Must a proposed Maine Public Utilities Commission member recuse from cases in which he previously worked as a utility consultant?

Plain-English summary

Governor John McKernan asked whether Lewis J. Perl's former work as a utility consultant would legally prevent him from participating in Maine Public Utilities Commission matters if the Legislature confirmed him as a commissioner. The Attorney General addressed recusal from particular proceedings, not Perl's overall suitability for appointment. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

The opinion concluded that Perl had to disqualify himself from the pending Central Maine Power Hydro-Quebec certificate case because his earlier testimony on power need and the reasonableness of the purchase had been incorporated into the case record and addressed the adjudicative facts the Commission had to decide. It reached the same result for the pending New England Telephone marginal-cost-methodology matter because Perl had helped prepare material for a similar Massachusetts case that the telephone company submitted to the Maine Commission. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

The required recusals also reached closely connected future matters. The AG said Perl should not participate in a later transmission-line certificate proceeding associated with the Hydro-Quebec purchase or in avoided-cost proceedings using that purchase as a proxy until the purchase certificate was granted. By contrast, the opinion did not automatically bar him from later Central Maine Power rate cases merely because the completed purchase would be relevant. Any different issue still had to be assessed case by case. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

The analysis assumed that Perl would sever all financial ties with his consulting firm. It also noted a separate one-year statutory concern if a former professional associate had a direct and substantial financial interest in a new Commission proceeding. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the prior consulting work prevent Perl from becoming a PUC commissioner?

The opinion did not identify a legal rule that barred him from being seated or required removal merely because he could not participate in some proceedings. It treated nomination and confirmation as policy judgments for the Governor and Legislature, while limiting its legal analysis to specific recusals. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Why did the Hydro-Quebec case require recusal?

Perl had submitted testimony for Central Maine Power on the need for additional power and the reasonableness of the Hydro-Quebec option. That testimony became part of the pending certificate record, and the AG treated those subjects as adjudicative facts central to the Commission's decision. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Why did the telephone-cost case require recusal if Perl had worked on a Massachusetts proceeding?

New England Telephone submitted the methodology that Perl helped prepare to the Maine Commission. The AG concluded that this indirect participation, combined with Maine's decision to await the Massachusetts result, created a sufficient prejudgment concern. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Did having strong views on utility policy always require recusal?

No. The opinion distinguished adjudicative facts about the immediate parties from questions of law, policy, or legislative fact. It said rulemaking disqualification required a clear and convincing showing of an unalterably closed mind, while prior advocacy on adjudicative facts could require recusal more readily. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Could Perl take part in later Central Maine Power rate cases?

The opinion said his participation was not automatically barred when the Hydro-Quebec purchase was simply an established fact relevant to ratemaking. It cautioned that a different issue concerning the purchase could change that conclusion, so participation had to be assessed case by case. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Background and legal framework

The opinion grounded administrative recusal in the due-process guarantees of the Fourteenth Amendment and article I, section 6-A of the Maine Constitution, along with the Maine Administrative Procedure Act. The central requirement was an impartial and disinterested decision-maker capable of judging the particular controversy fairly. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

It identified three recurring grounds for concern: a financial interest in the outcome, prior representation or participation for a party in the same matter, and prejudgment. For prejudgment, it distinguished rulemaking from adjudication and distinguished broad views on law or policy from hardened views about adjudicative facts concerning the immediate parties. Source: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Citations and references

Constitutional and statutory authorities:

• Fourteenth Amendment of the United States Constitution
• Article I, Section 6-A of the Maine Constitution
• Sections 9063(1) and 11007(4)(C)(4) of the Maine Administrative Procedure Act; 5 M.R.S.A. § 8001, et seq.
• 5 M.R.S.A. § 18(2) (former-professional-associate financial interest discussed in footnote 7)
• Title 13, chapter 22 (Maine Professional Service Corporation Act)
• 35-A M.R.S.A. § 3132 (transmission-line certificate)

Cases:

• Berkshire Employees Ass'n v. NLRB, 121 F.2d 235, 238 (3rd Cir. 1941)
• Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 304-05 (1937)
• New England Telephone & Telegraph Co. v. Public Utilities Comm'n., 448 A.2d 272, 281 (Me. 1982)
• United States v. Morgan, 313 U.S. 409, 421 (1941)
• Gashgai v. Board of Registration in Medicine, 390 A.2d 1080 (Me. 1978)
• Tumey v. Ohio, 273 U.S. 510 (1927)
• Cinderella Career & Finishing Schools v. FTC, 425 F.2d 583, 589-92 (D.C.Cir. 1970)
• American General Insurance Co. v. FTC, 589 F.2d 462 (9th Cir. 1979)
• Trans World Airlines v. CAB, 254 F.2d 90 (D.C.Cir. 1958)
• Association of National Advertisers v. FTC, 627 F.2d 1151 (D.C.Cir. 1979), cert. denied 447 U.S. 921 (1980)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880201.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative. Reported case citations used in the research sections were checked against legal-research records.

