Is it a New Era? Or Is Winter Coming?
Can an ethics honcho help to restore public confidence in the Arizona Corporation Commission?
There’s certainly a lot to clean up. On New Year’s Eve, Commissioner Bob Stump was partying with Strategen’s Lon Huber. Theoretically an impartial judge for Arizona citizens regarding energy rates, Stump had a fun time with the pro-utility lobbyist, according to these reader-supplied photos. Huber is being paid by Arizona taxpayers to lead an $8,000-a-month team for the state’s consumer advocate, the Residential Utility Consumer Office (RUCO) and will soon be testifying in commission hearings before Commissioner Stump.
Last month, Arizona Gov. Ducey appointed Andy Tobin to replace lobbyist-cum-regulator Susan Bitter Smith, who resigned in disgrace. Commissioners Doug Little and Tom Forese undertook a diplomatic trip to California to visit Arizona’s largest installer, SolarCity (disclosure: a RAP funder). Citizens United-defender Little was elected by his peers to be interim chairman. And Judge Cole began the arduous examination of thousands of Commissioner Stump’s text messages.
Enter the Ethics Officer
Underreported last month was the hiring of attorney Christopher Kempley to fill a new position at the Commission. Kempley is to serve as a full-time special counsel overseeing “ethics, conflicts of interest, ex parte rules, Open Meeting law,” and all public records requests.
Is Kempley’s hiring a good thing? We hope so, but the proof will be in the performance.
Kempley is an Arizona Corporation Commission veteran, having served as assistant chief counsel, then chief counsel from 1983 to 2008. In May of 2008, he took a job as an advisory attorney with the Federal Energy Regulatory Commission (FERC) in the Office of General Counsel. He had followed a friend to Washington, DC, after his friend had been appointed a FERC commissioner. Kempley’s friend, Marc L. Spitzer, who served as ACC chairman from 2002-2006, is now a partner in the Washington, DC, and Phoenix offices of Steptoe & Johnson LLP. According to a source, Spitzer is on retainer for APS.
Mixed Signals
Set aside the question of why the ACC thinks it needs an ethics officer to tell its members and staff not to do things as obviously questionable as: moonlighting as lobbyists, possibly coordinating dark money electoral schemes using publicly funded cell phones, or ducking public records requests only to escape through a revolving door to the major utility the Commission regulates.
At roughly the same time Executive Director Jody Jerich was announcing the new position of chief ethics advisor, attorneys for Commissioner Stump, the Corporation Commission, and Attorney General Brnovich were claiming legislative privilege as the latest in a long, line of reasons why our March 11, 2015, records request for Commissioner Stump’s text messages cannot be fulfilled. It doesn’t seem to matter that legislative privilege has no legal precedent. Maybe if they throw it hard enough at the wall it might stick.
At the same time, the attorneys for the Commission, Stump, and the AG claimed that the 609 text messages between Stump and his former Policy Advisor Amanda Ho – now ensconced in a cushy job at APS – couldn’t be public records as they fell under attorney-client privilege. But as C&BP attorney Dan Barr explained, the texts are only privileged if “they were made in the course of Ms. Ho’s professional employment as an attorney, not as a policy advisor.”
What really sparked our concern about the Corporation Commission’s new hire was the assertion that he was needed to let staff “get back to their normal jobs.” Shouldn’t Commission staff and members see it as part of their normal jobs to answer public records inquiries? They clearly haven’t, given the extensive foot-dragging and evasion of hiring an expensive outside attorney and public relations spinmeister on no-bid contracts to fend off the public’s access to public records.
Job One for Ethics Officer
We think that Job One for Mr. Kempley is changing the ACC’s culture of secrecy – and we’ll know he’s doing it if he makes it easier, quicker and less expensive for taxpayers to get answers to basic, straightforward questions.
To test the waters, we’ll start with this request: we will soon file a records request asking to see communications among commissioners, staff, and outside parties concerning the hiring of Mr. Kempley. We make no assumptions on what they will show. In fact, we hope nothing but the truth.
Scott Peterson is executive director of the Checks and Balances Project, a national watchdog blog that seeks to hold government officials, lobbyists and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.
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