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Wednesday, October 06, 2010

Ind. Gov't. - "IURC Appointment process differs from most states" [Updated]

Tim Evans has this story in the Indianapolis Star today, suggesting that Indiana's utility commissioners might better be elected, or at least subject to legislative confirmation. Some quotes:

In Indiana, the governor has absolute authority to appoint the five-member IURC.

"In 47 other states, utility regulators are either elected by the voters or approved by one or both chambers of the General Assembly," said Kerwin Olson, program director for the consumer advocacy group Citizens Action Coalition.

"We've been clamoring about this for 30 years -- and the problems that are coming out now are the exact reason we need regulatory reform. It is time to get the fox out of the henhouse."

"We elect 157 officials to oversee our state tax dollars," Olson said, "but we do not elect a single person to oversee utilities."

Ideally, Indiana voters would elect IURC members, he said. At the minimum, though, he said his group wants gubernatorial appointments confirmed by a majority vote of both houses of the General Assembly.

There are plenty of models for Indiana leaders to examine.

In 11 states, voters elect commission members, typically during primary elections, according to data collected by CAC. Some, such as Alabama, conduct partisan elections. But in others, including Georgia, races are nonpartisan, although candidates do sometimes declare a party affiliation.

Commissioners in more than 30 other states -- including Illinois, Kentucky, Michigan and Ohio -- are appointed by governors but then approved by the Senate or both houses of the legislature.

Still, Olson said, changing the way business is done in Indiana will not be easy -- regardless of the party in power.

"What party is in control is not really an issue," he said, "because of the influence the utilities have at the Statehouse. They've got dozens of lobbyists and truckloads of cash. And now, it is apparent, they are dictating outcomes at the commission, too."

ILB thoughts: Be careful what you wish for. The "truckloads of cash" would certainly come into play if utility commissioners were on the ballot, and requiring legislative confirmation would occasion intense lobbying, where the utility interests have it all over citizen groups insofar as money and connections are concerned.

Indiana's system of selecting utility commissioners parallels in many ways our system of selecting appellate judges. There is a 7-member nominating commission (IC 8-1-1.5-3):

... not more than four (4) of whom shall belong to the same political party and none of whom may be a member of the general assembly.
(b) The governor shall appoint three (3) members of the nominating committee and designate one (1) as chairman. The speaker of the house of representatives, the president pro tempore of the senate, the minority leader of the senate, and the minority leader of the house of representatives shall each appoint one (1) member of the nominating committee. Each appointment shall be certified to the secretary of state within ten (10) days of the appointment.
(c) Each member of the nominating committee shall be appointed for a term of four (4) years.
Under IC 8-1-1.5, the nominating commission interviews candidates and submits three names to the govenor. The governor may name one, or reject them all, and call for an additional panel - once.

IC 8-1-1-2 provides that the Utility Regulatory Commission shall consist of 5 members, "at least one (1) of whom shall be an attorney qualified to practice law before the supreme court of Indiana and not more than three (3) of whom belong to the same political party." The members of the commission are appointed for a term of four years, except when a member is appointed to fill a vacancy, in which case such appointment shall be for such unexpired term only. The governor appoints the chair. A member may be removed by the governor "for cause." "The chairman of the commission shall assign cases to the various members of the commission or to administrative law judges for hearings."

IC 8-1-1-3 provides at (c) that "The commission may appoint one (1) or more administrative law judges who shall be responsible to and serve at the will and pleasure of the commission. While serving, the administrative law judges shall devote full time to the duties of the commission and shall not be actively engaged in any other occupation, profession, or business that constitutes a conflict of interest or otherwise interferes with carrying out their duties as administrative law judges" and at (e) that "On order of the commission any one (1) member of the commission, or an administrative law judge, may conduct a hearing, or investigation, and take evidence therein, and report the same to the commission for its consideration and action; however, a hearing concerning a request for a general increase in the basic rates and charges of a utility in an amount exceeding twenty million dollars ($20,000,000) may only be conducted by one (1) or more commission members."

As I wrote in an earlier post, the problems here, to my mind, are structural, if you think of the commissioners and their ALJs as serving a quasi-judicial, rather than an executive/administrative, function.

Comments?

An attorney reader writes:

Also, we would need to consider who has the authority to fire a commissioner if need be. If the IURC is elected, the governor won’t. Impeachment? Not for something like allowing an employee to cross lines like this.

Nominating Commission sounds about right. Just need to tighten the rules on this agency and all ALJs while we are at it.

Posted by Marcia Oddi on October 6, 2010 09:30 AM
Posted to Indiana Government