JAMES E. TIERNEY
ATTORNEY GENERAL

                                 STATE OF MAINE
                      DEPARTMENT OF THE ATTORNEY GENERAL
                              STATE HOUSE STATION 6
                               AUGUSTA, MAINE 04333




                             February 1, 1988

Honorable John R. McKernan, Jr.
Governor of Maine
State House Station Ml
Augusta, Maine 04333
Dear Governor McKernan:
You have asked to what extent the activities of Mr. Lewis
J. Perl as a consultant to parties to various proceedings
before the Public Utilities Commission would constitute a legal
bar to his participation in pending and future proceedings at
the Commission were he to be confirmed by the Legislature as a
member of the Commission.!/ For the reasons which follow, it
is the Opinion of this Department that, should he assume
office, Mr. Perl must disqualify himself from the proceeding
currently pending before the Commission with regard to the
application of the Central Maine Power Company for a
certificate of public convenience and necessity for the
purchase of generating capacity and energy from Hydro-Quebec,
any subsequent proceedings for the construction of power lines
associated with such purchase, and any proceedings concerning
the "avoided cost" of Central Maine Power Company cogeneration
power purchases until a certificate for the Hydro-Quebec
purchase is granted. He must also disqualify himself from the
proceeding currently pending before the Commission concerning
an examination of the New England Telephone Company's marginal
cost methodology. With regard to other proceedings, including

1/ Your inquiry is specifically directed to Mr. Perl's
consulting work for Central Maine Power Company with regard to
its proposed purchase of generating capacity and energy from
Hydro-Quebec. In the interest of completeness, however, this
Department has asked the Public Utilities Commission to advise
it of all of Mr. Perl's prior activities before the Commission
to enable it to determine their effect, if any, on his
participation as a Commission member.
 -2-
subsequent Central Maine Power Company rate cases (in which the
fact of the Hydro-Quebec purchase may be relevant), Mr. Perl
would not automatically be disqualified, but should be guided
on a case-by-case basis by the general principles of law set
forth herein relating to the prejudgment of issues of
adjudicative or legislative fact.
In reaching these legal conclusions, this Department does
not wish to be misinterpreted as offering any view on the
policy judgment to be made by you, as Governor, and the
appropriate bodies of the Legislature with regard to Mr. Perl's
general suitability for service on the Commission. For
example, Mr. Perl's publicly stated views about the economic
viability of nuclear power plants generally and the
desirability of Maine utilities' continual ownership of the
Seabrook nuclear power plant may be relevant to your policy
determination and that of the Legislature. They are not,
however, relevant to the legal determination whether he must
disqualify himself from any particular pending or future
Commission proceeding. This Opinion confines itself to the
narrow question of legal disqualification. It is not meant to
encroach upon the issue of Mr. Perl's appointment to the
Commission.
I. Facts
The facts, as this Office understands them, regarding
Mr. Perl's past activities before the Commission are as
follows: From September, 1972 to the present, Mr. Perl has
held the position of Senior Vice President of National Economic
Research Associates, Inc. (NERA), an economic research
organization located in White Plains, New York. During that
time, he has been retained by numerous public utilities all
over the United States as a consultant on utility regulatory
issues and has testified on behalf of these companies before
many state utility commissions. 2/ Beginning in 1984, these
commissions included the Maine Public Utilities Commission,
before whom Mr. Perl has filed testimony on behalf of the
respective concerned utilities, in the following proceedings:l/
1. PUC Docket No. 84-80 (Maine Public Service Company Rate
Case)

2/ He has also written numerous articles and given numerous
speeches in the general field of utility regulation.
3/ Needless to say, the views contained in this Opinion are
limited to the facts set forth herein. If additional facts
concerning Mr. Perl's activities before the Commission should
come to light, this Department would be happy to provide
additional advice concerning them.
 -3-

2. PUC Docket No. 84-113 (Investigation of PUC into
   Ownership by Maine Utilities (Central Maine Power
   Company, Bangor Hydro-Electric Company and Maine
   Public Service Company) of Seabrook Nuclear Power
   Station)
3. PUC Docket No. 84-120 (Central Maine Power Company
   Rate Case)

4. PUC Docket Nos. 87-40 and 87-268 (Central Maine Power
   Company Petition for Certificate of Public Convenience
   and Necessity for Purchases of Generating Capacity and
   Energy from Hydro-Quebec)!/
   In addition, Mr. Perl is the author of other studies which have
   been submitted to the Commission by parties to proceedings
   before it, but which did not take the form of testimony in
   those proceedings. These studies include:

   1. PUC Docket No. 82-112 (CMP Power Supply
      Investigation). CMP submitted NERA's report .on its
      capacity planning and load forecasting (dated February
      14, 1984). This report was part of Mr. Perl's
      testimony in PUC Docket No. 84-113 (Seabrook
      Investigation).
   2. PUC Docket No. 86-112 (Examination of New England
      Telephone Company Marginal Cost Study Methodology).
      NET submitted to the PUC a proposed marginal cost
      methodology and marginal cost study, which it had had
      prepared for a similar proceeding before the
      Massachusetts Department of Public Utilities, and in
      the preparation of which Mr. Perl participated.
   3. Mr. Perl is also the author of two studies prepared
      for non-Maine utilities, dated December 16, 1983 and
      May 2, 1985, on the effects of local measured service,
      which were considered by the Public Utilities
      Commission during its proceedings on the subject in
      1984-85.

   Finally, this Opinion assumes that if Mr. Perl is confirmed
   as a member of the Commission, he will sever his connection

4/ Mr. Perl's testimony in this proceeding was presented
jointly with Mr. John H. Wile, his associate at NERA. Mr. Wile
appeared at the public hearing on the testimony to sponsor it
and to be subject to cross-examination because Mr. Perl was
unable to be present due to another commitment.
 -4-
completely with NERA. 5/
II. Law
Generally, the law relating to the disqualification of
members of public boards or agencies from participating in
particular agency proceedings 6/ derives from the due process
clause of the Fourteenth Amendment of the United States
Constitution and Article I, Section 6-A of the Maine
Constitution. Those provisions insure "the resolution of
contested questions [by administrative agencies] by an
impartial and disinterested tribunal." Berkshire Employees
Ass'n v. NLRB, 121 F.2d 235, 238 (3rd Cir. 1941), quoted with
approval in Amos Treat & Co. v. SEC, 307 F.2d 260, 264
(D.C.Cir. 1962). See Ohio Bell Telephone Co. v. Public
Utilities Comm'n, 301 U.S. 292, 304-05 (1937) (due process
applies to regulatory bodies). New England Telephone &
Telegraph Co. v. Public Utilities Comm'n., 448 A.2d 272, 281
(Me. 1982).
Inherent in the concept of due process is the principle
that the decision-maker be one who is "capable of judging a
particular controversy fairly on the basis of its own
circumstances." United States v. Morgan, 313 U.S. 409, 421
(1941). See Gashgai v. Board of Registration in Medicine, 390
A.2d 1080 (Me. 1978). Thus, the decision-maker must be free of
legal bias, a requirement imposed on Maine administrative
proceedings by Sections 9063(1) and 11007(4)(C)(4) of the Maine
Administrative Procedure Act, 5 M.R.S.A. § 8001, et seq. The
most obvious form of bias occurs when the adjudicator has a
pecuniary interest in the outcome of the dispute. Gibson v.
Berryhill, 411 U.S. 564, 479 (1973), relying on Tumey v. Ohio,
273 U.S. 510 (1927). But bias may also be found to be present
when the decision-maker is determined to have "prejudged" the
case. Cinderella Career & Finishing Schools v. FTC, 425 F.2d
583, 589-92 (D.C.Cir. 1970). Thus, to guard against even the

