Saying the claims against his client have no basis, the attorney for utility regulator Susan Bitter Smith asked the state’s high court late Wednesday to reject the bid by Attorney General Mark Brnovich to oust her from office.
Ed Novak said Bitter Smith’s $156,000-a-year outside job as executive director of the Southwest Cable Communications Association is not an illegal conflict of interest to her position on the five-member Arizona Corporation Commission.
He said none of its members are telephone companies. Anyway, Novak said, Bitter Smith is employed and paid by the association and not by the individual members.
Novak also dismissed the contention that her position lobbying for CoxCom and Cox Communications means she has an “official relation” to Cox Arizona Telecom. He called that an effort by Brnovich to “reach and conflate.”
And while Novak said some cable companies do offer “bundles” that include telephone service, he said that is done through Voice over Internet Protocol, sending digital signals through cable rather than standard phone lines. He said VoIP is not regulated by the commission, meaning no conflict for Bitter Smith in her role in regulating the rates of phone companies.
The justices will consider the issue on Jan. 5.
Wednesday’s filing is in response to Brnovich telling the Arizona Supreme Court Bitter Smith is “ineligible to serve” on the commission.
He said Bitter Smith’s role as a lobbyist for the two Cox affiliates violates state law that says members of the commission cannot have an “official relation” with any entity regulated by the panel.
And Brnovich said that corporate members of the cable association that Bitter Smith heads offer phone service which he said is regulated by the commission. He contends that violates another section of law barring regulators from having a “pecuniary interest” in regulated companies.
Novak, in his court filings, says Brnovich is wrong on the facts.
But he also told the justices that, if nothing else, the law being cited by Brnovich to demand his client’s removal is “unconstitutionally vague and therefore void.”
He said the law forbids an “official relation to” or a “pecuniary interest” in an entity subject to regulation.
“However, the statute does not define any of these terms,” Novak wrote.
He said Bitter Smith never considered her outside jobs in conflict with the law. More to the point, Novak said voters who elected her in 2012 were aware of those other jobs and “apparently did not deem these activities to be problematic.”
What all that means, he argued, is if those outside jobs are prohibited by law, “then the statute cannot be deemed to provide notice of prohibited conduct to reasonably intelligent persons not can the statute be deemed to provide explicit guidance to those who interpret it.” And that, said Novak, means it is unenforceable — and cannot be used to remove her from office.
Novak also urged the justices to tread lightly, pointing out that she served for three years before anyone contended she had been doing something illegal.
“This challenge is brought on by facts well known and publicly disclosed prior to her election,” he said. “Courts are appropriately cautious in removing from office those individuals the public has chosen to serve.”
Brnovich, in his own filings, contends that what Bitter Smith does for Cox falls within what’s prohibited by the statute. He said her lobbying covers not just the cable companies but their “direct affiliates that are controlled by those parent companies.”