Report recommends improvements at Maine Public Utilities Commission, cautions against bias

Posted Sept. 19, 2013, at 3:44 p.m.

AUGUSTA, Maine — A new report from the state agency tasked with ensuring government accountability says the Public Utilities Commission could do more to help consumers navigate what can be a “confusing and intimidating” adjudicatory process.

The report, completed this month by the Office of Program Evaluation & Government Accountability, or OPEGA, also identifies “actual or perceived” bias on the part of PUC staff and commissioners — many of whom previously worked directly or indirectly with the utilities they now regulate — as a persistent concern.

Wayne Jortner, senior counsel in the public advocate’s office — an independent agency that represents the interests of ratepayers at the PUC — said the question of bias is a real one: A recent PUC case involving Nestle USA, parent company of Poland Spring Water, revealed that every member of the commission, as well as the public advocate, Timothy Schneider, had either done work for Poland Spring Water or worked at a law firm that at one point represented them, Jortner said.

Commissioner Mark Vannoy, who had worked directly for Poland Spring Water in the past, recused himself, Jortner said.

The report, which includes recommendations for the PUC and lawmakers, was presented to the Legislature’s Government Oversight Committee on Thursday. PUC Chairman Tom Welch attended and addressed the committee.

“There’s nothing in particular that I disagree with in the study,” he said. “We’re happy to have it, and to move forward with some of the recommendations for transparency in the process.”

The report finds the commission, which is charged with regulating electric, gas, telephone and water companies to ensure access and fair rates, generally operates in compliance with Maine statute and its own rules.

But OPEGA notes that the process by which consumers can register complaints and move through the PUC’s quasi-judicial process is cumbersome and confusing for the average Mainer.

Many consumers who file complaints with the PUC represent themselves during commission hearings without attorneys, and are left at a loss because of it, according to OPEGA Director Beth Ashcroft. They often don’t know whether their testimony is sworn or unsworn and sometimes are confused by the scope of the commission’s jurisdiction or even the precise matter before commissioners, the report states.

Sen. Emily Cain, D-Orono, co-chairwoman of the oversight committee, said it’s because the PUC operates in many ways like a court. Not only that, but its jurisdiction is highly specialized and technical.

“There is an entirely different vocabulary with a very different structure,” Cain said. “It’s like that for a reason, but there clearly is a lot we can do to make it more accessible to people who do not have the resources — nor should they have to have the resources — to hire an attorney.”

OPEGA recommends that the PUC work with the public advocate’s office to find ways to help consumers represent themselves in hearings, potentially by creating a staff position exclusively devoted to that role. The commission also could establish guidelines, avoiding jargon, to help consumers prepare testimony and documents admissible to the commission.

On the issue of perceived and actual bias, Ashcroft said Maine law and PUC rules do a good job of ensuring that commissioners and staff are free from financial entanglement with utilities that would create a conflict of interest.

“However, those measures, even when fully complied with, do not address the concerns of conflicts and biases expressed by some of the consumers and other people OPEGA spoke with during this review,” the report states.

Those conflicts and biases are harder to pin down, and stem from the perception that commissioners and staff members are influenced by their proximity and relationships with utilities. Consumers and others are less concerned with the PUC having financial stake in utilities and more concerned with them being influenced by their relationships with those companies.

Ashcroft told lawmakers that it’s a natural byproduct of filling commissioners’ seats with people knowledgeable and well-versed in Maine’s utility ecosystem.

“It’s a reality of the nature of the role they’re attempting to play, and the balance of having experts and people who know the lay of the land, versus people coming from a purely objective standpoint,” she said.

OPEGA recommended that the PUC staff complete “independence statements” regarding each case they work on and require commissioners to announce or address recusals when they occur.

The agency also recommended the Legislature consider increasing the number of commissioners — there are currently three — to strengthen the presence of authorities on the board who are disentangled from the utilities they regulate.

Welch said he understood consumers’ concern, and that the PUC will begin to maintain internal documents concerning recusal decisions, clarify how advisory staff independently analyze a case, and require all staff attend annual ethics trainings.

“You do want people who are familiar with the issues, and I guess a large portion of people who understand those regulations have worked for the utilities,” Jortner, of the public advocate’s office, said. “But I always wonder why there aren’t more appointments of people who have devoted their lives to fighting for the public interest, consumer advocates and the like.”

The Government Oversight Committee will take public comment on the report at its October meeting.

Follow Mario Moretto on Twitter at @riocarmine.

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