Pretty Sure It’s Corrupt

It looks like PSC now stands for Pretty Sure it’s Corrupt.

Attorney General Josh Kaul needs to start an investigation into former Public Service Commissioner Mike Huebsch for possible misconduct in public office. And at least two other commissioners have conflicts that, while not criminal, should have prevented them from being appointed to the PSC in the first place.

According to a June 28 letter from attorneys representing the American Transmission Company, Huebsch had been communicating using Signal, an encryption service, with an unnamed ATC employee, and he was doing it during a period when the PSC was considering ATC’s application to build a massive power line.

According to the attorneys’ letter, “Signal is used by companies and individuals because it enables users to send private, encrypted messages, which, depending on the user’s settings, can be automatically deleted after a preset time period.”

Again according to the letter, when ATC discovered the use of Signal they decided to ask the PSC to rescind their approval of the Cardinal-Hickory line because of these irregular communications. The letter suggests that ATC would then ask that the approval be granted again but this time without Huebsch on the PSC. Later in the week the PSC agreed to rescind their approval and they indicated that they would move forward with a new vote soon.

This massive power line would tear through Wisconsin’s beautiful and environmentally sensitive Driftless area with poles that would be up to 17 stories tall. Huebsch, an appointee of Gov. Scott Walker, led the discussion at the PSC when it approved the line in September 2019. His term expired shortly afterwards.

This comes on the heels of a court skirmish between lawyers for the Driftless Area Land Conservancy and the Wisconsin Wildlife Federation and attorneys representing ATC and the utilities. The environmental groups have gone to court to try to stop ATC from moving forward. In one suit in Dane County Circuit Court, they claim that Huebsch had conflicts of interest because he represented the PSC on the Midcontinent Independent System Operator board and because he was in communication with Dairyland Power Company while the case was being considered. MISO supported the line and Dairyland is a partner in the project. Huebsch later applied to be Dairyland’s CEO, but he did not get the job.

The environmental groups’ lawyers are also pursuing another conflict angle with Huebsch. They served a subpoena on Bert Garvin, We Energies’ vice president of external affairs, in an attempt to get to the bottom of communications between Garvin and Huebsch. ATC’s lawyers moved to quash the subpoena on the grounds that the two are close friends going back 30 years. They admitted that Garvin and Huebsch had made some 200 calls to one another between April 2018 when ATC filed its petition for approval of Cardinal-Hickory and the PSC’s approval 18 months later. But the lawyers said that these were all personal communications that had nothing to do with the power line application. WE owns 60 percent of ATC.

But there’s more. Garvin’s brother, John Garvin, is manager of state government relations for ATC and he is also a friend of Huebsch. So, it’s possible that the ATC employee who was communicating with Huebsch using Signal was John Garvin. A statement by ATC President and CEO Mike Rowe would seem to point in that direction. “The individuals involved in this situation have maintained long-standing personal relationships with each other,” he wrote.

In any event, it strains credibility to believe that Huebsch communicated this heavily with the Garvin brothers, whose employers both had a deep investment in the line, and never discussed Cardinal-Hickory. “The number of phone calls, texts, and other communications between Mr. Garvin and Comm. Huebsch are staggering for the chief lobbyist of a utility holding company and a commissioner responsible for regulating that company’s public utility businesses,” wrote the environmental groups’ lawyers in response to the move to keep Bert Garvin from being deposed in the case.

But even if they didn’t talk business, it doesn’t matter. Huebsch was in public office and he was shielding his communications with a company he was regulating using an encryption service. On its face, that looks like a violation of the open records law and that’s what Kahl should investigate.

And, in the first place, why on earth did Walker appoint a man with such close ties to senior officials in the industry he was regulating? And why did Huebsch, if he were at all concerned about the ethics of the whole thing, accept the job? And, of course, if Huebsch asked Walker for the appointment, as he likely did, that makes it all so much worse.

In any event, ATC’s revelation about Signal would seem to make the pending case before Dane County Judge Jacob Frost a slam dunk. Frost has already ruled that if Huebsch in fact did have a conflict of interest his involvement in the decision would poison the whole thing. Even the other commissioners, who might not have conflicts, couldn’t vote again on the case. Instead, it would probably have to be decided by PSC staff or by a special master, like a retired judge. ATC may have made this move, in part, to make this suit moot, but Howard Learner, the lead lawyer in the case from the Environmental Law and Policy Center, told me that he believes that Frost will keep the suit alive and that revelations about Signal only make their case stronger.

But let’s step back and take a look at the whole sorry tale. Bert Garvin was, himself, a PSC commissioner. Then he went to ATC where he was a vice president and general counsel. Then he moved from ATC to WE. His brother is a lobbyist for ATC and both brothers are friends with Huebsch. PSC Chair Rebecca Valcq, appointed by Gov. Tony Evers, spent her entire legal career as a regulation lawyer for WE. Though Frost has ruled that she did not have a conflict in the Cardinal-Hickory case, she has had to recuse herself in many other cases. Evers’ second appointment, Tyler Huebner, has recused himself from Cardinal-Hickory because he admits he has a conflict as a result of his work for a nonprofit that supports the line. And, of course, Huebsch wanted to move from the PSC to Dairyland.

Anybody else see a problem here? Anyone else feeling the breeze from a revolving door?

A version of this post originally appeared in Isthmus.

Dave Cieslewicz, Editor, Yellow Stripes & Dead Armadillos.