Checks and Balances Project Launches Investigation of Nevada PUC Commissioner David Noble

Checks and Balances Project Investigates Nevada Commissioner David NobleMy colleague Evlondo Cooper and I just returned from a six-day fact-finding visit to Nevada, where we met with reporters and editors, civic leaders, and others. Our trip to Carson City, Reno, and Las Vegas was designed to give us a better understanding of the dynamic between the Nevada Public Utilities Commission (PUC) and the state’s largest utility, NV Energy. It is part of our ongoing Captured Regulators Initiative.

Regulatory Capture 

The concept of “regulatory capture” was first described by Noble Prize-winning economist George J. Stigler in 1971. Although the problem is probably older than the Romans, Stigler described it as a situation in which a public agency, created to regulate a powerful industry for the benefit and protection of the public, instead is captured by the very industry it is supposed to oversee.

In Arizona, the Captured Regulators Initiative has uncovered powerful, circumstantial evidence that former Chairman, now Commissioner, Bob Stump and others on the Arizona Corporation Commission are captured by that state’s powerful utility Arizona Public Service (APS) – essentially acting as APS consultants, rather than impartial overseers of large parts of the state’s economy.

First FOIA Request

Checks and Balances Project Investigates Nevada Commissioner David Noble

David Noble

Now we are also turning our attention to Nevada, where Public Utility Commissioner David Noble was described by many people we talked to last week as by far the most “utility friendly” of the three commissioners. One source told us that Noble had been talking to audiences outside of the state about the threat to utilities by rooftop solar, something we will seek to confirm in the months ahead.

On Wednesday, August 19, we attended a PUC meeting in Carson City that Commissioner Noble presided over. Although the meeting was largely procedural, we were surprised at how Noble lashed out at a lawyer from the pro-solar group TASC for being workmanlike during official meetings but antagonistic in public. He struck us as being remarkably thin skinned for a public official whose salary is paid by taxpayers.

We begin our effort to determine if Commissioner Noble is a captured regulator with a request to obtain or review the record of his contacts with NV Energy and the utility trade association, the Edison Electric Institute. We have embedded it in this post in case you want to read it. Due to the importance of this issue to Nevadans at this phase of the state’s high-stakes energy debate, we believe these are critical questions to ask.

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog blog that seeks to hold government officials, lobbyists and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.

 

Nevada Open Records Act Request: Commissioner David Noble

 

Evlondo Cooper

Checks and Balances Project

1820 N. Fort Myer Drive, Suite 510

Arlington, VA 22209

 

VIA EMAIL AND HAND-DELIVERY

 

August 25, 2015

 

Peter Kostes

Public Information Officer

State of Nevada Public Utilities Commission

1150 E. William Street

Carson City, NV 89701

 

Dear Mr. Kostes:

I am a Senior Fellow with the Checks and Balances Project (http://checksandbalancesproject.org/), a government and industry watchdog blog. Pursuant to Nevada’s Public Records Act (Nevada Revised Statutes § 239.010 et. seq., “NPRA”), I am writing to request records of all communications between Commissioner David Noble and any representatives of NV Energy or the Edison Electric Institute (EEI), including but not limited to communications regarding solar energy or net metering in Nevada.

Time Period

This request seeks records created and/or received during the following time period:

  • February 17, 2012, through today.

Records Sought

As indicated above, I am requesting all records evidencing or regarding communications or meetings between Commissioner David Noble and any representatives of NV Energy and/or EEI. This request should be interpreted broadly and includes but is not limited to:

  • Text messages in which Commissioner Noble might have conducted public business with or otherwise communicated with any NV Energy and/or EEI representative. Please produce messages that pertain to public business, regardless of what device the message was sent or received on.
  • Emails between Mr. Noble and any NV Energy and/or EEI representative that discuss or mention solar energy or net metering, irrespective of the device or email address Mr. Noble or the NV Energy and/or EEI representative were using.
  • Phone logs for the above-referenced dates.
  • All meetings calendars for the above-referenced dates, electronic or paper, irrespective of device.
  • Any communications made by other electronic means (such as, without limitation, electronic chat and instant messaging), or other means of contemporaneous interactive communication, that Commissioner Noble might have used to conduct public business with a NV Energy and/or EEI representative.

