PUC Suspends Proceeding after Chairman Recuses Himself

Attorney Bruce McGlauflin represents a local resident and Food & Water Watch in a controversial case pending before the Maine Public Utilities Commission. Food & Water Watch is a national organization that works to protect the safety and sustainability of the food, water and fish we consume. The case involves a proposed contract by Fryeburg Water Company to sell spring water to Nestle Waters of North America. Nestle transports the water to its bottling plants for sale as bottled water under the brand Poland Springs. The case raises concerns about the sustainability of the water resource and about the propriety of a public utility selling a public resource at low regulated rates to a private company that will reap big profits by reselling the water at much higher market prices.

The case has also become controversial because two of the three commissioners have worked in the past for Nestle. At the beginning of the case, commissioner Mark Vannoy disclosed a conflict of interest arising from his past contract work for Nestle while employed with the engineering firm Wright Pierce in Topsham, Maine. Chairman Welch also disclosed a conflict arising from past work for Nestle. While working as an attorney with Pierce Atwood in 2007-2008, he served as legal counsel for Nestle in an earlier proceeding before the Commission while Nestle and Fryeburg Water Company were commencing discussions that led to the proposed contract under consideration in the current proceeding. The Chairman chose not to recuse himself at that time citing the “rule of necessity” allowing continued participation notwithstanding a conflict when recusal would prevent a resolution of the case. Before the final hearing in the case, attorney McGlauflin renewed a motion seeking the Chairman’s recusal.

The Chairman delayed his decision until after hearing all the evidence and reading the briefs filed in the case, but ultimately concluded that he is “unable to determine with certainty, in my own mind, whether I can completely separate that privileged information from consideration of the issues the resolution of which might prove decisive in this case. The Commission has suspended the case anticipating legislative action to allow appointment of alternate commissioners. There are two bills under consideration by the Energy and Public Utilities Committee of the Maine Legislature that would address the problem.

Creating a process for appointing temporary alternates when needed will help resolve a procedural flaw in the system. It will not resolve the historic flaw in the appointment process that fails to adequately consider the potential conflicts of individuals being appointed to the Commission and to the Office of Public Advocate, which is a watchdog representing the interests of the public in Commission proceedings. Too frequently, the practice has been to draw from law firms and contractors that represent utility companies when appointing commissioners and the public advocate. There are many other highly qualified individuals that could serve in these positions of public trust without the burden and uncertainty created by conflicts of interest.