New utility regulator Tobin reveals potential conflict

PHOENIX — The man who replaced a state utility regulator forced out over conflicts of interest has some conflicts of his own that likely will keep him from voting on key issues before the Arizona Corporation Commission.

Andy Tobin said Tuesday his son-in-law, Mike Coomer, is an “inventory specialist” for Solar City in Dewey. Tobin said it’s a low-level job that does not involve making policy for the company, which builds and installs solar cells to generate electricity.

But Tobin acknowledged the company has been actively involved in fighting Arizona Public Service over the charges it wants to impose on customers who have solar. Similar fights over issues such as “net metering” are likely to spill into rate cases for other electric companies regulated by the commission. Net metering is the requirement for utilities to buy excess power generated by customers.

Tobin said his son-in-law’s employment probably puts him on the sidelines during those debates and votes. “From my perspective, the law is pretty clear,” he said.

Tobin said commission lawyers have said he has what’s legally termed a “remote” conflict of interest, one in which he would not personally benefit from any decisions he and the commission make. But Tobin said that still creates problems.

“While it’s remote, it’s still an issue that others can make an issue of,” he said.

“I don’t believe it’s much of a conflict,” Tobin added. “But, having read the law, I can see where others can perceive it to be.”

The biggest problem, he said, will be in cases where Solar City seeks to intervene in requests by utilities to increase rates and change charges for solar customers.

“If our attorneys say I am conflicted, I will not vote,” Tobin said. He acknowledged that could result in some issues before the commission ending up in a 2-2 tie.

Gov. Doug Ducey appointed Tobin to replace Susan Bitter Smith.

Attorney General Mark Brnovich had filed suit to have Bitter Smith declared ineligible to serve on the commission because of her outside jobs, including lobbying for Cox Communications and serving as executive director of the Southwest Cable Communications Association. Brnovich said while the commission has no authority over cable TV, many of these companies offer bundled phone service, which is regulated.

Bitter Smith denied she was breaking the law but resigned anyway, saying the lawsuit and the publicity had become a “distraction” from the commission’s work.

Tobin said he never mentioned his son-in-law’s job to Ducey because “I didn’t think it was much of an issue.” But all that changed last week after Tobin talked with commission lawyers.

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“They were concerned, and we went back and read the statute,” Tobin said. “And I have to agree with them.”

But Tobin said none of this rises to the level of the allegations against Bitter Smith, and he has no intention of quitting his new job.

Gubernatorial press aide Daniel Scarpinato said the governor remains convinced Tobin is a good choice.

“It’s not as if he was hiding anything,” Scarpinato said. He added Ducey still believes Tobin can play a valuable role on the commission even if he can’t participate in rate cases involving electric companies.

“There’s a lot of issues that the commission faces and the commission decides on that impact Arizonans, whether it’s securities, whether it’s water rates in some areas, whether it’s railroad safety, whether it’s where to put new infrastructure,” Scarpinato said. And he said Ducey sees Tobin, who is from Paulden, as “an advocate for rural Arizona” on a commission whose other four members are all from Maricopa County.

But attorney Tom Ryan, who prepared the materials that Brnovich used to file suit against Bitter Smith, said naming Tobin to the commission was a mistake.

“It certainly gives the appearance of impropriety and shows a lack of due diligence on the party of the 9th Floor,” he said, referring to the governor’s office.

“The emergence of renewable energies required a clean slate for this appointment,” Ryan said, suggesting perhaps a retired judge who would fill out Bitter Smith’s term and agree not to run again.

“Instead the state of Arizona gets a commissioner who has to recuse himself on one of the most important issues of our time,” Ryan said.

Tobin said he has no intention of asking his son-in-law to quit his job. “There’s not a lot of jobs in rural Arizona,” he said.

Ryan took a separate slap at both the governor and his appointee, calling Tobin “nothing more than the 9th Floor’s political Spackle.”

Ryan noted that Ducey has plugged in Tobin to head three separate agencies in the space of less than a year.