Bob Burns is headed back to court — and not just in his bid to get financial disclosure records from the state’s largest electric utility.
The move follows the 4-1 vote on Tuesday by the Arizona Corporation Commission to reject the bid by Burns to compel Arizona Public Service and parent company Pinnacle West Capital Corp. to comply with the subpoena he had issued. That same vote denied his bid to at least have company executives testify before a hearing officer and allow his attorney to question them.
That clears the way for Maricopa County Superior Court Judge Daniel Kiley to rule on Burns’ lawsuit to force the utility to give him what he wants. Kiley last month sidestepped the issue, saying Burns first had to ask the other members of the commission to do just that.
But Monday’s vote also paves the way for a wider lawsuit, not only into APS but into the commission itself.
That’s because Burns on Tuesday separately sought to have an administrative law judge decide if the other four commissioners should be disqualified from even voting on his request.
He contends that all four took money, at least indirectly, from APS to win their seats. And that, Burns said, means someone – not the commissioners themselves – needs to decide if they have a conflict of interest in not just the matter of the subpoenas but also whether to approve a rate increase for the utility.
The other four, however, rejected that request.
So Burns told Capitol Media Services on Wednesday he is weighing whether to file yet another legal action, this one asking a judge to determine whether the other commissioners have any right at all to decide anything involving the utility.
“According to my attorney, how can they rule on disqualification of themselves?” he said. “They can’t.”
At the heart of the matter is the $3.2 million spent in 2014 to help elect Doug Little and Tom Forese by Save Our Future Now and the Arizona Free Enterprise Club. Both groups refused to disclose their donors, saying they are not required to do so based on their status under federal tax law as “social welfare organizations.”
APS, for its part, will neither confirm nor deny either it or its parent was the source of any of those dollars. So Burns has issued subpoenas for both firms to produce records of political donations and lobbying expenses.
That case wound up before Kiley, with Burns asking that the subpoenas be enforced. Burns contends that both the Arizona Constitution and state statute give individual commissioners the right to demand the documents.
But Kiley instead accepted the arguments by Mary O’Grady, representing the companies, the judge can’t rule until Burns first exhausted his other legal option: Getting the full commission to compel disclosure. That led to Tuesday’s hearing.
But Burns did not just ask for that motion to compel. He said that apparent conflicts by the other commissioners raised the question of whether they could even vote on his motion.
That is based not just on the money APS and Pinnacle West may or may not have spent on behalf of Forese and Little but also the $4.2 million APS publicly admitted it spent this past year to defeat Demcorats Bill Mundell and Tom Chabin.
That resulted in the election of Boyd Dunn and Andy Tobin as well as Burns’ own reelection. But Burns contends he has no conflict because he was already fighting with APS at the time of the election and that the utility found him less unacceptable than either Democrat.
The other commissioners did not take kindly to what Burns was trying to do.
Little said that Burns’ contention of a conflict “is based on nothing but supposition, rumor, innuendo and a claim of broadly held belief (about the source of the 2014 funds) for which there is no objective evidence.”
Tobin was less charitable in his criticism of Burns, calling him “out of control.”
“Nothing surprises me coming from him except a desperate need for constant attention,” he said.
Burns, however, is simply doubling down on his contention that the panel may be doing the bidding of APS.
“The people of the state of Arizona have a right to be very concerned if commissioners suspected of undue influence by APS and Pinnacle West do not recuse themselves and instead guard those companies with their votes,” he said, refusing not only to support his subpoena but voting to deny his motion for an investigation into whether they should be disqualified.
Burns said Wednesday even taking that vote was illegal because they can’t decide for themselves that they have no conflict.
He said that’s why he wanted a hearing officer to look at the issue and reach a conclusion. And that, Burns said, may leave him with no option but to bring the issue to a judge.
As it turns out, APS itself weighed in on the matter, urging the other commissioners to reject Burns’ motion that they look at disqualifying themselves. In its own pleadings, attorneys for the company argued that only parties to the current rate case — including APS — have standing to argue that any commissioner needs to be disqualified. And the utility said that doesn’t include Burns.
That logic was incorporated into the resolution crafted by Dunn rejecting Burns’ request.