For the purposes of this request, please interpret “representative” broadly to include NV Energy and/or EEI employees, agents, consultants, lobbyists (paid or unpaid), attorneys, or anybody else acting on behalf of either NV Energy and/or EEI.

Please also provide copies of all responsive records, regardless of how created or stored or what device, phone number, or email address they were created, sent or received from, if they pertain to the topics above. As the Nevada Supreme Court has explained, “public record” must be interpreted broadly to further the important purposes of the NPRA:

The NPRA provides that all public books and public records of governmental entities must remain open to the public, unless “otherwise declared by law to be confidential.” NRS 239.010(1). The Legislature has declared that the purpose of the NPRA is to further the democratic ideal of an accountable government by ensuring that public records are broadly accessible. NRS 239.001(1). Thus, the provisions of the NPRA are designed to promote government transparency and accountability.

Reno Newspapers, Inc. v. Gibbons, 127 Nev. Adv. Op. 79, 266 P.3d 623, 626 (2011).

Production Instructions

For electronic records, please provide the records in their original electronic form attached to an email or downloaded to an electronic medium. I can provide the electronic medium and arrange to pick up the records. For hard copy records, please attach copies to an email as a .PDF or I can arrange to pick up the hard copies. I am seeking information as it becomes available; please do not wait to fill the entire request, but send each part or contact me as it becomes available.

If you intend to charge any fees for obtaining copies of these records, please contact me immediately (no later than five (5) days from today) if the cost will exceed $50. I can also arrange to have the records inspected in person. As you know, no fees can be charged for a request to inspect records (Nev. Rev. Stat. § 239.010 mandates that “all public books and public records of a government entity must be open at all times during office hours to inspection by any person…”).

In any case, I am requesting a waiver of all fees because the disclosure of the requested information is in the public interest. This will contribute significantly to the public’s understanding of the Nevada Public Utilities Commission. The records may be written about and published to the Internet.

If access to the records I am requesting will take longer than a reasonable amount of time, please contact me with information about when I might expect copies or be able to inspect the requested records.

If you deny access to any of the records requested, please explain your basis for doing so in writing within five (5) days, citing the specific statutory provision or other legal authority you rely upon to deny access. NRS § 239.011(1)(d).

Please err on the side of fully providing records. Nevada’s Public Records Act requires that its terms be construed liberally and mandates that any exception be construed narrowly. NRS § 239.001(2), (3).

Please also redact or separate out the information you contend is confidential rather than withholding records in their entirety, as required by Nev. Rev. Stat. § 239.010(3). Again, please cite the statutory provision you rely upon to redact or withhold part of a record and keep in mind that you have the burden of showing that the record is confidential. NRS § 239.0113.

Please provide the records or a response within five (5) business days pursuant to Nev. Rev. Stat. §239.0107. Again, please email your response to evlondo@checksandbalancesproject.org rather than U.S. Mail so I can review as quickly as possible.

Thank you in advance for your cooperation with my request. Please contact me with any questions whatsoever.

Regards,

 

Evlondo Cooper

Senior Fellow

Checks and Balances Project

Why Was Barrett Marson Hired as Spokesman for the Arizona Corporation Commission?

No competitive bid process, no conflict vetting, association with checkered efforts – all at considerable expense to Arizona Taxpayers

Why Was Barrett Marson Hired as Spokesman for the Arizona Corporation Commission?

Barrett Marson

On June 19, the day that our attorney, Dan Barr, sent a letter to the Arizona Corporation Commission (ACC) demanding access to former Chairman Bob Stump’s cell phone, ACC Executive Director Jodi Jerich fired long-time Commission spokesperson Rebecca Wilder.

