Business/Economy, Gold Dome, Legal, Peter Blake, Politics

Blake: The "can't regulate her" regulator

Photo: Damon Sasso
Photo: Damon Sasso

The reason bureaucracies live forever: They happily take a mile when given an inch, but tend to ignore those all-too-rare legislative attempts to curb their authority.

Like rented mules, they need to be hit with a two-by-four just to get their attention.

Frances Koncilja, newest member of the Colorado Public Utilities Commission, is trying to wield such a plank. Just five months into the job, she so far has refused to succumb to the iron law of regulatory agencies, which is to be captured by the people you are supposed to regulate.

“It’s a hoot, isn’t it?” said former PUC chairman Ray Gifford. “It’s a new era over there.”

A hoot? The PUC, with its tedious discussions featuring a dozen intervenors, incomprehensible acronyms, dubious statistics, variances, waivers, production tax credits and allowable profit margins?

She’s often in the minority, but even when she votes with Glenn Vaad and Chairman Joshua Epel, Koncilja will beg to differ on crucial details.

GreenTaxiLogoShe recently agreed, for instance, that Green Taxi should be granted a certificate to operate in metro Denver but added a colorful concurring opinion condemning Metro Taxi for delaying the outcome by ignoring “the plain language” of a 2015 statute authorizing free market competition in taxis along the Front Range.

Despite the new law, Metro’s lawyers urged the administrative law judge and the commission to “require that Green Taxi establish there is a need for a new cab company.”

Applicants no longer have to prove need in advance. “As a result of these specious arguments Metro Taxi has delayed the issuance of the certificate for over 10 months and caused Green Taxi to spend tens of thousands of dollars in attorneys’ fees and lose the increased income these drivers hoped to make,” wrote Koncilja.

Most of its 800 drivers are immigrants, she noted. “I am especially empathetic to their situation because my grandparents came to this country, speaking only their native language. I saw firsthand how people tried to take advantage of them. I have no intention of condoning that abuse of power, decades later.”

She then cited a judge who dismissed claims like those made by Metro Taxi: “A horse biscuit is a horse biscuit and just because some fancy lawyer put butter and honey on it did not mean that he would eat it.”

That’s unusually vivid imagery for a PUC decision. Koncilja urged Green Taxi to seek attorneys’ fees should Metro appeal the PUC decision to district court.

“She’s always been a take-no-prisoners, hyper-aggressive civil litigator,” “I’ve known her, and I like her,” said Gifford. “She’s a dyed-in-the-wool liberal but she has a pretty strong fidelity to the rule of law.”

icon_op_edShe recently wrote two dissents —practically unheard of at the lockstep PUC in recent years — in telecommunications cases on grounds that the PUC shouldn’t have taken up the cases in the first place.

The PUC approved mergers involving several small companies that Koncilja maintained were no longer the PUC’s business because of telecom deregulation bills passed by the legislature in 2014.

The problem: The PUC has passed many rules implementing old legislation that haven’t been repealed in the wake of the new laws. So to be on the safe side, the companies apply for PUC approval anyway.

“The commission has put itself in the ridiculous position of forcing the telecom providers to file these types of tariffs, over which the commission now has no jurisdiction, and then rejecting the filing based on lack of jurisdiction,” she wrote. What the PUC should do instead is repeal about half the 250 pages of regulations that no longer apply.

But the PUC, suffering the usual bureaucratic inertia and reluctant to surrender power, hasn’t done so even though the laws changed two years ago.

Koncilja hasn’t endeared herself to her fellow commissioners, but as Gifford noted, “She doesn’t care if her colleagues don’t like her.”

On the other hand, she also apparently antagonized some PUC staffers early on, and that can be disastrous. It’s okay to fight with peers, but a manager has to be good to the people who do the grunt work.

Those who know her aren’t surprised by Koncilja’s militancy. A former president of the Colorado Bar Association, she objected to the nomination of Walker Miller as a federal judge in 1996 in a letter sent to the judge himself, to senators who would vote on confirmation, and to the media. She said he was “unprepared and ill-equipped” for the job and was nominated only because he was a buddy of then Sen. Hank Brown.

Lawyers rarely do such things since they may end up practicing before the judge.       Miller ignored her request and won confirmation. But three years later he was cited as the federal judge with the largest backlog of pending motions in the nation, the result of his lack of judicial experience.

Deregulation isn’t partisan issue, which may be why Koncilja stands alone against Democrat Epel and Republican Vaad.

And she’s in the unfamiliar and presumably uncomfortable position of being popular with Republicans. Not only is Gifford a fan, but state Sen. Mark Scheffel, R-Parker, said she’s “raising the whole game over there, which is a good thing.”


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