Arizona Corporation Commissioner Bob Burns has sent a letter to fellow commissioners regarding the Ethics Committee created this year due to the persistent and multi-faceted charges of unethical behavior on the part of commissioners.
Although the Committee headed up by Commissioner Boyd Dunn has been shrouded in controversy since it was formed, Burns expressed his appreciation to Dunn and “his office for all the work and research they have conducted to put this initial document together.”
Burns urged Dunn to include “all the statutes and rules” Dunn referenced and cited in the draft and “expand and add to these in order to make our Code of Ethics as strong and as relevant to our job as possible.”
“It is in this vein,” wrote Burns referring to a desire for a strong code of ethics, “that I offer my comments.”
Burns addressed the issue of campaign contributions and undue influence in his recommendations:
I realize that this Commission cannot place restrictions (much less enforce such restrictions) on whose or what campaign or cause to which an individual or entity can contribute. However, this Commission can, through its Code of Ethics, set up procedures that outline what actions a Commissioner must take when campaign contributions are made that the public could perceive (i.e., appearance) as being either inappropriate or such that the public could perceive as having improper/undue influence on a Commissioner or the Commission. My suggestion would be to add the following paragraph to the end of Section IV – Disclosure:
“A Commissioner shall recuse herself/himself from participating and/or voting on any matter before the Commission in which any of the following is known to that Commissioner to have occurred with regard to campaign contributions or contributions of any kind which directly or indirectly benefit that Commissioner, that Commissioner’s immediate family (mother, father, sister, brother, spouse, and members of household as defined in Arizona Revised Statute§ 18- 444), and/or that Commissioner’s personal interest/cause if the contribution may be reasonably perceived to influence a candidate’s election to the Commission or influence for a sitting Commissioner’s election to a future elected office:
1. For a business entity that is a party in an issue before the Commission where the owners and/or officers and/or employees in executive positions have directly or indirectly (e.g., through a political action committee or other third party) contributed, in aggregate, one thousand dollars ($1,000) or more.
2. For an individual that is a party to an issue before the Commission where the individual and/or members of that individual’s immediate family have contributed directly or indirectly (e.g., through a political action committee or other third party), in aggregate, one hundred dollars ($100) or more.”
It should be noted that my suggested language applies not only to regulated utilities but to any entity or individual that may come before this Commission.
My suggested language puts no restrictions on to whom or to what an individual or business entity can contribute. However, it does put those contributing individuals and entities on notice that if they have a matter that comes before the Commission, any Commissioner or Commissioners to which they have contributed will be recused from their case. If contributions are made by an individual or entity to more than two Commissioners (i.e., three or more), it is possible their issue(s) may not be able to be processed since there will be less than a quorum of Commissioners available to deliberate and vote on their case. Some may argue that this cannot happen because of the Rule of Necessity. If the Rule of Necessity were to be invoked, in my opinion this could result in a quorum of perceived non-impartial Commissioners deliberating and voting on a particular case. Such a result would defeat the stated goal of avoiding the “appearance of impropriety.” Under these circumstances, I would not support the Rule of Necessity being invoked at the expense of the public trust.
As with most anything, my suggested language could be gamed by unscrupulous individuals or entities. For example, if a specific business entity or individual believed that a certain person would be unfavorable to that entity or individual if that person were to get elected to the Commission and there was a high likelihood of that person being elected, the unscrupulous individual or entity could contribute to that person’s campaign just so that person, once elected to the Commission, would not be able to participate and/or vote on their issue.
Obviously, the best way to avoid any issue with contributions is if an individual or entity believed it was going to be appearing before the Commission to have a disputed issue decided, that individual or entity should not make any contributions that in any way benefited a sitting Commissioner or a person running for Commission office. However, that is not under our control, but under the control of those individuals and entities.
I do not believe it would be fair to individuals or business entities to change the rules in the middle of the game, per se. Therefore, if the Code of Ethics adopted in this proceeding contains my suggested language on contributions, I do not believe it would be fair to make this recusal mandatory (it could be voluntary) for the current sitting Commissioners. However, it should be mandatory for all future elected Commissioners if we can be sure that unscrupulous entities or individuals are not gaming the system.
Burns has worked to expose and end the undue influence of campaign contributions on commissioners. He has argued that because the Arizona Corporation Commission (ACC) was created to be a quasi-judicial body that oversees monopolistic public utilities, any real or perceived influence of contributions on commissioners would violate their basic job duties.
Burns and many others claim that the majority of commissioners have become “captives” of Arizona Public Service (APS) due to the inordinate amount of money the corporation spent on the 2014 election. “Captives” act on behalf of and in the interest of their captors. In the case of the ACC, the “captive” commissioners appear to be protecting the interests of the corporation by fighting Burns’ effort to make public those contributions.
Just last month, the “captive” commissioners stunned the public when they approved a rate increase for APS. Burns had urged his fellow commissioners to join his fight to have the corporate giant reveal its contributions before a rate increase could be considered.
In May 2017, the commissioners were asked to reconsider their actions in the case of Arizona Water Company and its Certificate Of Convenience And Necessity (CC&N). Commissioner Tobin, who initially voted in favor of Arizona Water and denied Cornman Tweedy’s request to delete the portion of Arizona Water’s CC&N that includes property owned by Cornman Tweedy.
Arizona Water has been engaged in a legal battle with Cornman Tweedy 560 L.L.C. over the CC&N for years. Tobin’s move appears to prolong that fight in favor of Cornman Tweedy, which is controlled by the powerful Robson family.
The fact that Robson family members appear on the 2018 (4th Quarter) finance report for Commission Forese’s campaign, doesn’t help the Commission’s profile. The fact that family members gave considerable money to the Boyd Dunn 2016 campaign makes it look even worse.
The public’s perception of the Commission has been negative due to its efforts to prevent transparency in campaign contributions from Arizona Power Service, the state’s largest utility company. Burns has been trying to get APS to reveal the beneficiaries of their campaign contributions in the 2014 election. In August 2016, Burns filed subpoenas for the production of records and information relating to a range of expenditures from 2011 through 2016 by APS and its parent company Pinnacle West Capital Corp. including information concerning marketing and advertising expenditures, charitable donations, lobbying expenses, contributions to 501(c)(3) and (c)(4) nonprofits and political contributions.