Rather than comply with our public records request and allow downloading of Stump’s text messages to determine whether not Stump had engaged in illegal electioneering, Stump and the Commission had decided to fight, at considerable expense to Arizona taxpayers

PR Consultant Barrett Marson Hired

Five days later, the ACC hired Barrett Marson to serve as the ACC’s PR consultant at $7,500 per month.

According to records obtained by the Checks and Balances Project show there was no competitive bid process to make sure taxpayers got the best deal on the contract. There is no indication of an effort to ensure Marson had no conflicts of interest. The expensive hiring of Marson raises questions about why he was selected.

Marson is a minor celebrity in Arizona GOP circles. Since October 2013, he has co-hosted “Copper Talk,” a political podcast series. His first interview was with former Arizona Treasurer, now Governor, Doug Ducey. Barrett is a former journalist and director of communications for the Arizona House of Representatives and Dept. of Corrections where, according to his website bio, he “attended four executions.” Apparently, he cares a lot about his website and even uses one of the best ranking hostingów hosting agencies.

Minutes before our deadline, the Commission’s outside counsel David Cantelme, hired at a rate of $300 an hour, let it be known that the Commission had changed tactics. Their new plan was to choose a retired judge and a state police forensic expert to download Stump’s phone, then decide whether any of the texts are public records. The plan backfired when both the state police and Phoenix police refused to get involved.

Meanwhile, Marson wasted little time, directing an elaborate diversionary campaign to take people’s eyes off the unfulfilled public records request.

Ties That Bind

Why Was Barrett Marson Hired as Spokesman for the Arizona Corporation Commission?

Robert Graham

It’s worth noting that Marson has past connections to Arizona GOP Chairman Robert Graham and Arizona Governor Doug Ducey’s powerful chief of staff, Kirk Adams, through the dark money electoral nonprofit Americans for Responsible Leadership, where Marson was spokesman.

Graham, in the news last week for standing behind a county Republican Party executive who Donald Trump fired as his state director due to racist and religious slurs, was founding chairman of ARL and a director until becoming Arizona GOP chairman in February 2013. The Arizona GOP issued the infamous “Who Is Dan Barr?” attack video, and, according to Graham, created blog posts, a website, and a social media campaign attacking C&BP and defending Stump.

Why Was Barrett Marson Hired as Spokesman for the Arizona Corporation Commission?

Kirk Adams

Gov. Ducey’s Chief of Staff Kirk Adams was president of Americans for Responsible Leadership in 2012 and 2013. A former Speaker of the Arizona House of Representatives, where he worked with Marson, he also founded Prosper Inc., a 501c (4) non-profit that that received money from Arizona Public Service (APS) to fight net-metering.

The $1 Million California Fine

In October 2013, — while Graham, Adams, and Marson were all associates – the California Fair Political Practices Commission and California Attorney General announced a fine of $1 million – the largest in California history – for an $11 million campaign finance money-laundering violation against Americans for Responsible Leadership and Center to Protect Patient Rights. The illegal contribution was to the Small Business Action Committee. The Center was a front group run by Sean Noble, with whom Stump texted in a burst prior to the August 26, 2014 GOP primary. Almost all of the money has been traced to billionaire conservatives Charles and David Koch.

Said Marson, called a “dark-money spinmeister”at the time by the Arizona Republic, “There was no intent to skirt or deceive California officials.”

Kirk Adams called the largest campaign money-laundering violation in California history “a big old nothing-burger.”

ACC is Still Accountable to Arizonans

Marson might have been the best-qualified, lowest-cost service provider the Commission could have hired. But without a competitive bid process and conflict vetting, we are left with only the questions about why he was hired so quickly and with so little screen on his qualifications, pricing, and conflicts.

If Commissioner Stump would have simply fulfilled his legal responsibility to provide the text message records in which he conducted public business – or if Chairman Susan Bitter Smith would have investigated – Arizonans would have been saved tens of thousands of dollars in unnecessary contractor expenses.

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog that seeks to hold government officials, lobbyists and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.

Arizona Attorney General Brnovich’s Investigators Seize Bob Stump’s Phone

Will It Be a Cover Up? Or a Genuine Attempt to Find Out the Truth?

