Confidence Builder #nlpoli

The public utilities board asked Liberty Consulting to review Hydro’s decisions in 11 projects.

Hydro is looking for a rate increase.  The board wanted to make sure the increase was justified.

Of the 11 projects, the consultant found:

• “Liberty found Hydro’s decisions and actions imprudent in seven of the eleven specific projects or programs set for examination by the Board. Liberty identified adverse cost consequences associated with six of these seven projects or programs, laying a foundation for consideration of the propriety of their recovery from customers. Liberty found planning and execution of the seventh project imprudent, but concluded that Hydro would have borne essentially the same costs even in the absence of such imprudence. 
• Of the remaining four specific projects or programs, Liberty found that Hydro had acted prudently with respect to three. Liberty did observe significant weaknesses in the supply planning process related to one of these projects, the new combustion turbine, but not to a degree that would constitute imprudence. For the fourth, Liberty concluded that while Hydro acted prudently in making its decision, some of the costs incurred were influenced by imprudent prior actions.
• The twelfth area of Liberty’s review consisted of an identification of 2014 actual capital costs and operating expenses that could be attributed to imprudence. This identification lays a foundation for later efforts that seek to identify any such expenses that may form part of Hydro’s estimation of a 2014 Revenue Deficiency of $45.9 million.”

“Liberty found that the costs that Hydro could have avoided in the absence of the instances of imprudence found by Liberty were:

• Actual 2014 capital costs of $10.9 million (as reported by Hydro)
• Actual 2014 operating expenses of $13.4 million.
• Estimated 2015 operating expenses of $2.6 million.

With that sort of report, you just know that Nalcor has just gotten everything exactly right at Muskrat Falls.

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Public hearing into secrecy request #nlpoli

It’s not just that the Muskrat Falls project is a bad idea;  the process by which the current provincial administration is forcing it through stinks as well.

If you want to see the problem take a look at the way the provincial government handled the public utilities board – it had no legal authority to conduct its own review of Muskrat Falls  - with what is happening in Nova Scotia on another matter involving that province’s utilities regulator.

Electricity regulator balks at judgment on Muskrat project #nlpoli #nlpoli

From the report by the public utilities board on Muskrat Falls:

The Board concludes that the information provided by Nalcor in the review is not detailed, complete or current enough to determine whether the Interconnected Option represents the least-cost option for the supply of power to Island Interconnected customers over the
period of 2011-2067, as compared to the Isolated Island Option. (p. iv)

You can tell the provincial government isn’t happy.  In their media advisory, they posted the link to the general Muskrat Falls information page and not to the report itself. If they wanted you to read it, they’d have given you the direct link right up front.

This report likely also explains why On Point panellists Shawn Skinner and Lana Payne spoke about the project like it was already dead or dying.  When Skinner said the board’s report would have a watered-down impact as a result of government decisions, he wasn’t talking about overall impact.  He was talking about the potentially positive impact the report could have to persuade people Muskrat was the good choice.

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Nova Scotia would get Churchill Falls power for free #nlpoli

If you’ve been following the ongoing Muskrat Falls saga, you will recall that energy analyst Tom Adams raised some questions a couple of months ago about whether or not Muskrat Falls could actually produce the power Nalcor and the provincial government claimed.

The problem basically came down to this: 

• January through to March is when Muskrat Falls needs to produce the most power.
• That’s when Holyrood would be cranking at full tilt to meet demand on the island for lights and heat in the winter months.
• At the same time, the Nova Scotians will need to get their guaranteed block.
• Upstream, Churchill Falls will be cranking at full tilt to feed Quebec under the 1969 contract and the 1998 Guaranteed Winter Availability Contract
• But the water flows in those three months are the lowest for the year.
• And at that point, Muskrat Falls would have a problem generating much more electricity than Holyrood did, despite the fact that Muskrat is – on paper – considerably larger.

Nalcor’s official line is that the water management agreement imposed by the public utilities board gives Nalcor access to the Churchill Falls reservoir. 

With production at Muskrat Falls completely integrated with Churchill Falls, this means that during May and June Muskrat Falls will be producing at full output, and the resulting production not required on the island will be displacing production at Churchill Falls. This energy will be drawn down when rivers flows are lower, and during peak winter periods when electricity demand is higher on the island.

Problem solved.

Yeah, well not really, as you will see in a little bit.

PUB concerned about Nalcor capex and electricity rates #nlpoli #cdnpoli

The province’s public utilities board is concerned about the impact Nalcor’s capital works programs will have on consumer rates even without taking Muskrat Falls into account or considering any increase due to fuel costs for thermal generation.

