APS derides Burns’ attempt to have court overturn rate hike

Bob Burns explains 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)

Attorneys for Arizona Public Service are deriding efforts by Bob Burns to have the state Supreme Court overturn a 3.3 percent rate hike just approved by the other utility regulators.

In new legal filings, Mary O’Grady, lead lawyer for the state’s largest electric company, said it would be “improper” for the justices to nullify the 4-1 vote by the Arizona Corporation Commission simply because Burns has been unable to subpoena executives and documents from APS and parent Pinnacle West Capital Corp. to get information about the companies’ political spending.

“The rate settlement, as approved by the commission, has many public benefits that have nothing to do with Commissioner Burns’ subpoenas,” she wrote. These range from new rate designs to allow customers to adjust their bills based on time of use and a promise not to seek more money before the middle of 2019.

But O’Grady, while defending the deal and the $7-a-month rate increase for residential customers, also went on the offensive, telling the justices that Burns efforts to have the high court intercede — and do it immediately — is improper.

She noted that Burns already is asking Maricopa County Superior Court Judge Daniel Kiley to enforce his subpoenas. But Kiley has yet to hear arguments on the merits of Burns’ claims, much less issue a ruling — one that APS would likely appeal if things did not go its way.

“Commissioner Burns’ request to expedite in this court should be seen for what it is: an attempt to gain leverage over the companies, by putting the new rates at risk, so that the companies will capitulate and provide commissioner Burns with the information he has demanded pursuant to the subpoenas at issue in his Superior Court case,” O’Grady wrote. “The court should reject that ploy.”

It isn’t just APS and Pinnacle West that want to quash Burns’ attempt to kill the rate hike.

In a separate filing, attorneys for the full commission and individual regulators are telling the justices that it would be improper for them to upend the 4-1 decision simply because Burns was on the losing end of that vote.

“It is analogous to a dissenting judge of the Court of Appeals filing a special action in this court to overturn a majority decision below, a rather peculiar posture for a case to be in,” wrote attorney Tim La Sota.

O’Grady agreed that Burns is legally off base in seeking Supreme Court action.

“Based on his reasoning, a single commissioner could challenge any rate case through an expedited special action filed directly with this court if it results in a rate increase,” she wrote. “This would set a terrible precedent and is inconsistent with Arizona law.”

Burns, through attorney Bill Richards, wants the Supreme Court to invalidate the commission vote. He contends that his client’s constitutional rights as a utility regulator were violated when he did not get to ask questions and raise some issues about whether APS is entitled to get more money from its customers.

Specifically, Richards said Burns wants to know how much money APS and its parent put into the 2014 commission race that resulted in the election of Tom Forese and Doug Little.

About $3.2 million was spent by outside groups to elect the two Republicans by groups who contend they are not required to disclose their donors. An APS spokesman will neither confirm or deny it was the source of any of that cash.

APS did admit spending $4.2 million last year to defeat Democrat contenders, a move that resulted in the election of Boyd Dunn, Andy Tobin — and Burns himself.

It isn’t just that Burns can’t get answers to questions about that 2014 race. Richards said the money spent by APS could mean the vote of the other commissioners to give the utility an additional $95 million a year from customers may have been illegally tainted.

But since Burns has yet to be able to get the information, Richards wants the Supreme Court to void the vote until he gets what he claims Burns is entitled to have.

La Sota, in his own filing with the high court, said all of that is legally irrelevant.

“It makes not difference that Commission Burns improvidently suggests his fellow commissioners were biased or prejudiced in the rate case,” he told the justice. He said those issues can be raised only a direct appeal of the rate case — something that has not been filed — not by asking the Supreme Court to intercede.

The justices agreed to decide in October whether they intend to intercede in the dispute.