The S.C. Public Service Commission might not be aware of the old saying, “If you find yourself in a hole, stop digging.”
The Nerve in March revealed little-known testimony from PSC Chairman G. O’Neal Hamilton, who told a legislatively controlled panel during a screening hearing last year for re-election to his seat that the seven-member PSC typically meets in smaller groups of up to three commissioners to reach a “consensus” before final decisions are made.
The Public Service Commission, whose members each make more than $100,000 annually and are appointed by the S.C. Legislature, plays an important role in the daily lives of many South Carolinians, setting electricity and other utility rates charged by investor-owned utilities.
The Nerve in March reported that the PSC has raised average electric bills for SCE&G residential customers 21 times over an eight-year period, while hiking average bills for Duke Energy Carolinas residential customers 14 times during roughly the same time frame.
The state Freedom of Information Act (FOIA) generally bans public bodies, including subcommittees, from meeting in secret. Under the law, advance notice of meetings and agendas must be provided, and meeting minutes have to be taken and made available to the public.
In an April 22 written response to an FOIA request by The Nerve for minutes of committee and subcommittee meetings of the PSC, agency lawyer Randall Dong said no commission subcommittees have “existed during the time period identified in your request,” which covered all meetings since July 1, 2011 – contradicting Hamilton’s testimony last year.
In a follow-up written response on Friday, Dong said commission staff attorneys and “technical advisors” hold weekly “briefings” with up to three commissioners at a time “for the purpose of advising the commissioners on issues related to matters coming up for commission decision.”
“They do not comprise subcommittees because they do not meet in fixed groups, are not appointed by the full Commission and do not conduct any Commission business,” Dong wrote. “Instead, these briefings are bona fide and legitimate informational briefings between Commission staff and commissioners in order to advise and prepare commissioners for public hearings and decisions.”
“Further,” Dong continued, “since these are briefings rather than business meetings, and because no business is conducted at these briefings, no minutes or other records of these briefings exist or are necessary.”
Dong said state law authorizes the PSC to “employ a professional staff comprised of attorneys and technical advisors to aid the commissioners in discharging their duties and responsibilities, noting that the commission’s work is “often highly specialized and technical in nature.”
Dong’s latest response, however, is different from the answers Hamilton gave last year during his screening hearing before the 10-member “State Regulation of Public Utilities Review Committee,” or PURC for short. Hamilton discussed how the PSC arrives at final decisions after public hearings on utility-rate requests; in contrast, Dong’s response describes how the PSC operates before those public hearings.
As for Hamilton’s testimony last year, Dong in his response said he would “agree with the Chairman that consensus and unanimity are common in Commission decisions,” concluding, “With these facts in mind, we believe commissioners and staff comply fully with the open meetings provisions of the South Carolina Freedom of Information Act.”
Contacted by The Nerve this week, Jay Bender, attorney for the South Carolina Press Association, said even if the smaller PSC groups as described by Dong are taking no official votes, their meetings are supposed to be open to the public – with public notice of meetings and meeting minutes available to the public – under the FOIA. The law (Section 30-4-20 (a) of the S.C. Code of Laws) defines public bodies, in part, as “committees, subcommittees, advisory committees, and the like of any such body by whatever name known” that are “supported in whole or in part by public funds or expending public funds.”
The Nerve, through its parent organization, the South Carolina Policy Council, is an associate member of the Press Association.
“There’s no distinction (in the FOIA) between an informational session and a meeting,” Bender said in response to Dong’s characterization of the smaller-group PSC meetings. “Beyond violating the Freedom of Information Act, it’s an inappropriate consideration of a contested matter before the commission, and I think it’s a violation of due process.”
The PSC is considered a quasi-judicial body, and its members are governed by the state Code of Judicial Conduct – the ethical rule book for judges, Jocelyn Boyd, the PSC’s chief clerk and administrator, earlier told The Nerve.
Ethical rules generally ban a party in a legal dispute from communicating with the judge in the case without the other party present.
The Nerve on Tuesday sent follow-up questions to Dong but did not receive a response by publication of this story.
The Nerve previously left phone and written requests with Hamilton, who joined the PSC in 2004, seeking comment on his testimony last year, but received no response.
During his Feb. 12, 2013, screening hearing for re-election to his seat, Hamilton initially said under questioning by an attorney representing PURC that three of the seven PSC commissioners “can get together and discuss the issues” after a public hearing, according to a transcript of the hearing.
“And we keep splitting around,” Hamilton continued, “and we end up with a consensus that we feel is in the best evidence [sic] for the company and the rate payer.”
Later, under questioning by Rep. Bill Sandifer, R-Oconee and vice chairman of PURC, Hamilton said commissioners “normally meet in small groups that would not violate” the FOIA. At the end of the hearing, Rep. Mike Forrester, R-Spartanburg and a PURC member, raised concerns about Hamilton’s earlier answers.
“Do you see that as actually just a better procedure than meeting in an open session where the public can see all seven of you and converse and come to a decision?” Forrester asked.
Hamilton denied skirting the law, explaining: “We would be happy to meet in a group and with the public. We don’t hide in transparency at all, but under the structure that we live (with) we haven’t seen that as an available way to do it.”
The Nerve this week contacted Forrester seeking comment on last year’s hearing. After Forrester initially acknowledged The Nerve, the cell-phone call suddenly cut off, and Forrester didn’t respond to a follow-up message from The Nerve.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.