
don't know the entire scope of the proceeding. We have viewed some of the
materials, but we don't believe it shows the full extent of the invasion of privacy of Mr. Hart's group. ALJ VIETH: You have seen -- I assume
you have seen the staff report version that PG&E attached to its motion for a protective order?
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MR. HOMEC: ALJ VIETH:
Right. You have read the OII and
you know there is a preliminary scoping memo in the OII. MR. HOMEC: In our experience we And we would
believe there's more than that.
like to conduct discovery and find it and then determine -- we will be participating in the proceeding, but we will just be concentrating on discovery instead of analyzing the information that's out there exclusively. ALJ VIETH: Okay. And I am
requesting -- let me ask one more question. Have you approached either CPSD or PG&E about discovery to date and discussed with them whether you might commence discovery under a nondisclosure agreement? sort of -MR. BOYD: MR. HOMEC: Hart did not. MR. BOYD: ALJ VIETH: Mr. Boyd. I filed -We will get to you, I am going to try to I hadn't. CARE didn't, and Joshua Has there been that
Thank you.
keep this on track with this party first. Very well. What I'm going to do is
grant Joshua Hart party status, but again,
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the proviso, that means you will be able to participate within the scope and schedule as the assigned Commissioner issues it. And
whether it is going to stray very much from the Investigation, which the Commission has already issued, I don't know. What I do know
is that the relief that the Commission may grant is rather narrowly prescribed by statute. The Commission can fine PG&E The Commission can perhaps
potentially.
undertake other sorts of orders vis--vis PG&E's practices and procedures. But the
Commission cannot award damages to a private party. The Legislature has not given us that
authority. Mr. Shapson, did you want to add something at this point? MR. SHAPSON: your Honor. I just have a question,
Thank you. Yes. The motion of Joshua
ALJ VIETH: MR. SHAPSON:
Hart, motion for party status, doesn't indicate that Mr. Homec is his attorney of record. And I am just wondering who I am
going to be communicating with or CPSD is going to be communicating with, Mr. Hart, if we need to substitute attorneys, or if I should be communicating with Mr. Homec or
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Mr. Hart directly? ALJ VIETH: Today Mr. Homec on behalf
of both CARE and Joshua Hart has completed this yellow form. And what happens with this
yellow form is the court reporter enters this information in the transcript and will pass it on to the Process Office. And what that
means, unless Mr. Hart tells us differently, is that you must -- as an attorney you must communicate with Mr. Homec who is his designated representative. If Mr. Hart wants to talk with you differently, then he needs to let us know that this yellow form was completed for different reasons than it would seem today. So let's go off the record for a moment. (Off the record) ALJ VIETH: Back on the record.
Mr. Hart, Mr. Homec, what is your desire here? We need to all be clear so that
people do not step across the bounds improperly. MR. HOMEC: Mr. Hart. ALJ VIETH: So if PG&E has questions I will be representing
for Mr. Hart or CPSD has questions for Mr. Hart, both of them should contact you?
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Likewise, any other party that we name today? MR. HOMEC: MR. HART: ALJ VIETH: Yes. Yes. Thank you. Sorry to be so
laborious, but it is so important to be clear. And Mr. Shapson, thank you for
raising that so that it is clear. MR. HART: Your Honor, if I may.
Your Honor, Stop Smart Meters and the other organizations who were the victims of PG&E's spying are engaged in activities and educational efforts to watch dog for public safety and health purposes. Instead
of engaging our groups in trying to resolve public issues of concern regarding health and safety of the SmartMeter program, at least one member of the PG&E staff, PG&E William Devereaux, according to the CPSD report, infiltrated and obtained e-mails. That is a We
matter of record in the Investigation.
seek full, unredacted copies to be available to the public. We believe that there is a
strong public interest in a corporation such as PG&E, identities of those who were involved in the spying and what they knew and when they knew it. We seek full public
release of e-mails, internal e-mails between the PUC and PG&E. And we consider this of
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significant public interest as well as of personal interest in the aspect that our e-mails were publicly divulged without our permission to the media, and we continue to be concerned about that, those violations. ALJ VIETH: Thank you.
There are at least two issues there. One goes to the motion for protective order which governs the -- it doesn't govern -- it concerns the staff report, and we will get there this morning. The issue of your
discovery with PG&E is something first -- or with CPSD -- is something first you must seek to work out with them. You must meet and
confer, you must explain what it is you want, and you must see if you can't resolve that. The Commission is not going to order here today either must undertake the sort of discovery that you are requesting. amount has been done already. A good
But as a
party, you need to consult with other parties first. That is just normal practice. Okay. I think we have dealt with
the issue of party status of Mr. Hart. And now, the next, which is kind of related, is EMF Safety Network. I will move
to that one next because I have the yellow form and a written motion.
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So whom do I have here representing EMF Safety Network? Off the record. ALJ VIETH: Back on the record.
Now I want to move to the issue of your request for party status. So I need to
tie the request more closely to our rules than your written motion does. So this is
your opportunity to explain more carefully not only who you are, but your interest and then the factual or legal contentions you are interested in here and the participation you seek. Thank you. MS. MAURER: Your Honor, could you
please explain for me the difference between TURN's participation and Joshua Hart's participation so I can understand where to direct my statements? Because I feel I am a
little confused about the parameters of participation. ALJ VIETH: I'm really not very able to
explain that because I don't control the desire of a party to participate. I don't
control that party's legal issues or factual issues. But I think you were here when Mr. Long spoke about TURN's interest, and he he was focused in particular, if I recount
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this correctly -- and please correct me if I do not, Mr. Long -- I am not going to ask the court reporter to reread the transcript because that is very time consuming -- but he said TURN was particularly focused on whether or not corporate officers at levels above Mr. Devereaux were knowledgeable of his activities and issues related to that knowledge, if it existed, and that he was interested in the issue of appropriate fine. Would that be correct, Mr. Long? MR. LONG: remedies as well. ALJ VIETH: Very well. Again, what I And other appropriate
have heard from Mr. Homec and Mr. Hart is that they have some desires to do -- they want remedies for the violations which they believe have hindered Mr. Hart and his activities but they can't say more about that until they've read the full report. also wish to do some discovery. granted that. They
I have not
I have explained to them they
need to go to the other parties. So this is your opportunity. Having
read the Commission Investigation, which is the Commission's charge, the Commission had the full staff report. It read that report.
And all Commissioners said based on this we
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have probable cause to commence the Investigation. We will turn to Mr. Shapson later, but the staff report really is drafted in such a way that they seem to want to move on very quickly. interpretation. At least that is one The case is made.
Let's talk about fines. Mr. Shapson may or may not agree with that. So what you need to tell me is it
doesn't really matter what TURN's interest is or Mr. Hart's interest is. What is the Does
interest of the EMF Safety Network? that help? MS. MAURER: explanation.
Thank you for that
Yes, it does.
While we filed both the motion for party status and we filed a protest for PG&E's motion for protective order -ALJ VIETH: Put the protective order
matter aside because we will get to that later. This is about party status. And you
explain basically what EMF is, EMF Safety Network, but in my judgment you don't explain exactly what you are interested in. You cite
a lot of the staff report, which doesn't help tell me what you're interested in. what the staff report says. I know
What are you
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interested in?
If you are granted party
status, how do you intend to participate here? What issues do you wish to pursue? MS. MAURER: Well, I am very interested
in the protective order and removing that so the public has access to who -- not only who were involved in this issue with Devereaux, but who were -- not only those at PG&E, but who also were the third parties involved. And particularly, there were people involved at the CPUC, because when you looked at the redacted documents you could see the e-mails were at the CPUC. ALJ VIETH: protective order. of your interest? interest lies? MS. MAURER: It is not just the You are interested in the Is that really the focus Is that where your
protective order, but who was involved, not just Devereaux, but who was involved. ALJ VIETH: MS. MAURER: Are there other issues? Yes. And the other issue
is that the EMF Safety Network was involved in a legal proceeding, Application 10-04-018, at the time that Devereaux attempted to, by lying to me through an e-mail, stating he wanted access to our discussion list. And
