More regarding the impending ACC S***storm

As you recall from my previous post, the Arizona Corporation Commission appears to be running scared because of the shamelessly bold coordination Trash Burner Bob Stump facilitated between Arizona Public Service, 2014 Dark Money campaigners and now captured "regulators" Doug Little and Tom Forese.

I had wondered aloud whether the Yellow Sheet Report had asked anybody for the letter Verizon Wireless originally sent Mass. Sen. Ed Markey. and lately forwarded to the ACC with information on the limitations of its disclosures to law enforcement agencies. I have obtained both the Verizon letter and Cantelme's letter to C&BP counsel Dan Barr. You may view them in their entirety.

Here are a couple of gems I'd like to share with you from the letters.

First, I'd like to point out just how wonderfully gracious Can't Tell Me was in his letter.

I write only to allay some concerns expressed by the Project on its website and to Arizona media about the text records produced by the Commission relative to Mr. Stump.

My heart overflows (efflorescence, as it were) with empathy for Stump, Cantelme and the ACC in general. How kind of them to be so diligent in fulfilling their responsibilities to the people of our state vis-à-vis public records disclosure.

The Project suggests or implies that the Commission has failed to produce all public records in its possession responsive to the request made by or for the Project for text messages made by Mr. Stump. Let me assure you that the Commission has made extensive efforts to comply fully with the Project's requests and believes that it has in fact complied fully under the law. 

I'm absolutely astounded by the ACC's diligent effort to, in good faith, fully comply so that the people of Arizona can, finally, know just how responsibly Stump has carried out his charge to serve APS... er, the people of Arizona.

But wait, there's more!

The Commission takes its obligation to comply with public records law seriously, its lawyers have made prodigious efforts to make its response thorough and complete, and it has fulfilled its legal and ethical duties in this respect.

Yeah and the Arizona Legislature "suffered" a tangible, particularized injury as a result of the PEOPLE exercising their sovereignty under the Arizona and US Constitutions to wrest redistricting authority away from the elected lawmakers. Oh, but that's a different subject... which, btw, pundits nationwide and politicos in Arizona and California especially are champing at the bit waiting for a SCOTUS ruling in Arizona Legislature v Arizona Independent Redistricting Commission, which many hope will be made public tomorrow (Monday, June 1).

My point is that it should be obvious to everybody that Can't Tell Me is full of s**t.

But I digress.

Cantelme goes on to tell a cock and bull story about why C&BP can't get the content of Stump's text messages. Essentially, "not my fault, mahn." You see, Verizon says "text message content has generally been retained for less than a week."

Now, obviously, that in itself is an incredibly vague statement. The next step he takes to cloud the issues is to suggest the fact that Stump did nothing wrong. The way that we "know" he did nothing improper by engaging in ex-parte communications* with APS and its Dark Money operators is that he also exchanged text messages with parties ostensibly on the opposite side of matters from APS.

However, as I pointed out yesterday,

Further, RUCO, for which Lon Huber was employed during the time in question, is an agency of Arizona government which its director is appointed and serves at the pleasure of the governor.

Neither Jan Brewer nor Scrooge McDucey would be mistaken for anyone who has empathy for individual ratepayers.

Then, to further obfuscate, Cantelme elaborates on public record law and changes the subject to attack C&BP insinuating it's really a commercial operation, that we can only know for sure if the public watchdog... "Thus, I would invite your client to alleviate any concern over whether the Project is advancing the commercial interests of its true donors by revealing their full identities."

Isn't that a kind, sweet, gracious invitation? Again, my heart is touched by his tenderness.

Anyway, getting back to the real issue that Cantelme sought to bury in a flurry of irrelevant gobbledygook, the ONLY way to tell whether Stump was violating any criminal or civil laws or rules is to scrutinize the content of those questionable text messages. Verizon apparently/supposedly claimed it could not produce the content. But that's not really what Verizon's letter to Sen. Markey ever says.

Even that "master of impartiality," Ryan Randazzo (APS publicity writer for the Arizona Republic) went so far as to call the ACC on this ridiculous claim.

