Sharp divisions have arisen between members of the Colorado Public Utilities Commission, with one commissioner calling for an investigation into another commissioner's ties to Black Hills Energy.
The dispute arose shortly after Gov. John Hickenlooper appointed Jeff Ackermann and Wendy Moser to the PUC on Jan. 4 and designated Ackermann as commission chairman. Ackermann filled the unexpired term of former PUC Chairman Joshua Epel, who resigned from the commission two years before his term was up. Moser, a former Black Hills executive, replaced former Commissioner Glenn Vaad, whose term expired.
The third commissioner, Frances Koncilja, was appointed by the governor in January 2016. Koncilja concurred, in part, in a decision with Epel and Vaad on Nov. 30, 2016, to slash Black Hills' $8.5 million rate request by 85%. However, in a partial dissent, Koncilja said the reductions did not go far enough. She said the utility's rates were still too high due to the PUC's overly generous past rate decisions. Koncilja is the only remaining commissioner who was involved in deciding that case.
On Jan. 25 the new commissioners granted Black Hill's request for reconsideration of that rate decision. That action angered Koncilja, who is from Pueblo, Colo., an area that includes Black Hills' southern Colorado customers. Koncilja asked for a docket to be opened on Commissioner Moser's past participation in PUC proceedings as former vice president of regulatory services and resource planning at Black Hills Corp. The Commission will take up that request at a future meeting, PUC spokesman Terry Bote said by email.
Commissioners decline to comment
Citing PUC policy for commissioners not to comment on quasi-judicial proceedings, Koncilja declined to give her perspective for this article. Moser did not respond to phone messages and emails asking for her assessment. Ackermann, who could be placed in the position of being the swing vote on the three-member commission, declined to give his view of the situation. Epel, who had been chairman since his appointment to the position in April 2011, and who resigned with two years remaining in his term, declined to comment on the rancor or say why he resigned after being on the commission with Koncilja for a year. In announcing Epel's resignation, the governor's office gave no reason for the premature departure. The Denver Post quoted Epel as saying he had completed what he set out to do on the commission and it was time to try something new.
Utilities law attorney Ray Gifford, who chaired the PUC for four years until 2003, said by phone that he sees an unprecedented level of conflict today on the commission.
"I've never experienced personally on the commission that degree of dissension," Gifford said. "Given the size of the commission and the nature of the business, you have to be able to find a working equilibrium with one another."
Regardless of the conflict, The Senate Agriculture, Natural Resources and Energy Committee voted overwhelmingly on Feb. 9 to send its recommendation to the Senate floor for confirmation of Ackermann and Moser, who have been sitting as the governor's nominees on the PUC, pending Senate confirmation as permanent commissioners. The senators focused on whether Moser had conflicts of interest and whether Ackermann would steer the PUC toward addressing customer concerns.
The vote for Moser's confirmation was 10-1, with only Sen. Leroy Garcia of Pueblo dissenting. In Ackermann's case, the committee voted 8-3 for his confirmation with Garcia and two northern Colorado senators opposed.
Facing extensive grilling from Garcia, Moser maintained she had no conflicts of interest and said she would continue to fairly balance the interest of utilities and their customers. Her entire 29-year legal career was primarily spent representing utility and telecom companies before the PUC, she said, giving her a thorough familiarity with the commission.
When legislators questioned whether Moser was biased in favor of Black Hills and other regulated companies, she answered, "There is no pending matter before the PUC that I have been involved with that is tied to any of my former employment." She said she had divested herself of all equity compensation from former employers.
Asked how he would address the perception among their constituents that the PUC is out of touch or is a rubber stamp for utilities' interests, Ackermann acknowledged the problem. "Very legitimately, parts of the state for different reasons feel left out of the conversation," he said.
Koncilja, who grew up and attended college in Pueblo, is the first commissioner from southern Colorado in decades. She is known as a firebrand litigator sympathetic toward the interests of low-income rural residents whom she sees as disenfranchised. At a Feb. 1 meeting, she mocked Moser for expressing concern about Black Hills ratepayers, saying that was not the case when Moser was vice president of regulatory services and resource planning at Black Hills Corp.
A Jan. 11 editorial in the Pueblo Chieftain juxtaposed the backgrounds of the three commissioners by saying, "This part of the state fully supports Koncilja's efforts on behalf of economically strapped consumers ever since she was appointed to the PUC a year ago. Now she's faced with two more potential adversaries--newly appointed Jeff Ackermann from the governor's own Colorado Energy Office and Wendy Moser, a former attorney and vice president of Black Hills, no less."
Koncilja has publicly remarked that Black Hills has spent money "like a drunken sailor," and called it "the most despised company down in the southern part of the state." Responding to Koncilja's charges, Black Hills filed a motion on Jan. 9 seeking to disqualify her from further participation in its rate case. She declined to disqualify herself during the PUC's Jan. 25 meeting, but the company is now seeking a full commission review that would put Ackermann and Moser in the position of deciding whether to oust her from the case.
Black Hills Energy is the name the company uses to conduct the business of Black Hills Utility Holdings Inc, a wholly owned subsidiary of Black Hills Corp.