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Giant utility drops lawsuit against ACC commissioner to stop records production

Bob Burns explains Tuesday why he was the lone vote against selecting Tom Forese as new chairman of the Arizona Corporation Commission (Capitol Media Services photo by Howard Fischer)

Arizona Corporation Commissioner Bob Burns (Capitol Media Services photo by Howard Fischer)

The state’s largest electric utility may have outmaneuvered a utility regulator in the fight over its records about its campaign spending.

Arizona Public Service and Pinnacle West Capital Corp., its parent, have quietly dropped their lawsuit seeking to quash the subpoena issued by Bob Burns for corporate records.

APS spokesman Jim McDonald would not comment on the move.

In response, Burns late Friday filed his own legal action to compel the companies to comply with the subpoena he claims they have ignored.

But Burns could find himself without the legal help to pursue the case.

That’s because the other members of the Arizona Corporation Commission voted only to allow Burns to hire outside counsel — but only to defend himself against the lawsuit filed against him by APS and Pinnacle West.

Burns told Capitol Media Services it is clear to him that the decision by the utility not to seek a court order declaring his subpoena invalid does not mean it will finally produce the documents he wants.

“They are going to try and stop me by some other means in all probability,” he said. “I don’t know what their game plan is.”

But in dropping the lawsuit, the “game plan” could be to leave Burns without the funds he needs to pursue the issue.

Commission Chairman Tom Forese said late Friday he could not comment on the latest turn of events. It was Forese who helped approve the vote last year to give Burns the legal latitude — and the legal help — to go to court over the subpoenas. But that motion was specifically to let Burns defend himself.

And there are indications that the others on the five-member panel are unlikely to give Burns permission to use commission funds to proactively pursue the records.

Burns said he’s not sure whether he was outmaneuvered by the utility.

“We’ll see,” he said. “If the commission is not going to support me doing my official duties, I think that’s a problem.”

At the heart of the fight are questions about what behind-the-scenes role Pinnacle West and APS played in the 2014 election.

It’s already a matter of public record that the Free Enterprise Club and Save Our State Now put $3.2 million into getting Forese and fellow Republican Doug Little elected. What is not known is the source of those funds as the two organizations claim they are “social welfare” organizations which are exempt from Arizona laws compelling them to disclose their donors.

APS has repeatedly refused to confirm or deny its role in the 2014 race, first in spending money in the GOP primary against some candidates who were running on a pro-solar platform and then in the general election to help Forese and Little defeat the Democrats. A company spokesman would say only that the utility has a right to defend itself against what it saw as unfair charges.

Unable to get any records from the Free Enterprise Club and Save Our State Now, Burns instead subpoenaed the records of both APS and Pinnacle West, demanding disclosure of their spending on campaigns, lobbyists and charitable donations.

APS, as a regulated utility, did supply some information. But it left Burns unsatisfied.

“All they gave us is some public records,” he said, things the company already files either with the commission or that Pinnacle West must make available to the Securities and Exchange Commission as a publicly traded corporation. “They didn’t give us anywhere close to the number of records we ordered supplied.”

APS and Pinnacle West then went on the offensive, filing suit and asking Maricopa County Superior Court Judge David Gass to quash the subpoena as illegal.

It was that lawsuit that was dropped this past week.

Burns said once APS dropped its lawsuit he had no choice but to go proactive.

“We have to get compliance out of this thing at some time before we all pass away,” he said.

There already are indications the other commissioners won’t go along with spending more money to go after the records of what now has occurred more than two years ago.

While Forese was not commenting on Friday, he told Capitol Media Services in January he was anxious to put the whole issue to bed.

And Forese also suggested Burns is obsessed with not just the 2014 campaign but also his push to ban future anonymous donations to political committees that put money into future commission races.

That wasn’t a problem in last year’s race, with APS admitting it was the sole source of dollars for an independent campaign to elect Republicans Boyd Dunn, Andy Tobin — and Burns. Pinnacle West CEO Don Brandt publicly said while his company has had its disputes with Burns he thinks Burns would still be better for his corporation than Democrats Bill Mundell or Tom Chabin.

Burns, however, also benefited from the $2.5 million Solar City spent on the race on his behalf and also for Mundell.

One comment

  1. Interesting article. APS has been a good corporate citizen with diverse groups, but it is sad to learn that they discriminate against Democrats and solely favor Republicans with their political donations. Many Democrats are their customers too and do not have a choice of companies since APS is a monopoly. Wonder where APS would be if customers on both sides of the political aisle had a choice. Just thinking. Elections coming up.

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