 

Arizona Attorney General Brnovich’s Investigators Seize Bob Stump’s Phone

Ariz. Attorney General Mark Brnovich

Late yesterday, we learned that investigators from the Arizona Attorney General’s office had taken Bob Stump’s iPhone 5 out of the Arizona Corporation Commission’s safe and removed it as part of a probe into a whistleblower’s allegations of improper activity at the Commission.

That’s a curious development.

According to a confidential source at the Commission, the Attorney General was set to dismiss the whistleblower’s claims until we published on May 20 our findings that former Chairman Stump’s text messages supported the whistleblower’s allegations about Stump. It was thought to be not the right time to sweep it under the rug.

Now, two months later, Attorney General Brnovich’s investigators seem to have changed their minds by deciding to download the contents of Stump’s phone themselves.

We hope that’s the motivation.

Whether the seizure of Bob Stump’s phone and the incriminating text messages it may contain from the Commission’s safe is a good or bad thing will be determined by which Attorney General Brnovich shows up. Will it be the one who got elected with huge campaign contributions from Arizona Public Service, so beholden that he recused himself from the investigation of the whistleblower because of those contributions?  If so, then probe of the Corporation Commission and Bob Stump will likely be slow walked or downplayed, and Arizonans will never learn the truth about Bob Stump’s activities.

But if the one who shows up is an Attorney General who wants to have his career prosecutors go after the truth, then that’s a good thing. Right now, it’s up to Attorney General Brnovich to decide which version of him shows up to handle this seizure and who he serves – APS or the people of Arizona.

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog that seeks to hold government officials, lobbyists and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.

University of Virginia Study Finds 11 Major Flaws in Coal Center’s Energy Analysis Relied Upon by Gov. McAuliffe and Legislature

University of Virginia Study Finds 11 Major Flaws in Coal Center’s Energy Analysis Relied Upon by Gov. McAuliffe and Legislature

Gov. McAuliffe announces Energy Plan (photo: Craig Carper)

In a study released last week, energy expert Dr. William Shobe of the University of Virginia dismantles the key, state-sanctioned analysis of how Virginia should meet the requirements of the federal Clean Power Plan to reduce carbon emissions.

That analysis, produced last fall by a team led by Dr. Michael Karmis, director of the Center for Coal and Energy Research at Virginia Tech, is part of the Virginia Energy Plan and is relied upon by Gov. Terry McAuliffe and the legislature as they make decisions about the state’s energy future.

“In short, the report is almost certainly worse than no study at all because it misstates likely costs, analyzes irrelevant options, and gives short shrift to the cases that really matter,” writes Shobe.

A professor of public policy and director of the Center for Economic and Policy Studies, Dr. Shobe’s research focuses on climate change, greenhouse gas markets, and auction design. Shobe was part of the team that designed the Regional Greenhouse Gas Initiative for nine Northeast states, a cap-and-trade program to reduce carbon emissions that has generated $1.3 billion in economic benefits and 14,000 job-years over the past three years.

“Old Boy” Selection Process

Is Karmis Too Conflicted to Analyze How Virginia Can Respond to Fed’s Clean Power Plan?

Michael Karmis, Ph.D

Last fall, we questioned why Dr. Karmis – who is an international consultant to the coal industry – had been chosen by the McAuliffe Administration’s Dept. of Mines, Minerals & Energy (DMME) to write a 199-page analysis of how Virginia should best meet the requirements of the federal Clean Power Plan.  By repeatedly evading my basic questions about how and why he was chosen, Karmis and DMME only heightened suspicions about what appears to be an “old boy” selection process heavily influenced by the fossil fuel industry.

But now it is clear that the process was more than unseemly: the sloppy, coal-friendly conclusions of Karmis’ report are contributing to Virginia status as an also-ran in clean energy development.

Notable problems Shobe found with Karmis’ analysis include:

  • Double counts compliance costs by about $400 million annually because the authors added together two different estimates of compliance costs.
  • Made a calculation mistake that cut the estimated benefits of emission reductions by more than 40%.
  • Used inappropriate and incomplete economic analysis in estimating total economic costs and associated job losses, inflating cost and job losses.
  • Misinterpreted, on at least two occasions, analysis provided by the EPA in the EPA’s regulatory impact analysis of its proposed rule.