this was an EMF Safety Network discussion
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list that we had set up, and he lied trying to gain access to it, pretending that he was working against smart meters. ALJ VIETH: Where would that take you
to, to fines and penalties, or to something else? MS. MAURER: information. I am looking for
So I'm looking for the
information of who was involved and how did that affect our Application 10-04-018. ALJ VIETH: You understand I will not
be able to control the outcome of that Application? MS. MAURER: ALJ VIETH: I understand. Very well. I have the That's all.
charge of this Investigation. MS. MAURER:
So I am interested in both
what Joshua Hart and TURN's interest are as well. So the privacy issues where PG&E
claims to be interested in privacy but then they redacted documents, gave them to the CPUC, so all that. ALJ VIETH: ] Well, we're going to have a
complete discussion on the protective order. Bear with me. We'll get there. That's where I stand. That helps me better Then I will grant
MS. MAURER: ALJ VIETH:
understand your interest.
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the request for party status with the same proviso. You will be obliged to participate
within the scope and schedule of the assigned Commissioner's scoping memo. MS. MAURER: ALJ VIETH: I understand. If you have discovery
interests, you must first approach CPSD and PG&E and meet and confer with them and attempt to work out your access to the documents you're after. very much. MS. MAURER: ALJ VIETH: Thank you. All right. Now, let's go And CARE -Okay? Thank you
back to the last, which is CARE.
I guess Mr. Homec is speaking for you today, Mr. Boyd? MR. BOYD: Well, I can probably state
interest better than he can. ALJ VIETH: Well, we're going to need
to know, just as Mr. Shapson asked about Mr. Homec's relationship with Mr. Hart. We're going to have to know -- all the parties need to know whether Mr. Homec speaks for you and he's the one they should contact or go to you directly. out. And let's work that
Lets go off the record and work that
out, whether Homec represents you or you represent yourself.
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Off the record. (Off the record) ALJ VIETH: Back on the record.
So what's the resolution, please? MR. HOMEC: I am going to represent
CARE, but for this proceeding, the prehearing conference, Mike Boyd, whose the President of CARE, will explain his two issues. ALJ VIETH: Okay. Please, Mr. Boyd,
explain for me under Rule 1.4(b) who you represent and your interest in the proceeding. That's number one. And then
number two, the factual and legal contentions you would pursue and develop if you were a party and how they're reasonably pertinent to the issues already presented. MR. BOYD: Essentially, what Mr. Homec
said about Mr. Hart applies for CARE as well. ALJ VIETH: MR. BOYD: ALJ VIETH: please. MR. BOYD: CARE is the fiscal sponsor Okay. You tell me --
CARE's interest is --- what the interest is
-- was the fiscal sponsor -- during that fiscal year, CARE was the fiscal sponsor of Stop Smart Meter. ALJ VIETH: MR. BOYD: And what does that mean? If you'll notice I attached
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a part of my 990-A IRS form. ALJ VIETH: You did, and I don't
understand what that means. MR. BOYD: And what that is is I have
to file a 990 form to the IRS and it has an attachment called a Schedule A. ALJ VIETH: MR. BOYD: Okay. And Schedule A I have to
list other organizations that CARE is supporting and StopSmartMeters.org was listed for that fiscal year when this occurred. ALJ VIETH: What does it mean, that you
support Stop Smart Meter? MR. BOYD: That means the contributions
that went to care went to Stop Smart Meter's educational activities. ALJ VIETH: the sum is? MR. BOYD: my head. I don't know off the top of Can you say publicly what
It's probably 20,000, roughly. Okay. That's helpful.
ALJ VIETH: MR. BOYD:
We have an interest
obviously when one of our supporting organizations is -- has had their privacy breached. indirectly. It obviously could affect CARE But we have a direct interest in
that CARE represents ratepayers and customers of PG&E and has participated historically in
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investigations like this where there's -usually it's a complaint. I remember one --
one deal with the Tracy pipeline. ALJ VIETH: though. MR. BOYD: ALJ VIETH: OII. MR. BOYD: The staff report is -- is Okay. Essentially -Okay. Focus on this one,
The staff report and the
good, but we can't see all the information. We would like to get a copy of PG&E's internal report. ALJ VIETH: interests. MR. BOYD: interest. ALJ VIETH: But what are your factual We have a discovery So you have discovery
and legal issues what are you interested in? MR. BOYD: The legal issues are that
we're -- we're interested in making sure that the penalty is commensurate with the violation. ALJ VIETH: MR. BOYD: Okay. We would like to ensure that
the penalty is sufficient to change PG&E's behavior. We also would -- we don't believe
penalties in themselves are -- are going to fix it. What we need is remedial measures.
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We need to identify some kind of remedial plan to prevent this type of thing from occurring again and then adopt some kind of compliance plan so that we can, you know, regularly, maybe with CPSD, develop some way to monitor PG&E going forward so this type of thing never happens again. And ultimately,
that could lead to policies that apply to all utilities for this type of thing. ALJ VIETH: MR. BOYD: certainly. ALJ VIETH: MR. BOYD: Okay. But there could be a good Not in this proceeding. Not in this proceeding,
precedent that comes out of what remedial measures and compliance enforcement measures go along with the penalties. So that's
essentially what we're looking for, preventing it. ALJ VIETH: Okay. I will grant the
request for party status, but it's the same proviso. scope. And let me make a comment about intervenor compensation in case there are some of you here seeking intervenor compensation. The Commission is not going to You're going to be limited to the
award all of the costs and fees for
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duplicative effort.
If you're all going to
do the same thing and incur $10,000 in costs and fees, you should not expect that the Commission will award $10,000 to each of you. So this has to be focused public service. We already have a governmental party involved, CPSD. So at the minimum there's
going to need to be some sort of coordinated effort to see what it is you're going to do if the scope includes issues that CPSD has not already fully developed. Okay? I mean,
this as a heads-up so that you're not surprised, because I think that would be very unfortunate. And I gather some of you have not participated at the Commission a lot. Maybe
for some it's the first time, maybe just a few times. The Public Advisor can help you
if you have questions about intervenor compensation rules, statute, and rules implementing them. And that is the role of Okay? Any
the Commission's Public Advisor. questions for me at this point? Yes, Ms. Maurer? MS. MAURER:
Your Honor, is the DRA
representing CPSD this morning? MR. SHAPSON: MS. MAURER: Oh, no just use it -Oh, I just saw,
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"Mr. Shapson, DRA." MR. SHAPSON: ALJ VIETH: No, we just recycle. Mr. Shapson, why don't I
turn to you and why don't you tell us all who you are and who you represent? MR. SHAPSON: Mitchell Shapson and
Mr. Christopher Clay are the attorneys for CPSD on this investigation. In terms of the
service list, I'm not sure which one of us is listed as the party and which one is on state service. I don't think it really matters to
either one of us. ALJ VIETH: lead? MR. SHAPSON: ALJ VIETH: Let's make Chris lead. Off the record. Okay. Which should be
(Off the record) ALJ VIETH: Back on the record.
As necessary, the list will be corrected to show Mr. Clay as lead. MR. SHAPSON: Thank you, and I will be Here with
listed as state service I believe.
us is Linda Wood, the supervisor from CPSD who is overseeing this case. ALJ VIETH: Thank you. And I'll have
some questions for CPSD in due course. MR. SHAPSON: ALJ VIETH: Thank you. All right.
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Off the record a moment. (Off the record) ALJ VIETH: Okay. Back on the record.
Now I want to turn to the motion for -- by PG&E for protective order. And those
of you who have party status may all participate in the discussion. Okay? We've If
cleared up who is or who is not a party. you're a party, you may participate.
I do not know whether I'm going to rule on that motion today. this reason. I may not for
I know that both TURN and EMF
Safety Network tendered responses or protests variously titled to the docket office, and those were not filed because only parties may file pleadings. So now you understand better
why we had to get the party status situation sorted out. I may simply let you file those,
let PG&E file a response, let others file a response who have not. But I want to get a
little more information first. And so, Mr. Shapson, let me turn to I'd like to understand how we got from
OII and a sealed staff report to PG&E motion for a protective order with a redacted staff report attached, just the series of events that occurred. Off the record.
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The OII directs PG&E to file a We got a motion. We got a staff DRA did
report that's partially redacted.
not respond to my knowledge -- I misspeak. CPSD did not respond to my knowledge to the protective order. PG&E? Is CPSD in accord with
Did PG&E and CPSD meet and confer and
agree that this is what would be attached to the PG&E motion? I don't know what CPSD's
view is, and I don't know how we got to the place where we are right now. So off the record meet and confer if you need to. Let me know when you're ready
