of persons employed by each contractor and the hourly rate to be charged by each person thus employed, and the estimated value of each contract." Id.
Third, the Act mandates that only the Commission has the authority to issue an order directing a utility to make deposits to the fund supporting the OPC. Thus even after complying with the elaborate procedures outlined above, the OPC cannot issue assessment orders against the utilities. Rather, plaintiffs are afforded yet another level of protection in that the statute requires the OPC to establish a record, supported by substantial evidence, to justify its requests for PSC assessment orders. D.C. Code § 43-612(a) (2).
Finally, the statute demands that the PSC review OPC assessment requests before calling upon utilities to make a deposit of funds. Thus the Commission maintains a vast and constitutionally significant amount of oversight. It has authority to determine whether OPC's requests are "consistent with the statutory authority of and rules issued by the Office, whether [they are] supported by findings, whether those findings are sustained by substantial evidence in the record submitted to the Commission, and whether [they are] within the [dollar value] limitations enumerated [in the Act] . . ." D.C. Code § 43-612(a) (2). In its oversight function, the Commission acts as an impartial arbiter ensuring that the plaintiffs are not deprived of their property interests without due process.
Needless to say to these plaintiffs, they additionally retain a right of appeal from any assessments to a reviewing court.
Because the statute requires rather stringent accounting by the OPC for its assessments, as well as an adequate review by the PSC, I am convinced that there exists sufficient process to ensure that the utilities' funds will not be taken without due process of law.
B. Independent Investigative Authority
Plaintiffs argue that the Act's grant of explicit independent investigatory authority to the OPC is unconstitutional because it allegedly confers on the OPC "the power to conduct investigations of Plaintiff, without limits as to their reasonableness, scope, duration, or frequency." Plaintiff's Statement of Points and Authorities in Opposition to Defendant's Motion to Dismiss, at 27. I disagree.
Whether within the context of formal proceedings before the Commission, or independently structured, an OPC investigation is limited in scope to an examination of "the services given by, the rates charged by, and the valuation of the properties of the public utilities under the jurisdiction of the Commission." D.C. Code § 43-406(d)(4) (1985 Ed.). Thus the so-called "independent" investigative authority has imposed upon it by the Act a "relevancy" test which clearly circumscribes this authority within prudential limits.
C. Data Gathering Authority
Plaintiffs also complain that D.C. Law 5-153 is constitutionally defective because it grants the OPC broad data gathering authority. Specifically, they allege that "The People's Counsel's . . . broad discovery authority violate[s] Plaintiff's constitutional rights by unreasonably subjecting Plaintiff to the interruption of its business and to the substantial expense necessary to comply with the People's Counsel's unrestricted demands." Plaintiff's Statement of Points and Authorities in Opposition to Defendant's Motion to Dismiss, at 24.
Again, there are several layers of protection afforded plaintiffs. First, the statute limits the data gathering authority of the OPC to information "reasonably relevant and material to the investigation or proceeding." D.C. Code § 43-518(c). Second, in the event of noncompliance by the plaintiffs, the OPC has no authority to order compliance but must petition PSC for an order compelling production. Id. Thus, the statute indicates that the PSC will adjudicate production disputes between these parties. Third, the PSC has the authority to protect from disclosure plaintiffs' "trade secrets and other confidential research, development, or commercial information . . ." Id.
Given the protections built into D.C. Law 5-153, D.C. Code § 43-518(c), I am again convinced that the plaintiffs will not be deprived of their property without due process of law.
Having found the D.C. Council properly enacted the statute at issue in this case, and that said statute does not deprive the plaintiffs of due process of law, I grant defendant's motion to dismiss. An appropriate order accompanies this memorandum.
For the reasons set forth in the Memorandum Opinion dated 23 December 1986, it is hereby
ORDERED that defendant's motion to dismiss be granted and that this case be dismissed.