(For a full list of errors, click here.)

In addition to reviewing Karmis’ analysis, Professor Shobe makes useful recommendations to ensure state agencies such as DMME, the Dept. of Environmental Quality, and the State Corporation Commission are able to properly assess studies presented to them.

An Impartial Coal Expert? 

Virginia is having a critical conversation about Clean Power Plan compliance options and strategies. Citizens must ask themselves: should the Commonwealth’s policymakers continue to rely upon an energy analysis produced by coal expert Michael Karmis that we now know is utterly flawed?

Last November, I concluded a post by asking whether Dr. Karmis was too conflicted to write a document the governor and legislature would depend upon as an unbiased, informed look at how the state can best respond to the Clean Power Plan. By submitting a report with flawed methodology, basic factual errors and biased conclusions in favor of the coal industry, it seems the answer regarding Dr. Karmis’s conflicts is a resounding yes.

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog blog that seeks to hold government officials, lobbyists, and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.

How Long Will the Commission Stall Before Downloading Bob Stump’s Cell Phone?

How Long Will the Commission Stall Before Downloading Bob Stump’s Cell Phone?

Arizona Corp. Commission Executive Director Jody Jerich

It’s been one month since we learned that Bob Stump, former chairman of the Arizona Corporation Commission (ACC), “routinely deleted” text messages on his government-funded cell phone “not long after he received them.”

Through our public records counsel, Dan Barr, we informed the Commission that despite the deletions, Stump’s text messages could probably still be found on his phone’s hard drive. We proposed a leading, Valley-based electronics forensic expert who is on the state-approved vendor list. But that suggestion was ignored. We then proposed Detective Kathy Enriquez of the Phoenix Police Department, certified as an expert by the Dept. of Homeland Security, Mobile Digital Investigations program. Two weeks ago, the Commission’s outside counsel, David Cantelme, rejected our suggestion of Det. Enriquez.

Commission Executive Director Jody Jerich asked the Arizona Dept. of Public Safety for help, but they turned her down. Last week, Jerich is reported to have changed her mind and asked Phoenix Police Chief Joseph Yahne for permission to allow Det. Enriquez to perform the download of the phone.

But still no answer

Jerich has stated she is concerned that the phone’s “chain of custody” not be violated. However, the phone needs never to leave the sight of Ms. Jerich or her designate, so the chain of custody need never be in question. The entire process can be videotaped. Det. Enriquez has offered to take the day off to download the phone.

Why the delay?

Three big facts hang over the entire situation:

  1. Checks and Balances Project has uncovered compelling, circumstantial evidence that Commissioner Stump might have been illegally coordinating the August 26, 2014 GOP primary election with key dark money electoral scheme players. The roster includes: ACC then-candidates now Commissioners Forese and Little, their campaign manager Alan Heywood, dark money electoral groups, and Arizona Public Service (APS). If true, this could be a violation of campaign election laws.
  2. According to an email with the subject, “Brewing legal dispute – public records request,” provided by the Commission in response to our records request, Ms. Jerich began looking for outside counsel on April 23, 2015 – the day after receiving a request from Checks and Balances Project attorney Dan Barr for Stump’s complete cell phone records.
  3. As the Arizona Republic editorial board recently pointed out, the ACC could use its subpoena powers to demand APS to open its books for a review of any dark money electoral spending.

What was Bob Stump texting about with Forese, Little, Heywood, dark money captains Mussi and Noble, and APS’s Lockwood?  If there is nothing on the phone and nothing to hide, then why the foot-dragging and delay?

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog blog that seeks to hold government officials, lobbyists, and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.

The Only Way for Stump to Clear His Name: Produce the Text Messages

The Only Way for Stump to Clear His Name: Produce the Text MessagesCommissioner Bob Stump must be praying that today’s examination of his state-owned iPhone 5 produces his text messages.

