Voting questioned in major NorthWestern Energy rate case

Keila Szpaller

(Daily Montanan) A couple of members of the Montana Public Service Commission are crying foul after leadership approved a final decision in a major NorthWestern Energy rate case without calling for a vote on the final amended order, which may result in higher bills for customers.

Commissioner Randy Pinocci in particular said Monday the final order misrepresents his stance on the complex case as a “yes” — contrary to his stated position in an email.

Commissioner Brad Molnar said the “stolen” vote from Pinocci means a rate increase was issued in a procedural move, but without a public vote by the five-person, all-Republican commission that oversees public utilities.

Molnar and Pinocci, however, may have unwittingly delegated their authority to object to a final order to PSC President Jeff Welborn and Vice President Jennifer Fielder.

In a phone call, Welborn said the Public Service Commission laid out a process to consider the case, and all commissioners were on board. Now, he said, some commissioners appear to be trying to “run from their votes.”

Molnar was ousted as PSC president last year and he and Pinocci have been at times aligned against the other three commissioners.

The case also concluded without impacts to customer bills being publicly available from the Public Service Commission.

A spokesperson for the PSC said a filing with impacts on bills is due Friday, and a NorthWestern spokesperson said the utility will meet the deadline.

The current lack of information about bill impacts reflects the complexity of the case, according to the Public Service Commission.

But the questions raised about votes show the strife the Public Service Commission experienced last year remains — with potential impacts to work that affects customers.

“It’s a shame that we spend so much time around here trying to navigate curveballs,” Welborn said.

Molnar said the scheme will have consequences for ratepayers: “Open your checkbooks, boys and girls.”

Who voted, when and how?

In the final order, the “signature block” lists the names of all commissioners.

It shows Welborn, Fielder and Pinocci as signing onto the order; Commissioner Annie Bukacek abstaining in part; and Molnar dissenting in part.

However, Molnar said commissioners voted on amendments but never on “the final order as amended.” And Molnar said saying “yes” or “no” to an amendment isn’t the same thing as saying “yes” or “no” to a final product.

The order itself noted the PSC unanimously voted 5-0 to both extend the deadline to issue the final order, and to authorize “commissioner leadership,” or Welborn and Fielder, to approve the final language.

But in an interview, Pinocci said his “yes” vote in November indicated he supported extending the deadline to view the final order after it was amended — one part of that motion. He said he anticipated he also would have an opportunity to vote on it.

“I’m thinking the final order is going to come in front of us,” Pinocci said.

More questions, confusion

In a series of emails Molnar released publicly, Pinocci noted on Dec. 23 that he was dismayed to learn his vote was reflected in the final order as a “yes,” and that he intended to remain a “no” until a rehearing.

He told the Daily Montanan he had earlier emailed a “no” vote on the order. Commissioners typically vote at publicly noticed meetings, not by email.

“The only conclusion I can logically come to is that ‘leadership’ wanted to use my vote to pass the rate increase using me as their unwitting accomplice,” Pinocci wrote. “ … Even an appointed commission would not sink this low.”

An email on Dec. 24 from Welborn directed staff to “honor email directives in the signature block,” or the list of signers in the order, when making final revisions.

In that email, sent late that morning, Welborn said he and Fielder were marked as approving it; Bukacek was marked as approving in part and abstaining/dissenting in part; and Pinocci and Molnar were marked as dissenting.

But an email that afternoon from PSC Executive Director Alana Lake to commissioners noted Pinocci would be marked as a “yes.” It said the final order would be published by 5 p.m. the same day.

(A separate email from Lake indicated she had explained to Pinocci that he would be listed as a “yes” vote, and it said he understood the reason.)

“Some of you expressed a desire to have your signature removed or specific verbiage reflected,” Lake wrote. “Staff worked very hard to try to accommodate your requests within the parameters of the law and policy.”

Lake also reminded commissioners of the unanimous approval to extend the deadline to issue the final order and allow leadership to review and approve it.

“In the spirit of transparency and public accountability, we cannot, in good faith, reflect sentiments that occur outside a public meeting,” Lake said.

‘No good deed’

In a phone call, Welborn said he believed the process was “abundantly clear” as laid out in the public meeting, and commissioners have a responsibility to understand it.

The vote in November that extended the deadline and gave leadership authority to approve the order was in fact the final vote and always meant to be the final vote, he said.

However, that procedure did not appear to be clear to all commissioners.

In an email about a draft final order in December, Commissioner Bukacek said the draft did not accurately reflect the intent of the commission “because the votes were taken piecemeal … and the commissioner votes varied depending on the portion.”

“Now we are being asked to vote for the combination as a whole,” Bukacek said. “This makes it an inaccurate representation.”

In the email, however, Bukacek suggested a bifurcation of the order for accuracy but said if the final draft didn’t change, her signature should not be on it. Bukacek declined to comment for this story.

An email from a staff member to Bukacek also appeared to indicate a subsequent vote or decision was expected — recommending if Bukacek fundamentally disagreed with any part of the order, she should “have your vote stamped NO.”

In response to the reason commissioners were emailing votes in the case, Welborn said it was a good question, and he could not speculate.

Asked why his email directed staff to “honor email directives,” Welborn said he was doing his best to ensure the final order was something “that honored everybody’s wishes.”

“It’s kind of a no-good-deed-goes-unpunished,” Welborn said.

However, he said, he relied on staff to ensure a sound process, and he is certain “everything was done in accordance with the law.” Now, he said, some commissioners want to change their minds and question the process to boot.

“We’ve got people, commissioners, that are trying to run from their votes, or so it seems,” Welborn said.

Motions for reconsideration due Friday

Molnar said in December, he suggested a work session multiple times to fix the error and hold a final vote, but Welborn did not schedule one. In his dissent in an email, Molnar said he opposes the order as written.

In a phone call, Welborn said he couldn’t recall the details around a work session request, although if it took place, he believes legal staff likely evaluated it and turned it down, based on legal standards.

An email from legal staff on Dec. 19 said a work session could be held on Dec. 24, but only if leadership agreed.

The email said a “delegation of authority” policy allows staff to issue an order “absent an objection from a commissioner,” and commissioners voted in this case to limit the ability to object to leadership.

Vice President Fielder has been leading Public Service Commission meetings rather than Welborn after Molnar’s ousting as president, and Fielder could not be reached for comment for this story.

At the end of the day, however, Welborn said he believes the signatures in the final order accurately reflect the outcome of the votes at the November meeting.

“Regardless of all the back and forth, I guess my question is, ‘Is there a problem with the way the order was written in regards to the way the votes were taken in a public meeting?’” Welborn said.

The final bill

Parties involved in the rate case can file motions to reconsider any part of the case, and those are due on Friday.

A filing that will show impacts to customer bills also is due Friday.

In an email, PSC spokesperson Jamey Petersen explained the reason the impacts on bills wasn’t available in advance of the commission issuing the final order.

“Because this case involved complex disallowances (costs the Commission refused to let the utility recover), the final math depends on a compliance filing by NWE,” Petersen said.

However, Petersen also said the order focuses on which costs were “reasonably incurred” to provide “safe, reliable service.”

“By law, these decisions must be based on the evidence of the utility’s actions rather than a specific target for bill impacts,” Petersen said.

She said NorthWestern Energy must calculate the rates based on the directions in the order, and the PSC will have bill impacts once the filing is “submitted and verified.”

Late on Tuesday, Molnar said he made another attempt the same day to call for a public vote on the rate case, but it only received support from Pinocci.