EX PARTE COMMUNICATIONS BETWEEN PRC COMMISSIONERS AND UTILITIES
New Mexico’s recently appointed Public Regulation Commissioners are coming under fire after admitting to communicating with utilities behind closed doors about a controversial energy merger that their predecessors unanimously voted down, and about issues in THE pending PNM rate case.
WHAT IS EX PARTE?
The New Mexico Public Regulation Commission, also known as the PRC, is the body responsible for regulating electric monopolies in the state of New Mexico. The quasi-judicial body is responsible for overseeing decisions about our electricity service and our electricity rates in order to protect ratepayers from unfair charges and to make sure utilities follow public interest laws. The PRC is considered a quasi-judicial body under the law. The Commissioners, like judges, are required to maintain impartiality and are not allowed to meet about substantive issues with one side of a case without every party to the case being present.
This one-sided “ex-parte” communication is prohibited because it is fundamentally unfair for a judge to be hearing from one side and not all parties.
WHAT HAPPENED AND HOW DID WE FIND OUT?
When the former, elected PRC rejected the PNM-Avangrid merger, Avangrid didn’t take NO for an answer. They appealed the merger rejection at the Supreme Court, and then within weeks after that democratically elected PRC was replaced by Governor appointees, those new Commissioners began meeting with Avangrid and PNM behind closed doors in an effort to dismiss the appeal and remand the case back to the new PRC for their reconsideration.
On April 20th, 2023, after we filed a motion questioning the PRC's decision to join with Avangrid/Iberdrola and PNM in their motion for dismissal and remand, PRC lawyers filed a Notice of Ex Parte Communication in the case with 94 pages of emails illegally exchanged between the PRC and Avangrid lawyers. The law is quite clear: Commissions, like judges, are to avoid the appearance of impropriety, but here the evidence demonstrates that practically from the moment of their recent appointment by the Governor and confirmation by the legislature, these Commissioners have been engaged with one side in a case they are charged with adjudicating to reach an ex parte decision to overturn the PRC’s previous, final decision rejecting the merger.
Voicemail obtained through IPRA request from Avangrid attorney Tom Bird to PRC Staff attorney:
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"Hi Michael, Its Tom Bird. Hope you’re doing alright. I just sent you and Russell a draft of our proposed motion for remand for the Supreme Court. Russell’s note last Friday asked us to also send a draft of the rehearing/reconsideration motion we would file with the Commission and we started working on that but we wanted to talk to you about it first, you and Russell. One concern that’s been raised in our group is whether showing that to you and discussing it might somehow amount to ex parte communications. So, we’d be interested in your thoughts about that possibility and whether that’s a problem at all.”
WE FILED AN IPRA TO FIND OUT MORE
Further emails and voicemails were disclosed after an Inspection of Public Records Act (IPRA) request was filed, revealing it is not only the merger case that has been compromised. Through their legal representatives the Commission agreed with PNM and Avangrid what Motions to file and what kind of information the Motions should contain. They traded ideas about how to resolve not only the merger case but also about the rate credits that PNM promised and then failed to pay to ratepayers upon closure of the San Juan coal plant, and referenced the Four Corners abandonment case as well. Decisions about these issues will determine whether it will be PNM customers or its shareholders who will be on the hook for hundreds of millions of dollars PNM recently invested in these coal plants.