PSC election delayed again; public comment chilled under state law

September 26, 2018

Investigative Reports

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By RICK BRUNDRETT

S.C. lawmakers have once again delayed filling a $107,822 seat on the state Public Service Commission, which routinely approved electric rate hikes for the failed V.C. Summer nuclear project.

A screening hearing for PSC Seat 2, which was supposed to have been held Monday of this week, was postponed, according to a release from the legislatively controlled State Regulation of Public Utilities Review Committee (PURC), which nominates PSC candidates for election in the Legislature and largely controls the regulation of utilities in South Carolina.

The convoluted election process for the four-year seat has dragged on for more than a year with no clear end in sight. And state law makes it difficult for the public to participate in PSC candidate screening hearings – and other types of proceedings controlled by the Legislature, a review by The Nerve found.

Citizens, for example, who appear before certain legislative committees can face a felony charge of “contempt of the General Assembly” if lawmakers believe their testimony was “wilfully” false or even “materially incomplete.”

The seven-member PSC, which sets rates for private utilities, has been under public scrutiny recently because of the V.C. Summer debacle. Under a 2007 state law quietly approved by lawmakers, the commission approved nine rate hikes for South Carolina Electric & Gas customers for the $9 billion nuclear construction project in Fairfield County, which SCE&G and its partner, state-owned Santee Cooper, abandoned last year.

SCE&G customers were paying about 18 percent of an average monthly bill toward the project. Lawmakers approved a temporary, 15-percent rate reduction, which a federal judge upheld last month. Under a joint resolution approved by lawmakers, the PSC must issue a final order by Dec. 21.

The PSC Monday held the first of three planned hearings this month and next to gather public input on whether SCE&G customers should continue paying for the project, and whether a proposed $14.6 billion merger between SCE&G’s parent company, Cayce-based SCANA, and Virginia-based Dominion Energy should be approved.

In a Sept. 20 online statement, PURC said a Sept. 24 screening hearing for PSC Seat 2, which was rescheduled from Sept. 11 after state government offices closed over concerns about Hurricane Florence, had to be postponed because it didn’t comply with state law requiring that it be held at least two weeks before an election in the General Assembly.

Lawmakers recently decided to return to Columbia next week to deal with other matters, including budget vetoes issued by Gov. Henry McMaster.

The PURC statement did not say when the screening hearing for the congressional Seat 2, which covers all of Lexington, Aiken and Barnwell counties; and parts of Richland and Orangeburg counties, would be rescheduled, or when an election in the Legislature would be held.

Heather Anderson, a lawyer for the committee, told The Nerve on Tuesday she didn’t know when a screening hearing will be held for the seat, and that none of the six announced candidates, including incumbent Elliott Elam Jr. of Lexington, has withdrawn.

Oconee County Republicans Sen. Thomas Alexander, chairman of the 10-member PURC, and Rep. Bill Sandifer, the PURC vice-chairman, did not respond to phone messages Tuesday from The Nerve seeking comment.

There have been multiple delays in the screening process since Aug. 25, 2017, when PURC in a one-sentence written statement said, without giving a reason, the screening of seven candidates, including Elam, for three open PSC seats had been “suspended until further notice.”

A Senate staffer later told The Nerve that the process was suspended to allow two special legislative committees created to investigate the V.C. Summer fiasco to “do their work.” The Nerve later reported that the two committees, which have yet to issue a public report or summary of their findings, included the six legislative PURC members.

After a series of delays, the Legislature on May 10 – the last day of the regular legislative session – filled two of the three open PSC seats, but in an unrecorded voice vote effectively approved a “do-over” election for Seat 2. That allowed Elam, who was first elected in 2014, to stay in his position months after his term expired on June 30 – and the opportunity to decide on V.C. Summer matters.

John McAllister of Columbia, one of three nominated candidates on the rejected slate, told The Nerve then he believed lawmakers who supported Elam pushed to strike the entire slate because they feared “there was a danger Elam wouldn’t be elected.”

Elam and five other candidates, including a past PSC commissioner and an ex-PSC attorney, later applied for Seat 2, as The Nerve reported. Elam, an attorney and former consumer advocate at the S.C. Department of Consumer Affairs, declined comment last month after being contacted by The Nerve.

Although written qualifications for candidates appear to be straightforward, state law allows PURC members to qualify candidates even if they don’t have experience in any of the eight listed categories, as long as three-quarters of the committee agree to do so and provide “written justification of their decision.” The Nerve also revealed in May that PURC has no written criteria for making its final choices.

Free speech?

In its latest review, The Nerve found there are a number of barriers under state law for citizens who want to speak at screening hearings conducted by PURC and at other legislatively controlled proceedings.

For example, state law requires that those wishing to speak at PSC screening hearings provide a written statement of their proposed testimony to the PURC chairman no later than 48 hours before the hearing. Under the law, PURC determines who can speak at the hearings. All testimony, including furnished documents, must be “submitted under oath,” and can carry perjury penalties if determined to be “knowingly” false.

The law also allows PURC members to interview witnesses and candidates behind closed doors. And although any records presented under oath during hearings are considered public, all other documents – even records that typically wouldn’t be considered personal or confidential – must be destroyed after the committee has “reported its findings of fact,” or if candidates withdraw, under the law.

The Nerve’s review found there are similar testimony laws for:

  • Judicial screening hearings conducted by the six-legislator, 10-member Judicial Merit Selection Commission, which nominates administrative law, family, circuit, Court of Appeals and Supreme Court candidates for election in the Legislature;
  • College and university board screening hearings conducted by the eight-lawmaker College and University Trustee Screening Commission, which nominates candidates for election in the Legislature;
  • Legislative oversight and special legislative investigatory committees, including the special panels created to investigate the V.C. Summer fiasco. Those committees have subpoena power for records and can question witnesses under oath. Any person appearing before those committees who “wilfully gives false, materially misleading, or materially incomplete testimony under oath is guilty of contempt of the General Assembly,” a felony that carries a maximum sentence of five years in prison and a fine “within the discretion of the court.”

In contrast, citizens who speak before local governing bodies in South Carolina usually aren’t required to furnish their statements under oath, nor do they typically have to submit them in writing in advance.

The S.C. General Assembly, however, writes its own rules.

Hannah Hill, senior policy analyst with the South Carolina Policy Council, The Nerve’s parent organization, contributed to this story. Brundrett is the news editor of The Nerve. Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

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