When does the procedural maneuvering of a governing body’s chairman rise to the level of violating the freedom of expression of a fellow duly elected board member? That is a question many people are asking about the recent actions taken by Arizona Corporation Commission Chair Tom Forese against Commissioner Bob Burns.
Burns’ efforts to bring transparency to the .Commission are well-known. His battle to make public the 2014 campaign contributions to Commission candidates by the very utility companies they regulate has made headlines on an almost weekly basis.
Some of the multiple battles waged against Burns by fellow commissioners, who desperately seem to want the issue to die, have been less obvious.
In August 2016, Burns filed subpoenas for the production of records and information relating to a range of expenditures from 2011 through 2016 by utility giant, Arizona Public Service Co (APS), and its parent company Pinnacle West Capital Corp. He sought information related “marketing and advertising expenditures, charitable donations, lobbying expenses, contributions to 501(c)(3) and (c)(4) nonprofits and political contributions.”
In September 2016, APS sued Burns. An APS attorney claimed that Burns was “using his official position to harass and retaliate against the company,” according to the Arizona Republic.
Since then, Burns has become a kind of rock star to ratepayers. At the same time, his fellow commissioners, due only to their Keystone Cop-type covering for APS, continue to lose public support and Burns just might be paying for that.
On March 14, the commissioners, in a 3-1 vote, fired Burns’ attorney and left him without a lawyer in his fight against APS. Burns’ attorney turned around and said he would represent the commissioner for free.
That tussle made headlines, but did not deter Forese and company from pushing back on another front.
In a recent interview on the James T. Harris radio show, Burns discussed Forese’s procedural maneuvers and their very real impact on residents and Burns as their representative. Harris had asked Burns the burning question: when does the procedural maneuvering of a governing body’s chairman rise to the level of violating the freedom of expression of a fellow duly elected board member? Burns responded, “I think it has actually reached that point.”
[Listen to the interview here]
Burns explained that because of Arizona’s Open Meeting laws, commissioners have very limited opportunities to address issues of importance with the public. Those issues must be placed on an agenda in order for a public discussion to occur.
“Because we are subject to the Open Meeting laws,” said Burns, “we can’t have conversations with more than one member unless it’s a publicly noticed meeting. So we have what we call staff meetings.” In those meetings, according to Burns, senior staff and commissioners discuss mostly procedural issues – not policy issues.
Burns had hoped to schedule a meeting for APS ratepayers in the Flagstaff area. He asked staff to place the issue on the next staff meeting agenda.
Burns told Harris that had hoped to “discuss that issue and see if we could set up a time for public comment. Well without contacting me in anyway shape or form, the chairman ignored my request and did not put it on the agenda. So, when the meeting started I asked why my items were not on the agenda and they provided a non-answer. When I tried to press to find out what was going on, the Commission attorney advised me that what I wanted to talk about was not on the agenda and a discussion of it would be in violation of the Open Meeting law. So it’s like a Catch-22; if you don’t get your item on the agenda we can’t talk about it and so it dies.”
Burns did not give up. “I scheduled my own staff meeting, which I have the authority to do, but the chairman immediately canceled my meeting,” said Burns. “I don’t believe he has the authority to do that, but at that point it was pretty much a moot point. Eventually it took considerable input from the people in Flagstaff to make a meeting happen.”
“I believe that they,” said Burns referring to Forese and his fellow commissioners, “are basically denying me my freedom of expression, which is only small potatoes compared to denying the people of Flagstaff their freedom of expression through me as their representative.”
Burns’ attorney put together a timeline of his continuing battle for transparency on behalf of the public:
2014
ACC General Election 2014
9/25/14 AZ Republic endorses Tom Forese for ACC: http://www.azcentral.com/story/opinion/editorial/2014/09/25/forese-holway-corporation-commission-endorsement/16232635/
“Forese was part of the GOP team supported by nearly $2 million in “dark money” ads during the primary. It is widely believed that Arizona Public Service, a regulated utility, provided the money. Forese supports requiring APS and its parent company to open their books, which would reveal how much money they spent, on campaigning. Such transparency is needed. His teammate, Doug Little, opposes the idea.”
9/22/14: 2014 General Election Horizon Debate
http://www.pbs.org/video/2365330068
Forese: when asked about APS’ alleged campaign spending –should APS be compelled to disclose its spending information
Forese at approx. 22:21“The idea that we could be bought is insulting.”
Forese at 22:33: “I don’t have a problem with asking them to show who it is. I look forward to that information more than anybody else does.”
When asked should there not be concerned among ratepayers that people who are going to be regulating that utility might be getting money from that utility:
Forese at 23:20: “I’m the beneficiary of that spending and I have concerns about it.”
2015
8/27/15: Burns and Bitter Smith file letter asking parties appearing before commission to voluntarily refrain from spending money in support of or opposition to Corporation Commission candidates.
8/27/15: Burns and Bitter Smith place the item on the 8/27/15 Staff Meeting for discussion. Little pulls the item so it cannot be discussed that day.
