Federal Energy Regulatory Commission member Richard Glick said Sept. 12 that he was given the wrong interpretation of the Trump administration's ethics pledge when he first joined the agency, causing him to cast votes in proceedings involving a former client from which he otherwise would have otherwise recused himself.
The revelation threatens to further postpone an already-delayed PJM Interconnection capacity market proceeding that observers had expected FERC's new 2-1 Republican majority to resolve shortly after Democratic Commissioner Cheryl LaFleur left the agency at the end of August.
In a Sept. 12 statement, Glick said he learned two days earlier that Charles Beamon, FERC's designated ethics official, had changed his interpretation of the White House's ethics policy. The shift follows an Aug. 29 ethics waiver issued by senior White House counsel that allows Commissioner Bernard McNamee to participate in the PJM proceeding (FERC dockets EL16-49; EL18-178), which also involves three of his former clients.
At issue is an executive order issued by President Donald Trump that prohibits executive branch officials, including FERC commissioners, from participating in "any particular matter involving specific parties that is directly and substantially related" to former employers or clients for two years from the date of their appointment.
Glick was sworn in as a commissioner on Nov. 29, 2017, coming directly from a position as general counsel for the Democrats on the U.S. Senate Energy and Natural Resources Committee. Prior to that, Glick worked for Iberdrola SA subsidiary Avangrid Inc., an energy holding company that controls multiple FERC-regulated electric utilities in the northeast. He left Avangrid on February 5, 2016, for his Senate post.
In a memo attached to his statement, Glick explained that Beamon and one of his deputies told him on "several" occasions that he would need to recuse himself from all matters to which Avangrid, and its affiliates and subsidiaries, was a party for approximately two years from the date he left the company. Along with the memo, Glick attached a December 2017 email exchange in which Beamon confirmed that under his interpretation at the time, the ethics pledge's general recusal requirement would expire in February 2018.
However, according to Glick, Beamon informed him during a Sept. 10 meeting that he had previously misstated the ethics pledge's requirements. Under Beamon's new interpretation of the ethics pledge, FERC commissioners should generally recuse themselves from voting in proceedings involving a previous employer for a two-year period beginning on the date they were appointed, not two years from the last date of employment, Glick said in his memo.
That means Glick should be generally recused from proceedings in which Avangrid has joined as a party until Nov. 29.
AvanGrid has intervened in the PJM capacity proceeding, and in October 2018 the company submitted testimony asserting that the grid operator's proposed changes to its capacity market could undermine states' efforts to meet their own self-defined climate goals. PJM's proposal involves expanding a Minimum Offer Price Rule to counter the price-suppressive effects of out-of-market subsidies for state-supported clean energy resources.
In an interview, Glick said he is still weighing whether to seek an ethics waiver from the White House and hopes to make a decision "soon." If he were to do so, Glick said that he would likely seek a waiver for multiple dockets instead of just one proceeding.
"To be quite candid, I'm kind of torn," Glick said. "I've recused from certain matters and never even thought about requesting a waiver, and so I'm a little uncomfortable with that. Having said that, I'm also quite aware that we have three commissioners now and we need to keep the work of the commission moving on."
Glick added that his staff is "desperately" working to determine how many of the roughly 1,800 votes he has cast as a commissioner so far involved Avangrid or any of its subsidiaries or affiliates. Among its FERC-regulated entities, Avangrid owns Central Maine Power Co., United Illuminating Co., New York State Electric & Gas Corp. and Rochester Gas and Electric Corp., which all participate in regional transmission organizations or independent system operators. The company also controls Maine Electric Power Co., Inc., which owns FERC-jurisdictional transmission assets in Maine through CMP.
"There are still plenty of proceedings where Avangrid is not a party," Glick said, noting that he will be able to participate in all of the matters before the commission at its upcoming Sept. 19 open monthly meeting. "I'm trying to be as transparent as possible here and I really am making an effort to do so. I intended to follow the guidance and continue to follow it, and hopefully this time I won't be told there are any different interpretations."
