As you know, we’ve been tracking disturbing developments at the PRC regarding ex-parte communications between the Commissioners, their attorneys, and Avangrid’s lawyers in relation to the merger rejection on appeal before the Supreme Court. The New Mexican broke the story this morning: PRC, Utility Lawyers had one sided talks ahead of filing.
The PRC is a quasi-judicial tribunal - charged with making an unbiased decision that weighs the interests of utilities & their shareholders against the interests of the New Mexican people. They are charged with the duty to consider all the evidence and make a determination in the public interest.
To fulfill that duty - they must remain impartial. NMSA 1978, §62-19-23 (2021) clearly states:
A. A [PRC] commissioner shall not initiate, permit or consider a communication directly or indirectly with a party or his representative outside the presence of the other parties concerning a pending rulemaking after the record has been closed or a pending adjudication.
and
D. A commissioner or hearing examiner who receives or who makes or knowingly causes to be made a communication prohibited by this section shall disclose it to all parties and give other parties an opportunity to respond.
The revealing excerpt below shows clearly that the new Commission:
Has communicated a desire to settle the merger before any proposal has been brought before them and tested in an evidentiary hearing with due process;
Has worked with the very utilities they have a duty to regulate, to devise a procedural path in order to return the merger back to the PRC for reconsideration;
Asked to see the motion that PNM and Avangrid was going to file for rehearing, and specified the terms to include in that motion without showing that motion to any other parties, BEFORE it was even filed, when they would in fact be the tribunal making the decision on this motion that they helped to co-design.
Commissioner Aguilera is quoted in the article saying “I wholeheartedly disagree that these communications are prohibited,” and “What’s important to note is that we have not made any decisions.” Yet his own attorney who filed the communications in the public record has already conceded that the communications are ex parte. Importantly, also, the communications between the quasi-judicial tribunal and the utilities they are supposed to be regulating were clearly "substantive."
This is classic prejudgment and collusion with one party to the detriment of others. This is forbidden communication.
We are deeply concerned that our worst fears about this new PRC appear to be coming true. We will continue to demand due process and we will be taking legal action to ensure that New Mexicans have impartial and fair regulatory oversight over utility matters.
Our regulators have a duty to protect us from profit-driven utility interests. The ratepayers of New Mexico have rights that must be upheld!