Nearly a year after summer power outages prompted widespread outrage at Pepco’s performance and the launch of a state investigation, the utility, its detractors and herds of lawyers are set to descend on the offices of the Public Service Commission for an evidentiary hearing starting Thursday.
In the run-up to that hearing before state regulators, Montgomery officials — unified in their deep displeasure with Pepco — have slid into an internecine dispute over their legal strategy.
County Executive Isiah Leggett (D) said on Tuesday that he has removed the county from being a formal party in the legal proceedings.
Doing so was necessary, Leggett said, to prevent members of a citizen task force on Pepco from being forced to testify and cross-examined over a report they produced on the utility. Leggett said it would be a bad precedent for advisory bodies to be subject to such legal scrutiny. He also said sorting out related legal issues could be time consuming and costly for the county, when the priority should be having the task force’s report considered by regulators, as they have now agreed to do.
The county could have been “tied up in a legal fight for [months] trying to figure out what’s the role of the members of the task force,” Leggett said. Leggett also said he wanted to avoid any potential legal issues that might have undermined any requirements state regulators may ultimately impose on Pepco as part of a ruling.
But council members were sharply critical of Leggett’s move, arguing that he had in essence backed down from an important symbolic and substantive fight with Pepco.
“This is a mistake and I regret it and I don’t believe it serves our people well,” said Council vice president Roger Berliner (D-Potomac-Bethesda).
Berliner is himself an energy lawyer and has had experience in such proceedings. He had pushed for legislation giving the county a direct
role in making its case to the Public Service Commission.
Leggett overstated the potential downsides of remaining a party to the dispute, while underestimating the benefits of the county being able to represent itself directly, Berliner said.
Fears about task force members facing depositions were overblown, Berliner said. “I do not believe the threat of depositions was a real threat,” he said.
Moreover, Berliner added, if you are a party to the proceedings, “you can file a brief in your own name as a party. You can cross examine other witnesses.”
A party can also automatically challenge a commission ruling in court, Berliner said.
Berliner said such disputes can go on for months or years, and the county has essentially made things harder on itself for no good reason.
A Pepco spokesman said the utility has been making improvements, “including trimming more trees, investing in new facilities, improving customer information and communication and changing how we manage crews during mid-size to large outages.”