January 30, 2023

PRC commissioner says he is ‘taking every case one at a time’ when deciding on recusals

An appointee to the New Mexico Public Regulation Commission said his past work for the advocacy groups Western Resource Advocates—which frequently intervenes in PRC cases—will likely not lead to many conflicts of interest that would require him to recuse himself from cases.

New Mexico Public Regulation Commissioner Pat O’Connell told NM Political Report that the law requires him to recuse himself if he has offered testimony in a case that the PRC may deliberate on. 

This led to his announcement on Friday that he has recused himself from the commission’s discussions and considerations of the proposed merger of utility giant Avangrid and the Public Service Company of New Mexico.

O’Connell previously worked for Western Resource Advocates, which intervened in many PRC cases including the merger case. In his role at WRA, O’Connell filed testimony supporting the proposed merger.

The PRC ultimately rejected the merger and the companies appealed the decision to the New Mexico Supreme Court. Since then, the PRC has switched from an elected body of five commissioners to an appointed body of three commissioners. The appointed body could choose to rehear the merger case. Should that occur, both Commissioner Gabe Aguilera and James Ellison would need to vote in favor of the merger. 

While O’Connell doesn’t anticipate this conflict to be a recurring issue, he said he is “taking every case one at a time.”

The PRC has more than 200 open cases listed in its utility docket. These range from individual complaints about a utility to broader rulemaking such as the energy efficiency rulemaking or inquiries into utility practices.

Among these cases is PNM’s proposal to raise customer rates, which WRA intervened in prior to O’Connell’s appointment to the PRC.

When asked about PNM’s pending rate case, O’Connell said he never filed testimony in that case and does not anticipate recusing himself. He said that at the end of his tenure at WRA, he was mainly in a supervisory role.

In the past, PRC commissioners have faced scrutiny or even had to recuse themselves from cases based on campaign donations or things said during campaign.

In 2018, then-Commissioner Lynda Lovejoy recused herself from deliberations on PNM’s integrated resource plan after taking campaign donations from a political action committee connected to PNM’s parent company. The case had direct impacts on Lovejoy’s district as it proposed closing the San Juan Generating Station. Her recusal came after the advocacy group New Energy Economy filed a court challenge to her ability to hear the case.

Lovejoy later went back on that decision to recuse herself after a court decision ruled that her fellow commissioner, Sandy Jones, who had also taken a donation from the PAC could hear the case. 

NEE quickly issued a statement supporting O’Connell’s decision.

Mariel Nanasi, the group’s executive director, said that the law is clear that when there is a conflict of interest the commissioner must recuse themself.

O’Connell’s decision to recuse himself has led to criticism of the governor’s appointment process as well as calls for the commissioner’s resignation

Update: An earlier version stated that O’Connell provided testimony in a case involving transferring PNM’s shares of the Four Corners Power Plant. While he did not testify in the Four Corners case, he had previously testified in a rate case regarding the prudency of investments into the power plant. That has not yet been resolved and is among the issues that must be addressed in the upcoming PNM rate case.