PRC Déjà vu

Pending legislation and a constitutional amendment could change the state’s regulatory environment—again

For the past week I've been obsessively checking to see if legislation to reform New Mexico's Public Regulation Commission has been filed yet.

I realize PRC reform doesn't have the sexy allure of legalizing cannabis, but the history of the state's attempts to create a regulating body not awash in scandal and incompetence make even this non-pot smoker wish she had a little OG Kush on hand.

If you do partake, feel free to spark up as I take you on a condensed journey into the past.

Prior to 1998, two different entities regulated utilities here: the State Corporation Commission, an elected body; and the Public Utilities Commission, whose three members were appointed by the governor.

In 1996, New Mexico voters approved a constitutional amendment that abolished both commissions in order to create just one to regulate utilities, transportation and telecom, among other consumer services. That's the current, elected Public Regulation Commission.

At the time, voters seemed to have favored the constitutional amendment following years of ethics-related criticism against the SCC:

"Some people believe a change-hungry electorate had little if any idea of the complications it was creating with what seemed to be a very simple vote."

I wrote the preceding sentence in March, 1998 for an SFR cover story about the new PRC titled, "Regulatory Circus" (I am both old and apparently have been boring for a very long time). But the new PRC looked dicey before it was even formed. As the former director of the former PUC put it at the time: "It's a disaster."

Indeed. In 2011, think tank Think New Mexico issued a report detailing the PRC's failure to either create greater efficacy or ward off ethical problems. Highlights at that point included: PRC Commissioner Carol Sloan's conviction on two felony counts; an $800,000 jury award to a former PRC employee who sued Commissioner David King for sexual harassment; and grand jury indictments of Commissioner Jerome Block Jr. on eight felony counts, and his father, former PRC and SCC commissioner Jerome Block Sr., on four felony counts (consider that a very condensed version of the Jerome Block story, whose legal problems continued post-PRC).

Think New Mexico helped push through several laws aimed at reforming the PRC. House Bill 407, passed last year, will require candidates for the PRC to specify their qualifications to regulate the state's utilities, and follows a 2012 constitutional amendment requiring they have them in the first place. Previously, one basically just had to be felony-free (which turns out to be a surprisingly un-predictive quality).

Lawmakers also agreed in last year's session to place a constitutional amendment on this year's general election ballot that, if approved, will change the PRC into an appointed versus an elected body.

Majority Floor Leader Sen. Peter Wirth, D-Santa Fe, co-sponsored the legislation for that ballot question. He says bipartisan Senate leadership met with PRC employees, as well as environmental and consumer groups—"a good cross section of different interests"—to develop the constitutional amendment. If passed, PRC commissioners would not solely be appointed by the governor but, rather, a nominating commission will provide candidates to her.

"The current system is not working," Wirth says, noting that even as a lawyer who has practiced for 30 years, and who has had exposure through the Legislature to numerous regulatory issues, he wouldn't feel comfortable "given the complexity of regulatory law" representing the state as a PRC commissioner. So, needless to say, perhaps folks with zero legal knowledge shouldn't either. "I think that's the whole genesis of going back to an appointment process," Wirth says, "…bring in the expertise to be able to get the politics out of the PRC."

Think New Mexico has a neutral stance on the appointment versus elected question. "When we studied the PRC, we did not find that there was a significant difference between elected and appointed commissions: each has pros and cons. Neither method removes the politics from the selection process," Executive Director Fred Nathan tells me via email.

Whether or not voters will choose to once again reform the PRC remains to be seen. Regardless, the governor—who has been at odds with the PRC over its failure to embrace the new Energy Transition Act—is backing yet more legislation this session to reform the office.

That bill's sponsor, Rep. Nathan Small, D-Las Cruces, tells me it will focus on modernizing the office and tackling "retention, recruitment, appropriate levels of staffing" and other internal issues "in order to safeguard all New Mexicans."

As Small points out, the PRC's work impacts people across myriad sectors—from energy to industry safety. "We have an opportunity and a responsibility to tackle some of the core structural issues," he says. "This has nothing whatsoever to do with any personalities."

So put that in your pipe and smoke it.

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