Sometimes the job of a commissioner requires as much moral courage as it does deliberative and sound judgment. In this matter, the Montana Public Service Commission’s decision was devoid of both.
Let there be no misunderstanding. The bully on the block (Republic Services), exercising its legal rights, has succeeded in knocking out not only its opponent, but also the referee. Its opponent — L&L Site Services — had the moral courage to stand up to the multi-billion-dollar behemoth. The referee — the Montana PSC — did not.
The evidentiary record in this latest round of Jack Dempsey vs. The Gecko was essentially the same as in the previous round, when the commission, in Order No. 7594c, wisely reconsidered its earlier rejection of the L&L application for Missoula County, and granted them the authority to compete there with Republic Services.
Staff maintained that the court’s subsequent removal of Oregon-based financial data from the record sufficiently undermined the “need” test in L&L’s case, that the commission should once again reverse itself, the application having been remanded back to the PSC by Judge McMahon. This commissioner strongly disagrees.
In fact, several areas of evidence that were not noted in our Order on Reconsideration were brought up by this commissioner during our latest discussion — evidence that markedly strengthens the applicant’s need test compliance. Two examples:
First, prior to filing their application, L&L dispatched an employee to conduct an informal consumer survey in the Missoula market by door-knocking in residential neighborhoods. L&L secured well over 100 affidavits stating that the signers wanted to see the company come to Missoula to provide competition and choice.
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Second was the example of Republic Services’ dramatically different pricing in Gallatin County before and after facing competition from L&L. Specifically, it was testified that the Belgrade School District — where Republic had enjoyed no competition — was being charged a greater amount than the much larger Bozeman School District, where Republic had to compete with bids from the City of Bozeman. When L&L showed up to bid on the Belgrade contract, Republic’s new bid suddenly came in at half the amount they’d been charging before. So unimpressed were school officials with Republic’s cost calisthenics that they chose the higher L&L bid anyway.
It became apparent to me that much of the reason for the commission’s retreat from good judgment and sound, statute-based analysis was simple fear. Fear of Republic Services’ aggressive anti-competition posture, and the constant threat of legal action to protect their exclusive markets. Fear of judges overstepping their judicial function and replacing their robes with commissioner’s caps.
Finally, it is this commissioner’s considered opinion that, while it would not have changed the outcome, Commissioner Brad Johnson would have been well advised to recuse himself from voting in this matter, on the grounds of potential conflict. This subject involves the acceptance by Johnson of at least seven maximum-amount campaign donations during his 2014 PSC race from employees and managers of regulated Class D garbage disposal services, both within and outside of his district. Among the donors was a manager of Missoula Republic Services, who donated to him again in 2018.
Noting that a conflict exists is not an admission of wrongdoing by that individual, nor is it an accusation of wrongdoing by the person who brings it up. It was therefore unfortunate that Chairman Johnson proceeded to call this commissioner out of order when I mentioned the matter during the work session. I continue to believe that a voluntary recusal would have been the most appropriate and professional manner in which to handle this.
Editor's note: This is a shortened version of PSC Commissioner Roger Koopman's Statement of Dissent. His full dissent can be read online at: http://psc.mt.gov/Portals/125/Documents/Commissioners/District3/pdf/LL%20Statement%20of%20Dissent.pdf.