On Wednesday we commended the PRC for their courage in admitting an "error" in filing jointly with PNM and Avangrid for an expedited rehearing of the merger. Yesterday, just before 5:00PM, we received a Notice of Ex Parte Communication filed at the NM Supreme Court with copies of emails illegally exchanged between the PRC and PNM/Avangrid lawyers that prove PRC Commissioners in fact knowingly and intentionally colluded with PNM and Avangrid to settle on the terms of a merger agreement and expedite its approval without consideration for or consultation with other parties to the case, or the public interest. (Ex Parte means substantive private communications between parties to a legal proceeding that are not shared with all other parties.)
It is one thing to surmise, based on the PNM/Avangrid and PRC Joint Motion to dismiss and remand the case back to the PRC, that the Commission engaged in ex parte discussions behind closed doors in violation of the Open Meetings Act, but it is nothing short of shocking to actually see the words on the page that show the Commission engaged with Avangrid and PNM to settle the merger in advance of a hearing and concoct a procedure to effectuate that plan.
The law is quite clear: Commissions, like judges, are to avoid the appearance of impropriety, but here the evidence demonstrates far more than 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, and to contrive an illegal process to implement that decision, just as we all feared.
Emails exchanged between the PRC and PNM/Avangrid lawyers not only detail the terms of a proposed Modified Stipulation, but awareness and dismissal of concerns about due process, introduction of new evidence and Open Meeting Act violations.
1. PRC Counsel Fisk writes to Attorneys for Avangrid/Iberdrola Thomas Bird and Brian Haverly and states that:
“[w]e discussed this matter with Commissioners Aguilar and Ellison yesterday and … The Commissioners are interested in pursuing settlement of the appeal; For the next steps in this process, they would like to see your clients’ proposed motion to dismiss the appeal and your clients’ proposed motion for rehearing on the existing record of the Commission’s Order on Certification of Stipulation...Our understanding is that you do not intend to file a new, executed Modified Stipulation with these terms. Accordingly, the Commissioners anticipate that the motion for rehearing will clearly identify these terms. Please let us know if your clients are amenable to the above or if you would like to discuss with us.” (Ex Parte Communications, 2/10/2023,p.36.)
This clearly indicates PRC acquiescence to the procedural plan that would result in a new, executed Modified Stipulation without input from any other parties to the case.
2. PRC Counsel Smith raises his “real concern” that rehearing under 1.2.2.37(F) limits “consideration to the existing record” and “the opportunity to argue that new evidence should be heard” and even specifically cites “due process” as being infringed (in Paragraph 5). (Ex Parte Communications, 2/10/2023,p.36.)The PRC ultimately joins the Motion filed without these issues being addressed or resolved to the benefit of all parties. Paragraph 5 of the Joint Motion states: “The Commission shall conduct the rehearing and reconsideration under Rule 1.2.2.37(F) NMAC.”
The Commission was well aware of the potential problems, including reliance on an inapplicable rule contained in their Joint Motion, but actively chose to ignore these procedural and substantive concerns to meet their joint goals of overturning the prior rejection of the merger in an expedited fashion.
During the Public Meeting PRC Commissioners Ellison and Aguilera both claimed that they never had the intent of conducting a rehearing of the merger without consideration for due process, introduction of new evidence and public participation. These emails directly contradict those claims.
Rather than protecting the public interest, the Commissioners have proved through their actions and statements that the facts do not matter, the law does not matter, and their allegiance lies with the industry they are supposed to be regulating. The New Mexican people deserve better from their public servants.
NÉE is evaluating how best to approach this situation.