By Rich Heidorn Jr.

A newly appointed member of the Maryland Public Service Commission insisted Monday there was nothing improper about his emails with Gov. Larry Hogan’s administration, communications that critics say raise questions about his independence.

Hogan named Michael T. Richard, his former deputy chief of staff, to the PSC in a recess appointment in late January. Richard, a former director of the Maryland Energy Administration (MEA), is seeking Senate confirmation to a full term.

Shortly after his appointment, according to emails obtained through a public records request, Richard shared non-public information with Hogan’s administration regarding an offshore wind application and discussed strategy with the governor’s office on energy efficiency and community solar programs.

The emails were obtained by Public Citizen and the Energy and Policy Institute, which said the records showed Richard had engaged in improper ex parte communications and should not be confirmed.

At a hearing of the Senate Executive Nominations Committee on Monday night, Chairman Jamie Raskin expressed concern that Richard was “coordinating strategy” with Hogan’s administration.

Richard said his communications were merely an effort to brief members of the governor’s office on energy issues they were taking over from the “portfolio” he held before his PSC appointment. Richard did offer a mea culpa. “I am sorry that I created a doubt about my independence,” he said.

After an hour of questioning, Raskin adjourned without calling for a vote on the nominee, saying he would schedule another meeting next week.

Offshore Wind Application

On Jan. 29, Richard sent Hogan’s director of policy, Adam Dubitsky, an email regarding an application for offshore wind renewable energy credits (OREC). “This is NOT yet public information, but I wanted you to be aware,” he wrote.

Dubitsky responded by asking whether the filing preempts “our taking action to protect ratepayers from a potentially $1.7B rate increase as indicated in OREC’s fiscal note?”

Richard had been informed of the application in an email from an advisor to PSC Chair Kevin Hughes. The email noted that the application is supposed to be confidential during a 30-day internal administrative review and a 180-day period in which other developers can apply for the credits.

“It was designed this way because the application window is supposed to be equivalent to a closed bid process,” the advisor wrote.

At the hearing Monday, however, Richard said the information was not confidential and that PSC General Counsel Robert Irwin had approved his communication. “It was discoverable. It was available,” he said.

EmPower Maryland

A second communication that concerned some committee members came on Feb. 11, when Richard sent Mary Beth Tung, deputy secretary of the state Department of the Environment, an email discussing the administration’s position in upcoming hearings on the EmPower Maryland energy efficiency program.

The governor’s office is a party to the EmPower hearings through the MEA. The agency intervened in PSC dockets involving the program, noting that the state’s utilities are required to consult with the agency regarding the “design and adequacy” of their plans to achieve the electricity savings and demand reduction targets set by the 2008 legislation creating the program. The act requires that the PSC consider MEA’s comments on the utilities plans.

Richard wrote Tung regarding hearings scheduled for May to review the utilities’ performance in the second half of 2015.

“This will begin our first potential opportunity to begin putting our imprint on this significant energy tax policy,” Richard wrote. “This will be a significant and very public PSC action, so early governor’s office direction, planning and executive [branch] coordination on related policies will be important.”

Richard also offered Tung “policy advice” on the state community solar program, suggesting a shift from “grant-based” to “financing-based” energy efficiency and renewable energy incentive programs.

Business as Usual?

Like Hogan, Richard is a Republican. The Senate is controlled by Democrats.

Republicans on the committee said Richard’s communications were similar to those Hughes and then-Commissioner Kelly Speakes-Backman had in 2012 with the administration of former Gov. Martin O’Malley, a Democrat. Hughes was O’Malley’s deputy legislative officer before joining the commission.

“We’re beating a dead horse,” said Republican Sen. George Edwards.

But Democratic Sen. James Brochin told Richard the communications created “a reasonable question of who’s team you’re on.”

“I can assure you that I understand very well what it means to be a Public Service Commissioner and that it demands independence,” Richard responded.