Verizon, however, hasn't directly answered the question of whether Stump's text messages are available. The phone company answered the state regulators by sending along a letter from 2013 written in response to a U.S. Senator's questions about records retention. Verizon also declined to directly address the issue with The Arizona Republic.

Tangential to this concern, the US Senate was in emergency session today (Sunday) trying to work out a continuation of NSA authority to spy on Americans.

WASHINGTON – Sen. Rand Paul (R-Ky.) appeared on track to succeed Sunday in forcing certain controversial provisions of the Patriot Act to expire, including the National Security Agency's sweeping data collection program. But the lapse isn’t likely to last long.

Running down the procedural clock in a sensational emergency session Sunday night, Paul left the Senate in a stalemate on the House-passed USA Freedom Act. The bill would allow the NSA’s controversial bulk data collection program, justified under the expiring Section 215 of the Patriot Act, to continue running while the intelligence community works with telecommunications companies to reform the program. 

This of course demonstrates only that it is likely Verizon actually can find a way to retrieve the text message content. In the letter, Verizon does say that, with regard to text message content,

It is our practice to require a probable cause warrant signed by a judge to release stored text message content, unless a customer consents to the release of his or her stored text messages or law enforcement certifies that there is an emergency danger of death or serious physical injury. 

So, what actually IS the bottom line here?

1. Stump is freaked out about the possibility of having to disclose those texts.
2. The ACC claims IT does not have the text message content; Cantelme claims that the ACC has no duty to produce the text message content in question because it doesn't have it in its possession.
3. Verizon danced around the issue SUGGESTING but not specifically stating that it cannot produce the content.
4. External circumstances suggest that the content likely IS retrievable.
5. It will apparently take a court order to require Verizon to produce the content.
6. In order to obtain said court order, it will apparently be necessary to file suit against Stump and the ACC. This could be done by C&BP or by the Citizens Clean Elections Commission, which does, despite blustery denials by state elections director Eric Spencer**, have jurisdiction to investigate.
7. Stump and the ACC likely have their fingers crossed hoping against hope that they can ride out the storm without having to be held accountable for the blatant corruption that is in the process of being uncovered.

Obviously, since I'm not a lawyer, that list may be incomplete and/or not accurate in every detail. But it's probably not far off.

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*NOTE: The issue of ex parte communication with Corporation Commissioners is salient because the ACC fulfills executive, legislative AND judicial roles in carrying out its responsibilities on behalf of the people of Arizona. As ostensibly impartial judicial officers, ex parte communications are generally considered improper.

**NOTE:

In mid-May, state elections director Eric Spencer got cocky and put up this poll. Despite the fact that I supplied my email address when I voted in the poll, I have received NO email from the Secretary of State's office with the results of the poll. Perhaps because the office doesn't LIKE the result.

Nevertheless, the CCEC, in enforcing the Citizens Clean Elections Act (enacted by Arizona voters) does not "broaden its mission."

• A.R.S. § 16-941, one section of statute comprising the Act
• Independent Expenditure Reporting in Arizona a powerpoint presentation
• 2004 AZ Supreme Court opinion in Clean Elections v Brewer

From the 2004 court ruling in Clean Elections v Brewer:

The Act [enacted by VOTERS] assigns the Commission [CCEC] many duties related to the conduct of public elections, but three are paramount. First, the Commission administers the public funding provided under the Act for participating candidates... Second, it administers a voter education program and provides for debates among candidates... Third, it enforces the provisions of Title 16, Chapter 6, Article 2 dealing with administration and enforcement... The latter two categories do not relate to the public financing of political campaigns. Rather, they address voter education and require the Commission to enforce measures such as (1) statutory limits on acceptance of campaign contributions, which apply to candidates not receiving public funding... (2) requirements concerning reporting of contributions by candidates who do not receive public funding... (3) requirements that those making independent expenditures file periodic reports... and (4) provisions allowing candidates to agree jointly to restrict campaign expenditures... Nothing in Proposition 106 alters these statutory duties. The Commission, therefore, would retain full enforcement authority and responsibility as to these provisions even if voters abolished public financing of political campaigns. [some statutory citations omitted; excerpt highlighted in the linked text on page 10]

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