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AZ attorney general: Corporation Commission violated Open Meeting Law last year

Arizona Corporation Commission building in downtown Phoenix.
Tim Agne/KJZZ
Arizona Corporation Commission building in downtown Phoenix.

The Arizona Attorney General’s Office found that the state’s Corporation Commission violated the state’s open meeting law last year.

The commission’s four Republican members sent a letter to Gov. Katie Hobbs in October 2023, asking for her help to aid residents living within the San Carlos Irrigation Project who had experienced a utility rate spike.

The letter acknowledged that neither the commission, which regulates Arizona’s utilities, nor Hobbs have jurisdiction over utility rates in the San Carlos Irrigation Project, a federally owned utility that covers the Gila River Reservation and some nearby communities, including parts of Florence and Coolidge.

But the letter asks Hobbs to “advocate for Arizona ratepayers” by exploring solutions to the problem, including by starting discussions with federal officials to dissolve the federal utility “with the end goal of transferring generation, transmission, and customer responsibility to regulated Arizona utilities.”

Hobbs did ask the federal government to help lower utility rates for affected residents, but the Attorney General’s Office found that letter violated Arizona’s Open Meeting Law, which requires the commission to meet in public before taking official legal actions, according to a letter sent to the commission on Oct. 9.

“Simply put, when the Commissioners decide to speak collectively on matters of Arizona utility policy and recommend specific changes that would expand the pool of ratepayers subject to Commission regulation, they must do so at a properly noticed public meeting,” Mary Curtin, the AG’s senior litigation counsel, wrote.

Commissioner Anna Tovar, the commission’s only Democrat and the only one who didn’t sign the letter, asked the attorney general to investigate the issue after her four Republican colleagues sent Hobbs the letter.

After Tovar requested the investigation, Commissioner Kevin Thompson, whose office authored the letter, argued signing the letter did not constitute an official action under Arizona’s Open Meeting Law, because the commission does not regulate the San Carlos Irrigation Project.

“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 in November 2023.

Thompson’s office cited opinions by past Arizona attorneys general dealing with similar issues and also noted that the letter included a line specifying it was sent by commissioners acting in their “individual capacities.”

“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.

But the current Attorney General’s Office found the very solution sought by Thompson and the other commissioners undermined that argument and that claiming the letter — which was sent on official Corporation Commission letterhead — wasn’t sent in their official capacities did not hold water.

“In other words, the Commissioners sought the Governor's assistance in converting SCIP customers to ratepayers of existing utilities regulated by the Commission,” Curtin wrote.

She added, “The Commission's decision to weigh in on the issue arises from its constitutional and statutory status as the regulatory authority for utilities in Arizona, even if the Commission alone cannot accomplish the policy outcomes for which the Letter advocates.”

Curtin also dismissed the argument that the other commissioners did not violate the law, because Thompson’s staff circulated the letter to each commissioners’ office separately.

“There was a ‘collective decision’ to send the Letter,” Curtin wrote. “The fact that Commissioner Thompson's staff sent his sign-on requests to the other Commissioners via separate emails and through staff does not suggest otherwise.”

Thompson's policy adviser Ryan Anderson noted that outside counsel retained by the commission previously found the letter did not violate the law.

“It’s a shame politics prevailed over common sense in a matter that is not before the Commission, nor is it within our regulatory authority," Anderson said, noting he only represents Thompson's position, not the entire Commission. "Commissioner Thompson vehemently disagrees with the AGs findings, which were logically rejected in an independent legal analysis which found the Commissioners were within their individual rights to weigh in on behalf of these particular ratepayers, and no violation was committed.”

The Attorney General’s Office declined to impose monetary penalties on the commission for the violation, finding no evidence that commissioners “intentionally and knowingly” violated the law.

However, the attorney general did require the commissioners and staff to receive Open Meeting Law training and post a copy of the AG’s findings on the commission’s website.

A Corporation Commission spokesperson declined to say whether the commission will comply with those requirements. “The matter is currently under review," spokeswoman Nicole Garcia said in an email.

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.