PHOENIX — Attorneys for members of the Arizona Corporation Commission told a judge Tuesday he should block an investigation bid by one of the panel’s members.
Commissioner Bob Burns wants to investigate whether campaign financial help his colleagues got or are suspected of getting from Arizona Public Service tainted their vote to allow the utility to collect more money from customers.
David Cantelme, representing Andy Tobin, said what Burns ultimately wants is a ruling that Tobin and three other commissioners should have been disqualified from approving the rate increase last year.
But Cantelme told Maricopa County Superior Court Judge Daniel Kiley there is no legal procedure for commissioners to be disqualified from hearing issues, even if they involve parties that helped elect them. Therefore, Cantelme said, the issue is legally irrelevant and there’s no reason to allow Burns to investigate.
Attorney Bill Richards, representing Burns, responded that it does not matter whether there is no specific law or rule on disqualification of utility regulators.
He said Burns wants to protect the constitutional right of “due process” of cases being decided by impartial judges. In this case, Richards said, the commission was acting in a quasi-judicial capacity.
Cantelme, however, said even if there was a due process violation — a point neither he nor attorneys for APS are conceding — Burns has no right to assert it.
That right, he told Kiley, belongs to those who were parties to the case. And he said none of the 29 parties, including the utility, the Residential Utility Consumer Office or a host of intervenors, raised the issue and all appear happy with a deal that was cut to allow APS to collect another $7 million a month from its customers.
“If the litigants themselves do not advance and say, ‘My due process rights have been denied,’ where does Commissioner Burns get off in trying to force something down their throats that they don’t want and never asked for?” Cantelme said. “He hasn’t got that authority.”
What Kiley decides has implications beyond this specific dispute and this rate case. It also could set precedent for what happens in future cases when parties to a rate case, whether utilities or others, are providing direct or indirect financial help to elect the very regulators who will decide the issue.
Burns contends that an investigation is necessary to first determine whether APS or its parent Pinnacle West Capital Corp. were the source of $3.2 million spent by “dark money” groups to help 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 Tobin, Boyd Dunn — and Burns himself. But Burns, whose re-election bid also was aided by money from solar interests, contends APS didn’t really want him but feared him less than the Democrats.
That led to the 4-1 vote by the commission last year, with Burns in opposition, approving the rate-hike deal.
Kiley previously rejected a claim by Burns he has the independent power as a commissioner to subpoena the company’s records of spending on political and lobbying expenses. Now Burns hopes the judge will allow him to pursue an investigation into whether the other four commissioners had conflicts of interest.
Kiley said he will rule as soon as he can.