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Tomblin silent on reason for leapfrogging McKinney appointment

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Why has Gov. Earl Ray Tomblin re-appointed Public Service Commission Chairman Michael Albert, whose term expired on June 30, but chosen to take no action on Commissioner Jon McKinney, whose term expired in 2011?

It appears to be impossible to know.

"That's a decision the governor made," said Tomblin spokesperson Amy Shuler Goodwin.

Why?

"I think what's important here to remember is that it doesn't matter how many years in front of you or behind you you have — what matters is the issue before you," Goodwin said in response, and similarly each time of several times The State Journal asked her the question.

"I believe that those folks that the governor has appointed do that," she said. "We hope that they do that. They're charged with doing that. It doesn't matter who goes first and who goes second. What is most important is that they're taking up the work that they are charged to do."

Albert originally was appointed by then-Gov. Joe Manchin in February 2007 to serve out an unexpired term and was re-appointed by Manchin to a full term that began July 1, 2007.

Albert was re-appointed by Tomblin to a second full term on May 20, a month before his term expired. That appointment has to be confirmed by the state Senate Confirmation Committee and then the full Senate. It will be taken up at the next session of the Legislature.

Meanwhile, the status of McKinney, who was appointed by Manchin in August 2005 to a term that expired June 30, 2011, remains unaddressed, as does the reason for that.

McKinney has been and remains heavily involved in regional and national regulatory processes with regard to coal and electricity. His biography on the PSC's website lists, among other involvements, chairmanship of the Subcommittee on Clean Coal and Carbon Sequestration for the National Association of Regulatory Commissioners (NARUC) and service on the NARUC Board of Directors, membership in the National Coal Council, service on the Advisory Committee for the Electric Power Research Institute and membership on the Eastern Interconnect Shareholder Steering Committee.

An Internet search shows that he is involved in additional regulatory processes as well.

The governor of West Virginia has the authority to appoint members to nearly 2,000 seats on more than 200 boards and commissions, meaning it's a continual process of receiving and acting on applications and nominations.

Dozens, or hundreds, of seats may be vacant at any one time — 160 last fall, according to the Charleston Gazette — and, in addition, hundreds of others may expire in any given year.

"The governor takes his time appointing every single member of every board and every commission that he gives a term to," Goodwin said. She acknowledged that a seat on the Public Service Commission is a particularly high-profile position, which argues both for deliberation and for timeliness.

"That's the executive's prerogative," said state Sen. Herb Snyder, D-Jefferson, who serves on the Senate Confirmation Committee.

"West Virginia code says (members of boards and commissions) continue to serve until they're reappointed," Snyder said. "Gov. Manchin was notorious for letting people serve past their terms. It was normal operating procedure."

But the independence of a public service commissioner who is involved in utility rate, siting and other significant decisions while serving beyond his or her term can be of public concern.

"I can't be sure that the PSC's decisions are impartial when some of the commissioners are beholden to outside influences, a.k.a. the governor, for their jobs," said Shepherdstown resident Keryn Newman of the Coalition for Reliable Power, who maintains the electric utility industry blog StopPATHWV.

"That is, after all, the reason that these appointments have terms," said Bill Howley, Calhoun County electricity policy observer and author of The Power Line blog. "The code says that the governor can only intervene in the PSC when terms expire, at which times he makes an appointment, either of the sitting commissioner or of a new one. Once the appointment is made, the commissioner theoretically is supposed to enjoy a quasi-judicial independence for six years."

The situation of a "hold-over" commissioner interferes with the political independence of a commission, said West Virginia University College of Law professor James Van Nostrand, who is both a former utility lawyer and a former regulator.

Van Nostrand made it clear that he was not commenting on the West Virginia commission, but on commissions in general.

"A commissioner in that situation — assuming he or she wishes to be re-appointed — would be forced to make decisions without the security of a long-term appointment," he said. "Instead, decisions would potentially be motivated by short-term political circumstances that would enhance his or her chances of re-appointment, and thus the intended — and desired — independence of the agency is jeopardized."

Van Nostrand also noted that staggered terms give the financial community confidence in the integrity and stability of a state's ratemaking process by limiting the number of appointments that any single governor can make at any one time.

"Thwarting this important structure design of PSC appointments by making multiple appointments at one time may suggest an instability in the ratemaking process, which the financial community will likely view negatively and thus force up the borrowing costs for utilities," he said.

McKinney is listed on the FollowTheMoney.org campaign finance database as having given $1,000 to Joe Manchin when he ran for re-election as governor in 2008 and $1,000 to Tomblin during both the 2011 special election and 2012 regular election campaigns for governor, all of which are within the law.

Neither Chairman Albert nor Commissioner Ryan Palmer is listed as making contributions to gubernatorial candidates.