The Department of Public Service omitted comments from a prominent critic as it developed a report to assess how well it represents the interests of the public, according to legislative testimony.
The department is under fire for its allegedly close relationship with utilities. Critics say the structure of the department inherently creates conflict of interest, and they say the department's refusal to acknowledge that potential conflict in the report is symptomatic of the problem.
The department is responsible for representing state energy priorities as well as the public interest in proceedings before the state’s Public Service Board. Last year, after criticism of the board’s representation of ratepayers, the Legislature required the department to investigate if there are other models in use around the nation that would better serve utility customers.
Critics, including AARP Vermont, have suggested the department, run by a commissioner who serves at the pleasure of the governor, has a real or apparent conflict of interest as it represents the priorities of the governor while also attempting to represent the interest of the people paying utility rates.
“However,” the department’s report says, “based on our experience and discussions with the many experts who provided input for this report, there is no indication that the current structure of the Department creates any real or inherent conflicts of interest.”
James Dumont, a lawyer with decades of experience in proceedings before the Public Service Board, sent a letter to the department in October that said the current structure of the department creates a real conflict of interest.
“I believe it is high time for the legislature to re-examine whether ratepayer advocacy should be directed by a person who is appointed by the Governor, serves at the pleasure of the Governor, and, in my experience over the past 26 years, in some major cases has been ordered or strongly urged to make decisions based on the wishes of the Governor without regard to the expertise and opinions of the professional staff and lawyers within the Department,” Dumont wrote in an Oct. 21, 2015 letter.
Neither Dumont nor his comments were mentioned in the department’s report, even though the report says – and Public Service Commissioner Chris Recchia said to the Senate Finance Committee Thursday – that all comments were published online with the report and all commenters were listed in an appendix to the report.
Dumont’s letter was neither published on the department’s website nor was he listed as having contributed comments to the report, even though he wrote in the letter that he was presenting his “personal response to one component of Act 56,” the law that requires the department’s self-assessment.
Friday, the department’s commissioner sought to clear up what he says was a simple misunderstanding.
“My staff just misinterpreted Mr. Dumont’s request in his letter about providing formal comments, and they thought that he did not wish to include those,” Recchia said, referring to the opening of Dumont’s letter. “Obviously, after [hearing about this] yesterday, he did want them included and we have posted those since then on the website. But that was entirely a staff interpretation decision based on their conversations with him. And I respect the fact that, checking it out today, that’s what they told me.”
The paragraph Recchia says his staff misinterpreted expressed Dumont’s legal concerns about providing input for the report.
“I believe it would be inappropriate for me to submit detailed comments at this time,” Dumont wrote, “because I am currently representing several parties in proceedings before the Board in which the positions taken by the Department, through the Director of Public Advocacy, conflict with the positions of my clients on matters of procedure and matters of substantive law. Comments I would make would overlap with some of the disagreements my clients have with the Department in these pending matters. It is likely that my comments would be construed as advocacy related to the pending cases. Also, I would need to obtain consent from all of my clients to each of my comments before submitting the comments.”
The following sentence is: “I do feel comfortable setting forth my personal response to one component of Act 56.”
Dumont, who also testified before the Senate Finance Committee Thursday, also said staff at the department previously told him that they planned to specifically discuss the substance of his comments in the report, which ultimately ignored their existence.
Recchia said the fact that the report didn’t ultimately discuss Dumont’s letter was a result of the editing process.
“The report ... went from 30 pages to 40 pages to 50 to 180 pages, and we needed to make this readable for everyone, and he understood that too and he worked to try and do that,” Recchia said. “So the concepts of Mr. Dumont’s letter are included in there and we feel like we’ve addressed those in the content of the report.”
It’s unclear why a department employee would have told Dumont that his concerns would be included if, as Recchia said, the staff writing the report was under the impression that Dumont did not want it to be included.
Asked why the report said there was “no indication that the current structure of the Department creates any real or inherent conflicts of interest,” Recchia said: “Well, we’re balancing some things we agree with and some things we disagree with, and when I do testify again before the committee, I’ll explain in more detail why we feel the way we do. But you know, there are some fundamental misunderstandings here, one of which is that because I’m the commissioner of the department, that I’m the client of these people. I’m not. The client is the citizens of Vermont. Those are the clients. They understand that. I direct them that way.”
Dumont told the Senate Finance Committee Thursday that the circumstances surrounding his letter are emblematic of larger problems at the department.
“In my letter, I specifically raised this very issue, which is the department staff, the public advocate are not being listened to because the decisions are being made from the top down instead of from the bottom up. So here we have a case where the department staff is preparing a report – the report that you have gotten – and for some reason this comment was deleted from the report and it was not discussed.”