to speak, and we'll go back on the record. (Off the record) ALJ VIETH: record. Mr. Shapson? MR. SHAPSON: Yes, your Honor. CPSD We'll be back on the
has investigative authority and is, as a matter of statute, privy to a lot of confidential information from the utilities that are regulated by this Commission. As a result of that, the normal course of an investigation -- any investigation, keeping in mind that some of
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that confidential information has to do with contract identifiers or purchase agreements or prices fro energy when there's a competitive market out there. And statute
requires us to keep that information confidential. legislature. As a result of that, during the normal course of any investigation, whether it's resource adequacy or something like this kind of a case, the normal procedure is to do the report, base the Order Instituting the Investigation on the report. The Commission We're duty bound by the
votes out the order, but the report is kept confidential until the utility has an opportunity to make a motion to protect the information that it considers confidential in that report. That's pretty much, as I
understand it, what happens in any investigation, whether it's energy, water, or telecommunications or transportation. So nothing really unusual happened procedurally in this case. In terms of the
redacted information, my understanding is that PG&E is going to be addressing that with the -- with the parties. Generally speaking,
identity of IOU employees is kept confidential. If a particular name needs to
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come out because of the factual or legal analysis that is required in that particular proceeding, then that's something that intervenors or CPSD can work out with the IOU. So based on that, we followed the
procedures here and did not oppose the motion. ALJ VIETH: for you. I have one more question
Is it -- we'll get into the motion
in greater detail, and we'll get into specific redactions at least in a descriptive, discussional way. But is CPSD's
position that names of CPSD staff are properly redacted from the report? MR. SHAPSON: ALJ VIETH: MR. SHAPSON: Well, as I said -In this report? -- in the general course, If a
employees' names remain confidential.
particular name needs to come out because of their particular involvement, that's something that can be worked out either by way of a discovery motion by parties or an agreement with PG&E. ALJ VIETH: Okay. But when you're
speaking of employees, are you speaking of both PG&E and CPSD? I'm interested in your
view in the redaction of the names of other CPSD employees.
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MR. SHAPSON:
Oh, I was not aware of --
I don't think there's any Commission employees, whether they're CPSD or other wise, redacted from the material. ALJ VIETH: MR. SHAPSON: address that. ALJ VIETH: Perhaps I misread the Okay. Okay. We'll get to that.
If there are, I'll
report, but I thought that there were. Let's get into this then.
At least if we
have a general discussion, it may help us see where to go forward. Let me make perfectly clear that to the extent names or other information have been redacted by PG&E, they may not be disclosed in this hearing room without my order. Okay? We don't mention them. It
doesn't mean they're shielded from public view for all time. But if for example, CPSD
has a unredacted report, as I expect it does, you may not read the redacted portion today without an order that it be released. want to be very clear about that. goes for PG&E. I just
The same
And if there is another party
that has obtained a copy of the unredacted report, same rule. Okay? This is just the
way we deal with this carefully and move forward carefully.
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Okay.
I looked at the staff report.
I looked at the redacted version attached to the PG&E motion quickly. And it appeared to
me that there are several documents, Attachments 1 and 11 in particular, that consist of some internal CPUC e-mail or documents submitted by CPSD to an entity other than PG&E, and that the names of the PUC staff are redacted. And I'd like to know If you If
if CPSD has a view of that today.
need to take a look at it, let me know.
your request is you'd like to brief it, let me know. Go off the record. (Off the record) ALJ VIETH: Back on the record.
Yes, Mr. Shapson. MR. SHAPSON: For the most part, CPSD
does not believe that the names of the CPSD employees need to be protected as confidential. We'd like to take a day or
two, go through, make sure that there's nothing we're missing with regard to Attachment 1 and 11, and communicate to the service list a finalization of that statement. ALJ VIETH: MR. SHAPSON: And to me. Yes, of course.
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Absolutely. ALJ VIETH: accept that. Why don't you send -- I'll
Rather than requiring you to
file a response to the PG&E motion, please send an e-mail to me and copy the entire service list. MR. SHAPSON: ALJ VIETH: Thank you, your Honor. Okay. And while I thought
I saw such redactions in Attachments 1 and 11, please carefully look at the entire report and see if there are other such redactions. And focus exclusively on the
names of PUC employees or perhaps lengthier text if it's PUC generated. If it concerns
PG&E, you're going to need too meet and confer with PG&E. MR. SHAPSON: ALJ VIETH: Thank you. You're welcome. Is there
-- I think you -- it's pretty clear what I've asked CPSD to do. Are there any of you who
want to weigh in and argue or comment at this time about your view about the legality and propriety of redacting CPSD or other PUC employee names? remarks now. MR. BOYD: ALJ VIETH: MR. BOYD: I had a question first. Mr. Boyd, yes. I heard mention of redaction If so, I'll allow brief
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and protection of CPUC employees. about PG&E employees. of PG&E? ALJ VIETH: about. MR. BOYD: No, I'm asking.
I heard
What about customers
That's not what I'm talking
Is that the
same -- do the rules of the PUC regarding investigations -ALJ VIETH: there yet. MR. BOYD: ALJ VIETH: step-wise. Okay. That's fine. Mr. Boyd, we haven't got
We have to take this very
Other wise we'll get confused. That's fine. I'll address
MR. BOYD:
the issue, which is as far as CPSD or some other CPUC employees names be redacted, it seems kind of the opposite of what the purpose of being a public servant is. mind, we have a right to know what the public's business is and whose doing the public's business. So for my mind, unless In my
there's some overriding consideration that would require that be protected -- I know that in the case of police officers that they've been forced to disclose their names even though they may have killed someone in a police shooting. Why would a -- why would a -- a
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civil matter like this, where we're talking about what's clearly a civil matter -- why would there be any -- why would there be any justification for redacting that information? ALJ VIETH: in? Mr. Hart? MR. HART: Your Honor, at issue in this Anyone else wish to weigh
case is to what extent Devereaux acted alone, as PG&E initially claimed in reports to the media or whether this was a strategy of PG&E's stop executives so -ALJ VIETH: Right. But Mr. Hart, right
now we're talking about redacting the names of PUC staff. So if you could focus on that,
it would help me a lot. MR. HART: So to the extent that that
one man, Willie Devereaux's, spying was known about and discussed with staff at the Public Utilities Commission, that is of overriding public interest in determining the remedies for this case and determining whether in fact this was an isolated incident of one man act willing alone or whether this was something that was known about for months at a time and where action could have been taken but wasn't. That's -- that's simply identifying
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staff who were in communication that would show up in these e-mails that we're discussing is of overriding interest to the public and our community groups. ALJ VIETH: Okay. Thank you. And
again, we're just focusing on the names of Commission staff at this moment. Thank you, Ms. Maurer. MS. MAURER: Yes, CPST -- CPSD, they And
said they didn't know of any CPUC names. I have a redacted document here where it's
redacted and it says, "@CPUC," so I just want to -ALJ VIETH: MS. MAURER: ALJ VIETH: We took a little break. Yes. And they discovered they
were mistaken and they're going to look into that and take some further steps. MS. MAURER: ALJ VIETH: longer. MS. MAURER: Because the EMF Safety Okay. Okay.
So that's not an issue any
Network is listed in on some of these e-mails that are associated with the CPUC e-mails. ALJ VIETH: But we're just looking at
CPSD and other Commission staff names in these e-mails. Mr. Shapson?
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MR. SHAPSON:
I'd just like to remind
the Court and parties that the redactions were done by PG&E and not CPSD. ALJ VIETH: Exactly. And that's
exactly why I asked what the steps were to get to the redacted report and whether CPSD intended to agree or object or weigh in at all. And we've got past that now. MR. SHAPSON: ALJ VIETH: MS. MAURER: question. ALJ VIETH: MS. MAURER: Yes, Ms. Maurer. Why are we working with Thank you. Thank you. Your Honor, just one
documents that are redacted by PG&E and not CPSD? Why do we have documents -- I mean, is
the motion by PG&E for protective order -does this include redactions that are done by the CPSD? ALJ VIETH: The motion by PG&E asks
that this report prepared by the Commission staff be redacted in the way PG&E has requested. And the fact that PG&E requests But I
it doesn't mean that PG&E gets it.
have to be very careful and take the types of redactions one at a time and get discussion about them and figure out what the sensitivities are and whose interested. When
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the report came to me, it was sealed.
