Schisler rejects outside counsel in PSC firings

Rift on state panel widens as chairman says move would set bad precedent

May 19, 2004|By David Nitkin and Lorraine Mirabella | David Nitkin and Lorraine Mirabella,SUN STAFF

The chairman of the Maryland Public Service Commission has refused to hire an independent lawyer to settle a power struggle that has consumed the regulatory board, deepening a rift between an appointee of Republican Gov. Robert L. Ehrlich Jr. and holdovers from previous Democratic administrations.

Faced with conflicting opinions on the legality of the abrupt firings of five veteran commission staffers last month, three commissioners asked Chairman Kenneth D. Schisler to hire outside counsel to resolve the dispute.

Schisler, a former state delegate and Ehrlich appointee who dismissed the employees without consulting his four colleagues, rejected the request in a memorandum dated Monday and obtained by The Sun yesterday.

Hiring an outside attorney because three commissioners disagree with the agency's general counsel "would be wholly inappropriate, highly irregular and set a very bad precedent," Schisler wrote.

State law allows the commission to seek independent legal advice, but it is not meant for cases that "challenge the opinion of the general counsel or create an adversarial relationship with the Office of the General Counsel," Schisler wrote. "Such a reading would be an abuse of the statute, and would be destructive and destabilizing to the commission."

Commissioner J. Joseph Curran III, one of the three agency members requesting the legal review, said he was disappointed with Schisler's ruling.

"I think that there are important public policy issues involved in this entire employment situation. They involve not only the five employees, but how the commission is supposed to be run," Curran said. "If one commissioner has the ability to control the integrity and the quality and the character of the advice given to the others, it puts that one commissioner in an unequal position."

Commissioner Harold D. Williams said he was not surprised at Schisler's decision. He said he plans to meet with Curran and Commissioner Gail C. McDonald next week to discuss options in challenging the firings.

Williams said he and the two other commissioners sought outside counsel to settle a discrepancy between the commission's general counsel and the state attorney general's office.

General Counsel Susan S. Miller told them Schisler has sole authority to fire employees. But a letter of advice from the state attorney general's office late last month said the chairman has that authority only if the commission delegates that power to him.

"We were appointed to manage the commission as a whole, not to have the authority to act independently of the other four commissioners," Williams said. "We did not delegate our authority to the chairman."

The controversy began last month when Schisler, head of the agency that regulates utilities, summarily fired the five senior commission professionals, including key technical advisers and public information officials.

The three protesting commissioners, legislators and consumer advocates have said the firings could cripple the agency at a time when it faces critical decisions about consumer electricity rate increases as the state moves toward deregulation.

Firing top staff members with expertise in utility accounting, engineering and rate cases could weaken the commission's ability to judge the merits of utility proposals and ultimately hurt consumers, critics said.

Fired were 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.

Ehrlich has not waded into the controversy but has repeatedly said that he wants his administration to develop policies favorable to business and his agencies to cooperate better with corporate interests to bolster the economy and add jobs.

Sen. Brian E. Frosh, a Montgomery County Democrat who is chairman of the Judicial Proceedings Committee, said yesterday that the General Assembly might convene hearings this summer that would pressure Schisler to adhere to the attorney general's opinion. He accused Schisler of engaging in delaying tactics until McDonald's term expires and Ehrlich appoints a replacement who might tilt the decision-making balance to the chairman's side.

"The law is pretty clear. The law is [that Schisler] can't do this. Eventually, somebody is going to bring him before a judge and slap him down," Frosh said. "He's gone into his four-corners offense. The longer he can drag his feet and the longer he can obstruct, he at least has a shot."

Schisler could not be reached for comment yesterday.

Morton Edelstein, an attorney representing Keener, Mosier and Allen, said Schisler turned down his clients' appeals last week. Those appeals challenged Schisler's right to act independently of the other commissioners and said the firings were discriminatory and unconstitutional.

"He said basically that he has the full authority to do as he wishes and that it was not necessary to bring it in front of the commission," Edelstein said.

His clients are weighing whether to appeal to the Circuit Court or file lawsuits charging wrongful discharge.

Wilson's appeal has also been denied, said her attorney, Timothy F. Maloney. "She's prepared to file an appeal to the Circuit Court," Maloney said.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.