One for Pepco, Zero for the People’s Counsel: Public Advocate’s Nomination Rejected

As Pepco executives looked on, the D.C. Council’s Committee on Public Services and Consumer Affairs voted 3-2 last week to reject the long-stalled nomination of consumer advocate Elizabeth “Betty” Noel to the Public Service Commission (PSC), the three-member body which oversees the District’s utility companies.

“What’s really behind this objection to Betty Noel?” Ward 3 Councilmember Mary Cheh asked just before the vote. Cheh, who along with Ward 1 Councilmember Jim Graham voted in favor of Noel’s nomination, continued, “The current commission is captured by Pepco. They want someone who’s compliant and weak. They want puppy dogs… Betty Noel is nobody’s puppet and Pepco knows it and that’s what’s behind all of this.”

Despite Pepco’s poor performance in recent years, which led to its being named The Most Hated Company in America by Business Insider, the electric utility remains very profitable. According to a report by U.S. Public Interest Research Group, from 2008-2010 Pepco turned a profit of $882 million, thanks in no small measure to its negative federal tax rate of -57.6 percent which earned the company $508 million, as well as a spot on PIRG’s “Dirty Thirty” list of “companies that were especially aggressive at dodging taxes and lobbying Congress.”

In addition to its tax avoidance, Pepco has avoided providing alternative energy to customers, say environmentalists and activists, some of whom refer to the utility as “Pepco(al).”

Locally, despite its poor track record, Pepco routinely pushes higher rates on District residents, including a pending request for a $42 million hike. Whether District residents will have to fork over the additional money will be determined by the PSC, which brings us back to last week’s committee markup.

Among other top Pepco executives in attendance was regional president Thomas Graham, who told the Washington Post his company opposes Noel’s nomination because of concerns “around ethics and [Noel’s] ability to perform.” In multiple editorials opposing Noel’s nomination, the Post noted that Noel would have to recuse herself from more than half the current cases before the PSC because she worked on them during her unprecedented six three-year terms as People’s Counsel.

Betty Noel supporters at a recent protest outside the John A. Wilson Building

D.C. Consumer Utility Board chairman Herb Harris recently told TheFightBack that the high percentage of recusals is a red herring since most of the cases in question are old and non-critical. A special committee commissioned by the Office of the Attorney General reached a similar conclusion, saying, “Our answer is an unqualified yes” that Noel could serve effectively on the commission.

Pepco and the Post, however, question whether Noel could serve impartially on the PSC in light of her years spent as a consumer advocate. DC for Democracy chair Jerry Clark, in a letter to committee members, pointed out that impartiality is not the PSC’s primary objective. “The PSC is NOT intended to be a neutral arbiter between utilities and the public. It is ‘to serve the public interest by ensuring that financially healthy electric, natural gas and telecommunications companies provide safe, reliable and quality services at reasonable rates.'”

Despite this, the mayor’s nominee was defeated in a 3-2 vote. At-large Councilmember Phil Mendelson voted against Noel and offered remarks that were hard to square with his past votes to confirm Noel as People’s Counsel. After saying he had “a very high regard” for her, Mendelson called Noel “a firebrand” who’s “argumentative,” “combative,” “dismissive,” and lacking “judicial temperament.” Mendelson commented on Noel’s confirmation hearing, which he had reviewed the night before, saying, “What I saw was an articulate person who was strident. An intelligent person, but who was arrogant. A knowledgeable person, but who was not thoughtful.”

“I would like to associate myself with the comments of Mr. Mendelson,” said Ward 4 Councilmember Muriel Bowser, who joined her at-large colleague and Ward 7 Councilmember Yvette Alexander in voting down Noel’s nomination. Alexander, who chairs the committee, had held up Noel’s nomination for months, only agreeing to bring it to a vote after being confronted by protesters.

Even Graham, who voted in favor of Noel’s nomination, had harsh things to say about the woman he’s voted to confirm as People’s Counsel multiple times. Commenting on her confirmation hearing, Graham said, “It was an off-putting performance. I think her high-handed manner didn’t leave any of us with a particularly good feeling… I had to remind her at one point in the hearing that we were there in judgment on her confirmation and that she might want to consider a little different approach.”

As a law professor at George Washington University, Cheh, like Noel, is an accomplished attorney. Responding to her colleagues, Cheh questioned whether Noel might be viewed differently if she were a male nominee. “Let’s not expect, particularly among our women lawyers, that they be meek and retiring,” said Cheh.

Mayor Gray expressed disapproval with the vote, saying it “denied District residents the watchdog they need and deserve.” The mayor’s press release continued, “Betty Noel, an expert in utility regulation, has also spent her entire career fighting for the interests of District residents. If that alone did not qualify her for the job in the eyes of the Council, I’m not sure what else possibly could.”