Checks and Balances Project has presented powerful circumstantial evidence of coordination. The only way that Stump can clear his name is to produce the actual texts that prove he was not coordinating the August 2014 GOP primary election with Arizona Corporation Commission (ACC) candidates Forese and Little, their campaign manager Alan Heywood, dark money electoral groups, and Arizona Public Service.

The Only Way for Stump to Clear His Name: Produce the Text Messages

(May 5-December 29, 2014)

The timing of the texts and the fact that he isn’t texting some of these “friends” outside the period of high activity before the primary when Noble and Heywood enter the fray makes Stump’s explanation extremely dubious. In his recent public statements, he only references his friendship with Scot Mussi of the Arizona Free Enterprise Club. What about the others, Mr. Commissioner?

Stump used a method to communicate that he thought no one would ever discover, especially when he “immediately deleted the messages.” But it has backfired on him. The only way that he can convince people that he was not coordinating is to produce the texts that he thought that he has destroyed.

If the ACC does not recover the text messages, Stump is left with is a lame “my dog ate my homework” excuse.

Friday’s Exam

According to the Commission, a retired Superior Court judge and a state police force staff member will gather on Friday at ACC offices to download existing text messages from Commissioner Bob Stump’s cell phone.  The downloaded results will then be reviewed to determine which messages are public records, and they will then provide the messages to us in response to our records request.

Based on conversations we have had with our technology forensics expert, one of two things is going to happen as a result of this process:

Scenario 1, the “non-court scenario”: Stump has not been successful in his attempts to destroy the text messages. The messages are successfully downloaded. The outsiders (who, it’s worth noting, have been picked by the ACC) are not willing to tolerate gamesmanship in screening the resulting messages. Checks and Balances Project gets the messages and they match the logs that ACC has provided. Arizonans finally get to the bottom of the seemingly damning pattern and timing of messages Stump had with key players in last year’s dark money electoral scheme.

Scenario 2, the “we have to go to court scenario”: Stump has taken steps to destroy the text messages off his SIM card, or they were not transferred from his old iPhone 3…

“It was literally crumbling in my hands and was not recyclable,” Stump told the Arizona Republic’s Ryan Randazzo. Crumbling? How does that happen?

… and they have not survived the switches he has made from one, taxpayer-reimbursed cell phone to the next. Or, the messages are there, but the ACC puts a heavy screen on what is a “public” record. We get an anemic set of text messages that doesn’t come close to matching the text log provided by the Commission previously.

The expensive and thoroughly unnecessary game playing by the ACC results in us having to go to court, and we succeed in convincing a judge to review the download of Stump’s text messages. We get them, analyze them, and release the results to the public online. Here as well, Arizonans finally get to the bottom of what Stump said in those text messages.

Scenario 3, the “we’re left with circumstantial evidence scenario”:  there’s nothing of value found by the exam of Stump’s cell phone and Verizon cannot provide us with text message content. Attorney General Brnovich doesn’t investigate. No one in the Arizona legislature pursues the matter. Bob Stump and the Commission breathe a sign of relief as he continues to maintain that his mad texting was just to arrange trips to the symphony and the like with friends.

That would lead us to the next chapter of this sorry saga. After all, text messages aren’t the only method of uncovering definitive evidence that Commissioner Stump may be a captured regulator.

diceFor a growing list of Commission members, staff and contractors, the question now emerging is: Do you want to stake your respective reputation and credibility by defending Bob Stump’s extensive (and potentially illegal) involvement with all the key players in last year’s dark money electoral scheme?

It might be your dice to roll, but it’s still a gamble. The days ahead will be interesting nonetheless.

P.S. Dear ACC outside counsel David Cantelme: We are still awaiting the list of Stump’s purely personal phone numbers, so we can remove them from the list of Stump’s most frequent text message contacts. It’s been nearly a week since you said you would deliver them to our attorney. The removal offer stands.

 

Scott Peterson is executive director of the Checks and Balances Project, a national watchdog blog that seeks to hold government officials, lobbyists, and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors.