Buried near the bottom of a 126-page working draft of Senate Democrats’ major energy bill currently circulating at the Capitol is a statutory change that could potentially get the Public Utilities Regulatory Authority (PURA) and its chairman Marissa Gillett off the hook in the lawsuit filed by Eversource and Avangrid that alleges Gillett improperly issued substantive motion decisions under the guise of the full authority.

Gillett had been acting as presiding officer in dockets before PURA and issuing motion decisions with no official votes or minutes. Those decisions were issued under only the executive secretary’s signature, allegedly giving the impression they were decisions by the full Authority. PURA has previously said that Gillett would reach a consensus with the other commissioners before issuing a motion decision and has argued in court that the other commissioners signing off on PURA’s final decision in a docket attested to their agreement on motion decisions.

Eversource and Avangrid, however, argue those decisions, issued under the guise of the full Authority, thus denied them their right to appeal a motion decision to a vote by all the commissioners.

Superior Court Judge Matthew Budzik questioned this practice in Avangrid’s rate case appeal, asking who it was that actually made the motion decisions and how it aligns with Connecticut’s Freedom of Information Act. Budzik allowed discovery in Avangrid’s gas rate appeal, stating that PURA has “failed to articulate a coherent statutory basis for the procedures it allegedly followed.”

Now, however, PURA may get the statutory basis that Budzik asked for under the working draft of Senate Bill 4 being ushered through the Capitol by its lead proponents, Sen. Norm Needleman, D-Essex, and Rep. Jonathan Steinberg, D-Westport, who are the chairs of the General Assembly’s Energy and Technology Committee.

The working draft of Senate Bill 4 allows the chairperson to “serve as, or designate one utility commissioner to serve as the presiding officer of such panel,” of commissioners and goes on to establish in statute that the presiding officer can issue motion rulings on behalf of the panel and such rulings constitute an action on behalf of the Authority.

“The presiding officer shall also issue rulings on procedural, evidentiary and intermediate matters on behalf of the panel, including motions, provided that a majority of the panel support such issuances following communication and conferencing pursuant to subsection (n) of this section,” the working draft states. “Any such action shall constitute an action of the panel unless modified by a majority of the panel.”

Subsection (n) of the bill indicates that two or more commissioners serving on a panel “may confer or communicate regarding the matter before such panel,” and that “any such conference or communication that does not occur before the public at a hearing or proceeding shall not constitute a meeting,” meaning there will not have to be an official record.

The working draft goes on to give the same authority to a hearing officer assigned by the chairperson. The terms “hearing officer” and “presiding officer” have occasionally been used interchangeably in the on-going issues between the utility companies and PURA.

If these changes are approved by the General Assembly, it could give PURA the statutory backing for Gillett’s motion decisions when she acted as presiding officer, as well as for the fact that there are no records of the panel discussing those substantive motion decisions; essentially, two of the major questions asked by Judge Budzik.

Some of those substantive motion decisions made by Gillett acting as presiding officer, included extending the COVID-era shutoff moratorium another six months adding $70 million to ratepayers’ electric bills, and investigating herself in response to allegations of bias and improper ex parte communications.

Currently, PURA’s statutory language does not mention a presiding officer – that language comes from the Uniform Administrative Procedures Act (UAPA), which PURA has pointed to in defense of Gillet’s actions as presiding officer. According to current statute, the chair assigns a panel of three commissioners to a docket and that panel may assign a hearing officer “to ascertain the facts and report thereon.”

Under UAPA’s definition of a presiding officer, the officer is empowered to administer oaths, subpoena witnesses, and require the production of records. The statute does not indicate the presiding officer can issue substantive decisions – part of the allegations lodged by the utility companies in their lawsuit.

Lawmakers attempted to make similar changes in 2023 as part of another massive energy bill proposed by the Energy and Technology Committee. Senate Bill 7 would have allowed the chair to assign any matter coming before the Authority to a single commissioner, rather than a panel of three, and would have given that commissioner the power of the full panel.

That language, however, was stripped out as part of the budget implementer that year, leaving the current statutory language in place.

Needleman and Steinberg are staunch supporters of Gillett having been implicated in text messages with Gillett allegedly related to an op/ed both lawmakers submitted to the CT Mirror. The utility companies have been granted discovery to get a full accounting of what was being discussed between the lawmakers and Gillett in the days leading up to publication of the op/ed, but thus far have not turned up anything substantive and claim PURA is dodging the discovery order by not turning over Gillett’s text messages.

Among other notable provisions in the massive bill, is that PURA would remain under the Department of Energy and Environmental Protection “for administrative purposes only.” The language appears to signal the death of a reported backroom deal between Gov. Ned Lamont and Sen. John Fonfara, D-Hartford, to secure Fonfara’s support for Gillett’s reappointment to PURA.

Under the reported terms of the deal, PURA would become a quasi-public agency so that Fonfara, as a sitting senator, could serve on the Authority. Fonfara supported Gillett’s reappointment, but the purported deal appears to have fallen apart in recent weeks, with lawmakers indicating they don’t see a path forward to turn PURA into a quasi-public agency.

Republican lawmakers in the Senate blasted the deal during the vote on Gillett’s reappointment and staged a walkout.

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