When everyone has a conflict, what to do?

Late last year the state of New Mexico edged up to what might have turned into a constitutional crisis. And last week a committee of state legislators began discussing possible solutions to avoid such a crisis in the future. The situation in question was the Supreme Court’s hearing last November of a petition filed by New Energy Economy asking the court to remove four of the Public Regulation Commission’s five commissioners in the controversial case concerning the San Juan Generating Station for alleged conflicts of interest, bias and improper interactions with Public Service Company of New Mexico. The court, following oral arguments, rejected the petitions, and the four commissioners — Pat Lyons, R-Cuervo, Karen Montoya, D-Albuquerque, Lynda Lovejoy, D-Crownpoint, and Sandy Jones, D-Williamsburg — were allowed to stay on the case. As expected, they voted the next month to approve PNM’s San Juan plan to close two of the four coal-burning units.

Steve Terrell
Late last year the state of New Mexico edged up to what might have turned into a constitutional crisis. And last week a committee of state legislators began discussing possible solutions to avoid such a crisis in the future.
The situation in question was the Supreme Court’s hearing last November of a petition filed by New Energy Economy asking the court to remove four of the Public Regulation Commission’s five commissioners in the controversial case concerning the San Juan Generating Station for alleged conflicts of interest, bias and improper interactions with Public Service Company of New Mexico.
The court, following oral arguments, rejected the petitions, and the four commissioners — Pat Lyons, R-Cuervo, Karen Montoya, D-Albuquerque, Lynda Lovejoy, D-Crownpoint, and Sandy Jones, D-Williamsburg — were allowed to stay on the case. As expected, they voted the next month to approve PNM’s San Juan plan to close two of the four coal-burning units.
But had the court decided to remove three or four of the commissioners, it’s not clear what would have happened because there would not have been a legal quorum to vote on the San Juan plan. And, as the legislative Courts, Correction and Justice Committee heard Tuesday, the Public Regulation Commission has no backup plan in place. As stated in a memo from the commission’s lawyers, “that recusal statute lacks any provision regarding the appointment of persons to act as substitute replacement commissioners. … Accordingly, because there currently exists the potential that the commission could be rendered incapable of action, there is need for legislation to address this issue.”
The commission came up with several options to fix the problem, including a “preferred statutory amendment.” This proposal would allow commissioners who had been taken off a case because of conflicts of interest, publicly expressed biases and/or improper meetings with parties involved to go ahead and vote on a case if there otherwise wouldn’t be a quorum. There’s a legal term for this: the “rule of necessity.”
But lawmakers on the committee were not impressed. Members from both parties balked at this idea.
Rep. Jim Dines, R-Albuquerque, was downright incredulous. “This is totally unacceptable to me,” he said. Having a commissioner who has been declared to have a personal bias in the case “would set up failure and taint the decision by the commission,” he said.
“I understand your issue, but I don’t like your solution,” said Sen. Mimi Stewart, D-Albuquerque.
Mariel Nanasi, executive director of New Energy Economy, also was critical of the commission’s proposal, which she said amounts to a “crisis of legitimacy.” In a letter to the committee, Nanasi wrote that the commission’s proposal “… institutionalizes a lack of public confidence and is antithetical to the idea of good government.”
Nanasi proposed that in the event of a lack of a quorum on the commission, the governor should be allowed to choose from a pool of substitute commissioners vetted by both chambers of the Legislature.
The Public Regulation Commission, in one of its unpreferred options, also suggested the governor appoint temporary substitute commissioners, but didn’t mention a pool approved by the Legislature.
Sen. Peter Wirth, D-Santa Fe, who didn’t care for the commission’s “rule of necessity” plan, said he also was leery about letting a governor choose substitute commissioners. He said he could see “all sorts of shenanigans” coming out of such a plan, with people suing to get select commissioners taken off a case so a governor’s substitute could get to vote on a controversial case. “It could get very political,” Wirth said in one of the biggest understatements uttered in the Capitol that day.
But Wirth said, “This is clearly something that needs to be fixed.” He asked Nanasi to share the research she did on how other states handle such situations with recusals and quorums.
Some kind of fix could come up in next year’s session.
Contact Steve Terrell at 505-986-3037 or sterrell@sfnewmexica­n.com. 

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