Should the PSC be unconcerned about privacy rights?

By Commissioner
Roger Koopman

The collision of two cherished principles -- the constitutional right to privacy and the public’s right to know – is often described as a “delicate balance” where, under any given set of circumstances, one trumps the other. These are challenging decisions, with commissioners and judges often called upon to weigh competing arguments and make the difficult call.

Such was the case recently, when the Public Service Commission took up the question of whether a previously-passed PSC rule requiring all regulated utilities – large or small – to publicly release the salaries of their top three executives, was necessary or just. A recent editorial by Jan Anderson criticized our decision to hold a public hearing on this issue, saying it “tramples the public’s rights.” Earlier, the Great Falls Tribune took some similar shots, accusing us of “waffling.”

These editorials are skipping some “inconvenient facts.” For starters, it’s important to note that this is not about whether public utilities should reveal their executive salaries to the PSC. It isn’t even about whether those salaries should be made public. The PSC has always had the power – and the strong inclination – to require this information as an important component in the rate-setting process. When utility companies provide salary data, it’s automatically made public unless they file for a Protective Order, asserting a high order of privacy or confidentiality. The commission then either grants or denies this protection.

The crux of the issue is not whether executive salary information should be made available, but whether a blanket rule should exist, putting all such salaries on the front pages. The previous PSC passed a rule requiring all top salaries to be public, even with the tiniest of companies. We are not talking about the Northwestern Energies and MDUs here, who as publicly-traded companies, already provide this information in their annual reports. We are targeting, in some cases, small local water services that may serve fewer than 100 customers.

The way the commission saw it, blanket rules covering every situation are a lazy and inappropriate way to deal with people’s constitutional rights. Yes, these utilities are, by nature monopolies, licensed and regulated by the PSC. But last I heard, they have not been taken over by the government. And last I heard, working for a private utility did not require you to check your constitutional rights at the door. 
So what we have here is exactly the kind of delicate “personal privacy versus public information” issue described above. Is it not the proper role of the Public Service Commission to carefully adjudicate these kinds of issues on a case by case basis, rather than lumping them together under one sweeping rule? If it takes a little longer for the PSC to look at each case individually, fine. In my book, that’s what we’re paid to do.

The PSC vote changes nothing. It simply starts a healthy process by which the public weighs in on this important issue through an open hearing and comment period. After considering all input, the commission will decide what action, if any, to take. In my view, it is not responsible journalism to suggest that because four of five commissioners have genuine concerns about constitutional privacy rights, therefore the commission isn’t fighting for rate payers or striving to keep utility bills down. In reality, this commission may be the most proactively pro-consumer PSC this state has ever known. 
But let’s face it. If commissioners or other politicians want to gain public attention and score political points, it’s always easy to criticize “unpopular” members of society (like utility executives.) Perhaps if we put ourselves in the place of these people and their families, we would be a little less anxious to make them public spectacles, or suggest they forfeit their constitutional rights to privacy “for the public good.”

We citizens can only possess freedom to the extent that we are willing to give it away -- whether to accused murderers, communists, or (God forbid) executives of utility companies. Let’s remember that when we start removing the right to privacy and due process from one group that happens to be out of favor, it’s just a matter of time before you and I become the “unpopular” targets who somehow deserve less liberty than others.

(Roger Koopman is a former state legislator from Bozeman and current Public Service Commissioner representing PSC District 3)