Ted Thomas' Recusal: Behind Those Six Words

Ted Thomas' Recusal: Behind Those Six Words
Ted Thomas (Photo provided)

There was a lot behind the six little words Arkansas Public Service Commissioner Ted Thomas used to remove himself from an inquiry into rooftop solar customers’ complaints that some of the state’s electric cooperatives were dragging their feet on grid interconnections.

“It’s all good, man. I recuse,” Thomas wrote in a blistering but sometimes opaque recusal notice filed Wednesday. He accused Petit Jean Electric of Clinton of making false criminal accusations against him and “wielding the billy club of the monopolist” in setting improper interconnection rules that have prevented members from plugging in their solar arrays in some cases for over a year.

Thomas repeatedly brought up the fate of Samuel and Belinda Lister of Fairfield Bay, who were featured in a front-page Arkansas Business article on the interconnection dispute back in March. They still have a useless rooftop full of solar panels, and Thomas vented a little fury on their behalf. He said the motion for recusal before the commission correctly quoted his message before a legislative hearing earlier this year, comments that the cooperatives argued tipped his hand as prejudging the issue. He said his remarks to the lawmakers were true, and that “leaving solar panels on a roof not interconnected for over a year is not doing the right thing.”

“Why is it so important to Petit Jean that the Listers’ solar panels not be connected to the grid?” Thomas wrote. “At the hearing I said that the purpose not interconnecting is so that [the Listers] will stand as an example to their neighbors about what happens when a mere ‘member’ seeks to oppose the monopolist and its army of litigators.”

‘Better Call’

Thomas also accused those seeking his recusal of resorting to “Better Call Saul!” legal tactics, probably the first reference to the “Breaking Bad” spinoff in the dockets of Arkansas’ utility regulator. He wrote that the co-op had charged members for legal “garbage” like claims made in 2020 when Petit Jean sought Thomas’ recusal from a major net-metering docket that eventually valued power generated by customers and placed as excess on the grid would grant them a credit equal to the utility’s price for delivering residential power.

Since that rate is by necessity much higher than the price of wholesale electricity, Thomas — who didn’t recuse from that docket — wasn’t exactly a popular regulator among some utility leaders. “Like a Saul Goodman stunt, Petit Jean’s counsel falsely accused me of criminal conduct and sought my recusal,” Thomas wrote in the recusal order. “‘Better Call Saul!’ Members like Belinda and Samuel Lister got billed for that garbage too. Of course, Petit Jean and its counsel are entitled to and in fact receive fair hearings at the PSC, up to and including the rate increase that was approved for Petit Jean a few weeks ago.” Thomas said he would not have the recusal issue become the basis of any appeal. He didn’t want to be used “as a weapon by the monopolist in the endless expensive efforts to keep people like Belinda and Samuel Lister from interconnection to the grid,” his order said.

“It’s all good man. I recuse.”

A footnote led to a YouTube video from "Better Call Saul!" Thomas, an attorney by training, was appointed by Gov. Asa Hutchinson to the PSC in 2015.

Hindsight From 2020

Thomas’ sparring with Petit Jean Electric has history. The cooperative sought to disqualify him from three dockets in May 2020, Docket 16-027-R, which led to the momentous net-metering ruling later that year that became a spur to the off-and-running solar installation industry in Arkansas. Though ranked high overall for sunshine, the state was a slow starter in solar development, and the Legislature made developing renewable power a state priority in the Arkansas Renewable Energy Development Act of 2001 and the Solar Access Act of 2019, which opened up third-party solar array development.

Under current rules, net-metering customers get a 1-1 rate equal to the price retail customers pay for power, about 10 cents per kilowatt-hour in Arkansas. Utilities argue they routinely buy power at less than half that cost, and that solar customers shirk their share of infrastructure costs by getting the full retail rate.

Back in 2020, Petit Jean’s argument for Thomas’ recusal accused him of intimidating an outside consultant representing the cooperative in a phone call to Toth & Associates of Springfield, Missouri. In that call, according to a filing by attorney John Keeling Baker of Mitchell Williams Selig Gates & Woodward, Thomas intimidated Adam Toth, executive president of the consultancy, by forcefully demanding that Toth and an employee persuade the co-op to abide by PSC directives.

“I felt threatened by the words of Mr. Thomas in our phone call,” Toth said in a March 12, 2020, affidavit filed with the motion for Thomas’ recusal in the net-metering tariff case.

Thomas responded that he had communicated “the urgency required” in addressing the cooperative’s defiance of regulators, and that he merely asked if Toth was aware that an employee had appeared to “be recommending that his client … defy Commission orders.”

Thomas said there was no truth to Toth’s accusations that he’d threatened to halt Toth & Associates from testifying before the commission in the future.

“Mr. Toth claims that I told him that if his firm appeared before the Commission I would disqualify that person from testifying,” Thomas said in the 2020 filing. “This is categorically false.”

On March 3 of this year, Thomas spoke to lawmakers on the global energy crisis and chastised foot-dragging on solar interconnections, including the imposition of insurance and inspection requirements and sometimes high application fees.

“What we have right now is somewhere between 80 and 120 solar facilities built, constructed, sitting out in the sun, in an era of high natural gas prices, generating nothing,” Thomas said with obvious incredulity. “They stand as a warning to the person that made the risk to do that [put up solar panels], and to their neighbor: Don’t go down this road: You will be punished, you will be fee’d, you will be litigated.”

The cooperatives have denied stonewalling, arguing that solar systems and net metering present novel challenges, and that adding too much solar capacity too fast can overwhelm planning. As member-owned cooperatives, they have no profit motive.

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