PHOENIX β An attorney representing utility investors is telling state regulators they have no right to subpoena the records of Arizona Public Service or any utility to find out whether they spent money to get certain commissioners elected.
In a memo to regulators, Mary OβGrady acknowledged the Arizona Constitution gives the Arizona Corporation Commission broad powers. Those include the ability to βinspect and investigate the property, books, papers, business, methods and affairsβ of any corporation that sells stock in Arizona as well as any commission-regulated utility.
But OβGrady said there are βsignificant limitsβ on those powers. She said commissioners can investigate only to the extent necessary for them to do their job.
βThere is no basis to allow the commission to use its investigative power to inquire into the political speech of a particular entity,β OβGrady said in the memo.
βThe Arizona Constitution and Arizona statutes do not assign the commission any responsibility in the area of campaign finance regulation and disclosure,β she continued. OβGrady said about the only way the commission could get into the issue would be in the context of a request by a utility for a rate hike to determine whether customer funds paid for any election expenses. But she said there is no such rate case going on now.
The warning was forwarded to the commission by Gary Yaquinto, president of the Arizona Investment Council, which represents the interests of investors in utilities such as APS.
The issue arises because of allegations that much of the money spent by two independent groups last year to elect Republicans Tom Forese and Doug Little to the commission was furnished by APS or Pinnacle West Capital Corp., its parent. The groups claim theyβre exempt from laws requiring disclosure of donors; APS will neither confirm nor deny playing a role in the race.
Commission members Susan Bitter Smith and Bob Burns, who are up for election themselves next year, have said they want answers.
βClearly, the commission has the ability to look at what ratepayers are paying for,β Bitter Smith said last month. And Burns said he was ready to issue a subpoena for APS records, saying he believes individual commissioners can act on their own, without the need for a majority of the five-member panel to go along.
OβGradyβs opinion is at polar extremes to one prepared by former Supreme Court Chief Justice Thomas Zlaket on behalf of the Alliance for Solar Choice, the manufacturers and installers who have been at odds with APS over its efforts to force homeowners with solar panels to pay more to the utility.
βI have concluded that Arizonaβs Constitution and its implementing statutes clearly empower the commission to request, and subpoena if necessary, such information from APS and/or Pinnacle West,β Zlaket wrote to the commissioners last month. He said there is a βcompelling interestβ in commissioners knowing the role the companies may have played βbecause such information reveals the potential bias of commissioners who may have received support from these entities.β
Forese and Little have said they have no knowledge of whether APS helped them win through independent expenditures. They also have spurned a separate request by two former commissioners that they recuse themselves from participating in upcoming hearings on APSβ demand for more money from solar customers.
