AGO 96-F-011.

CourtNorth Dakota
North Dakota Attorney General Opinions 1996. AGO 96-F-011. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-11Date Issued: May 3, 1996Requested by: William W. Binek, Public Service Commission- QUESTIONS PRESENTED - I.Whether, under the facts presented, a Public Service Commissioner has a conflict of interest when the Commissioner's adult child works for a party in a contested proceeding before the Public Service Commission.II.Whether there is a procedure for appointing a person to serve in place of a Public Service Commissioner who has a conflict of interest in deciding a contested proceeding heard by the Public Service Commission.III.Whether the rule of necessity permits a Public Service Commissioner to participate in a contested hearing or proceeding despite the existence of a conflict of interest.- ATTORNEY GENERAL'S OPINIONS - I. It is my opinion that, under the facts presented, a Public Service Commissioner does have a conflict of interest under the Commission's policies when that Commissioner's adult child is employed by a party to a contested hearing or proceeding before the Public Service Commission. II. It is my opinion that there is a procedure for appointment of a person to serve in place of a Public Service Commissioner who has a conflict of interest in deciding a contested proceeding heard by the Public Service Commission. III. It is my opinion that the rule of necessity does not require a Public Service Commissioner to participate in a contested hearing or proceeding where that Commissioner has a conflict of interest because there is a procedure to appoint a substitute. - ANALYSES - I. The Public Service Commission adopted a policy in 1987 stating: No Commissioner, commission employee, or agent, shall participate in a Commission decision if a conflict of interest, real or apparent, would be involved. A conflict would arise when the commissioner, the employee or agent, any member of his immediate family, his partner or an individual firm or organization which employs or is about to employ the commissioner, commission employee, his immediate family member, or partner has a financial or other interest directly and substantially affected by the Commission decision. Memorandum to P.S.C. Staff, December 15, 1987. For the purpose of this opinion, I will assume the following facts based on information provided this office: A telecommunications company filed a complaint with the Public Service Commission against another telecommunications company; a member of the Public Service Commission disclosed to all parties in the case that an adult child of the Commissioner and the spouse of that adult child are both employed by the plaintiff telecommunications company at an out-of-state location; the Commissioner's child has a 401K plan offered by the employer which includes ownership of company stock; and neither the Commissioner's child nor the child's spouse is employed in a position which directly involves the specific issue before the Public Service Commission. State law governing the proceedings of the Public Service Commission provides that a majority of the Commission constitutes a quorum and may transact business, "but no commissioner shall participate in any hearing or proceeding in which he has any direct personal pecuniary interest." N.D.C.C. § 49-01-07...

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