portion of the report is now attached to the PG&E motion. MR. VALLEJO: ALJ VIETH: MR. VALLEJO: Your Honor, if I may? Mr. Vallejo? Thank you, your Honor. I
Alejandro Vallejo on behalf of PG&E.
wanted to maybe clarify the steps that PG&E took. ALJ VIETH: MR. VALLEJO: Thank you. It's in our motion, but
it might help elucidate our discussions. ALJ VIETH: MR. VALLEJO: Thank you very much. And really, the purpose
of the redactions and -- and the intent of PG&E was to be circumscribed and limited in our redactions. We redacted what we thought
were individuals' names that had not been previously disclosed in media reports. So
names that were already in the public sphere, we did not redact because we felt those were already publicly available. Other names, such as CPSD staff, such as certain individual customers were also redacted from a privacy perspective. again, we limited our redactions to individuals' names that had not been previously disclosed in the -- in several So
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media articles that resulted from this incident. I just wanted to give the Court a
little bit of the background on it. ALJ VIETH: Okay. Thank you. Again, based on my own quick
review, I'm just going to highlight a few things where I think some additional consideration may be required. My
highlighting these things doesn't mean that I am not concerned about anything else. gave it a once-over to see, based on my experience with requests for redaction, requests to essentially seal portions of a document, whether there was a coherence with my own recollection of the law. additional research. I should say to all of you that I take very, very seriously requests to seal documents from public view. I do believe I did no I just
that there are things that should not be released at the risk of harm to the public, to infrastructure is too great. But I take
very seriously my signature on a ruling that orders something be excluded. very careful with this. And so I'm
I want to see legal
rationale and, in some instances, declarations with those who have factual knowledge as to the facts averred. That's
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why this may seem laborious to you, but I take it very seriously and we're going to go very, very carefully. I am not going to rule today, but I'm hoping that by this general discussion, we won't have additional pleadings that are just running past one another, that they may be better focused and that you may be able to meet and confer and reach some accommodations that are objectively lawful. Okay?
So another thing I saw, and this is for you, Mr. Vallejo, in some places it seemed to me that PG&E -- well, I think PG&E has almost always redacted names of officers. But in some places, I saw titles redacted and not others. And that seemed to me to be an There may be a logic, but it There's specifically a
inconsistency.
wasn't clear to me.
section of text where names and titles are redacted. But elsewhere, there are charts
and so forth where names are redacted but not titles. again. MR. VALLEJO: Okay. Certainly will. So I think you ought to look at that
Would your Honor like me to address any of that now or just hold off? ALJ VIETH: If you know exactly what
I'm talking about and you have an argument
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that it should be -- that practice should be maintained, why don't you let us here it? MR. VALLEJO: And I'll caveat this with
saying that I'm -- I will go back and take a look and address it more fully as your Honor has requested. My -- my initial thought is
that when we redacted individuals' titles was when they were tied to specific activities. So there I think are portions in the CPSD report that speak generally to the corporate structure but don't specifically tie actions or e-mails or incidents to that general corporate structure. ALJ VIETH: Okay. Mr. Vallejo, take
another look at the report and the attachments, and you can let me know by e-mail if you're changing your position -and of course a copy to the service list. Before we leave, we'll have a date for all of those changes of view to be communicated, and then we'll see what needs to -- we'll set a date for additional briefing as necessary. MR. VALLEJO: ALJ VIETH: Very well, your Honor. Attachment 2, I know the
allegation is that these are personnel records. The entire document is redacted. I
think you need to make a better case for that and declarations. It isn't clear to me that
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this is not an internal report that could be something other or at least part other than personnel reports. And particularly I'll say
hypothetically, PG&E's factual assessment is the same as CPSD's. exclude all of that. MR. VALLEJO: as well, your Honor. ALJ VIETH: Thank you. I don't even remember Let me check myself. Same sort We'll take a look at that I wonder at the need to
Attachment 5. what Attachment 5 is.
Something that was fully redacted. of request.
Should it be in the entirety?
I'll tell you that my own view with boilerplate contracts, for example, is that there may be provisions in a certain sort of case, procurement case, where some information should not be publicly viewed. But the title, some of the boilerplate provisions -- my own view, absent specific authority that says seal it all, is that you've got to isolate what really is critical. overview. Now, I know there are people who want to make arguments that certain information was redacted that shouldn't be or certain information wasn't redacted that Okay. That was my own quick
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should be or perhaps there should have been some meet and confer. first. Mr. Long? MR. LONG: Yes, your Honor. I would And I'll hear that
like to first ask that TURN's tendered response be filed -- be allowed to be filed with the docket office. ALJ VIETH: MR. LONG: ALJ VIETH: Granted. Thank you. While we are on that, EMF ]
Safety Network likewise tendered a protest of motion, and I will ask the docket office to file that. MS. MAURER: be filed. MR. LONG: Your Honor, at the Thank you. So both will
appropriate time I would like to speak to PG&E's motion. ALJ VIETH: Okay. Just a placeholder,
we are going to come back and talk about a date when both PG&E and CPSD will report back to me on their re-look at what's redacted and assessment, if we can't narrow that. And
then we will have a smaller group of issues to continue to talk about. Placeholder on that date. Mr. Long, yes, you may address Okay.
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PG&E's motion. MR. LONG: I would like to begin by
discussing the general principle regarding privacy. PG&E correctly cites the individual right of privacy in the California Constitution, but they omit another equally important Constitutional provision, which is that the public's right of access to information concerning the public's business. This was added to the California Constitution a few years ago and perhaps PG&E did not know about it. Otherwise I would have expected
them to cite it. And I'm going to be citing occasionally to a recent Court of Appeal Decision. The Decision is Marken versus
Santa Monica Malibu Unified School District. And the citation is 202 Cal App Fourth 1250. ALJ VIETH: Off the record.
(Off the record) ALJ VIETH: MR. LONG: Back on the record. This is a Decision that
discusses the general principles governing privacy and points out that the right of privacy needs to be balanced against this countervailing public right of access in the California Constitution and also points out
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the very important principles that are served by openness in government. So I commend this Decision to the Commission and the parties. One exemption -- of course, the general principle is that public records should be made public. principle. That is the general
However, there are exemptions set
forth in the law, and one of those exemptions is cited by PG&E for personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. This Decision makes clear that exemption is to be construed narrowly. not to be given a broad reading. It is
And this
Decision interprets it in a very interesting case, which will get to in a moment, in a very interesting way. But the concerns that TURN has with PG&E's motion, and I will caveat that by pointing out that not having reviewed the unredacted version, we don't know if there are other -- we don't have a full sense of the document, and therefore there may be other concerns that we are not able to articulate at this point. But at least for The first is
now we have two broad concerns.
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the redaction of the names of other PG&E employees who reviewed e-mails that were sent by Mr. Devereaux and any of those employees who had the ability to stop what Mr. Devereaux was doing we believe are very important to include in the public record. On the face of the CPSD report it appears that those individuals, like Mr. Devereaux, violated the law. They should
not have allowed Mr. Devereaux to engage in the deceit that he did to the effect of infiltrating these groups in a deceitful manner. The CPSD report makes a very good case that these individuals were aware of what Mr. Devereaux was doing. They received
e-mails, reports from him about what was going on. And therefore, there is a good
case that they were complicitous in what he did. As I said, they had the opportunity to
stop his actions, his improper actions. Now, I return to this Decision I was just citing. This Decision speaks to this precise issue. It is when you have an allegation of
misconduct by individuals and a claim that their identities should be kept confidential, what is the right thing to do? In this case
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the situation was a school teacher was alleged to have engaged in sexual harassment of a 13-year-old student. There was a report
