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Ariz. regulators to hire lawyers in defense against fellow commissioner's suit

Arizona Corporation Commission members voted to hire attorneys to defend themselves against a suit brought by a fellow commissioner seeking a court order for Arizona Public Service Co., or APS, to turn over campaign financing records.

Commissioner Bob Burns sued APS and parent company Pinnacle West Capital Corp. to force the records disclosure, claiming he has constitutional authority as an elected official to subpoena the records. He had tried to get support from the full commission to issue the subpoenas, but the other commissioners refused, and the companies refused to comply with the demands of the lone regulator. Burns filed his complaint with the Superior Court of Arizona, Maricopa County. (Case No. CV2017-001831)

On Aug. 3, Judge Daniel Kiley ruled that applicable case law supports Burns' request to amend his complaint to add defendants, namely the Arizona Corporation Commission and each of its four other members, and claims. The judge ruled against Commission Chairman Tom Forese's motion to intervene to object to Burns' July 23 effort to name him as a defendant.

In response, the commissioners on Aug. 7 voted to hire five attorneys. Each commissioner will get a lawyer to represent him personally, and the commission will get a fifth attorney. ACC Legal Division Director Andy Kvesic said each commissioner needs his own attorney because instances may arise where commissioners may have issues adverse to one another in defending themselves against Burns' complaint.

Next, the four commissioners refused Burns' request to resume public funding for his legal services in connection with the lawsuit. The commission previously cut off funding for Burns' attorney, who they had previously agreed could represent Burns when APS and Pinnacle West filed a complaint in the Superior Court seeking a declaratory judgment that Burns' subpoenas were illegal. The utility companies in early March withdrew their complaint, but when Burns continued to press for a court order to compel APS to comply with his subpoena, the commissioners cut off funding for his legal representation.

Burns continued to press his case, and on May 26, the court refused the companies' move to dismiss the case but stayed the proceedings to give the commission an opportunity to rule on Burns' motion to compel APS to comply with the subpoenas. The commission refused to do so.

Major APS rate case ruling set for Aug. 19

The new developments in this case came just after the commission set an Aug. 15 date to hear APS' major rate case, which Forese called because APS said the commission must issue a final order by Aug. 19 to comply with state law. A commission law judge's recommended order had called for a Sept. 1 effective date.

In their latest decision, the four commissioners reasoned that there was only historical precedent at the commission for defending members in legal matters and the commission had never hired outside counsel to pursue offensive litigation against another party.

Burns argued he had a right to amend his complaint seeking a declaratory judgment against APS and its parent to include the commissioners, whom he said he is suing because of the positions they have taken in contending he could not unilaterally pursue the companies' campaign contributions records.

Burns said the Arizona Constitution gives him the right to do so and he does not need the support of the commission. "My constitutional rights have been violated and I have a right for the courts to resolve a good faith dispute over the meaning of the Arizona Constitution and statutes. I contend my position is correct and yours is incorrect," Burns told the other commissioners.

Burns argued further that if the commissioners did not provide public money for him to pursue this issue then the commissioners would be discriminating against him in favor of the regulated monopoly's position in an effort to stop investigations into key commission issues. Burns has contended the commissioners are continuing to show bias in favor of APS that could lead their disqualification and create numerous other legal problems.

Burns has contended that APS supported the elections of Forese and Commissioner Doug Little, and in June he unsuccessfully sought to disqualify them from ruling on the rate case. "If the commission votes to spend money in favor of APS' position against mine, they have demonstrated bias in the rate case and must recuse themselves from the rate case," Burns said.

Commissioner Boyd Dunn said Burns' amending of his complaint to include the commissioners was not necessary and he took Burns' allegations very seriously. "So my conclusion is I am not inclined to set new precedent here by awarding attorney fees to Commissioner Burns," Dunn said.

Little said he agreed with Dunn that paying Burns' legal fees "would set a dangerous precedent."

Commissioner Andy Tobin asked if there was an estimate of how much it would cost the taxpayers to hire five lawyers. ACC Executive Director Ted Vogt said there is none because the cost would depend on how the proceedings go.