LITTLE ROCK — Paul Suskie, chairman of the Arkansas Public Service Commission, has denied a motion filed by large industrial companies asking him to recuse from three energy-efficiency cases.
Brian Donahue, an attorney for Arkansas Electric Energy Consumers Inc. and Arkansas Gas Consumers Inc., filed a motion last week asking for Suskie to withdraw fromthree similar cases where the commission is considering establishing energy-efficiency programs. Customers of the state’s electric and gas utility companies would pay for the energy-efficiency policies developed by the utility companies.
Donahue’s clients asked last year that they be allowed to implement and finance their own energy-efficiency programs and opt out of the programs the commissionmight enact.
While the commission was considering the industrial companies’ request, Suskie and a commission employee had contact with a pro-energy-efficiency organization while no other parties to the cases were in attendance, Donahue said in the motion. That contact violated the commission’s rules, Donahue argued, and therefore Suskie should step aside in the cases.
Suskie and commission staff member Wally Nixon last year and early this year communicated with employees of the American Council for an Energy Efficient Economy in Washington, D.C., which describes itself on its website as being “dedicated to advancing energy efficiency as a means of promoting economic prosperity, energy security and environmental protection.”
The group lobbies government and business entities in support of national, state and local energy-efficiency efforts, Donahue said in his motion.
The organization supplied Suskie with an issue paper describing the group’s positions, Donahue said. Donahue requested from the commission and received e-mail reports between Suskie, Nixon and members of the Washington group discussing energy ef-ficiency.
After receiving the issue paper from the Washington organization, the commission issued a series of orders in February rejecting the industrial companies’ request to opt out of the energy-efficiency cases, Donahue said in an interview.
The commission’s general staff filed a motion Friday saying that Suskie didn’t appear to engage in prohibited one-sided communication or violate provisions of the commission’s rules.
The other two Public Service commissioners, Colette Honorable and Olan Reeves, said in motions that they have had no contact with the Washington group.
Suskie said in a letter to Donahue on Wednesday that the commission rule Donahue cited “is inapplicable” to Suskie’s meeting with representatives of the group in December.
It’s a “close question” whether Suskie should recuse, Philip Oliver, the Byron M. Eiseman Distinguished Professor of Tax Law at the W.H. Bowen School of Law at the University of Arkansas at Little Rock, said Friday.
Public Service commissioners have a duty “to recuse when a fair-minded person would have serious reason to question their impartiality,” Oliver said.
“However, they have a duty not to recuse simply because a party to the proceedingquestions their impartiality because they suspect [a commissioner is] likely to rule adversely,” Oliver said.
The rule that Donahue claimed Suskie violated may include “off-the-record communications from nonparties who were interested in the outcome of a proceeding,” Oliver said.
“Thus, whether Mr. Suskie should recuse himself is, I think - without having made a detailed study of the record - a close question,” Oliver said.
Business, Pages 31 on 09/25/2010