done and allegations were made and they were deemed by the school district to be allegations that were likely to be correct. There was no final determination, but they were deemed likely to be correct. In this instance -- there was a request to have the name of the teacher admitted -- the report allowed to be disclosed to the public. And the Court
determined that that report should be disclosed to the public. And the standard
they use is the one that should be used here. And let me just get to that standard in a moment here. The standard is where there is reasonable cause to believe the complaint to be well founded, the right of public access to related public records exists. And that's
exactly what I think we have here, your Honor. We have a situation where there's a
well founded allegation that officials at PG&E who had the ability to stop what Mr. Devereaux was doing, to stop his deceit, did not do that. allegation. It is a well founded
And based on that, your Honor,
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we think their names should be part of the public record. So I would strongly urge all I think it is right
to review this Decision. on point.
So that's one concern we have is the names of those who had the ability to stop Mr. Devereaux's conduct. And the second that we addressed in our response was the internal investigation report which has been completely removed from the CPSD report. Again, I think that is
based on the Public Records Act exemption for personnel files, et cetera. As I have
already said, that exemption is to be construed narrowly. But this report is
potentially extremely relevant here, and not reviewing it, we are not in a position to see what privacy interest is being protected. But it sure seems to have the opportunity to protect an interest of PG&E's that should not be shielded from public scrutiny, and that is whether PG&E did a full report or whether it did a report focused only on the conduct of Mr. Devereaux and did not examine the conduct of potentially or apparently culpable conduct of officers and others who had the ability to stop what Mr. Devereaux was doing. And that would be extremely
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important.
The only way to know that is to
see the report in order to see the full scope of the issues identified that were addressed in the investigative report. For that reason
I think the public has an extremely strong interest in seeing the entirety of that report. Those are the two issues we wanted to focus on. As I mentioned, we would like to reserve the opportunity at some other time when we have an opportunity to review the full report to potentially raise other issues that may come to mind as we have that opportunity. ALJ VIETH: Thank you, Mr. Long.
As I stated earlier, I take this motion for protective order very seriously, as I do take any request to seal documents. And I'm not going to rush in to grant or deny the motion. Mr. Vallejo, would you like to respond to Mr. Long, or would you like to hear the concerns of others and then respond to all later? What is your preference? If I could, your Honor, I
MR. VALLEJO:
would just like to respond to a couple of points.
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ALJ VIETH:
You certainly may.
You understand, all of you, that I'm not ruling today. So lengthy arguments will
not cause your case to prevail. Thank you. MR. VALLEJO: Understood, your Honor.
I promise to keep it brief. I just wanted to raise two issues with regard to Mr. Long's contentions. The first is that PG&E is the only respondent here. The individuals to whom the
e-mails purportedly went are not individual respondents. I suspect, and I haven't had a chance to review the case, but I suspect that the Santa Monica case was a disciplinary action against an individual, an individual teacher. So I think that is a substantive
and material difference that may distinguish that case. that later. The second issue on the investigative report that PG&E put together, and this I just want to underscore, it is in our motion but I do want to underscore it for your Honor, it is our position that we don't have the right to waive an ex employee's right to privacy. If we are ordered to do so But, of course, we can address
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by the adjudicatory body, of course, we will do so. But we feel that it is the Company's
duty to protect current and former employees' rights of privacy under the Constitution. Otherwise, we would be derelict in our duties in potentially waiving some individual's right to privacy that we don't have the right to do. And then the last point I wanted to make is that we are open and we remain open to the types of measures that your Honor has alluded to, like nondisclosure agreements, where the parties can take a look at the different documents and certainly that the CPUC and CPSD has full access to the entire record. Thank you, your Honor. ALJ VIETH: briefly, please. MR. BOYD: ALJ VIETH: MR. BOYD: Yes, your Honor. Thank you. First, counsel for PG&E made Yes, Mr. Boyd. And
an incorrect statement when they said that they redacted former employees' names. Mr. Devereaux's name is all over these documents and he is a former employee, is my understanding. So that speaks for itself.
My concern with the motion is
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twofold:
One, I don't think it complies with
the requirements of the California Public Records Act, and that doesn't specifically list what exemptions allow it to protect information they are seeking to protect under the Public Records Act. The only exemption
that I'm aware of that might apply is law enforcement investigation. And from what I'm
hearing from the law enforcement entity involved, that's not something they're seeking. It is something PG&E is seeking. The other issue I'm concerned about is the implication that somehow there's contractual information or procurement information or anything of that sort. I have
participated in confidentiality proceedings for a while. I helped develop the matrix And whatever is
developed in D 06-06-066.
protected, it has to be on that matrix, is my understanding, for it to be subject to that protection, unless of course you can show an exemption under the Records Act or some other statutory authority. So, essentially, what I'm saying is just -- it is a general claim of protection. It doesn't give me any specific statutory authority to protect information they are seeking.
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ALJ VIETH:
What would help me is to
know if CARE is asserting a particular right to see something apart from a disclosure agreement, if you are concerned about specific redactions. MR. BOYD: I am concerned about
redacting any of the executives or other employees that participated in this conspiracy to violate our rights to privacy. ALJ VIETH: MR. HART: ALJ VIETH: Mr. Hart. Your Honor -So now you have sort of
carte blanche to talk about your concerns with the motion and redaction of any type of information. Okay. Your Honor, we seek full
MR. HART:
unredacted version of the investigation being put forward, not only the CPSD investigation, but the PG&E internal investigation. I want to note that this initial investigation was indeed released to the San Jose Mercury News and to the San Francisco Chronicle along with about 900 to a thousand pages of these heavily redacted e-mails by PG&E. In other words, the redactions were
carried out by PG&E specifically redacting much of their own e-mails and specifically their own identities but leaving the
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identities and the e-mails of those private correspondences that were spied upon, releasing those publicly. So we will argue, we would support what Mr. Long has asserted, and we would argue that public figures such as regulated utility executives have a reasonable expectation that their activities, particularly in a case like this where there is an infiltration and identity falsification in order to gain access to a private outside group, that the work and that their violations of the law are subject to public knowledge. No one is asking for the private home records of the -- private home addresses of the executives, simply the identities of who knew what, what they knew, when they knew it. In terms of the release of these identities, it is in the public interest, as Mr. Long indicated, to ensure that this kind of thing never happens again, that Pacific Gas and Electric and other utilities with the responsibility to serve the public conduct their business openly, transparently and honestly. And by redacting their identities,
it would make that significantly more likely
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to happen again, that future executives may feel like they can carry out such clandestine privacy invading activities and be shielded from public knowledge about their identities. So PG&E in their protective order request raises this issue that their employees may be subject to threats to their safety if their identity is released to the public. However, they give no public
substantiation or backing of that assertion. And in reality, many PG&E employees -- many PG&E customers have suffered direct impacts to their safety, including at least one incidence of assault from a smart meter installer on a resident. And without any
kind of substantiation of that, it's an idle assertion. There's no backing to that. So we would argue that -- we would request that the protective -- request for protective order is dismissed in full and that the entire investigation be made public. ALJ VIETH: Mr. Vallejo, would you like
to respond to Mr. Hart and Mr. Boyd at this time, or shall we let Ms. Maurer speak and then you address further remarks, assuming they are reasonably aligned in your view. MR. VALLEJO: ALJ VIETH: Sure. Ms. Maurer.
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MS. MAURER: ALJ VIETH:
Thank you, your Honor. So you can talk about the Okay.
motion, any category of information. MS. MAURER:
EMF Safety Network filed
an Application 10-04-018 in April of 2010 on smart meters. We were asking for independent
