July 12, 2023
JACKSON, Miss. – During this month’s commissioner meeting in Jackson, there was an interesting discussion between Commissioner Brandon Presley and his attorney, Ross Hammons.
Commissioner Presley: “Mr. Hammonds, in the new revised portion where the developer will come to the commission to get a CPCN [Certificate of Public Convenience and Necessity] that’s under the statute, they will not be considered a public utility, correct?”
Mr. Hammons: “That’s correct.”
Commissioner Presley: “So, as in filings for other things where you’ve got a, just pick a solar farm that would be, have a PPA [power purchase agreement], where they come in and file they expressly say they are not a public utility do not seek to be a public utility, will have no retail customers. Essentially the developer for a school district would fall into that non-jurisdictional, truthfully only filing just to say, we’re building something, type thing.”
Mr. Hammons: “That is correct.”
Here’s the exchange on YouTube, which occurs at 23:13 in the video.
It appears that Commissioner Presley is trying to get the attorney on the record clarifying that these entities that need to get a certificate to build or operate are not “public utilities.” Asking for such a clarification could serve as a green light to solicit or receive campaign donations from these entities, or perhaps justify donations received in the past.
But here is the law (Title 77, Chapter 1, sec. 11):
(1) It shall be unlawful for any public service commissioner, any candidate for public service commissioner, or any employee of the Public Service Commission or Public Utilities Staff to knowingly accept any gift, pass, money, campaign contribution or any emolument or other pecuniary benefit whatsoever, either directly or indirectly, from any person interested as owner, agent or representative, or from any person acting in any respect for such owner, agent or representative of any telephone company, gas or electric utility company, or any other public utility that shall come under the jurisdiction or supervision of the Public Service Commission.
The term “utility” is further clarified in the Public Utilities Rules of Practice and Procedure as: “any person subject to the regulatory jurisdiction of the Commission” (see p. 12).
If an entity merely states in a filing that it does not seek to become a utility nor intend to become one, does that negate the application of the law? Put another way, if it walks like a duck, talks like a duck, but emphatically states it is not a duck, is it still a duck?
Having experience with administrative filings and discussing this case with Mississippi legal experts, here are a few important points:
- Just because the filing party says something does not make it so; and
- Under the MPSC’s own rules, the solar companies are a party and subject to the jurisdiction of the MPSC. If they were not “subject to the jurisdiction or supervision of” the MPSC, why would they need to file for permission to operate?
In legal terms, this attempted clean-up is referred to as a post hoc rationalization – but most people would just call it a little bit of CYA. Either way it falls flat and does not excuse the unethical and potentially illegal actions by Commissioner Presley at the PSC. One other important note, I’ve received confirmation that the Attorney General’s Office is reviewing all materials.