PHOENIX – Arizona’s energy regulators decided yesterday not to pursue a practice of discussing policy matters away from the public, even though the Arizona Corporation Commission’s attorney said it wouldn’t run afoul of the state’s open meeting laws.

Commissioner Bob Burns, who raised the issue in November 2014, again argued that the five commissioners should meet in a smaller setting to discuss significant policy proposals.

Over the past few years, overflowing crowds have more frequently packed into the public hearing room to watch and participate in the debates over water and energy issues that the commission oversees.

“The issue I’m trying to bring up here is the sort of last-minute amendments that we have been subjected to,” Burns explained during the meeting. “When we go down to the hearing room and we haven’t had a chance to really have a verbal briefing on the amendment – we may have something in writing – but we don’t really have an opportunity to basically sit and hear the purpose of the amendment.”

Because the commission is comprised of five commissioners and any three of them discussing commission business constitutes a quorum, commissioners are barred from talking with any more than one other commissioner about official business outside of a public meeting. Three individual communications among commissioners on a single matter would also amount to a quorum. Public meetings require a published notice 24 hours ahead of time, providing the time and place of the meeting, along with an agenda.

Because they are precluded by law from discussing imminent amendments, commissioners sometimes only first see significantly altered policy proposals at the start of full public hearings, even though commissioners may have been working on, and could have more exhaustively discussed such amendments.

“What I would suggest, if possible, is we could have a generic agenda for a staff meeting prior to the scheduled open meeting,” Burns said, describing more informal conversations, around a table in a room that accommodates roughly 40 people. The two public hearing rooms can accommodate a combined 245 people.

“The way we’re all strung out in a line, I have a problem communicating back and forth in that layout. I think it’s much easier for us to communicate when we can look each other in the eye, and talk,” he said later. “And there’s the added pressure of the large crowd.”

Live audio would be available over the internet, the commission’s spokeswoman, Rebecca Wilder said. Burns proposed a newly constructed agenda for the smaller meetings. It would list the items on the following public meeting agenda and any possible amendments for them, and be posted 24 hours in advance of the smaller meeting.

Commission Chairwoman Susan Bitter Smith raised a concern that the public is not allowed to comment during staff meetings, and that she would want advice from the commission’s attorney about the idea.

Janet Wagner, the commission’s attorney, said Burns’ description of the agenda for such meetings mean the idea would not violate Arizona’s open meeting laws.

“The whole point was it would be a public meeting,” Burns said.

Kathryn Marquoit, Assistant Ombudsman for Public Access, said the evaluation by the commission's attorney is accurate, adding that as long as proper notice is given, and that agenda items sufficiently describe to the public what is being discussed, the more private meetings would not be a problem.

“If somebody was physically excluded from the meeting, there could be an issue. However, one of the accommodations for that is an overflow room,” she said.

Marquoit said the commission would be wise to provide an equal level of access to the public, such as live audio streaming over the internet as well as live audio available in the overflow area for anyone who physically comes to witness the meeting, but that public comment is not necessarily required.

“According to open meeting law, they’re not required to allow public comment. It’s at their discretion,” she said. “There are statutes that require public hearings, with public comment, but they are more narrowly applied than the general open meeting law.”

Sam Wercinski, executive director of Arizona Advocacy Network, a group that advocates for greater civic engagement and ease in doing so, said he would oppose the measure because it moves, even if only incrementally, away from the most open and transparent practices possible.

“There’s no outcry from the public to do this, to allow commissioners to debate this stuff earlier, which would only allow commissioners to align their votes without the public present to voice their opinion,” Wercinski said.

Diane Brown, executive director of Arizona PIRG, a consumer and taxpayer advocacy organization, said the Corporation Commission has a reputation for being one of the best entities for allowing the public to follow the actions of the group and participate in public discussion. And she lauded the efforts of Commissioner Burns in their aim to more carefully weigh the merits of significant policy proposals, but cautioned against action that could in any way diminish public access.

“Overall, we agree with Commissioner Burns that policy needs to have a thorough and rigorous debate,” Brown said. “At the end of the day, it’s important that we have strong policies in the public’s interest, that allow citizens’ voices to be heard. If the commission proceeds in a manner that achieves those concepts, then we believe it best represents how to move forward.”

The commissioners settled on a “gentlemen’s agreement” to try to formally submit amendments 48 hours in advance of full public hearings, a compromise proposed by Bitter Smith.

Prohibited quorums:
• “Daisy chain” communication, where Commissioner A and Commissioner B privately discuss a matter, then Commissioner B and Commissioner C privately discuss it.
• “Spoke and wheel” communication, where Commissioner A individually discusses a matter with Commissioners B and C, in private.