5/ This Department has not been advised as to the precise
manner in which Mr. Perl will sever his connection. Since it
is possible, however, that, in addition to drawing a salary
from NERA, Mr. Perl has had an interest in the company itself,
the Opinion will assume that that interest will be terminated
in such a manner that he will have no financial interest in the
future fortunes of the company.
6/ So far as this Department is aware, there is no
principle of law prohibiting a prospective member of a public
agency from being seated or requiring his removal because of
the existence of impediments to his participation in one or
more agency proceedings. Thus, while the existence of such
impediments may be relevant to you as Governor or to a
legislative body making the policy determination whether to
nominate or confirm a person for public office, they cannot
serve as a basis for the vacation of the seat by a court.
 -5-
appearance of prejudgment, the courts have consistently
invalidated agency decisions in which a member of the agency
had participated on behalf of any party prior to his accession
to the agency. American General Insurance Co. v. FTC, 589 F.2d
462 (9th Cir. 1979); Amos Treat & Co. v. SEC, supra; Trans
World Airlines v. CAB, 254 F.2d 90 (D.C.Cir. 1958); Dr.
Bonham's Case, 8 Rep. 114a, 118b (C.P. 1610) (Coke, ;f:f (".
one cannot be judge and attorney for any of the parties"). See
Canon III (6)(b) of the Code of Ethics of Members of the
National Association of Regulatory Utility Commissioners ("A
Commissioner should disqualify himself or herself in a
proceeding . . . where . . . the Commissioner has served as a
lawyer or representative in the matter in controversy . . . ").
More difficult problems present themselves in the case of a
decision-maker who neither has a pecuniary interest in a
proceeding, nor has participated in it prior to his assuming
decision-making responsibilities. Here, in reviewing claims of
prejudgment, the courts have, first of all, adhered to one
vital distinction. Analogizing agency adjudicatory and
rulemaking activities to actions of the judicial and
legislative branches, respectively, the courts have
consistently ruled that disqualification for prejudgment will
be found much more rarely in rulemaking than in adjudicatory
contexts. In the former, the rule in the leading case on the
subject, Association of National Advertisers v. FTC, 627 F.2d
1151 (D.C.Cir. 1979), cert. denied 447 U.S. 921 (1980), is that
. . . a Commissioner should be disqualified
only when there has been a clear and
convincing showing that the agency member
has an unalterably closed mind on matters
critical to the disposition of the
proceeding. Id. at 1170.
Thus, the Federal Trade Commissioner whose behavior was at
issue in that case was not disqualified from participating in a
rulemaking proceeding concerning children's advertising even
though he had made a speech, written articles and given
interviews in which he vigorously expressed the view that
children can be harmed by sugared products and are unable to
understand advertising.
This is not to say, however, that the possession of strong
views relevant to adjudicatory proceedings will necessarily
disqualify an agency member. In such cases, a further
distinction must be drawn between questions of "adjudicative
fact" and those of law or policy. If the agency member's views
relate to the latter categories of issue, he is unlikely to be
disqualified (absent a showing of close-mindedness of the kind
required for disqualification in the rulemaking context). It
is only if he is found to have hardened views on issues of fact
 -6-
"concerning the immediate parties - who did what, where, when,
how and with what interest," will he be vulnerable to
disqualification for prejudgment. Id. at 1161, quoting with
approval 2 K. Davis, Administrative Law Treatise, § 15.03 at
353 (1st ed. 1958). See New England Telephone & Telegraph Co.
v. Public Utilities Comm'n., 448 A.2d at 280 ("A preconceived
position on law, policy or legislative facts is not a ground
for disqualification").
III. Application of Law to Facts
Applying these principles to the facts set forth above
concerning Mr. Perl's participation in future Public Utilities
Commission proceedings, the first issue to address is whether
there is any ground for disqualification for pecuniary
interest. Since this Opinion assumes that Mr. Perl will have
severed all ties with NERA, this question does not arise.1/
The next question to address is whether Mr. Perl is
disqualified from participating in any proceedings pending at
the time of his assumption of office. Only two such
proceedings present themselves for consideration here: the
pending petition of the Central Maine Power Company for a
certificate of public convenience and necessity for purchasing
additional generating capacity and energy from the Hydro-Quebec
Company (PUC Docket No. 87-268), and the New England Telephone
examination of marginal cost study methodology (PUC Docket No.
86-112). All of the other proceedings enumerated above to
which Mr. Perl has had even a tangential relationship (two
electric utility rate cases, the CMP power supply