The comments are in the board’s approval, issued January 24,  for Phase I of  Newfoundland and Labrador Hydro’s capital works application for 2012. Hydro is a Nalcor subsidiary.

On page 10 of its order the board expressed concern “about the impacts of the proposed and forecast level of Hydro’s capital spending on customers.”.  The board said that “this level of spending raises concerns as to whether this approach is sustainable given the significant impact on revenue requirement.”

Newfoundland and Labrador Hydro showed the percentage change in revenue requirement “as a result of the five-year projected capital spending”, a table the board reproduced on page 10 of the Phase I order:

The board then notes that even allowing for offsetting some of the costs through depreciation, “the impacts of the projected capital spending are significant.”

The board also noted that “these increases do not reflect increases in operational costs which may be expected in the normal course.” That’s code for the cost of oil used to generate electricity at Holyrood for three months of the year.

One of the main arguments in favour of Muskrat Falls has been steady increases in electricity rates due to rising fuel prices.  Natural resources minister Jerome Kennedy, for example, claims that electricity prices in the province will increase due to fuel costs and that Muskrat Falls will cost consumers less than if they stuck with oil.

However, neither Kennedy nor Nalcor have apparently included any of the costs for the proposed capital works program into their imaginary rate calculations they developed in late 201o and are still using today.  In its 2012 order, the board noted that it “is concerned that the significant increases in proposed and projected capital expenditures in 2012 and subsequent years were not forecasted by Hydro as recently as one year ago.” [italics added]

This new information suggests that any increases from Muskrat Falls would be on top of significant increases that neither Nalcor or the provincial government have forecast. 

Apparently not included in the Phase I order was more than $200 million in capital spending Nalcor wants to spend to upgrade the interconnection across the isthmus of Avalon.  The board separated that project out since it was a last minute addition by Nalcor.  It is now considered as Phase III of the 2012 capex application.

SRBP readers will recall that this upgraded line could actually delay the need for a Holyrood replacement.  The provincial government’s current plan is to replace Holyrood with Muskrat Falls and later add more oil- fired generation than the island system currently has at Holyrood.

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Danger: Lawyer at work #nlpoli

The public utilities board review of the Muskrat Falls project may be a set-up but the lawyer for the board is certainly making Nalcor pay for every single inch of ground.

Here’s one of her recent letters for the record straightening out Nalcor’s counsel.

Again.

This is the kind of lawyer you want to have on your side:  relentless and meticulous.

Imagine if the board had real teeth again to manage the province’s electrical system.

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Muskrat Falls: what an independent review really looks like

The provincial Liberals included a handy table with their Friday news release on the joint federal/provincial environmental panel’s report on Muskrat Falls.

The chart compares what the environmental panel said would be a thorough, independent review of the province’s energy needs and what the Conservatives are setting up through the public utilities board.

 

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PUB quietly imposes water management deal

The public utilities board imposed a water management agreement on NALCOR and Churchill Falls (Labrador) Corporation on March 9, 2010. The reasons for the decision were filed separately ,

The PUB didn’t issue a news release when it issued the order, nor did it issue any sort of media advisory or news release on the half day of hearings it held into the application.

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Did he really say that?

We believe that a strengthened public service will ensure that individuals are being hired on their merits as opposed to who they know in government.

According to the Telly editorial on Monday, those were the words Premier Danny Williams spoke in 2004. He said them, on province-wide television in the infamous January 5, 2004 speech about government's financial plans.

It is a laudable sentiment and the provincial government's 2005 action in creating a public service secretariat within the government itself is a commendable step to making merit-based hiring a reality throughout government.

That's why a competition for commissioners and a chief executive officer for the public utilities board was a great leap forward in handling appointments traditionally made by cabinet from a rather closed process that didn't always appear to be based on merit as most of us would understand the term.

The 2007 public competition showed signs of a real change, despite the efforts made to work around the process for selecting the chair and chief executive at the offshore regulatory board.

In light of all that, it remains very odd that the provincial government made no effort to point out that the selection of Andy Wells as head of the public utilities board came out of a merit-based hiring process, the one the provincial government itself started.

Not only that, but as Bond Papers pointed out on Friday, there isn't any public indication of what happened to the competition. Resumes were assessed but after that, there's been no sign of the whole affair. There are still two commissioner positions vacant at the board.

There's no question that Danny Williams made it a policy of government to move to merit-based hiring throughout government.

He did it on province-wide television in 2004.

So what happened to the PUB competition?

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PUB job competition: what happened to it?

