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Lawyers: Corporation Commission violated open meeting statute

Posted by   /  October 11, 2018  /  No Comments

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As published October 11, 2018 by the Yellow Sheet Report

The Corp Comm violated state open meetings law after voting to stay water meter applications in the Johnson Utilities area of operation in Pinal County without posting the item on its agenda for today’s meeting, lawyers said. Forese, Burns and Dunn voted in favor of the order despite arguments from members of the public, who suggested doing so would do long-term damage to development in the area. Olson and Tobin voted against the proposal.

Attorney Court Rich, who was in attendance for an unrelated matter, argued that the decision interferes with future and ongoing development, potentially interfering even with property contracts that need to be settled tomorrow or over the weekend. If a property owner does not already have a contract for water services with Johnson Utilities/EPCOR, then development of the property will effectively have to be put on hold as a result of the decision. Rich expressed grave concerns about his clients’ property rights, as well as their right to be heard on the matter. He said the vote would be un-American, giving those affected no chance to argue their side. The initial order before the commissioners would have put a stay on water meter applications submitted to EPCOR, which has temporarily taken over management of the embattled Johnson Utilities water company, for the next 12 months.

But after Rich and another property development representative voiced concerns, the commissioners ultimately amended the order to be effective for just the next 96 hours, or until Monday, when they will revisit the issue. But attorney Dan Barr argued that the order is null and void because the commission took the action in violation of the open meeting statutes. ARS 38-431.02 says the public must be given 24 hours notice – except in cases of emergency (LINK), a point Rich also repeated. Utilities Division Director Elijah Abinah countered that Rich and his clients were not intervenors on the case, and that he had sent an email out at 4 pm yesterday to say the vote may come up. Barr said neither argument matters because the commission still did not provide the required 24 hours notice.

In any case, the damage may already be done by then. Rich argued to the commissioners, to no avail, that the headline from this decision, even with the abbreviated time frame, would indicate a moratorium on property development in the area. And with that, he predicted a reaction that could immediately negatively affect development for years to come. Corp Comm spokeswoman Holly Ward said the commission’s action was acceptable because commissioners are permitted to consider and decide on matters listed on the agenda or “other matters related thereto.” In an email to our reporter, she said the decision to pause adding additional meters to the Johnson Utilities territory was related to the agenda item titled “update from EPCOR on interim manager activities.” She said EPCOR’s activities involved evaluating the utility’s system, and whether it has the capacity to provide safe and reliable service to customers.

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