7/ A question does arise, however, concerning the operation
of 5 M.R.S.A. § 18(2), which prohibits such participation by an
agency member if a "person with whom [the member] has been
associated as a partner or a fellow shareholder in a
professional service corporation pursuant to Title 13, chapter
22 [the Maine Professional Service Corporation Act] during the
preceding year" has a "direct and substantial financial
interest" in the proceeding. The issue thus arises whether
Mr. Perl would be disqualified if NERA were to be involved in
some new proceeding during his first year in office. While it
is clear that NERA, having been hired by a party to assist in
achieving a certain result before the Commission, would, in
such circumstances, have the requisite financial interest in
the proceedings, it might be argued that the prohibition does
not by its terms apply because NERA is not incorporated in
Maine. However, since NERA is undoubtedly incorporated under a
similar statute of another state, this Department is of the
view that it would be covered by the statute, in view of the
Legislature's obvious purpose of disqualifying officials for
one year from participating in proceedings in which their prior
professional associates are involved.
 -7-
investigation, the Seabrook ownership proceeding and the local
measured telephone service proceeding) have long since
terminated. Thus, only the Hydro-Quebec case and the NET
examination remain for consideration under the rule that, in
order to present even the appearance of prejudgment, an agency
member may not act as a decision-maker in a proceeding in which
he had participated on behalf of a party.
In the Opinion of this Department, Mr. Perl would be
disqualified from participating in both matters. In the
Hydro-Quebec proceeding, as indicated above, he was retained by
the Central Maine Power Company .to present testimony before the
Commission as to the advisability of the proposed transaction,
which testimony was submitted, on the Company's behalf, at a
public hearing. This testimony occurred in the context of a
proceeding denominated "preliminary investigation" conducted by
the Commission following the filing of a "Notice of Intent" by
Central Maine Power Company to file a petition for a
certificate of public convenience and necessity, and bearing
PUC Docket No. 87-40. The purpose of this proceeding, as set
forth in a Commission Order of April 27, 1987, was to obtain
the concurrence of the Commission that it was prudent for the
company to pursue the purchase of substantial amounts of power
for a 29-year period from Hydro-Quebec.
The burden of Mr. Perl's Hydro-Quebec testimony, contained
in a document dated March 17, 1987, was that the Company's
forecast of long-term energy needs was reasonable and that the
Hydro-Quebec purchase was the best means of meeting the demand
from a cost-benefit perspective. On June 25, 1987, the
Commission issued an order approving further activities in
pursuit of the purchase, emphasizing that it was making only a
prima facie finding that the purchase was reasonable, but
reserving for later decision a final determination, not only of
the reasonableness of the transaction, but the ability of the
Company to recover its expenses in pursuing it through rates.
On July 19, 1987, the Company filed its petition for a
certificate of public convenience and necessity, still under
PUC Docket No. 87-40. On September 9, 1987, the Commission
issued an order concerning petitions to intervene in the
proceeding in which it emphasized that issues before it were
the need for the power and the reasonableness of the
Hydro-Quebec alternative, compared to other sources of power
and conservation, the exact issues on which Mr. Perl had
presented testimony. On October 30, 1987, the Commission,
acting at the suggestion of the parties, terminated the
existing certificate proceeding and opened a new proceeding on
the Company's refiled petitions for public convenience and
necessity, assigning to it PUC docket No. 87-268. This order
further incorporated the record in PUC Docket No. 87-40,
including Mr. Perl's testimony, into the new proceeding.
 -8-

 The question thus presented is whether Mr. Perl is

disqualified, by virtue of his participation in the
"preliminary investigation," from deciding the "certificate
proceeding." In the Opinion of this Department, he is. First,
under the rule disqualifying persons from participating in
proceedings in which they have appeared on behalf of a party,
Mr. Perl appears to be clearly disqualified because his
testimony in Docket No. 87-40 has been incorporated into the
record in Docket No. 87-268. Moreover, beyond this, even if
the second proceeding could somehow be considered an entirely
new one, Mr. Perl would still be disqualified because the
subjects of his testimony - the need for additional power and
the reasonableness of the Hydro-Quebec option in view of
alternative sources of power and conservation -- are issues of
adjudicative fact and constitute the basic issues which the
Commission must ultimately decide in the case. His expression
of opinion on them would thus constitute a "prejudgment" within
the meaning of the due process clause, and any decision which
the Commission might reach in the matter would be subject to
subsequent judicial invalidation.
With regard to the examination of the NET marginal cost
study methodology, PUC Docket No. 86-112, we reach the same
conclusion. Here, although Mr. Perl has not personally
participated in the Maine Commission proceeding, he did
participate in preparing testimony in a similar proceeding
before the Massachusetts Commission, which testimony has been
conveyed to the Maine Commission by NET. Thus, Mr. Perl can
fairly be determined to have indirectly participated in the
Maine proceeding and must disqualify himself from deciding it. 8/
This leaves the question as to whether any of Mr. Perl's
activities before the Commission would lead to his
disqualification in any Commission proceedings not currently
pending. Here, it is not possible for this Opinion to be
definitive, since the exact nature of such proceedings is as yet
unknown. Nonetheless, the following observations may be made.
First, with regard to future proceedings in which the
accomplishment of the Hydro-Quebec power purchase is at issue,
the advisability of Mr. Perl's participation is doubtful. For
example, as the Commission has emphasized in its orders, the
"certificate proceeding" does not include the question of the
approval for the construction of the necessary transmission

