Administrative Law Judge Says City May Participate in DUD Rate Review Hearing

February 6, 2013
Dwayne Page

When the State's Utility Management Review Board comes to Smithville on April 4 for a DeKalb Utility District rate review hearing, the City of Smithville will apparently get to intervene along with DUD ratepayers.

Steve R. Darnell, an Administrative Law Judge, has granted a motion by the city to be a participant in the hearing, along with DUD ratepayers, to address the UMRB on how the proposed plans for a DUD water treatment plant could impact city water ratepayers.

Attorneys for the DeKalb Utility District are opposed to the city's intervention in the hearing.

Darnell's order, which came down Tuesday, stated "This is an action initiated by the petitioners (DUD rate payers) which grants the Board (Utility Management Review Board) the authority to review rates charged and services provided by public utility districts."

"Smithville's motion demonstrates the disposition of this case may, as a practical matter, affect Smithville's interests. The factual issues asserted by Smithville are intertwined with the petitioners (DUD ratepayer's) assertions. Finally, Smithville's participation will not render the hearing unmanageable or interfere with the interests of justice and the orderly and prompt conduct of the proceeding. Accordingly, Smithville's motion to intervene should be granted without restriction," wrote Darnell.

"We had filed a motion to intervene in the hearing with DUD to set out what the position for the City of Smithville would be if we lost the contract with DUD and how that would affect our rate payers as well as their ratepayers," said City Attorney Vester Parsley. "The administrative law judge filed an order this afternoon (Tuesday) allowing the city to intervene in that matter and be there on April 4 when we have a hearing here in Smithville to put on anything that we have to show that the ratepayers of DUD would certainly be materially affected and so would the city rate payers. Its good news for the city because the opposing counsel, Mr.(Dewey) Branstetter had opposed the intervention of the City of Smithville on the grounds that we didn't have any basis to argue about what the rates are for DUD. We (city) filed a motion to intervene. Mr. Branstetter had filed a motion objecting to our intervention and the administrative law judge has made his decision and said we (city) are allowed to intervene and be a part of this hearing and have a right to participate in the hearing without restrictions. Mr. Branstetter was wanting to restrict it some if we were allowed to intervene. But the order clearly sets out that there are no restrictions (on the city)," said Parsley.

The DUD is represented by its own attorney Keith Blair and by Dewey Branstetter, a Nashville attorney recently hired by the DUD to help represent them before the UMRB.

Attorney Jason Holleman of Jones, Hawkins & Farmer, PLC of Nashville represents the City of Smithville in this matter along with City Attorney Vester Parsley.

Meanwhile an issue was raised as to whether Branstetter's firm could represent DUD in this proceeding due to a potential conflict of interest. But the Administrative Law Judge said that issue was not proper for him to consider.

Darnell's order states that "It appears the issue of a conflict of interest has been raised concerning the Branstetter firm's representation of Respondent (DUD) in this proceeding, and also, the Tennessee Association of Utility Districts of which Smithville is a member. This issue is not a proper consideration in determining whether to grant Smithville's motion to intervene. No motion to disqualify the Branstetter firm is pending before the undersigned (Darnell). It is noted that if there is a conflict it may exist regardless of whether Smithville is permitted to intervene. The parties are referred to the Tennessee Board of Professional Responsibility for guidance on this issue. If either party believes this to be a legitimate issue, guidance should be sought immediately to avoid delay of this hearing."

"It is therefore ordered that Smithville's motion is granted and Smithville shall have the right to participate in this hearing without restriction," wrote Darnell.

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