studies on the RF, the radiation component of smart meters. We were asking for evidentiary And we were
hearings on health impact.
asking for performance impacts of the actual -- performance of smart meters. And
in this report it is shown that -- so this proceeding, the RF Application, was dismissed in December of 2010. So during the time that our Application was alive here at the PUC, PG&E, Bill Devereaux, who is the head of the SmartMeter program, met with the CPUC ten times. And some of the meetings were about
smart meters and about the RF technology. And I can see -- from what I can see with the redacted documents, the EMF program manager PG&E Michael Hurst was involved in this. And
this very much concerns us because we worked against odds to learn how to file at the PUC and how to work at the PUC, and we made every good faith effort to do so with all honesty and integrity. And instead of holding --
instead of opening a proceeding so we can
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really look a these issues, our issues -- the issues -- it appears that issues may have been discussed between CPUC and PG&E behind closed doors. EMF Safety Network never received any invitation to any of these events nor were any ex parte -- there were no ex parte filings from PG&E in that case. On top of that, Devereaux was gaining access to information. We held a
protest at one of their deployment yards in Rohnert Park, and when we showed up, PG&E -nobody was there. They had moved all of the So
equipment out of the deployment yard.
they had previous access to information. They planned an entire move of a deployment yard. And then from the redacted documents,
again, we could read that what then PG&E did is they sent someone over to take pictures of us and then to report back to PG&E what we did when we found out nobody was there. So that contrast between trying to raise awareness of this issue, learning the ropes at the PUC and doing so in good faith, to be treated by this corporation in this manner is, I don't know -- what's a good word for it, Mike? -- is unpalatable. Ms. Maurer, to bring you
ALJ VIETH:
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back to this proceeding and what that means for this proceeding and what relief you're seeking here, the Commission, for example, could require -- could order, ostensibly, potentially in this proceeding, that ex parte contacts, notices of ex parte contact that were not filed, if it is true, be filed. that the kind of relief you're seek? seems unclear to me. It Is
But I cannot order that
your proceeding be reopened, for example. That is another kind of matter. MS. MAURER: This is the purpose of
wanting the documents to be unredacted, so we can see what was really going on and who was involved. That's what I would like. I would
like to see the documents unredacted. ALJ VIETH: You would like to see
disclosure of more information. MS. MAURER: ALJ VIETH: you. I think everyone has spoken. Mr. Shapson, do you have something to add at this point? MR. SHAPSON: Honor. ALJ VIETH: Mr. Vallejo, would you like Nothing to add, your Exactly. Okay. I understand. Thank
to -- if you wish, you may respond to the
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remarks of Mr. Boyd and Mr. Hart and Ms. Maurer. MR. VALLEJO: I think most of our I
response is in our papers, your Honor.
think there was one comment made that we are being inconsistent by not redacting Mr. Devereaux's identity. As I mentioned at
the outset, we were circumscribed in our redactions and specifically excluded anybody's name who had already been disclosed in the public sphere or media. His name was
clearly disclosed all over the media, and that is the reason why we chose not to redact his name. As to the other allegations, that I think should probably be addressed in the scoping memo and the proper parameters for this proceeding. So I think I'll stop there, your Honor. ALJ VIETH: Off the record.
We will be in recess until 10 minutes of twelve. (Recess taken) ALJ VIETH: Back on the record.
First, let's set a schedule for
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dealing with this motion for protective order. I would like PG&E and CPSD to come back to me on the same date, relatively soon, with answers to questions raised earlier. And what I'm looking for as a response is a narrowed group of redactions so that the continued discussion of what should or should not be redacted is more narrowly focused. CPSD is going to look into the issue of names of -- redaction of names of CPSD and other Commission staff. And PG&E is going to
look at several things, all reflected on the transcript. myself. So, Mr. Shapson, have you got a proposal? MR. SHAPSON: I just wanted to make I am not going to try to repeat
clear for the record that CPSD's response to your Honor's question is going to be essentially whether we object or not because we did not make the motion to protect this information. ALJ VIETH: But I would like that I
response to be very narrowly focused.
would like -- if you object, I want to know what page, what line. MR. SHAPSON: Absolutely.
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ALJ VIETH:
Okay.
Thank you.
So we're
on the same page, so to speak. MR. SHAPSON: ALJ VIETH: that, Mr. Shapson? MR. SHAPSON: of the week. We can do it by the end Right. Good. When can you do
We can do it in two days if you
really need it. ALJ VIETH: MR. SHAPSON: Just give me a proposal. The end of the week,
close of business on Friday. ALJ VIETH: I'm not going to be
available that day, so if there are questions -- so let's make it July 2nd. PG&E, can you respond by that date
MR. VALLEJO:
I think so, your Honor.
My only concern is that we get a chance to get the transcript and make sure we address all of your Honor's points. ALJ VIETH: MR. VALLEJO: ALJ VIETH: you will have it. MR. VALLEJO: perfect for us. ALJ VIETH: Great. Great. So 2nd of July is Did you ask for a daily? Yes, we did. You asked for a daily, so
Again, e-mails to me, copied on the
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service list, okay?
Then we'll know what is
conceded to be public, and we can focus on the remainder that has been redacted. So I am trying to take a very pragmatic approach to this. All right. Both TURN and the EMF
Safety Network response and protest, different titles, will be filed. Is there anyone else who wishes to file a written response to the PG&E motion? But you understood you have had an opportunity to speak today, and a written pleading that really doesn't cite law and analyze law won't be particularly helpful to me. MR. BOYD: for us. MR. HART: Your Honor, do we retain the Understood. Not necessary
right to submit such written documentation in the future? ALJ VIETH: No. We are setting up a
schedule, and we have got a motion, a time for responses, then PG&E can reply, and then I rule. That's how it goes. Mr. Boyd. MR. BOYD: Just trying to regurgitate
what I heard, so essentially by the end of the week or by the 2nd, excuse me, we are
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going to hear -ALJ VIETH: Let's go off the record. ]
Off the record we've had further discussion about the protective order process. I'm going to propose, Mr. Vallejo, that after July 2nd, perhaps on July 3rd, you file an amended motion. This will be the
cleanest way to do it, and we'll then see who chooses to respond. But again, just telling
me what you think I should do isn't particularly helpful if the ideas are not grounded in the law that governs these very complex matters. I am interested in what you
think and I've listened to it today, but ultimately ruling on this protective order or an amended protective order is going to come down to the law. MR. BOYD: ALJ VIETH: Okay? Understood. All right. Time to respond
to the amended motion will be in accordance with the Rules of Practice and Procedure. All right. I think we've handled that one. One last question, your
MR. VALLEJO: Honor. ALJ VIETH:
Yes, Mr. Vallejo.
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MR. VALLEJO:
Will PG&E have an
opportunity to reply? ALJ VIETH: If you ask for one. You
may decide you may not need to. MR. VALLEJO: ALJ VIETH: Fair enough. And you may ask by e-mail,
copying the service list. MR. VALLEJO: ALJ VIETH: Thank you, your Honor. All right. Mr. Shapson, it
would help me to understand if CPSD believes that its own investigation is complete or not. Are you ready to propose penalties? MR. SHAPSON: We're not going to be
proposing penalties today at this prehearing conference. We may be proposing the amounts
in briefing and certainly before the case is submitted to your Honor. ALJ VIETH: Okay. Oh, I expect you
MR. SHAPSON: expectations. ALJ VIETH:
And we hope to meet those
Very well.
This will not
be submitted without a penalty being discussed. All right. Then how many -- I'm
going to ask a question, and then I'll go off the record. How many of you have a copy of
the very short, eight-page OII with you today?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the OII.
Most of the parties have a copy of I'd ask you to turn to page 5, You see there are four
under, "Conclusion." issues listed.
You see there are four directives I'll call them from the Commission at the bottom of the page. "This proceeding shall One, determine I'm
seek to, colon;" right?
whether PG&E violated the law. paraphrasing now.
And the CPSD report and Section 451 of
OII focus on two statutes.
the Public Utilities Code, which requires just and reasonable service, again I'm paraphrasing, and Section 2109 of the Public Utilities Code. Again, I paraphrase, but
that makes the actions of the employee the actions of the employer in most instances. Two, whether PG&E's management was aware of Mr. Devereaux's activities. the extent of Mr. Devereaux's improper activities regarding any anti-smart meter consumer groups. And four, whether there Three,
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should be fines or other remedies.
That is
