PHOENIX β The stateβs high court is not going to decide what is an illegal conflict of interest for members of the Arizona Corporation Commission β at least not now.
Without comment, the justices on Tuesday threw out a petition filed in November by Attorney General Mark Brnovich to have Susan Bitter Smith removed from office. He had charged her outside employment made her ineligible to be elected in 2012.
But the action actually is a victory for Brnovich.
Although Bitter Smith resigned, effective Monday, her attorney wanted the court to take up the question and clarify the law. Ed Novak said the fact that nothing would restore his client to the commission is irrelevant.
Legal issues aside, Novak also saw the court case as an opportunity for Bitter Smith to clear her name.
But in refusing to take up the issue, the justices leave unresolved exactly what links to regulated companies will disqualify someone from office. And that concerns two former commissioners.
Bill Mundell, who served as a Republican, and Democrat Renz Jennings argued through attorney Hugh Hallman that the conflict-of-interest law is not as clear as Brnovich contends. And they said that, without judicial clarification, that raised the possibility that future commissioners could also find themselves under legal attack.
There is no real dispute that Arizona law keeps commissioners from working for regulated utilities or having a pecuniary interest in those companies. The question is how far that goes when it comes to unregulated affiliates like cable TV companies, or working for associations whose corporate members include firms that may offer regulated services.
Brnovich said Bitter Smith was breaking the law by having a $156,000-a-year job as director of the Arizona Cable Communications Association. Its members are cable companies, some of whom also provide bundles that include telephone service whose rates are set by the commission.
But Brnovich, in an interview with Capitol Media Services, declined to say exactly when that line might be crossed.
βThereβs a rule of reasonableness,β he told Capitol Media Services. βEvery situation depends on the facts before you.β
Brnovich said he acted because of the unique position of the Corporation Commission in the Arizona Constitution as a fourth branch of government.
βWhen you get into situations where people who are supposed to be looking out for consumers and protecting us against these regulated interests ... we need to make sure that thereβs not any sort of conflict,β he said.
Brnovich said because these are fact-specific situations, there was no need for the Supreme Court to decide whether Bitter Smith had an illegal conflict, as the answer to that would not change the fact she had quit.
