Attorney: No legal basis for Burns to issue APS records demand

What that means, she argued, is that Burns needs to make his case for the subpoenas to his four colleagues and get at least two of them — creating a majority — to demand the records. O'Grady said only if and when APS and Pinnacle West were to refuse to comply, and only after the commission issues an order to compel disclosure, would it be proper for Kiley to intercede.

But Bill Richards, who is representing Burns, told the judge that's not necessary. He contends the Arizona Constitution specifically gives each commissioner the right to demand documents of regulated utilities. And that, said Richards, trumps everything else.

Anyway, he suggested it would be improper to force Burns to actually ask the other commissioners to vote on his request.

Burns contends that APS may be the source of “dark money” spent to elect Republicans Tom Forese and Doug Little in 2014, a contention the company will neither confirm nor deny.

APS did admit to spending money to elect the three Republican candidates this year: Andy Tobin, Boyd Dunn and Burns himself. But Burns said the money spent on his behalf was only because APS executives were far more scared of the possibility of Democrats getting elected.

What all that means, said Richards, is that the other commissioners may actually be legally disqualified from voting on anything involving APS. And that, he told Kiley, underscores the need for Burns to be able to act on his own — and for the judge to enforce the subpoenas.

O'Grady, however, told Kiley he cannot usurp from the commission its ability to act first on the subpoenas.

“Sometimes commissioners get outvoted,” she said.

“And maybe he thinks his colleagues are scoundrels and ought not do the job that the voters elected them to do,” O'Grady continued. “But the commission and the commissioners, all of them, need to sort through those things and have an opportunity in the first instance to address them.”

Richards said Burns has a legitimate right to seek the documents to get answers to questions he has been asking.

“One is whether or not APS and its parent company have been setting their rate requests in a way to ensure that its customers will unknowingly be funding millions of dollars that the company uses to try and exert and create political influence over its designated regulator,” he told Kiley. Richards said that includes “questionable, perhaps even unlawful coordination between other commissioners and APS or their surrogates.”

“The fear that a regulated monopoly might nevertheless try and capture, through spending millions of dollars, a majority of the commissioners is one reason we respectfully submit that the framers of our constitution wisely granted ... each elected commissioner the individual power to conduct investigations, issue subpoenas, inspect corporate records,” he said.

Kiley noted that one thing that might work against O'Grady’s argument to let the commission handle the issue is that her client filed a request with the panel months ago to quash Burns' subpoena. Yet the commission has neither approved nor rejected that request, leaving it in legal limbo.

O'Grady said that failure to act does not give Burns the power to now seek judicial intervention.

Kiley gave no indication when he will rule.