PHOENIX β An activist lawyer asked Attorney General Mark Brnovich to take legal steps to oust Susan Bitter Smith from the Arizona Corporation Commission, contending she is holding office illegally.
In a complaint filed Wednesday with Brnovichβs office, Tom Ryan said Bitter Smithβs ongoing role as a paid lobbyist for cable companies creates a direct βand he contends illegal β conflict of interest. Thatβs because Cox Communications, the largest cable company in Arizona, also provides telephone service that is regulated by the commission.
Ryan also said a separate firm owned by Bitter Smith and her husband, Paul Smith, does consulting work for the owner of a golf course who is trying to get Arizona Public Service to move a substation to accommodate a redesign of the course, a move opposed by homeowners who would then be nearer to the substation. APS, the stateβs largest electric utility, also is regulated by the commission.
Ryan is asking Brnovich to file what is known as a βquo warrantoβ action, essentially a lawsuit asking the Arizona Supreme Court to declare Bitter Smithβs election void and the office vacant.
He said if Brnovich does not act, he will file his own lawsuit against the attorney general, asking a judge to order the attorney general to pursue Bitter Smith.
Bitter Smith, in a prepared statement through her attorney, called Ryanβs action βfrivolous and without merit.β
βThere is no basis for the complaint,β said Bitter Smith, who currently chairs the five-member Corporation Commission. βI am not now and have never been employed by a company that is regulated by the ACC.β
There was no immediate response from Brnovich.
On taking office in 2013, Bitter Smith filed a statement with the commission saying she is employed as executive director of the Arizona-New Mexico Cable Communications Association. That group, she said, includes companies licensed to provide cable services in both states.
βThis employment does not and will not create any conflicts of interest,β she wrote, citing a specific state law about the activities of public officials.
That law, however, only prohibits a public official from participating in decisions in which he or she has a βsubstantial interest.β
Ryan said the situation here is more complex than that.
He said Bitter Smith has participated in voting on at least some telecommunications matters involving Cox or its telephone competitors. She has recused herself in others.
But he said the legal issue goes beyond whether she has a conflict of interest: Arizona law specifically prohibits individuals from serving on the commission who are employed by, have an official relation with or a βpecuniary interestβ in any entity regulated by the agency.
She held those positions in 2012 when she was elected, which Ryan argues made her unqualified to be on the ballot and should render the outcome of that race void.
Bitter Smith said Ryan has ulterior motives in filing the complaint.
βThis is part of a wider effort by a solar backed dark money group committed to forcing ratepayers in Arizona to heavily subsidize solar,β she charged in a written statement.
That has to do with ongoing efforts by regulated utilities to boost monthly fees to customers who have installed solar panels both to generate their own electricity and to sell the excess back to power companies. Companies contend the current rate structure means those solar customers are not paying their fair share of being connected to the grid.
Ryan said he is not involved at all with the solar industry.
Bitter Smith said she anticipates Brnovich will βact quickly to dismiss the complaint.β
But historical precedent shows that likely wonβt make the matter go away.
In 1998, voters elected Tony West to the commission. A subsequent investigation by Capitol Media Services found that at the time of the election, West held a commission-issued license to sell securities. West subsequently surrendered the license.
Grant Woods, then the attorney general, rebuffed a request that he file suit to oust West from office. That led former commissioner Renz Jennings to file suit against Woods to force him to act. Ultimately, the Arizona Supreme Court agreed with Jennings, ruling the position was vacant. That paved the way for the governor to name a replacement.
