Election 2020: Constitutional amendment would let governors appoint PRC members

AZTEC — Voters will choose this year whether they want the commission that regulates investor-owned utilities to continue being elected, or if they would prefer a smaller commission appointed by the governor.

Constitutional Amendment 1 stems from a 2019 senate joint resolution sponsored by Senate Majority Leader Peter Wirth, D-Santa Fe, Senate Republican Whip Bill Payne of Albuquerque and Sen. Steve Neville, R-Farmington.

The Public Regulation Commission has come into the spotlight in recent years and has sparred with the governor over the implementation of the Energy Transition Act in relation to Public Service Company of New Mexico’s application to end its operation of the San Juan Generating Station. 

The PRC is tasked with overseeing investor-owned and cooperative utilities. For San Juan County, this includes utilities like New Mexico Gas Company and AV Water Co. It is tasked with protecting the ratepayers, including approving any rate increase. Additionally, the PRC's decisions dictate how aggressively electric utilities like PNM pursue renewable energy sources.

Changing how commission members are chosen

New Mexico is one of 13 states with a utility regulation commission that is elected rather than appointed.

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If voters approve constitutional amendment one, the five-member commission would be reduced to three members, as of Jan. 1, 2023. The amendment would also create a nominating committee to develop a list of qualified candidates; the governor would then appoint three members from the list, who would have to be approved by the state Senate.

Of the three commissioners, no more than two could be members of the same political party. Commissioners would serve six-year terms and be limited to two terms.

The amendment would also narrow the scope of the PRC's regulatory powers to public utilities, though it would still allow the state Legislature to assign responsibility for the regulation of other public service companies to the commission, should it choose to do so.

The current five commissioners are divided on their opinions. Theresa Becenti-Aguilar, who represents northwest New Mexico, opposes the constitutional amendment, as do Commissioner Jefferson Byrd and Commission Chairman Stephen Fischmann. All three have said it takes away voters’ rights to choose and gives too much power to the governor.

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Notably, when the measure first passed the Legislature to be placed on the ballot, Fischmann supported the idea of an appointed commission. But he has since published opinion columns urging voters to vote no on the constitutional amendment.

Becenti-Aguilar says that having an appointed rather than elected commission would hurt rural communities. She points to the commission's predecessors as evidence. 

The PRC was created through a constitutional amendment in 1996 that joined the State Corporation Commission and the Public Utility Commission. Both commissions consisted of three members appointed by the governor. Becenti-Aguilar argues that those commissions were dominated by lawyers from urban centers, primarily Albuquerque and Santa Fe. 

By not having required districts that the appointed members would live in, Becenti-Aguilar argues that it would remove the voice of rural New Mexicans in decisions regarding rural electric cooperatives and water systems.

Other arguments opponents have made, according to a voters’ guide released by the Secretary of State, include:

• It assumes the problems at the PRC are caused by the body being elected and it does not change how the PRC actually functions. The PRC commissioners have long held that their agency is underfunded, which has led to a staffing shortage. This funding comes from the legislature and there is no guarantee that the legislature will adequately fund the PRC to address the issues highlighted in a 2017 report that the legislature contracted the National Regulatory Research Institute to complete.
• The 2017 report suggested a variety of measures to address the challenges at the PRC. These included establishing more stable funding, paying staff more to attract and retain highly skilled employees, and providing more training and professional development. The constitutional amendment would not address any of the recommended measures.
• It would change the removal process for commissioners, which could delay proceedings. Currently, the New Mexico Supreme Court can remove a sitting commissioner for cause. Under the proposed amendment, a commissioner accused of malfeasance could only be removed by impeachment — requiring a majority of the members of the House of Representatives, followed by a trial in the Senate. That means impeachment could only occur when the Legislature is convened, possibly delaying the process to respond to serious allegations.

But proponents argue that it would decrease the political nature of the PRC while increasing the qualifications of the commissioners and restoring public trust in an entity that has been plagued by scandals, including embezzlement, sexual harassment and assault charges levied against commissioners in the past. 

The PRC has experienced controversy and diminished public trust — in part because of the nature of electoral politics. By depoliticizing the process, appointees would more likely be selected based on professional qualifications rather than name recognition or political advertising, proponents say.

While state law requires the commissioners to obtain 32 hours of continuing education yearly related to utility regulation, this has not always occurred in the past, according to a KRQE investigation in 2018. 

Other arguments in favor of the amendment, according to the voters' guide, include:

• It would make New Mexico more like most other states, which regulate utilities through governor-appointed commissions. These include 38 other states — including the neighboring states of Colorado, Utah and Texas. Because commissioners are required to deal with highly complex and technical matters, it makes sense to select commissioners based on their knowledge and expertise, rather than political considerations, proponents say. The double-vetting and staggered six-year terms would, in theory, prevent governors from packing the commission with political appointees.
• It promotes a better understanding of the legal complexities inherent in regulating utilities. Commissioners must understand the laws governing the subject areas they regulate. PRC decisions have too often been overturned by the New Mexico Supreme Court, calling into question the body’s understanding of the legal complexities.

Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652 or via email at hgrover@daily-times.com.

Damien Willis is a Lead Reporter for the Las Cruces Sun-News. He can be reached at 575-541-5443, dwillis@lcsun-news.com or @DamienWillis on Twitter.

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