IN THE MATTER OF ELECTRIC POWER & LIGHT CORPORATION File Nos. 54-139 and 59-12. Promulgated August 16, 1946 (Public Utility Holding Company Act of 1935-Section 11) MEMORANDUM OPINION OF THE COMMISSION Samuel Okin, a minority common stockholder of Electric Bond and Share Company ("Bond and Share"), filed a motion for intervention or limited participation in these proceedings involving the consideration of plans for the reorganization under Section 11 of the Public Utility Holding Company Act of 1935 ("the Act") of Electric Power & Light Corporation ("Power & Light"), a subsidiary of Bond and Share. He also requested that a ruling of the trial examiner refusing his personal appearance in the proceedings be reversed or that we issue an order denying participation. For the reasons set forth below we declined to take any action to alter Okin's status. Okin, an attorney, has appeared in his own behalf on various occasions in proceedings relating to Bond and Share and its subsidiaries. He was granted leave to be heard under our Rules of Practice XVII (b) and (c) but as a result of repeated instances of obstreperous and contemptuous conduct in hearings before our trial examiners, it was necessary to expel him from hearings on at least four separate occasions. Eventually we were compelled to conclude that it was neces 1 Okin's misconduct on the occasions of his expulsions is recited in the previous opinions which we have issued dealing with the question of his right to participation in those proceedings. See National Power & Light Company, 12 S. E. C. 1147 (1943); American Power & Light Company, et al., 16 S. E. C. 107 (1944); American & Foreign Power Company, Inc., et al., 17 S. E. C. 690 (1944); Cf. Electric Bond and Share Company, 11 S. E. C. 359 (1942), 23 S. E. C. 529 (1946). One of the expulsions above referred to was sustained by the Court of Appeals for the Second Circuit on review of a final order entered by us (approving a financial transaction by a Bond and Share subsidiary) with 23 S. E. C.-35-6850 sary in the public interest and the interest of other participants in the proceedings that Okin be denied permission to participate orally in his own behalf. We accordingly issued a memorandum to all our trial examiners stating that "Okin's repeated outbreaks demonstrate his inability or unwillingness to conduct himself with due regard to the rights of others" and directing the trial examiners to withhold from Okin the privilege of further participating orally in person in proceedings with respect to Bond and Share and its subsidiaries. In order to afford Okin continued opportunity for the protection of his interests and the submission of arguments and suggestions which might be in the public interest, we also directed that Okin may retain counsel if he so desires and that an application by such counsel for participation should be entertained by the trial examiner as in the case of others desiring to be heard, that Okin may attend public hearings as a spectator as long as he conducts himself properly, and that he may file his own brief or briefs on matters at issue. Following the issuance of the memorandum a number of requests by Okin respecting participation have been disposed of in accordance with the views contained therein. In previous hearings in the present proceeding Okin requested leave to be heard and was advised that he could appear only by counsel, and most recently requests by Okin for intervention and participation in another pending proceeding under Section 11 (e) involving Bond and Share were disposed of consistently with the memorandum to our trial examiners.3 No new considerations impelling a change in our previous rulings regarding Okin's status appear in the instant case. The present hearings were reconvened for consideration of a plan filed under Section 11 (e) of the Act jointly by Power & Light and Bond and Share, and also for consideration of independent plans filed under Section 11 (d) of the Act by Okin and by certain representatives of preferred stockholders of Power & Light. The fact that the plan filed by him is one of those designated in the notice of hearing to be considered for possible approval does not give him a right to intervene in the proceedings nor otherwise increase his right to participate. Admission of a stockholder as a party to proceedings under the Act is not a matter of right, but rests on the sound discretion of the Commission. Under our Rule of Practice XVII (d), in the observation that Okin's conduct had made such action "inevitable." Okin v. 8. E. 0., 137 F. 2d 398, at 401-402 (C. C. A. 2d, 1943). * American & Foreign Power Company, Inc., et al., 17 S. E. C. 690 (1944). * Electric Bond and Share Company, 23 S. E. C. 539 (1946). Electric Power & Light Corporation, Holding Company Act Release No. 6768 (1946). Section 19 of the Act provides in pertinent part: ". . . In any proceeding before the Commission, theh Commission, in accordance with such rules and regulations as it may prescribe, shall admit as a party any interested State, State commission, State securities commission, municipality, or tervention is granted a private person only where we are satisfied from his application that leave to be heard would be inadequate for the protection of his interests and that his participation as a party will be in the public interest. Since leave to be heard may include leave to call, examine and cross-examine witnesses, to offer documentary evidence, to file briefs and requests for specific findings and to make oral argument, formal intervention is normally unnecessary to protect the interests of a stockholder or the public. We do not consider it necessary here with respect to Okin. Moreover, the conditions that we have imposed upon the manner in which Okin may participate in these proceedings are based upon an exercise of the discretion conferred upon us by the Act which we consider essential to the maintenance of order and decorum in our hearings and to the proper determination of the rights of the many other investors and other persons concerned. In view of Okin's consistent misbehavior and abuse of our hearings, we remain of the view that a relaxation of our ruling respecting the manner in which he may participate would only result in new delays, expense and confusion to the prejudice of other persons and parties without any compensating benefit, for under our existing ruling whatever assistance Okin can offer to the solution of the problems presented can be adequately supplied in writing or through counsel. With regard to Okin's request that we issue an order embodying our ruling respecting his status in these proceedings so that he may thereby secure a right to judicial review of such order, we need only repeat briefly the reasons, which we have several times before recited, why we do not consider the entry of such an order appropriate. Aside from the fact that it has been held that the kind of ruling we have made here is interlocutory and discretionary and not reviewable, it is well established that the right to seek review of action of an administrative agency is determined by the intrinsic nature of such action, and not by the presence or absence in the record of an "order." s other political subdivision of a State, and may admit as a party any representative of interested consumers or security holders, or any other person whose participation in the proceedings may be in the public interest or for the protection of investors or consumers." See Okin v. S. E. C., 143 F. 2d 960 (C. A. 2nd, 1944); Okin v. S. E. C., 137 F. 2d 398 (C. C. A. 2nd, 1943). • See American & Foreign Power Company, Inc., et al., 17 S. E. C. 690 (1944); Electric Bond and Share Company, 23 S. E. C. 539 (1946). See Okin v. S. E. C., 143 F. 2d 960 (C. C. A. 2nd, 1944); Okin v. 8. E. C., 137 F. 2d 398 (C. C. A. 2nd, 1943). 8 See Columbia Broadcasting System v. United States, 316 U. S. 407, 416 (1942); Jersey Central Power & Light Co. v. Federal Power Commission, 129 F. 2d 183, 189–191 (C. C. A. 3rd, 1942), aff'd 319 U. S. 61 (1943). |