Today, the Yellow Sheet, not to be outdone (because it didn't have the Mundell/Jennings filing by press time on Friday), began asking more questions and seemingly playing devil's advocate.
First, YS reported on the plain language of ARS § 40-241 (which Burns cited as authority for his demand), and (Article 15 of the Arizona Constitution) but also raised the question of whether APS (apparently because corporations are people too) has a right to protections from unreasonable search and seizure (4th Amendment to the US Constitution).
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.An upstart young whippersnapper of a lawyer (who happens to also be a friend/acquaintance of mine, and a legitimately smart fellow), Kory Langhofer told YS he sees complications with Burns' demand. On the other hand, I see it simply as insight on a likely challenge APS will bring to opening its books. Which will mean this may have to be resolved in court.
Our good friends at the YS then speculated on whether the demand letter will isolate Burns from the rest of the commissioners. By the way, Andy Toxin is scheduled for swearing in today to fill the seat vacated by Bitter Smith.
The other big question is: How will the other commissioners respond to Burns’ demand to APS? If APS is reticent, will they see it as a direct challenge not just to Burns’ authority, but to theirs and the commission’s, as well?
Stump, as noted last week, has refused to weigh in on the issue, citing open meeting law concerns and adding that he wants to make sure he doesn’t appear to have prejudged the matter. Corp Comm spokeswoman Angie Holdsworth said the other commissioners are also reviewing the statutes and getting legal advice.
Burn said it boils down to this: “Does the commission have the authority to regulate or not?” He said APS is a regulated monopoly that has a contract with Arizona citizens to operate in the state. “Because they do, then they are subject to audit,” he said.
He cited his own experience, saying in the past, he had signed a contract with the state to do business, and part of the contract stated that he is subject to audit. He got audited almost every year, he said. “It’s the rules that they are operating under, and if they don’t want to operate according to the rules, then I guess they ought to look for something else to do,” he said. APS said it is reviewing Burns’ letter.Kudos to Mr. Burns for essentially invoking the Social Contract. It's rare these days for Republicans to do so, but it's also refreshing. Though he may not use that expression, it still boils down to the Commission's duty to, in the relationship of APS to the citizens of Arizona, protect captive ratepayers in exchange for the grant of monopoly authority to provide electric utility service.