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Is PSC subverting public records laws by sharing message codes?

Bass email Three aides to Florida utility regulators repeatedly gave private Blackberry messaging codes to an FPL executive, potentially allowing the utility to communicate directly with them outside of public view and without leaving a paper trail, the Herald/Times has learned.

The newspaper obtained emails sent between February 2008 and February 2009 that show FPL attorney Natalie Smith repeatedly requested and received the Personal Identification Numbers, or PINs, of the state-provided Blackberry phones of PSC staff as well as the PIN to Commissioner Lisa Edgar's Blackberry phone.

State law prohibits PSC commissioners from discussing a pending rate case with utility officials but it specifically excludes PSC staff from the ban. A 1991 grand jury report recommended that the statute be changed to close that loophole but it was never amended.

PSC rules forbid staffers and commissioners from discussing certain types of commission business out of the public eye with those who appear before the regulatory panel. Under state law, a commissioner who engages in such discussions -- called "ex parte communications'' -- and who fails to report them could face a $5,000 fine and even removal.

Edgar said she may have received PIN messages but does not recall receiving any from FPL. "I do know this, I don't understand the whole PIN thing," she said. "I don't PIN, it's just not something I do."

FPL said in a statement that Smith never communicated via PIN with Edgar or any other commissioner, and the company defended Smith's use of them.

"Communication with staff members is a normal and appropriate part of the regulatory process in which all parties to any proceeding or issue regularly engage," said Mark Bubriski, FPL spokesman. "All of Ms. Smith's communications have been appropriate and any suggestion that Ms. Smith engaged in improper communication at any time is patently false."

BlackBerry devices support direct PIN-to-PIN messaging, which lets the user bypass an email system. The Herald/Times asked the PSC for copies of PIN and Blackberry messages of the five members of the PSC and their staff but the newspaper was told no records are kept.

"Pin-To-Pin or SMS text messages are not logged," wrote Ann Cole, PSC clerk. "There is not a retention schedule, as they are never saved."

The failure to retain the message may be a violation of Florida's public records law, said Tom Julin, a Miami attorney who specializes in media law.

"If it resides as a record at some time and if it is not preserved, that certainly would be a violation," he said. State law requires public agencies to have a system to record all documents created, "regardless of physical form."

The emails show that FPL attorney Smith obtained the PIN numbers for: Edgar; Edgar's aide, Roberta Bass; the aide to PSC Chairman Matthew Carter, William Garner; PSC communications director Cynthia Muir; and PSC lobbyist Ryder Rudd. Smith is a staff attorney representing FPL in the rate case pending before the PSC. Rudd was removed from all FPL business last month after commissioners learned he had attended a party at an FPL executive's home.

In an email dated Feb. 19, 2008, Bass sent an email message from her state-provided Blackberry phone to Smith that had no subject line or text, only a copy of Edgar's Blackberry PIN number. Bass could not be reached for comment.

Carter said that he did not use PIN messaging and was unaware that Garner, his aide, had used them to communicate with utility officials.

"I certainly hope my staff would not be doing that," he said. "It does not look good."

Garner email_001 On three occasions, Garner sent emails to Smith to exchange PIN numbers and also invited her on Feb. 23, 2009, to join his Blackberry messenger contact list, another messaging service that bypasses the state email system. Garner could not be reached for comment.

Carter said Saturday that the "sideshows'' over the staff and FDLE probe was "making it difficult for staff to do their jobs."

He sent out a rare public statement Wednesday declaring that he had "independence and freedom from external bias. '' He denied that he was too "cozy'' with regulated utilities -- FPL in particular -- and pointed out that, "in nearly every high-profile issue that FPL has brought before this commission, I have voted to deny or severely limit the company's request."

Comments

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Sarah

Lisa Edgar doesn't know how to use PIN's but she receives PIN's and gives them out to an industry she regulates. Me thinks she is not telling the truth.

Edgar should resign or be removed. She is a disgrace. The PSC is dirty and should be scrapped. Governor please do not reappoint Matt Carter or Katrina McMurrian. Please put individuals on the PSC who favor consumers first and not the utilities.

