Public Service Commission

Daniel Jordan, Esquire

Communication between a commissioner and a public utility representative forbidden even when no case is pending, however, the appearance of impropriety does not outweigh the presumption of impartiality.  State ex rel. Praxair, Inc. v. Missouri Public Service Commission, 344 S.W.3d 178 (Mo. banc, August 20, 2011), reh’g denied.

Utility filed application for merger with another utility. Party filed a motion to dismiss application, arguing that an appearance of impropriety arose from pre-filing conferences between utility representatives and Public Service Commissioners, requiring recusal of a majority of commissioners. Commissioners, by statute, may “confer . . . with the members of the public, any public utility . . . commission . . . ” and “free[ly] exchange . . . information between any person and the commission or any commissioner [if] such communications . . . do not address . . . a pending case [.]”  Commission denied motion to dismiss.

Held:  Affirmed
. Even when no case is pending, statute does not allow any commissioner to communicate with any public utility representative. But appearance of impropriety does not outweigh presumption of impartiality and, absent evidence of actual bias, no recusal was necessary.

Public Service Commission acted within its lawful authority in allowing AmerenUE to raise rates. State ex rel. Noranda Aluminum, Inc. v. Public Service Commission of State, Case No. 30865 (Mo. App. S.D., Nov. 7, 2011), Burrell, P.J.

In action for rate increase, statutes place burden of proof on applicant and require that commission findings stand on evidence of record. In setting return on equity, commission chose among methods proffered by experts. commission found applicant’s witness more credible than intervenor’s witness, in part because intervenor’s witness did not refute testimony of applicant’s witness.

Held: Affirmed
. On appeal, Commission’s method of setting rates is not at issue, only the fairness and justice of rates is at issue, which includes rates’ place relative to zone of reasonableness. Sufficiency of the evidence does not include credibility assessments and commission’s credibility assessment did not shift burden of proof to intervenor. In weighing evidence, commission may believe or disbelieve all or part of conflicting expert’ substantial and competent evidence. Inferences reasonably drawn from the record do not constitute facts not in evidence and may support decision. Intervenor’s speculation does not overcome conclusions based on facts based on the record. Evidence supported commission’s findings, which supported commission’s conclusions as to zone of reasonableness, rates, depreciation, and cost pass-through mechanism. commission may consider past costs to set future rates. Retroactive ratemaking occurs when commission changes past rates to collect more money from services that have already been provided.

Commission sets effective date for its decisions. Charles A. Harter vs. Missouri Public Service Commission, No. 73913, (Mo. App. W.D., December 6, 2011), Pfeiffer, P.J.

Public Service Commission set decision’s effective date on a Saturday, motion for rehearing was filed with commission on the following Monday, and commission ruled that such filing was untimely.

Held: Affirmed
. Constitutional provisions require that any agency decision is subject to judicial review. Statutes governing commission specifically prevail over general provisions of Administrative Procedure Act. Statutes condition judicial review of commission decision on filing of a motion for rehearing with commission before decision’s effective date. Statutes also provide that commission sets effective date and that Monday filing was not timely. Effective date was not so short as to violate constitution. Rule extending time for filings in circuit court does not apply to commission.