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Arizona Corporation Commissioner asks AG if colleagues violated Open Meeting Law

A Democrat on Arizona’s Corporation Commission asked Attorney General Kris Mayes to weigh in on whether Republican commissioners violated Arizona’s Open Meeting Law.

Commissioner Anna Tover requested a legal opinion from Mayes on Oct. 30 concerning a letter sent to Gov. Katie Hobbs earlier that month by Commissioners Kevin Thompson, Jim O’Connor, Lea Márquez Peterson and Nick Myers. 

The letter asked Hobbs to explore ways she could aid residents living within San Carlos San Carlos Irrigation Project boundaries that saw utility rates spike in September.

Specifically, Tovar asked Mayes if crafting the letter constituted a “legal action” by the Corporation Commission that is required by state law to take place in a meeting open to the public.

Thompson, whose office created the letter, said he believes guidance from the Attorney General’s Office shows the letter did not violate the law.

“It’s pretty clear in there that as long as it’s not an issue or matter that would come before the commission, that it’s not a violation of open meeting,” he said.

Tovar also sent Mayes copies of an email Thompson’s office sent to an aide for Tovar asking her to consider signing the letter. Tovar’s policy adviser replied, “At this time, Commissioner Tovar is not prepared to take a position on the issue.” 

A handbook issued by the Attorney General’s Office to government agencies states that a violation of the Open Meeting Law occurs if the member of a public body like the Corporation Commission exchanges electronic communications with a majority of other members that proposes a legal action or includes “discussion, deliberation or the taking of legal action by the public body concerning a matter likely to come before the public body for action.”

Thompson’s office also cited opinions by past Arizona attorneys general dealing with similar issues.

“Of course, the [Open Meeting Law] applies only to an exchange of facts or opinions if it is foreseeable that the topic may come before the public body for action,” according to an opinion issued by former Arizona Attorney General Terry Goddard in 2005.

Tovar suggested the letter to Hobbs implied the other Corporation Commission members were acting in their official capacity and sought to work with the governor to intervene on behalf of affected customers, citing the fact that the letter was sent on official Corporation Commission letterhead and that each commissioner used their elected title on the signature line. 

However, in the last paragraph of the letter, the commissioners explicitly wrote that “we write to you today in our individual capacities, and we welcome an opportunity to provide any assistance to you or your office on this important matter.” 

The letter does discuss previous failed attempts to have the federal government relinquish control of the utility. It also suggests that “perhaps it is time to reignite collaborative discussions with our federal partners exploring divestiture,” which could allow current San Carlos customers to become customers of an Arizona electric utility — which, in turn, may be regulated by the Corporation Commission. 

Thompson said he would like to see “something done” to address issues with San Carlos Irrigation Project infrastructure and customer costs but said that would require congressional approval. 

“I think local utilities, maybe an SRP … could do a much better job of maintaining that system,” he said. 

A spokesman for the Attorney General’s Office said there is no timeline to respond to the request for an opinion.

Wayne Schutsky is a broadcast field correspondent covering Arizona politics on KJZZ. He has over a decade of experience as a journalist reporting on local communities in Arizona and the state Capitol.