November 29, 2007

Recusal request poses legal dilemma

With hearings on a wind power case set to begin Monday in front of the Kansas Corporation Commission, a complication is developing.

One of the three commissioners already has recused himself from the case, and now a watchdog group wants the other two recused, suggesting they may have been improperly influenced by Gov. Kathleen Sebelius.

The governor’s office says she did no such thing but has no idea how the matter would proceed if there was nobody to hear it.

And the Kansas attorney general says the commissioners cannot recuse themselves anyway, since it would leave no means to decide the case.

Rosemary Foreman, a spokesman for the KCC, said she is expecting a response from the two commissioners today or tomorrow. She has no idea how the case would proceed without both.

“That would be a complicated legal question,” Foreman said.

The case involves Westar Energy’s plan to add 500 megawatts of wind power to its energy portfolio by 2010. Westar is asking for the KCC’s blessing on a rate increase of about one-fourth of a cent per kilowatt/hour, which would add about $50 a year to the average customer’s bill.

On Nov. 9, Commissioner Joe Harkins, a former member of the governor’s staff whom she appointed to the commission in July, announced he was recusing himself from the case, citing his involvement in energy issues. He speculated that his “recent involvement in developing executive policy in this area might cause others to question” his impartiality.

And those guys, too

A week later, the Citizens’ Utility Ratepayer Board filed petitions, asking the other two commissioners – Thomas Wright and Michael Moffet – to recuse themselves. In making the request, CURB submitted a copy of a confidential e-mail written in December 2006 by James Haines, then-CEO of Westar, that described to fellow company executives a meeting called by Sebelius and attended by the CEOs of all the state’s leading utilities.

According to the e-mail, the meeting was about setting a new agenda for wind in Kansas, and was accompanied by assurances that utilities would be fully compensated if they voluntarily committed to adding wind energy to their portfolios.

“From a practical standpoint, the governor is simply unable to give assurances with regard to the outcome of any ratemaking issue or practice at the KCC without specifically directing and/or obtaining the agreement of at least two commissioners (a majority of the commission),” CURB said in its petition.

Soon-to-be-commissioner Harkins was at the meeting. In March, Sebelius appointed Wright to replace commission chairman Brian Moline.

“The implication by CURB is off base,” said Nicole Corcoran, a spokeswoman for Sebelius. “The governor has never advised members of the KCC which utility applications they should approve, how they should set rates or what those rates should be.

“(At) the meeting described, the governor and lieutenant governor (Mark Parkinson) did indicate that their intent was to let the state as whole know of their support of wind, and they have done that. They also acknowledged that electric utilities need to be compensated for costs of energy they develop.”

It’s too late to quit

But even if Moffet and/or Wright wished to recuse themselves at this point, they could not, according to the office of Attorney General Paul Morrison.

Citing a legal principle known as the Rule of Necessity in Administrative Law, the office said that commissioner who may be subject to disqualification for “bias, prejudice or prejudgment of the issues” are not disqualified if their absence prevents a decision from being made.

But David Springe, consumer counsel for CURB, said state law says that under such circumstances, a state agency may contract with another state agency to hear the case.

“We’re a little surprised it’s taken this long to get an answer,” Springe said late Wednesday.

Foreman said she is waiting to hear from Moffet and Wright.

“Even if one commissioner steps aside, we would need to figure out how that situation would be handled,” she said. “Should this situation develop, we do not know how the case would be decided.”

By Duane Schrag

Salina Journal

28 November 2007

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