9/4/15: Forese files letter stating such a request violates company’s first amendment rights and have “severe implications to civil liberties.” Passing this policy would be throwing a pebble in the shoe of the Constitution which the commissioners swore an oath to uphold. “Any actions that we take to restrict or limit the ability of public service corporations to engage in speech, especially core political speech, are subject to immediate and likely successful attacks in federal court. Such an action would be costly for the State to defend, time consuming for the Commission, and would likely be unsuccessful given the U.S. Supreme Court’s clear perspective on the question of the First Amendment’s application to speech by corporate entities.”
9/8/15: Little Letter #1: this request violates company’s first amendment rights and would have a chilling effect on free speech. He will not support the proposal because it would be violation of his oath of office to defend the constitution.
9/8/15: Stump Letter: “I have made it clear that Corporation Commissioners are not elections officers. In my view, we lack the authority essentially to regulate campaign speech.” “Pragmatically, there is no way this Commission can prevent entities from engaging in Commission elections, unless the law is changed.” “The potential practical effect of the proposal articulated by Commissioner Burns would be to create an uneven playing field among parties wishing to exercise their First Amendment rights.” “In sum, I see this letter as a well-intentioned but fruitless exercise.”
9/8/15: Burns and Bitter Smith place the letter on the 9/8/15 Staff Meeting agenda for discussion.
9/8/15: Little reads letter #1 in its entirety at the meeting.
9/11/15: Little files Letter #2: Little subsequent letter: ACC has no authority to request
“It is not clear to me what purpose such a subpoena would serve. There are several entities that have substantial business interests in the decisions of tks Commission that are not public service corporations and are not subject to the Commission’s regulation.
To subpoena APS and leave all of these other entities unexamined would be inherently unfair and would lead to an incomplete picture of what actually was going on in the 2014 elections.
I believe the subpoena contemplated by Commissioner Burns would put the Commission on very dun legal and constitutional ice. But the practical benefit of the subpoena would be minimal. Assuming the subpoena was not successfully challenged, it would only reveal information about one of many entities that potentially participated in the 2014 elections.
Rather than skate out onto the thin ice of campaign finance investigations with inherent First Amendment issues, I believe this Commission should stick to its core missions: regulating utility rates, regulating securities dealers, and enabling efficient registration of corporations.
Over the next few years almost every large utility in the state will be before us with rate cases and the multiple small utilities we regulate will continue to require our attention as well. Our attention should be there, not on pursuing a questionable subpoena that would have little practical value.”
10/23/15: APS (Brandt) response to Bitter Smith and Burns Letter: such a request is “unprecedented.” Won’t respond because doing so would violate First Amendment rights. “The Companies will continue to advocate for sound policies that enable a sustainable energy future for Arizona.”
Around this same time, several other regulated entities – Southwest Gas, UNS/TEP respond that they do not participate in Commission elections and do not plan to in the future.
11/30/15: Burns Letter to APS: “I am asking APS to provide my office with a full report of all spending related in any way to the 2014 election cycle-including but not limited to direct contributions and indirect contributions to third-party organizations-within thirty days of the date of this letter. The report should be docketed and should include a description of the source of any such funds, i.e., whether the funds originate from APS’s profits or from money intended to cover APS’s costs of providing service.”
12/30/15: Brandt Letter to Burns: APS doesn’t use ratepayer funds for political speech and compelled disclosure of monies spent by APS and/or its affiliates would infringe upon APS’s first amendment rights and goes beyond what campaign finance law requires
2016
1/28/16: Burns issues Notice of Investigation to APS pursuant to the Constitution and A.R.S. section 40-241. Requests political, advertising/marketing, charitable, lobbying contribution info in addition to other items.
2/9/16: Burns issues request for AG Opinion on Commission’s authority to request this information
2/22/16: Little letter to Attorney General re: Burns’ request for a legal opinion
“I believe some background on utility ratemaking processes may benefit you as you consider Commissioner Burns’ request.”
“In conclusion, the existing and long established rate case process at the ACC already ensures that expenses associated with political contributions, lobbying, and charitable contributions are not recovered through and do not influence utility rates. I am not aware of any evidence (or even allegations) that the existing rate case process is deficient in that regard. Any review of the appropriateness of extraordinary measures that are portrayed as related to the ACC’s authority to set just and reasonable rates should take the above facts into consideration.”
8/3/16: Burns hires Scott Hempling, nationally and internationally renowned utility lawyer, to conduct investigation of undue influence at the ACC
8/11/16: Commission votes to defund Burns’ attorney, Scott Hempling at Staff Meeting
*This meeting was transcribed by APS/PWC and included as an attachment to their Lawsuit filed on 9/9/16.
Little: states there is no need to look at undue influence because there is no undue influence at the Commission. Makes allegations that the attorney has some connection to a solar IE group, which is inaccurate.
