When Arizona Corporation Commissioner Andy Tobin called for a reconsideration of a vote he cast in a dispute between a small water company and a powerful developer, he prevented a resolution to the 14 year old case. Tobin’s seemingly rash decision prompted a closer look at the case by the media.
Now,in a letter placed into the official record last week Tobin blames the media for “intimidating commissioners into making rash decisions and suggests that any carte blanche settlement is a good settlement.”
In an interview on Friday, Tobin struggled to explain what he admitted was a baseless claim. “When you know what kind of coverage there will be by a certain media outlet,” said Tobin, “I think that can be intimidating.” However, when he was asked which commissioners have been intimidated and by what media outlet, Tobin said “none.”
According to Tobin, the commissioners’ “broad shoulders” prevent them from being intimidated by a media with an “agenda.” When asked what that agenda might be, Tobin said the media favored Arizona Water in its battle with Cornman Tweedy.
In other words, Tobin dismissed his initial baseless claim and made another. He could offer no explanation as to why the media would have an agenda or how that agenda has affected its coverage of the Arizona Water Company vs. Cornman Tweedy 560, LLC dispute.
When is final, final?
At issue is the years-long dispute between Arizona Water Company and the Robson-controlled Cornman Tweedy 560. Nearly one year ago, “the Commission approved Arizona Water Company’s Certificate of Convenience and Necessity (CC&N), in a 3-2 vote, according to an ADI article. The vote followed a ruling by an administrative law judge that affirmed the terms of Arizona Water’s CC&N, which allows it to provide water in a defined service area.
Ignoring the judge’s ruling, the commissioners, through Tobin’s request for consideration, forced Arizona Water into settlement negotiations with Cornman Tweedy in November.
The forced settlement, which was reached between the two companies with the assistance of commission staff, was scheduled to be voted on by the commissioners at their December 18 meeting.
The item was pulled by Commission Chair Tom Forese after Tobin and fellow Commissioner Boyd Dunn expressed vague objections.
Both Forese and Dunn are beneficiaries of Robson campaign donations.
At the December 18 meeting, Commissioner Bob Burns also expressed reservations with the settlement agreement, but for very different reasons. Burns advised his fellow commissioners that the issue was settled in February and the Commission appeared to now rely on a failure to perform ministerial duties in order to force Arizona Water into negotiations.
Burns noted that the commissioners were claiming the final Order approved in February was not in fact final because it was never signed by Commissioner Tobin. Burns offered the widely accepted legal argument that the failure to execute a ministerial function (signing the Order) cannot be used as an excuse to nullify an official act approved by a majority vote of commissioners
The Order memorializing the CC&N approval should have then been signed by all of the commissioners. Given former Commissioner Doug Little’s impassioned arguments in favor of the Order, there was no reason to believe the matter was not settled.
However, Tobin, who appeared to find Little’s arguments compelling and voted with the majority in favor of the Order, failed to sign it.
Instead “almost two months later, on March 29, 2017 – just seven days before the April 5 Open Meeting – the Commission filed the April Open Meeting agenda in this docket listing reconsideration of that February 7 decision as an item for discussion,” wrote Arizona Water Company’s attorney Meghan H. Grabel in a request for a rehearing.
Just the facts
When a request for rehearing is received by the Commission, the Commission must be act on it within a set time. Because the Commission has not yet acted, the request for rehearing was denied for lack of action.
Generally, the party requesting a rehearing must be denied the rehearing by the Commission before they can file for consideration at the next level; which would be the superior or appellate court.
Arizona Water has filed in superior court in order to preserve its right should the Commission fail to act. At this point, it is believed that the Commission has failed to act because commissioners Dunn and Tobin do not want to accept the terms of the proposed settlement.
In his interview on Friday, Tobin was remarkably candid for a moment. He stated in frustration that he could not understand why Arizona Water “could not just agree” to remove Cornman Tweedy’s property from its defined service area.
Perhaps it is Tobin’s apparent desire to determine what the precise remedy should be (handing control over to Cornman Tweedy) that is the crux of the problem. Unlike legislators, the commissioners are not supposed to advocate for one side or another. The Corporation Commission is a quasi-judicial body that is supposed to examine the facts and then apply the law accordingly.
Both Tobin and Forese seem unable to shake their legislative habits. Tobin seems especially frustrated that he can’t just wave a magic wand or pass a law that would strip Arizona Water of its property rights.
Between a rock and a hard place
In its application, Arizona Water accused the Commission of violating its due process rights because of Tobin’s maneuver. While the violation is fairly obvious, Arizona Water must tread lightly. Because Arizona Water has many water service areas around the state and will be coming in for rate adjustments in the future, with a majority of the Commission lined up against them on this issue they likely fear retaliation if they do not cooperate. That fear probably put them at the table with Cornman Tweedy in the first place.
If Arizona Water prevails in court (and case law on this very issue indicates the company’s prospects are very good) the Feb. 3-2 vote would be upheld. The result would be the same as the amendment Burns offered on December 18.
If the commissioners don’t take a step back and reexamine their roles, their actions, and their own agendas, there is no end in sight.