Julia

Edgars nose is growing. She may have to answer differently when a pin from/to her suddenly shows up. Hurry and take her sworn statement about the pinning.
It seems that all the smell emminates from Edgar and the people she has put in place at the PSC. Roberta Bass her aide having lunches with FPL, delivering ex parte msgs to her, giving her pin number to the utility employee among other things. Ryder Rudd, Edgar also brought from DEP. His lobbying for her re appointment and doing some hard "Kentucky Derby" partying at the home of the FPL Big Wig. And Cindy Muir who Edgar also brought over from DEP. Cindy has shared her pin with FPL also and more about Cindy another time. I think there may even be a connection to a staffer at the Senate Majority office too, who also worked at DEP. Wow what a mess. I think that because these people were , are, so arrogant and pomposs, that there must be more we can find out that may help in the cleanup of the PSC as well as the legislature. Bill Garner has done more to hurt his commissioner and I think we will find out more and right at a time of his bosses re-apptmnt and major rate cases. I see him when I sit at the back of the hearing room, texting away like crazy, or talking to the utility reps. Now I have a good idea what the texting is about. Roberta is bad. Period. Bad place. Good to see that the media has engaged. Great article.

whasup

Of course, if the PSC staffers were bright enough to pick up the phone and provide the PIN code(s) by voice (and without leaving a recorded message), rather than sending them in e-mail, this would all still be under the radar.

Maybe the PSC needs to be cleaned out due to stupidity--the staff for being idiots and the commissioners for hiring idiots.

obvious

Great job, Julia.
Now let's turn our attention to a Nominating Council that has been feeding the PSC with the "right" candidates for years. Anyone who lacks patronage or strings to pull is quickly discarded. That's just what happened this past week. The Council does not make decisions based on criteria like job qualifications or independence, but rather on what their patrons desire.

Julia

"obvious" I agree with you very much. It seems the nominating Council is as just a conduit that just facilitates the industry influence. Of course its influence they pay a great deal for. Which also means the Legislature facilitates whatever the needs are of the highest contributor. Thanks Republicans

theloneconsumer

First of all, this whole review was initiated by NANCY ARGENZIANO. Since she has screamed to the press about Governor Crist's friend, Chris Kise, and her highschool credentials make her unable to grasp heavy nuclear, electric and financial concepts in dockets,she is grandstanding. Since I have received 10 YEARS of PSC emails, over 20 gig hard drive worth, and did bar complaints against Argenziano's friend, Harold MCLean GC PSC and OPC Chief.
Incorrect statements are:
1) Lisa Edgar did not GIVE jobs to people from DEP. There is a constant flow of Governor office employees going in and out of the PSC and DEP and Governor's office. Jeb's buddy Kevin Neal for example.
2) Argenziano initiated this COMPLAINT against OTHER PSC COMMNISSIONERS and employees, and it backfired on her. Lewis, her assistant was Harold McLean's employee when McLean was General Counsel. The decision from Lewis' report in 2001 to McLean allowed commissioners to have the Miami SEARUC convention paid by Utiltiies. That was Lewis stupid "researched legal opinion" for McLean.
3)The Nominating Counsel did a better job picking Katrina "Tew" and Lisa Edgar for comissioner consideration. You could have gotten Diane Caudwell or Beth Keating. They helped write the 2003 Phone Bill, it was written and negotiated between legislature and Governor's office with Lila Jaber Chairman since 2001. Director Mary Bane et all's PSC emails.
4) There are many lobbyists in the PSC. I think over 6 employees that appear before the State Legislature. Director Mary Bane is also a lobbyist.
From my PSC Sunshine Law emails I received in the past,these are the facts. Nancy should stop grandstanding. Everything General Cousnel McLean created with Lila Jaber is the reason we're paying 20% premium for power plants coming on line.

Don

why isn't a pin number a public record? BTW, ex parte and public records issues are quite different. public records may make it easy to find an ex parte communication, but a ban on ex parte is almost the opposite of openness, it closes the decisionmaker from input. It is necessary for fairness, but has very different purposes than open meetings and open records. (Unless you look at every official act as conspiratorial, in which cases judges should not hold meetings "in chambers" or make decisions in private!)

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