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County has until mid-March to appeal PSC ruling

STORY BY LISA ZAHNER (Week of February 19, 2015)

Now that the Florida Public Service Commission has ruled against Indian River County and repeatedly defended the commission’s own “exclusive and superior” authority over electric territories, the county has until mid-March to appeal to the Florida Supreme Court.

The county is seriously considering asking the Supreme Court to hear its arguments that the ruling renders the county’s franchise agreement with the city of Vero Beach meaningless and that the PSC has trampled on the county’s powers over property rights.

What seemed like a major loss to Indian River County three weeks ago could put the issue of the rights of Florida’s electric utility customers at the right place at the right time. The Florida Supreme Court is the right place because of its power to interpret state law, and possibly to fill in where the statute is unclear or mute on an issue.

Now is the right time because concern is building across the state about the plight of municipal electric customers in the wake of the Auditor General’s findings during a recent audit of the Florida Municipal Power Agency.

The two issues are seemingly unrelated, but for the first time since Vero electric customers began the struggle to escape from high electric rates, media outlets all over the state are beginning to cover the issue, and that means the Florida Legislature should soon take notice, if it hasn’t already.

Florida’s high court could refuse to take the case, but if the court feels the issue is ripe and that its bench is the appropriate venue, things might get interesting. County officials have 30 days from Feb. 12, when the PSC’s rulings were published, in which to file an appeal.

County Attorney Dylan Reingold said Monday, “We are reviewing the PSC rulings and expect to bring the matter to the Board of County Commissioners on March 3.” The county’s outside legal counsel on utilities matters, Floyd Self, lists among his areas of expertise representing clients before the Florida Supreme Court. As for the county attorney himself, Reingold said he has significant appellate experience, but as yet hasn’t argued before the state’s high court.

The other option the County has is to appeal the decision right back to the PSC, but that remedy seems unlikely to get anywhere.

The PSC staffers who penned the rulings on the county and city petitions seemed so wrapped up in proclaiming and asserting their own bureaucratic power and authority, they left no room to even consider the fact that Indian River County and its residents might actually have some rights, too.

Representing the county, Self reminded the five members of the PSC that, to provide utility service after the franchise agreement expires in March 2007, Vero will still need the county’s permission to operate on its property, namely the right-of-ways for the infrastructure of the electric utility.

Those rights to the use of right-of-way property are the meat of any utility franchise agreement. By declaring that Vero electric has the “right and obligation” to serve within its designated territory – regardless of the existence of a franchise agreement – Self said the PSC is essentially stripping away the county’s property rights.

While critics say the county wasted its time and taxpayer money on legal fees to take the failed petition to the PSC, that avenue could be a much more direct route to getting an answer than the Town of Indian River Shores vs. City of Vero Beach circuit court lawsuit. Still, county officials have hinted that somehow joining the Shores’ lawsuit is one of the many options they’re considering.

Even if the suit is activated as soon as possible after the March 2 expiration of the “options review” period agreed upon at a November mediation session, preparing for the actual jury trial is expected to take many months, or even more than a year. Then, if the loser appeals, the case would need to be reviewed by the Fourth District Court of Appeals. Only then, if there are still grounds to appeal that decision, could the case ultimately make it to the Florida Supreme Court.

That track could span many years – certainly beyond the expiration of the Shores franchise agreement with Vero in November 2016 – with lawyers racking up millions in legal fees, and meanwhile leaving no resolution to the issues surrounding the rights of Vero electric ratepayers in the Shores.

Vero’s attorney Robert Scheffel “Schef” Wright was on the City Council agenda to give a briefing on the city’s complex legal challenges on Tuesday night.