Letter from Scott Hempling to Little re: Little’s remarks at the meeting
8/25/16: Burns issues subpoenas to APS and Pinnacle West
9/9/16: APS files lawsuit in Superior Court and motion to quash in pending APS rate case
9/15/16: Commission votes on hiring a lawyer for Burns at Staff Meeting
Tobin: issue the subpoenas…I’ve been telling you do it all along. Tobin makes motion to approve. “I’m the one that suggested that Bob subpoena and I’m the one that suggested that’s the proper protocol and I still believe that.”
Forese: these campaign issues have completely overshadowed the important work at the commission. This is similar to that. If you timed these actions to be political in nature. Maybe we should pick this up after the campaign or this should be funded by your campaign.
Little and Forese seek to put $100,000 cap and timeline on his legal representation. Ultimately decide to approve but will be monitoring it. Forese says he will be reviewing the attorney’s bills every 30 days. Stump votes not to give Burns funding.
10/11/16: ACC General Election debate on Horizon: http://www.pbs.org/video/2365862441/
Tobin at approx 21:30: I supported Bob Burns’ subpoena and I supported paying for the attorney to do it for him.
Dunn starting at approx. 10:30: We all agree that because of Citizens United the supreme court decision that these third party organizations that may represent the interests of solar or others may contribute but what we’re talking about is transparency and the key is that we want to know when that [spending] occurs and they have the right for that political speech but how do we know. And especially when the legislature passed Senate Bill 1516 that made it very clear that they didn’t want further disclosure from those recipients. I think there’s two ways: one, shareholders of the corporation itself or the utility may demand it apparently they haven’t done that and secondly, this is why I support Commissioner Burns’ subpoena because he had a right to do that and by doing that I knew very well that this would enter into the legal arena and now we have the courts there for the opportunity to resolve this in the future.
2/7/17: Burns opens T&D docket
3/6/17: Dunn files a letter asking the ACC to stay Burns’ T&D docket and also states: “It is for this very reason that I believe we should exercise restraint and acknowledge that the pending lawsuit is the proper place to resolve the legitimacy of the subpoena and the scope of the Commission’s authority to require disclosure of Contributions under Arizona law.”
3/14/17: Forese (or Tobin, as Tobin states at the meeting) put item on Staff Meeting to discuss funding Burns’ lawyer. Forese refuses to permit Burns the courtesy of pulling the item from the agenda (has not been denied to our knowledge since we have been at the ACC. In fact, Dunn was given that courtesy at the open meeting last week)
Tobin: I supported Burns’ lawyer to make sure we were well-defended. If lawsuit has been dropped, pay bills used to defend him and terminate attorney
20:13: Dunn-case was more limited and direct initially. Hard for me to understand you were surprised that a motion to withdraw. Action you filed recently is much broader. I do not appreciate you listing me in support of this complaint. I do not support this complaint because of its broadness…discussion of Arizona law. Supported him having legal counsel because of the action filed by APS to deal with the limited issue of subpoena enforcement. It’s not been broadened to encompass many other issues. This is a whole different case. What he wants to do is broader than what this commission authorized him to do.
Little: sole purpose of voting in favor of this was because Burns had been sued by APS and PWC. I do not support any continued litigation on an issue that . . . the only person who believes there has been any wrongdoing is Commissioner Burns. This strikes me as a very dangerous precedent to set. Breadth has significantly exceeded the original intention. Inappropriate to spend taxpayer dollars on this wild goose chase.
Tobin: I felt he was hired to defend commissioner burns from an APS lawsuit, not to enforce the subpoenas. I brought this to Commissioner Little’s agenda last time to support hiring the lawyer (not true- Commissioner Burns brought it to Little’s attention and asked it be placed on the agenda)
3/17/17: Pinnacle West files info about new Political Participation Policy
3/23/17: Commissioner Burns hosts workshop on T&D rules. Dunn, Little, Forese do not attend.
3/22/17: Dunn opens up a new docket, AU-00000-E-17-0079, “Investigation and Promulgation of a Code of Ethics for the Arizona Corporation Commission.”
-Dunn was appointed Chairman of the “Ethics” committee by Chairman Forese. Burns was not offered the opportunity to chair this committee and was not invited to either chair or participate on any committee at the commission. Chairman established 3 committees. Dunn chairs “Foreign Affairs” and “Ethics” committees; Tobin chairs “Water” committee.
-Dunn: “A code of ethics must be born out of a comprehensive discussion by the Commission and the Ethics Committee. Right now, there are several open dockets focusing on issues that unquestionably fall under the purview of the Ethics Committee and this code of ethics. It is crucial that we resist the lure of a piecemeal process. Uniformity dictates that the issues raised in these dockets be folded into a global conversation. This docket will consolidate all relevant issues so the Committee, and ultimately the Commission, may fairly examine each topic before implementing a code.” If Dunn is so interested in transparency and ethics per his comment above at the debate and his letter, why did he not participate in Commissioner Burn’s docket via filing a letter or participating in the workshop.