the preliminary scope in my mind tied to Ordering Paragraph 7, which governs the scope. And after review of the transcript, the assigned Commissioner will determine whether the scope should be broadened in any way, but I think that scope generally covers the things that you've discussed today. I
recognize that those who have been made party today have not engaged in discovery, and I've heard loud and clear that you have a desire to do so. I will say that in my own mind,
the staff report is quite comprehensive. It may be that you think other issues should be developed and maybe they should, but it's quite comprehensive. I
don't see this as a proceeding where we take months to do lots of discovery, we go into weeks of evidentiary hearing, and a Proposed Decision or Presiding Officer's Decision comes out close to a year from the time this OII initiated. I think this has been, at least preliminarily, a sufficiently prepared OII with the staff -- based on the staff report supporting it that we ought to move a lot quicker than that. And the perfect can
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sometimes be the enemy of the good.
And in
these sorts of matters, to use another cliche, justice deferred is often times justice denied. I think we can move I do expect that
relatively quickly on this.
you should in due course be able to reach a stipulation of fact or at least a stipulation of most or many of the facts of this case. As I said earlier, there is no point in trying material facts that are undisputed, and I think many of the basic facts are going be undisputed. I think that where you're
probably better directed to spend your time is consideration of appropriate remedies. And I have said earlier before we broke, I think this is a case that's ripe or nearly ripe and calls out for settlement. And as some of you know, I am the coordinator of the Commission's ADR program. If you
think a trained mediator could help you, let me know. But let me tell you why this is a Not only
case that cries out for settlement.
is it fairly well-developed, but I'm hearing some of the parties grope for remedies which the Commission probably could not direct, but it might be able to order as part of a comprehensive settlement. The Commission is limited in its
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ability to direct PG&E to do things, but an all-party settlement where -- or a settlement of a majority of parties where they want things and PG&E agrees to provide them and as long as those things can been shown to be in the public interest, you're probably going to have a better chance of getting there. I'm going to say again that I can't give you legal advice. There are very Those of
experienced counsel in this room.
you who are not on the same side as PG&E can talk with counsel who represent parties aligned with you. And as far as procedural
participation, let me reiterate that you can go to the Commission's Public Advisor. I did check the hearing schedule before on Friday. today. I did not check it again
As of Friday, the open hearing The
potential was September 4th to 7th.
Commission has many, many proceedings going on, and we're going to have to push for time and space if we need to go to hearings. But
I really hope that you can move to a proposed resolution that won't make that necessary. I think with thoughtful discovery and meeting and conferring before you file motions to compel, you probably can get there. In fact, I'm going to say on that
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point, before any one files a motion to compel discovery, please, you must meet and confer under the Commission's rules. And
please send me an e-mail that tells me and tells all the other parties that you're contemplating that motion because you've not been successful in your efforts to meet and confer. And I ask that you do that before,
and I will then consider the situation and whether there are other steps we can take before you spend the time and effort in drafting a motion to compel. questions about that? Ms. Maurer? MS. MAURER: Prior to a motion to Okay? Any
compel, you're asking us to meet and confer with the other party, CPSD or PG&E. Are you
suggesting that meeting could be a discovery request? And if that discovery request was
not met, then we file a motion to compel? ALJ VIETH: No. The Commission rules
require you to meet and confer before any motion to compel can be filed, and it must be a good faith meeting. You've got to try to
meet, talk about what you want, and they've got to talk about what they can give you, what they don't want to give you, why they don't want to give you to you, why they feel
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they can't give it to you. meaningful conversation.
This has to be a Not a perfunctory,
"we don't like you, we don't want to play," kind of conversation. clear. And then if good faith has prevailed but you've not got the resolution you want, before you may file a motion to compel, send me an e-mail, copy all the other parties, and tell me what the nature of the dispute it. MS. MAURER: ALJ VIETH: Okay. I have found very often I hope I make myself
when that happens, I am able to diffuse the matter. It saves a lot of time and effort
and a lot of money, and more importantly, it moves the proceeding forward. If necessary,
I will direct you to file the motion to compel, and I'll probably hold the law and motion hearing myself. about that? Mr. Boyd? MR. BOYD: with you on this. You know, I really do agree This should be a -- a good But Okay? Questions
case for resolution through settlement.
my concern is CARE -- CARE has entered into a number of settlements with PG&E where PG&E didn't comply with the terms of the settlement. And then we went to the
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Commission to petition the Commission regarding their failure to comply with the terms of the settlement. And ultimately we
didn't get any satisfaction that the Commission would enforce the terms of the settlement. And that makes us very reluctant
to enter into another settlement with PG&E because of that. ALJ VIETH: on that. Mr. Boyd, I can't comment
It wasn't a settlement in a case
that I oversaw. MR. BOYD: ALJ VIETH: grievance is. MR. BOYD: I'm just saying that's the Oh, I understand. And I don't know what your
issue I'm having difficulty with. ALJ VIETH: If the relief is
well-fashioned and ordered by the Commission, there should be no problem. You can always
write into a settlement enforcement or compliance provisions. you to consider. hypothetical. MR. BOYD: ALJ VIETH: MR. LONG: Mariposa. Mr. Long? Perhaps it would be helpful That's the case. Okay? But that's for all of Speaking in the
if PG&E could indicate who we should serve data requests on. Sometimes it's not just
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the attorney but somebody who could help expedite matters. ALJ VIETH: That might be helpful.
What would you suggest, Mr. Vallejo? MR. VALLEJO: To myself or to
Mr. Bayless, who is here. ALJ VIETH: Would you spell
Mr. Bayless' name so we have that correct in the record? MR. VALLEJO: a-y-l-e-s-s. ALJ VIETH: Okay. Off the record. B, as in boy,
(Off the record) ALJ VIETH: Back on the record. I guess I'm getting
Thank you. tired myself.
Generally, I don't like to leave a prehearing conference without having a basic schedule in mind, particularly with the difficulty in getting hearing dates. told you, I urge you to explore the possibility of settling this case. I think I Having
would like to spend a little time talking about scheduling, particularly because I've discovered that if we go to hearing, probably the soonest we can do that is September 4th, the dates between September 4th and 7th. So let's go off the record and talk
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about that a little bit. (Off the record) ALJ VIETH: ]
Back on the record.
I am going to memorialize the law and motion schedule so that it's all in one place. Or I should correct myself and say
the schedule around the PG&E protective order. July 2, the e-mails that are detailed in the transcript; July 9th -July 2nd the e-mails and PG&E's amended motion; July 9th, any responses to PG&E's amended motion. If necessary, I propose to
hold a law and motion hearing on July 13th in the afternoon, which is the best accommodation of the various parties' conflicts. And on July 2nd I hope to get a
single proposed schedule from all of you for this proceeding should we go to evidentiary hearing. Okay? MR. SHAPSON: MR. VALLEJO: ALJ VIETH: Thank you, your Honor. Thank you, your Honor. Do what you can to I
accommodate one another reasonably.
understand from you that you think my goal of trying to hold hearings during the window of September 4th through 7th is overly
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ambitious, and I won't push that.
Okay?
Is there anything else we need to talk about today from your standpoint? (No response) ALJ VIETH: Let me just reiterate on
discovery, I think discovery works best if the parties are in charge of it but if they understand that I'm watching. reasonable. Act in good faith. So be This hearing
will require discovery.
The Commission rules Act
and the statutes contemplate discovery. sensibly.
If you can't, let me know about it
by e-mail and copy the others and then we'll look at the need for a motion to compel. Okay. But that means you're empowered to get Don't sit on your hands. And you
cracking.
can talk with PG&E or CPSD, whomever you want the discovery from, about how they would like to know about it, what works for them, and let's try to cut down on the bureaucracy. Thank you all. me. Nothing else from
Is there anything else from one of you? Mr. Boyd. MR. BOYD: When we were off the record
I asked about getting a nondisclosure agreement from PG&E as soon as possible. ALJ VIETH: that. I urge you all to work on
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MR. VALLEJO: ALJ VIETH:
Agreed. Mr. Vallejo agrees. Thank
you for your time today. conference is adjourned.
This prehearing
(Whereupon, at the hour of 12:30 p.m., this prehearing conference was concluded.) * * * * *