Last summer, the Public Service Commission (PSC) held a competition for the position of chief executive officer of the public utilities board.

They also held a competition apparently for the vacant commissioner positions at the same time.

Bond Papers e-mailed the PSC on Friday and asked for confirmation the competitions had been held, and whether they had been completed or cancelled.

The reply confirmed that a competition was held for "CEO, Public Utilities Board" and that "the resumes of the candidates who applied for the opportunity were assessed" by one of the PSC commissioners and a representative of the Clerk of the Executive Council.

That's it.

A second e-mail asked - for the third time, all told - if the competition was actually completed.

You see, saying that someone assessed the resumes doesn't say anything at all. That would be one step in a full selection process that included interviews, some kind of written test and then a final set of recommendations. Then again, if the resumes were deemed lacking qualification after they were assessed, the whole process might have come to a screeching halt.

The second e-mail has gone unanswered. The one from last Friday likewise has gone unanswered.

This aspect of the current public utilities board controversy is really quite interesting.

Recall that in the offshore board matter, the provincial government twice agreed to a process to select a person for the chair/chief executive job based on merit criteria. Andy Wells wasn't even in the first competition. That was halted when the Premier injected Wells into the whole thing.

In the second go-round, based on a statutory process, Wells didn't get the job then either.

Now this whole Public Service Commission angle pops up and the whole thing takes on another aspect.

First, the vagueness - let alone incompleteness - of the PSC reply is suggestive there is more to the story.

Second, there have been no appointments made since the competition to fill two vacant commissioner jobs at the board.

Third, the news release announcing Andy Wells would collect a second big salary for a second big job contained not a single reference to Wells having been selected by a competitive hiring process based on merit. you see, while senior appointments don't normally refer to the selection process, in this case the successful conclusion of a process would be a really good thing. These sorts of appointments haven't been handled that way and establishing competition based on merit goes a long way to giving cabinet appointments more credibility than they have.

Of course, the news release omitted a description of the public utilities boards full set of statutory responsibilities - like municipal water and sewer rates - so maybe there's nothing to it. That's like saying there was a competition for CEO of the PUB when the position was merged with that of board chair in 2006.

Then again, given that the whole appointment looks suspiciously familiar, maybe there was a failed or interrupted public service competition in this case as well.

Andy Wells and the conflicts of interest

Surely no one who has been following the strange case of St. John's Mayor Andy "Two Jobs" Wells was surprised at the revelations this past week that both Wells and Premier Danny Williams had discussed Wells serving as head of the public utilities board and staying on as mayor.

Note however, that they discussed it, as it appears, not after the issue was raised publicly, but before Wells was appointed to the public utilities board in the first place. An army of lawyers scoured the books to make sure there were no obvious impediments, like, say wording to the effect that the chairman can't hold down two jobs.

There is no conflict of interest, we are assured.

The lawyers from the city, the province and utilities board - presumably the ones who scoured originally - were dutifully trotted out to attest that there was no conflict in Wells serving as the mayor of a city which operates a public utility governed by the act - i.e. water and sewer services - and sitting as the head of the body that regulates the utility.

Well, sort of.

The board's in-house counsel, Dwanda Newman, wasn't quite as sure of the thing as some people seem to suggest, at least if you take a look at her comments in the Transcontinental story:

"The board has certainly — not to my knowledge — treated the City of St. John's as a public utility," said Newman. "That's certainly not the intention (of the PUB Act) to capture a large municipality that's incorporated by its own legislation. That's what I'd guess. I'm sure the intention was to capture a private company that's offering the service. But that's just a guess. I've only been here six years. I'm not aware of any history whereby the city was ever regulated by us."

Look at that last part again:

"...But that's just a guess. I've only been here six years. I'm not aware of any history whereby the city was ever regulated by us."

My lawyer guesses, I get the shakes.

Like my accountant telling me to go ahead and claim it and let's see what happens.

Or my doctor saying "geez, never saw that before."

Ms. Newman's cautions seems to derive from the clear intention of the public utilities act itself , in section 81, for example, to bring municipalities under the act for the purpose of fixing rates for providing certain public utilities. That section of the act dates from 1989.

It is by no means clear what the other lawyers are arguing given the plain English meaning of the statute's wording. Maybe they were referring not so much to the law as to the fact that the city of St. John's doesn't use the board to set water rates for its residents.

For his part, Wells is quoted by Transcontinental as saying:

"I was on the PUB 18 years ago and that definition was there [That the City of St. John's wasn't covered by the PUB]. And I was a member of council. The bottom line is that the city is not a utility within the meaning of that definition. So there is no conflict of interest there."

