Legal distraction

June 29, 2006

Kenneth D. Schisler, the departing chairman of Maryland's Public Service Commission, has sued the state in an effort to keep his job. Politically speaking, this is about as good as it gets for Democrats. Not only do they appear to be on solid legal ground in their reshuffling of the PSC, but they can continue to trumpet their diminishment of the Baltimore Gas and Electric rate increase - and the commission's embarrassing performance - for at least several weeks more. So why does Gov. Robert L. Ehrlich Jr. claim to be happy the state is being taken to court?

Here's the best thing that can be said about Mr. Schisler's legal case: It won't affect the rate relief plan that soon defers all but 15 percent of what was expected to be a 72 percent rate increase by BGE. That - and what happens to electricity prices when the deferral period expires in 11 months - is all that most consumers care about.

Mr. Schisler's lawsuit centers on the separation-of-powers argument that the legislature can't fire gubernatorial appointees. This would be a worthy stand had the General Assembly actually fired Mr. Schisler and his compatriots. Instead, it simply shortened their terms. That may sound like a legalistic distinction but it's a crucial one. The PSC was created by statute; it's not in the state constitution. Members of the legislature are therefore free to reorganize, or even eliminate, the agency as they choose.

Lawmakers even inserted a backup plan: Should a court find this arrangement unconstitutional, the members of the PSC will instead become at-will appointees of Maryland's attorney general.

But the real puzzler is why the governor supports this effort. Indeed, one of the mysteries of the BGE rate-increase contretemps is why Mr. Ehrlich refuses to acknowledge how poorly this PSC has served him. Baltimore Circuit Judge Albert J. Matricciani Jr.'s reversal (and general dressing down) of the commission last month was the straw the broke the back of the PSC's credibility. Even many Republican legislators are relieved to see these commissioners go - along with the regulatory uncertainty that the utilities and their investors so detest.

For now, Mr. Schisler keeps his job - he doesn't have to leave until a new chairman is appointed and that might not happen until mid-July (or later, if a judge intervenes). Until then, he's Mr. Ehrlich's political albatross - a stubborn reminder of the administration's too-cozy relationship with Constellation Energy.

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