Arizona utility regulator can't investigate colleagues for bias, judge rules

Arizona utility regulator can't investigate colleagues for bias, judge rules

PHOENIX — State utility regulators do not have a legal right to investigate their colleagues to determine if they are biased, a judge ruled.

Maricopa County Superior Court Judge Daniel Kiley rebuffed the efforts by Bob Burns to launch a probe into whether one or more of his colleagues on the Arizona Corporation Commission acted improperly in supporting a rate increase for Arizona Public Service because the company provided financial support for their political campaigns.

Kiley said due process does require that there be an “unbiased adjudication of disputes.” And he said Burns has a “commendable concern” to ensure that all involved in rate cases have their rights protected.

“However, such due process rights belong to the litigants to the dispute, not to members of the body adjudicating the dispute,” the judge wrote.

In this case, none of the parties to the rate case raised any questions of bias. In fact, all of the 29 parties, including the utility, the Residential Utility Consumer office and a host of intervenors, all signed off on the deal to allow APS to collect an additional $7 million a month from its customers.

The judge also said he can find nothing in the Arizona Constitution or state statutes that gives one commissioner the independent authority to investigate whether his or her colleagues should be disqualified from voting on an issue.

Kiley’s ruling has implications beyond this specific dispute and rate case.

It also sets the rules for what can happen — and who can question the bias of commissioners — in future rate cases where utilities and others are providing direct or indirect financial help to elect the very regulators who are deciding the issue.

The latest ruling is an outgrowth of Burns’ contention that APS or parent Pinnacle West Capital Corp. was the source of $3.2 million spent by “dark money” groups to elect Republicans Tom Forese and Doug Little to the commission in 2014.

Those groups claim their status as “social welfare” organizations under the Internal Revenue Code exempts them from disclosing donors. APS will neither confirm nor deny it was the source of those dollars.

In 2016, APS openly spent more than $4 million to defeat Democratic candidates for the commission, helping to ensure the election of Republicans Andy Tobin, Boyd Dunn and Burns himself. Burns contends APS didn’t really want him but feared him less than the Democrats.

Last year the commission voted 4-1 to approve the rate increase, with Burns opposed.

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