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The Honolulu Advertiser
Posted on: Thursday, February 4, 2010

Utilities commission ruling deemed valid

BY Rick Daysog
Advertiser Staff Writer

The failure to include one of three state Public Utilities Commission board members in a recent decision does not invalidate the agency's ruling, the Attorney General's office said.

In a Feb. 1 opinion, Deputy Attorney General Randall Nishiyama said the PUC can issue decisions and rulings so long as a quorum consisting of two of its three commissioners takes part in the decision.

"While it would be preferable to have all three commissioners reach a determination regarding the decision and order, the nonparticipation of a commissioner does not invalidate the decision and order," Nishiyama said.

The AG opinion, which was requested by PUC Chairman Carlito Caliboso, was issued on the same day that The Advertiser reported the PUC Commissioner Les Kondo had accused Caliboso and Commissioner John Cole of excluding him from a Dec. 30, 2009, decision on a Hawaiian Electric Co. renewable energy case.

Kondo had said his exclusion violated commission rules, made the order invalid and could result in HECO paying refunds to its local consumers.

The HECO case which was approved by the PUC allows the local utility to set up a mechanism to recoup millions of dollars in costs for investing in smart meters, storage batteries and transmission lines.

The board dispute threatens to compound problems at the agency, which is already slow at making decisions because of staff and budget cuts.

Last session, state lawmakers cut the PUC's 2009-10 annual budget by about 10 percent to $9.6 million, prompting the agency to eliminate 11 of its 49 positions.

In siding with the majority PUC members, Nishiyama said Caliboso and Cole had asked Kondo on Dec. 18 to take action on the HECO case either by signing it or by issuing a dissenting opinion since the case was already 2 years old.

Caliboso and Cole had asked Kondo to take action on the case by Dec. 29, Nishiyama said.

Kondo would not comment.