Attorney general's letter questions PSC ousters

It says chairman can fire only if so empowered by the full commission

April 28, 2004|By Lorraine Mirabella | Lorraine Mirabella,SUN STAFF

The chairman of the Maryland Public Service Commission can fire top professionals at the agency that regulates utilities only if the commission delegates that power to him, the state attorney general's office said in a letter to a state legislator yesterday.

Three commissioners who are challenging the controversial firings said the letter means that PSC Chairman Kenneth D. Schisler lacked the authority to summarily terminate key technical advisers and public information officials. The commissioners said they want the five reinstated.

"I think it will take a majority of the commission to speak for the commission, and one person cannot fire people and change the duties of employees," said Commissioner Gail C. McDonald.

The "advice" letter, signed by Assistant Attorney General Kathryn M. Rowe, was sent to Sen. Brian E. Frosh, a Montgomery County Democrat, in response to his request. The letter was also forwarded to McDonald and Commissioner Harold D. Williams, who had requested an opinion on the matter from Attorney General J. Joseph Curran Jr.

"Since `the commission' is the appointing authority, the commission, as a whole, would be the body with the authority to remove these employees," Rowe wrote. "The case law makes clear that an employee can be removed only by the appointing authority."

The exception would be if the commission had delegated termination authority to the chairman, Rowe wrote.

Frosh said yesterday that the letter backed up the protesting commissioners.

"The bottom line is what Schisler did was not only ill-advised, it was illegal," Frosh said. "The fact that at least three [commissioners] questioned his authority makes it clear he didn't have the delegation of authority. He had no right to step in and summarily fire these people. This is a big mess, and it was created by Schisler's precipitous and illegal action."

Schisler, a Republican former state legislator who was appointed chairman of the five-member commission by Gov. Robert L. Ehrlich Jr. in May, has not discussed the firings, calling them "personnel matters." He did not return a phone call yesterday.

McDonald, Williams and Commissioner J. Joseph "Max" Curran III say they were not consulted about the dismissal of employees they relied upon for technical expertise at a time when they face critical decisions about electricity rate increases during Maryland's transition to a deregulated power market. Three of the employees had specialized expertise in utility accounting, engineering and rate cases, while two handled consumer complaints and public education. They were placed on administrative leave April 15, with the terminations to take effect tomorrow.

"It's clear from the letter that the chairman lacked the authority to do this unilaterally - unless that authority had been delegated to him," Curran, the senior member of the commission, said yesterday. "In my 4 1/2 years here, I've never been asked to delegate this authority to any chairman, either verbally or in writing. In my dealings with all chairmen, including this one, we have worked together and made decisions on employing key staff members."

Williams said the commissioners plan to talk with the chairman about rescinding the terminations.

What remained unclear yesterday was whether previous commissioners had delegated authority in the past.

"The policies of a commission don't have to be redone every time it gets a new commissioner," Rowe said in an interview yesterday, especially if a general delegation had been made.

Former PSC Chairman Glenn Ivey, now the state's attorney for Prince George's County, said he had always understood the chairman to be the appointing authority with powers similar to those of a secretary of a state agency. "Whether that was tradition or grounded in a vote, I don't know," Ivey said yesterday. "Certainly there was no formal vote while I was there."

"But having said that, whenever I was going to make a personnel decision, I always went to the other commissioners and we talked among the five of us," Ivey said. "I never did any hiring or firing without ... consultations with the other commissioners."

Senate President Thomas V. "Mike" Miller said the legislature had granted the commission independent salary-setting authority four years ago to attract and retain people with special expertise and remove their positions from the political arena. "We wanted nonpartisanship to be the rule of the day," he said. "We wanted expertise. We wanted objectivity in the rate-making process." The firings could have a chilling effect on employees at the PSC, he said.

"You don't fire people at the same time, especially employees that have had nothing but good and solid evaluations in terms of employment and who are charged with monitoring such an important function as utility rates," Miller said. But other legislators including some members of the House Economic Matters Committee, which oversees Maryland utility issues, have said they have confidence in Schisler's actions.

The fired staff members included Andrew Mosier, chief hearing examiner; Blaine L. Keener, chief engineer; and Randy Allen, director of accounting. Robert Higginbothan, chief public information officer, and Chrys Wilson, manager of external relations, also were dismissed. Allen, Keener and Wilson said yesterday that they have filed or plan to file appeals with Schisler.

Timothy F. Maloney, an attorney for Wilson, said the letter from the attorney general's office should bolster his client's appeal, filed yesterday.

"The law is quite clear here," Maloney said. "I'm hopeful [Schisler] will read the opinion and think better of what he's done. The attempted termination is so clearly unlawful, I'm hopeful it will end right here."

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