APS pushed county administrators to pass legally questionable resolutions against clean energy initiative

UPDATE (11/16/2018): A recently completed public records request in Mohave county reveals that representatives from Unisource Energy Services, the sister of Tucson Electric Power (TEP), lobbied Mohave County officials in August to have the Board of Supervisors offer a resolution in opposition to Prop 127. Mohave County Manager Mike Hendrix denied the request, citing the ARS 11-410 law. This was three months after the Yuma County Administrator notified an APS representative that they could not pass a resolution in opposition to Prop 127 due to legal concerns.

Arizona Public Service (APS) orchestrated a campaign to get counties and towns across Arizona to pass resolutions decrying Prop 127, a renewable energy ballot initiative, through means that one county’s legal counsel advised may have been illegal. The monopoly utility lobbied county administrators to pass resolutions indicating their counties’ formal opposition to Prop 127. At least one county attorney noted that such a resolution would seem to violate Arizona State Law.

Prop 127 would require that investor-owned electric utilities like APS generate 50 percent of their electricity from renewable sources by 2030, and it will be on the ballot in November. APS has spent $11 million through the end of July fighting the initiative.

Emails produced in response to public records requests filed by the Energy and Policy Institute reveal the legal concern by county and town attorneys.

After an APS representative was informed on May 29th about the legal concerns from a Yuma County attorney with using a Board of Supervisors meeting to pass a resolution against Prop 127, the utility representative continued to ask other county and town administrators to do exactly that. One week after the legal concerns were explained to APS, APS presented at a Pinetop-Lakeside June 7th meeting. The town of Pinetop-Lakeside passed a resolution two weeks later.

The APS requests show the breadth of the company’s powerful political machine, which extends outside of the Arizona Legislature, Governor and Corporation Commission – areas which are commonly reported by the press – and into Arizona’s towns and counties as well. The company’s “Community Affairs Managers” around the state act essentially as regional lobbyists, the emails show.

Currently three counties, three towns and Navajo Nation have passed resolutions against Prop 127: the counties of Gila, Greenlee and Navajo, as well as the towns of Snowflake and Pinetop-Lakeside and Chino.

County Attorney advises against use of Board of Supervisors meeting to influence election

Yuma County did not pass a resolution against Prop 127, despite being lobbied to do so by APS officials. The Yuma County Attorney advised against APS’ request, saying that both APS’ request to use a board meeting to advocate against Prop 127, as well as its request to have the Board of Supervisors sign a resolution against Prop 127, would violate Arizona Statute 11-410.

A.R.S. 11-410 (A) states that “a county shall not spend or use resources, including facilities, to influence the outcomes of elections,” which includes supporting or opposing ballot measures:

The law does state that government resources can be used to facilitate debates that are purely informational to the public as long as the government remains impartial and the debate is, “purely informational and provide an equal opportunity to all viewpoints.”

After the Yuma County Administrator politely and firmly declined APS’ request and cited the legal concerns, APS’ Community Affairs representative, Anna Chaulk, continued to apply pressure again in two weeks with the same request.

The Yuma County Attorney responded on 6/14/2018 again firmly advising against APS’ request, this time citing specific Arizona case precedent for similar activity:

Across Arizona, an APS employee – usually a “Community Affairs Manager” – would meet with county staff to lobby against Prop 127 and ask to speak at a Board of Supervisors (BOS) meeting. APS would then ask the BOS to advocate that the public vote against Prop 127 in a resolution, potentially exposing the County to taking an illegal action. The following email exchange is from a county staffer in Yuma County seeking legal counsel on APS’ requests.

The request for an anti-127 resolution from APS normally followed an in-person meeting, where the APS representative offered model language for a resolution.The following is taken from an email in Gila County, which did not pass a resolution against Prop 127.

APS proposed legally dubious resolution text

The legal counsel for the town of Pinetop-Lakeside similarly recognized that signing APS’ resolution that would “urge residents to vote no” could break state law, advising the town to edit out that language “if the Council is ok getting into the political fight.”

APS-funded legislators pressured county administrators to pass resolution

County administrators also received pressure from a state legislator to use the Board of Supervisor meetings to pass a resolution against Prop 127. In Pinal County, Representative Vince Leach, who has received $6,000 throughout his career from Pinnacle West Capital Corporation, APS’ parent company,  urged County Supervisor Anthony Smith to pass a resolution similar to ones passed by other counties. Pinal does not appear to have passed such a resolution.

 

 

 

 

 

 

 

Leach introduced APS-backed legislation in March after receiving $2,000 from the Pinnacle West PAC a few months prior. This legislation would limit financial penalties for utilities like APS who fail to meet the renewable energy standard if it passes. APS acknowledged writing the legislation with Leach. That bill passed along party lines with unanimous Republican support in both chambers.

APS officials also lobbied the City of Flagstaff to pass a resolution this spring, apparently to no avail, City Council records show.

Two Flagstaff city council members proposed a resolution in September decrying APS’ political spending. That resolution would not have violated A.R.S. 11-410, but the council members did not garner enough support from other councilors. The mayor, Coral Evans, recused herself without explanation.

Top photo is of Cholla Power Plant, credit Alan Stark, Flickr.