Lawyers seeks to keep utility regulator's texts from public

PHOENIX — Attorneys for Bob Stump and the Arizona Corporation Commission are trying to convince a retired judge that some of the text messages on the utility regulator’s cellphone should never see the light of day.

In a letter to David Cole, the lawyers are arguing that just because Stump sent messages from his state-owned phone does not mean they are a matter of public record. Ditto, they contend, for any messages sent to him.

Instead, they want Cole, who is reviewing the texts under a court directive, to strip out any messages of a personal nature before releasing the others.

Dan Barr, the attorney for the Checks and Balances Project, which went to court to seek the information, concedes that simply because a message is on a state-owned phone or computer does not automatically make it a public record. But what does bother Barr is a separate contention by the lawyers for the commission and Stump that much of what is being recovered from Stump’s phone is not public by reason of “legislative privilege.”

“We have not identified, and the defendants have not cited, any case holding that corporation commissioners are entitled to assert legislative privilege,” Barr wrote to Cole.

Lawyers for Stump and the commission, in their own letter to Cole, say the panel is a unique fourth branch of government, with executive, legislative and judicial functions. And what that means, they argue, is that any texts that touch on how Stump reached decisions on issues before the commission are none of the public’s business.

But Barr said Monday it appears that many, if not all, of the texts he wants appear to concern election activity and have nothing to do with official commission privilege. Anyway, he said, even if the texts are related to commission business, Stump cannot claim privilege if it hides illegal activity.

What Cole decides on the issue could determine what the public sees and does not see of several thousand messages Stump sent and received.

At issue are texts Stump sent and received between July 12, 2013, and this past March 11.

Barr knows they exist because the commission was able to recover a list of about 20,000 texts from Verizon. But the phone company said it does not keep the actual content.

The request was narrowed to 18 specific numbers.

These include not just other commissioners and staffers but also Tom Forese and Doug Little when they were just Republican candidates Stump was supporting in their 2014 election, as well as the political consultant working for them.

That list also turned up messages to and from Scot Mussi, who heads a group that spent more than $300,000 from unnamed sources to get Forese and Little nominated. And there were texts to and from Arizona Public Service executive Barbara Lockwood at a time that the utility may have funneled money through third parties into the campaign.

All that raises questions of whether Stump played a role in coordinating the outside funding with the candidates, something that would be a violation of state law.

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Stump, however, has said he has done nothing wrong.

The initial response from the commission was that the messages no longer existed.

Commission attorney David Cantelme said Stump routinely deleted texts. And anyway, Cantelme continued, Stump had thrown away the state-issued phone he was using at that time.

But a forensic examination by the Attorney General’s Office of the new phone Stump was issued turned up several thousand texts from the prior phone.

Maricopa County Superior Court Judge Ronald Warner, who is handling the lawsuit, appointed Cole to review the texts and see which are subject to release. That resulted in the dueling messages to Cole in bids to sway him.

The commission’s attorneys went first, citing a 2003 ruling by the state Court of Appeals, in a case involving the Independent Redistricting Commission, recognizing the existence of legislative privilege.

Barr is not conceding there is such a right.

But in his own letter to Cole, he said if it does exist, it would cover only Stump’s activities in setting rates for utilities. Barr said that cannot be stretched to cover communications with candidates, consultants and independent groups spending money on campaigns.

“It is doubtful that many, if any, of the text messages sought ... concern ratemaking,” Barr wrote. And Barr had his own take on that 2003 appellate-court ruling, pointing out that the judges said any privilege applies only to “legitimate legislative activity.”

“The privilege is not intended to protect legislators’ individual interests,” Barr said, but instead to allow elected officials to do their jobs without fear of civil or criminal prosecution. “And so this privilege should not be used to shield any potentially improper activity.”

The commission’s attorneys also contend some messages could be shielded from public view under an attorney-client privilege. And Stump’s policy adviser is a lawyer.

But Barr said that does not protect every text between them.

“You could be my client,” he said, “but if we’re discussing who’s going to win the big game tomorrow, that’s not an attorney-client privilege.”

Cole has provided no date of when he will finish his review, and whatever he decides could lead to another round of legal filings.