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APS in court to block regulator from grilling executives

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)

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)

The attorney for the state’s largest electric company told a trial judge Wednesday he has no authority to decide whether a utility regulator can grill her client’s executives.

Mary O’Grady argued that any dispute over how the Arizona Corporation Commission decides issues can go only to the state Court of Appeals. More to the point, she said that legal question could not be decided until after the pending rate hike request by Arizona Public Service is decided.

But Maricopa County Superior Court Judge Daniel Kiley pointed out that APS just last year asked him to quash the subpoenas that Bob Burns had issued on APS and parent company Pinnacle West Capital Corp.

“Isn’t APS’ position here inconsistent with the position it had previously taken?” he asked.

O’Grady insisted it is not, saying all the company was trying to do is explore all of its options to keep from having to comply with Burns’ subpoena. Anyway, she said, APS eventually dropped that lawsuit.

“But APS filed a verified complaint stating, under oath, that this court has jurisdiction,” Kiley responded.

The issue is crucial because Burns wants to question APS and Pinnacle West executives about the money they spend, both above board and through “dark money” groups, to influence the outcome of commission elections.

Burns contends what he discovers could most immediately influence whether the commissioners approval of a deal to allow APS to charge customers an average of $6 a month more. It also includes changes to how much APS will pay to buy power from customers who generate their own electricity through rooftop solar units.

He has argued that money spent by the utility to elect some of his colleagues was done with the intent and anticipation that they would engender goodwill, allegiance, support and future bias … toward APS.”

That includes not only the $4.2 million APS admitted it spent last year to defeat the Democrat candidates and elect the Republicans Andy Tobin, Boyd Dunn — and Burns himself — but another $3.2 million spent by groups that won’t disclose donors to elect Republicans Tom Forese and Doug Little. APS will neither confirm nor deny it was the source of any of that cash.

But there are implications that extend far beyond this particular rate case: The outcome of the lawsuit will decide whether a majority of the commission can thwart the ability of one of the panel’s members to issue his or her own subpoenas.

Attorney Bill Richards, who represents Burns, contends Arizona law and the state constitution give powers to individual commissioners who are elected statewide. APS disagrees.

And the other four commissioners have since voted to block Burns from issuing the subpoenas. Richards said it’s up to Kiley to rule on whether the other four commissioners have the legal power to block Burns from exercising what he believes are his powers as a regulator.

“The courts have inherent power to issue declaratory rulings … on what the constitution means and how it should be applied,” he told the judge.

The alternative, Richards said, would effectively allow the other commissioners to tell APS, “Don’t worry about this subpoena, you do not have to worry about this, we’ve got you covered.” And that, he said, is unconstitutional.

Even if Kiley decides that Burns has the power to issue his own subpoenas, unfettered by other regulators, it is unclear how that would affect the current APS rate case. That is virtually certain to lead to an appeal by APS — and by other commissioners if they are dragged into the lawsuit — meaning it could be months or longer before there is a final resolution.

Meanwhile, the commission could act as early as this month to finalize the case, paving the way for the company to start charging higher rates. And O’Grady said there is no request in front of Kiley to block the commission from taking a final vote.

The judge gave no indication when he will rule.


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