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1

This is the time and place

Commissioner is Commissioner Florio. aware of the hearing. He may join us.

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

to convene a prehearing conference.

generally at the Commission, the reason for a

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

written motions for party status.

been filed, but I've not acted on them, and

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

Mr. Long, you are here today, but it

record, that's right, your Honor.

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

how do you envision? set.

participate actively? MR. LONG: actively. We do intend to participate

We don't know whether we want to We would say at CPSD presented a

present testimony or not. this time it's unlikely. good report.

We have not had an opportunity

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

They're no longer called appearance forms. That's outdated nomenclature. Apologies.

that your written motion does not.

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

Why don't we take your representation And if it's amenable to the

separately so the court reporter -ALJ VIETH: Absolutely. Speak

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

heard what you have said here today, and what

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

MR. HOMEC: ALJ VIETH:

Right. You have read the OII and

believe there's more than that.

grant Joshua Hart party status, but again,

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

Thank you. Yes. The motion of Joshua

ALJ VIETH: MR. SHAPSON:

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

Mr. Hart directly? ALJ VIETH: Today Mr. Homec on behalf

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

raising that so that it is clear. MR. HART: Your Honor, if I may.

matter of record in the Investigation.

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

I have explained to them they

need to go to the other parties. So this is your opportunity. Having

And all Commissioners said based on this we

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

Thank you for that

What are you

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

If you are granted party

this was an EMF Safety Network discussion

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

So I'm looking for the

charge of this Investigation. MS. MAURER:

MS. MAURER: ALJ VIETH:

understand your interest.

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

back to the last, which is CARE.

Lets go off the record and work that

out, whether Homec represents you or you represent yourself.

PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA SAN FRANCISCO, CALIFORNIA

So what's the resolution, please? MR. HOMEC: I am going to represent