PNM, PRC talks a breach of trust

News reports about private conversations between the New Mexico Public Regulation Commission, the Public Service Company of New Mexico and Avangrid are deeply disturbing.

To me, a New Mexico resident and a lawyer with 53 years’ experience in courts across the country, including the U.S. Supreme Court, these conversations constitute a shocking breach of ethics that demands harsh sanctions.

The elected, bipartisan PRC unanimously rejected the proposed merger of PNM and Avangrid in December 2021. The PRC found the “risks based on the demonstrated performance and compliance history of Iberdrola/Avangrid with regard to quality-of-service issues, including reliability, as well as risks of improper subsidization of non-utility activities” were too great to overcome the short-term monetary benefits of a merger, which would have amounted only to pennies per day for three years for PNM customers.

PNM/Avangrid appealed to the New Mexico Supreme Court. When new PRC commissioners appointed by the governor took office in January, PNM/Avangrid approached them to settle the appeal and moved to reconsider the merger denial.

None of the other parties, namely the opponents of the merger, were invited to participate in these discussions. The PRC simply filed 94 pages of communications on the public record titled “Notice of Filing of Ex Parte Communications.”

Ex parte communications are material oral or written communications relevant to the merits of an adjudicatory proceeding made between the agency or administrative law judge and a litigant privately, without all parties to the proceeding present. Engaging in ex parte communications is unethical. There is no exception in statute, rule or case law that permits an agency or board to meet with one side of a case, without the other parties, to discuss anything of substance.

As the state Supreme Court has decided: “The purpose of this provision is based on due process considerations — ‘to secure to litigants a fair and impartial trial by an impartial and unbiased tribunal.’ ” It is well-established that a tribunal must not only be unbiased but must also avoid even the appearance of bias.

At first PNM/Avangrid denied that their communications with the PRC were ex parte. Then they switched messaging to claim that the communications were permitted because they were discussions about settlement. Yet ex parte communications designed to settle a case are simply not permitted.

Some people have suggested these private discussions over a two-month period were acceptable because the case is on appeal and somehow the PRC, the tribunal, had been transformed into just another litigant. That, again, is not the law. The PRC is a tribunal, not just another party to the case.

The misconduct of the commissioners in permitting these ex parte communications forfeited their impartiality and requires their disqualification from any further proceedings in this matter.

Michael Avery is professor emeritus at Suffolk Law School and a New Mexico resident.

There is no exception that permits an agency or board to meet with one side of a case without the other parties.