The allegations against state Corporation Commissioner Jim Irvin are “sufficient at this point ... to warrant impeachment,” the head of the House Judiciary Committee said today.
Rep. Steve Tully, R-Phoenix, said his preliminary inquiry into the conduct of the state utility regulator shows “it appears that (Corporation) Commissioner Irvin has committed acts incompatible with his duties as a public officer.”
“The information assembled supports a finding that Commissioner Irvin committed many wrongful acts, including advocating for one utility over another in violation of his quasi-judicial duties, involving himself inappropriately in a matter from which he had recused himself, and using his office to target a commission employee.”
Those acts, Tully said, constitute malfeasance — one of three grounds in the Arizona Constitution for bringing impeachment proceedings against an elected official.
Tully also noted that Irvin’s acts have cost the state more than $5 million in legal fees and out-of-court settlements.
House Speaker Jake Flake, R-Snowflake, immediately authorized the hiring of an outside law firm to comb through thousands of pages of evidence and interview witnesses. That law firm and its investigators will determine the veracity of the allegations and whether they can be proved.
Flake said he hopes to have the law firm on board within weeks.
At that point, Flake said, a House committee will review the evidence and determine whether to file formal articles of impeachment against Irvin, with the full House then debating and voting on the matter. If the House votes to impeach — essentially an indictment — then the Senate will conduct a trial to decide if he is guilty and whether he should be ousted from office.
A publicist for Irvin declined to comment.
The case against Irvin involves three incidents:
— A federal court jury concluded he misused his office when he interceded to thwart the bid by one company to buy Southwest Gas. The jury concluded he not only attempted to influence Southwest’s board to accept one bid over another but also sought to sway utility regulators in California and Nevada.
— In connection with the lawsuit over that case, Irvin issued a press release saying a commission employee was not credible and later subjecting him to what the worker said was a pattern of mistreatment in retaliation. The case was settled out of court.
— Irvin participated in a hearing on a commission inquiry into the sale of unregistered securities by a firm involving the brother of one of his campaign workers. He also communicated directly with an employee of the commission’s securities division on the case even though he had recused himself from the matter.
Tully said the commission acts essentially in a judicial role, deciding issues such as utility mergers based solely on the record. And, he said, commission rules prohibit ex parte off-the-record communications with parties to commission cases — something Irvin admitted he did when he contacted Southwest Gas executives.
Irvin has said he did nothing wrong and did not specifically advocate for the financially inferior bid of Oklahoma-based Oneok over a more lucrative one from Southern Union Co., originally based in Texas but now headquartered in Pennsylvania.
But Southwest Gas executives testified at trial that they took the comments to mean that Irvin, then chairman of the commission, would not approve a Southern Union bid.
Tully also noted that much of what Irvin did was in secret, including not informing the other two commissioners of his calls as well as his trips to Nevada and California. The lawsuit by commission employee Jim Fisher against Irvin presents a different issue.
Tully said that case — and the resulting payment of $441,480 in legal fees and to buy an annuity to compensate Fisher — may not by itself merit pursing impeachment proceedings. He said, though, that “it is another example of Mr. Irvin’s apparent inability to remain above the fray, as he should in his quasi-judicial capacity.”
He also pointed out that the other four commissioners — the panel added two new members in November — in March called for the Legislature to impeach Irvin after he refused to resign. Commission Chairman Marc Spitzer said it is necessary to oust Irvin because his “repeated misbehavior indicates an unwillingness or inability to distinguish between his desire to be an unabashed advocate distinguished from a corporation commissioner’s proper role as objective judicial arbiter in the public interest.”
Tully said House action is appropriate because it appears there is no active investigation by a law enforcement agency.
However, Pat Schneider, an assistant U.S. attorney, said his office has an ongoing criminal inquiry into Irvin’s actions but refused to comment further.