PHOENIX — State utility regulators will vote Thursday, Sept. 15, on whether to hire an attorney to defend Commissioner Bob Burns from a lawsuit filed against him by Arizona Public Service and its parent company.
The state's largest electric utility is asking Maricopa County Superior Court Judge David Gass to quash the subpoenas Burns issued demanding records of any political spending from both APS and Pinnacle West Capital Corp. Utility officials have said the subpoenas are "evidence of Commissioner Burns' intent to harass.''
Burns needs the support of at least two other members of the Arizona Corporation Commission because, having issued the subpoena himself and not with the consent of the full panel, the commission's own legal staff cannot defend him in the lawsuit.
Whether he will have the votes remains unclear. Commission members Andy Tobin, Tom Forese (who announced Wednesday he will run for state treasurer in 2018), Bob Stump and Doug Little all said Wednesday they are reserving judgment on the matter until the hearing.
But the issue is spilling over into this year's race for the three seats available on the commission.
At a debate Wednesday, Republican candidate Boyd Dunn said the commission not only needs to defend Burns and his subpoena but also to pay for it.
Dunn said Burns is providing an opportunity to try to find out who put $3.2 million into the 2014 race to secure the election of Republicans Forese and Little, and also to set the rules for future disclosure.
Dunn noted that the Republican-controlled Arizona Legislature voted earlier this year to alter existing laws to allow some "dark money'' groups to hide their donors from public disclosure.
"The key is whether that affects the Corporation Commission,'' said Dunn, a former Superior Court judge. "The opportunity here, especially with the commissioner being sued himself, is to take the opportunity and get these issues before a court, get clarification as to what the commission can and cannot do, especially with disclosure.''
The other alternative, he said, would be for all Arizona utilities to agree to stay out of future elections.
Burns himself, up for reelection, obviously supports his request for an attorney. And Bill Mundell and Tom Chabin, the two Democrats in the race, also are supportive of the subpoena and getting APS and Pinnacle West to disclose the records.
Chabin said he discounts the changes made in Arizona law by the Legislature shielding some groups from disclosure. "Look at the (state) constitution,'' he said. "It's quite clear the Corporation Commission is a separate branch of government. It's unique in the nation.''
Chabin said there's a good reason for commission-regulated utilities to be required to disclose their political spending.
"You can't buy your electricity from anybody else,'' he noted, as each company holds a monopoly over customers in its own service territory, subject only to charging no more than the commission determines is a fair rate of return. "So aren't you interested in what they spent in an election to elect a commission to set your rates?''
Chabin said Burns is also correct in demanding the books of not just APS but its parent company, saying it could be that company and not the utility that has been spending money to influence races.
Thursday's meeting comes on the heels of Forese announcing Wednesday he does not intend to run for reelection when his term ends in 2018. Instead, he intends to run for treasurer; incumbent Jeff DeWit announced earlier this year he doesn't intend to see another four-year term.
"I have a track record,'' said Forese, who previously was a state legislator. He said his decision not to run for reelection to the commission is unrelated to the turmoil that has surrounded the five-member panel.
"It's been crazy,'' he said. "But I've got blinders on with a focus on making Arizona a better place to do business.''
