O'Connell recusal from controversial PRC case raises fears of tie votes
Feb. 1—Patrick O'Connell's recusal from a controversial Public Regulation Commission case has raised questions about whether more recusals may come and what the implications could be for the commission in deciding cases.
O'Connell, who was appointed to the newly reshaped commission a month ago, recently recused himself from any involvement in the matter of the proposed merger of Public Service Company of New Mexico and Avangrid, Inc. — a case the commission denied in December 2021 that's now under appeal at the state Supreme Court.
Since there are only three members of the commission now — as opposed to five before it was changed from an elected to an appointed body — one recusal means there are only two commissioners left to decide a case, so they would both have to agree to take any action.
Documentation of O'Connell's voluntary recusal, signed and filed Jan. 27, states he did so "due to having filed testimony in this matter on behalf of intervenor Western Resource Advocates."
O'Connell told The New Mexican on Tuesday he would recuse himself from any case before the commission in which he has given testimony.
"The thing that led me to recuse on that one docket is that I filed testimony in that case, so if that case comes back in that docket with the testimony I filed, I have to be recused," O'Connell said. "Everything else is just hypothetical, and I'm not entertaining discussions around hypotheticals."
On Thursday, the commission is scheduled to discuss four ongoing state Supreme Court cases — including the merger appeal — during a closed meeting.
O'Connell cited the state law on PRC recusals that requires a commissioner or hearing examiner to recuse himself in certain "adjudicatory proceedings" and said the discussion of Supreme Court cases does not require it.
O'Connell has provided testimony in many cases before the commission over the years, either for the electric utility PNM or for the advocacy group Western Resource Advocates, where he worked from 2019 to 2022.
In the event of PNM and Avangrid filing, once again, for a merger with the commission, the body would have only two commissioners to decide the case, James Ellison and Gabriel Aguilera. Both would have to vote in favor in order for approval.
"The result of a 1-1 tie vote is that the motion fails," PRC spokesman Patrick Rodriguez wrote in an email Wednesday. "The failure of a commissioner's oral motion, whether due to a tie vote or the vote of a majority of the commissioners against the oral motion, results in no action by the commission upon the underlying filed motion."
Cydney Beadles, who served on the nominating committee that interviewed PRC applicants and recommended names to the governor, said the committee did take potential recusals into consideration when speaking to candidates.
"Candidates who we knew to have worked for or before the PRC were asked questions about matters in which they may have to recuse themselves," Beadles said. "If there was an individual who may have been involved in so many cases still pending that it would have been a block to getting work done, that would have been a factor."
Beadles said the committee didn't hear anything from the applicants it submitted to the governor that represented an issue to the commission getting its work done.
