PHOENIX — Attorney General Mark Brnovich says he will fight any effort by Corporation Commissioner Susan Bitter Smith to keep alive a lawsuit over whether she has been holding office illegally.
Brnovich said the entire purpose of his seeking Supreme Court action was to have her removed from office for alleged conflict of interest. The justices are set to consider the legal issues on Jan. 5.
But on Thursday, Bitter Smith announced she will be stepping down from the panel of utility regulators, effective the day before that.
“If she does follow through and she does resign her office, and she is out of office Jan. 4 and the governor appoints someone new, the hearing would be moot,” Brnovich said. He said he made that point clear when he first filed the lawsuit.
Bitter Smith, however, still wants her day in court even if a ruling in her favor would not restore her to her $79,500-a-year post.
And her attorney, Ed Novak, said it goes beyond the question of vindicating his client. He said future commissioners need to know what conduct — and, in this case, which outside employment — will and will not get them into legal trouble.
“The conflict issues are what are important here and need some resolution,” Novak said. “A cloud’s been cast over them by the Attorney General’s Office. And I think that the voters as well as people running for the office in the future need to have some understanding of what is and what isn’t a conflict.”
Brnovich, for his part, said there’s nothing for the high court to decide. “I think the law is pretty clear on this,” he said.
He said that Bitter Smith, in lobbying for CoxCom and Cox Communications, was effectively lobbying for Cox Arizona Telecom, a utility regulated by the commission.
And he said her $156,000-a-year job as executive director of the Southwest Cable Communications Association also was a conflict because some of that group’s members also offer telephone service subject to commission oversight.
Novak, if given the chance, wants to argue that any connection between Bitter Smith and regulated telephone companies is too legally remote to matter.
Brnovich sniffed at that contention. “Everyone’s entitled to their own opinion,” he said. “They’re not entitled to their own facts.”
Brnovich also argued it is important to have a strict interpretation of conflict-of-interest laws as they apply to the Arizona Corporation Commission.
He said the framers of the Arizona Constitution set up the commission as a “fourth branch of government” with both legislative and judicial powers over monopoly utilities.
“It was supposed to be that other check on government,” Brnovich said. “And it was supposed to regulate public utilities to ensure the consumers weren’t getting screwed.”
All that, he said, requires strict avoidance of any conflicts by the regulators.
Novak said he believes he can talk the justices into keeping the case alive despite the fact that whatever they rule won’t affect Bitter Smith one way or the other. Brnovich disagreed.
“The courts don’t like to weigh in and waste their time, everyone else’s time, the lawyers’ time, hearing a case when it’s moot,” he said.