8/ This is particularly true since this Department is
advised that the Maine Commission is waiting for the
Massachusetts decision to be made before reaching its own
determination. Thus, even if the degree of Mr. Perl's
involvement in the Maine proceeding were judged to be
insufficient to warrant disqualification per se, the views
which he expressed to the Massachusetts Commission would
constitute a prejudgment in fact of factual issues to be
determined by the Maine Commission.
 -9-
lines in Maine, a certificate for which is required by
35-A M.R.S.A. § 3132. Although Mr. Perl has not expressed any
opinion on the need for such lines, he could reasonably be
assumed to favor their construction in view of his endorsement
of the entire project. Thus, a strong element of prejudgment
might well appear to be present were he to participate in a
transmission line certificate proceeding.
Next, the question of Hydro-Quebec purchase might also
arise in the context of proceedings which the Commission has
for some time been conducting to determine the cost which
public utilities must pay to so-called cogenerators from whom
they are required by law to purchase power. 9/ In such
"avoided cost" proceedings, the Commission may determine, and
indeed has determined, that the cost should be based on a
hypothetical price paid by the Company for Hydro-Quebec
power . ..!.Q./ As long, however, as the issue of whether the
Hydro-Quebec purchase is to be approved is pending before the
Commission, a Commissioner who favors the purchase would have a
strong interest in continuing to use it as the "proxy" for the
determination of the hypothetical cost of alternative power to
Central Maine Power. Thus, in view of Mr. Perl's testimony
regarding the advisability of the Hydro-Quebec purchase, this
Department is of the Opinion that he must disqualify himself
from all future "avoided cost" proceedings in which such a
purchase may be relevant until such time as the certificate
authorizing it is granted.
Next, the Hydro-Quebec purchase will be of significance in
future Central Maine Power rate cases, in which the Commission
will have to determine the extent to which its costs, both
before and after its approval, may be passed on to consumers
through rates. Here, in the view of this Department,
Mr. Perl's participation would not be legally barred by his
testimony in the "certificate proceeding." In
contradistinction to the transmission line or "avoided cost"
cases, the issue of whether the Hydro-Quebec project will be
accomplished is not present in a future rate case; it would be a
fact. Thus, Mr. Perl's public statements favoring the project
should not affect his judgment on the merits of such ratemaking

9/ Chapter 36 of the Commission's Rules requires that such
determinations be made on an annual basis for each major
utility in the State .
10/ In late 1986, the Commission made such an assumption in
a proceeding to establish the rate to be paid by Central Maine
Power to Boise-Cascade Corp., a cogenerator. Prior to this
time, the Commission had assumed a hypothetical coal-fired
power plant as the "proxy."
 -10-
determinations since they are not relevant to those issues. 11/
Finally, with regard to other proceedings not involving the
Hydro-Quebec project, there is little advice this Department
can offer other than to reiterate the general principles set
forth above that Mr. Perl should be careful not to participate
in rulings on adjudicative facts where he may have given
testimony before the Commission or otherwise expressed views on
such facts. He must be sure, with regard to other issues, that
he does not have the "closed mind" described in Association of
National Advertisers v. FTC, supra.
I hope this answers your question. Please feel free to
reinquire of this Department if further clarification is
needed, or if any additional questions regarding Mr. Perl's
past activities and future Commission proceedings arise.
Sincerely,

                                   JAMES E. TIERNEY
                                   Attorney General

JET/ec
cc: Senate President Charles A. Pray
House Speaker John L. Martin
Sen. John M. Kerry
Rep. Harry L. Vose
Chairmen, Joint Standing Committee on Utilities
Mr. Lewis J. Perl

11/ It is, of course, possible that any issue concerning
Hydro-Quebec might arise in a rate case that would change this
conclusion. As with other matters, Mr. Perl's ability to
participate would have to be assessed on a case-by-case basis.