What Wells ignores - perhaps due to a faulty memory - is that in 1989 the utilities board was reorganized, with a changed role. Section 81, for example, applied after Wells left the board. Whatever definitions were used before 1989 may not count since the whole thing changed. Incidentally, there is some useful information in the decision rendered by the Supreme Court of Canada in Wells' subsequent law suit for compensation for the portion of his original term cut short by the re-organization.

There are other aspects of the conflict of interest inherent in Wells serving as mayor of the city and as the chief commissioner of a public regulatory body which oversees, among other things, municipalities providing certain services. These aspects of the conflict of interest has been ignored to date.

A mayor is the elected chief representative of the people of the city of St. John's. He or she is responsible for defending their interests in dealings with the provincial government. While undoubtedly the role of mayor is defined under various provincial statutes, a mayor will inevitably be required to advocate for citizens collectively and sometimes find himself in conflict with the provincial government.

Wells is no stranger to conflict and it is his forthright advocacy on behalf of his constituents collectively which Wells often cites as one of his strengths.

However, as the Supreme Court consistently noted, Wells occupied - and now occupies again - a public service position at a senior level in a quasi-judicial body. He will be paid handsomely for that job, in fact almost double his municipal salary and mayor and chief executive of the city.

His position at the PUB is tenured for at least 10 years and he serves in the appointment during good behaviour. However, it is a cabinet appointment and, given the situation, government may elect to re-organize the PUB as it did in 1989 or take some other action which will relieve Wells of his sinecure. As the Supreme Court noted, the legislature may do that, as long as they provide compensation as they would for any other employee.

So when it gets down to it, there are several problems inherent in appointing the full-time mayor of a city as the full-time chair/chief executive of the province's public utilities board:

1. There is a conflict in a fellow doing what are clearly two full-time jobs running two full-time organizations. It's not like having a day job and moonlighting at a fast food outlet or doing some other kind of job in your off hours. These are jobs that were clearly intended - both evident from legislation and from Wells' own words - to be held by someone without outside distractions. Full-time mayor used to mean working more than eight hours, according to Wells. Now he seems to believe he can fit the job in when needed or fit the PUB into the city.

Something's gotta give in the demands of two full-time jobs and the giving shouldn't be the obligations of either job. There are other people who could be mayor. or there are other people who could run the PUB.

2. There is a potential conflict in the mayor of the capital city running a board to which other municipalities in the area may be subject. Regional co-operation has been hard enough to achieve in the past. Wells' views on amalgamation and on how other cities and towns are run are well known. Imagine the idea of say Conception Bay South or Mount Pearl looking to have rates set by the PUB with the mayor of St. John's running the show. Sure he could remove himself from a hearing itself, but take a look at the Act: the chairman and chief executive officer is responsible for work assignments and scheduling.

3. There is a potential conflict of employers. Does Andy work for the citizens of St. John's or the provincial government? He can't realistically do both jobs cleanly since at some point the interests will collide. How that collision is reconciled will tell much.

And before anyone brings up public servants serving on town and city councils, let's just say that this is a conflict of interest which has gone unaddressed for some time. Just because no one has dealt with it doesn't mean it isn't an issue or that it doesn't exist.

4. There is a potential conflict of future public interest. With a single person as mayor and chair - take Andy personally out of the equation - the provincial government may have to face policy choices it shouldn't have to face.

Take municipal services. Currently, the PUB looks at water and sewerage. It wouldn't be unreasonable to consider a future point in which solid waste disposal - garbage to you and me - would be brought under the PUB to ensure that both public and private operators provide a proper service at suitable rates to the consumer.

Rather than all providers - public and private - heading off to an impartial adjudicator, they'd be staring at a stacked deck. The private company may wonder if the rates set truly are reasonable and fair if the municipality has some interest in continuing to control services within its own municipality or regionally.

When it gets right down to it, there simply is no legitimate, defensible reason to let Andy Wells - or any other full-time mayor - hold down the full-time job of chairman and chief executive officer of the public utilities board. The only reason this situation exists is because Andy and the cabinet created it.

Why they did so is not much of a mystery; Wells himself has talked about paying off his legal bills. That's a reason to pass the hat among your friends or just knuckle down and pay the bills out of your own pocket, over time. Heck, take the higher paying job and get the debt off the books faster.

None of what has been offered up by the Premier, the Mayor or the legion of lawyers can get against the inherent conflicts of interest in the arrangement the Mayor and the Premier have put together.

Then again it's not the first time we've seen this administration embrace conflict of interest as its favourite policy option.

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