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All eyes in electric dispute on Public Service Commission

STORY BY LISA ZAHNER (Week of January 29, 2015)

Fortunately for the City of Vero Beach, the Florida Public Service Commission is just as interested in defending its own turf as Vero is in retaining its electric service customers outside the city limits.

When the PSC meets Tuesday, the five-member board of political appointees will be guided by its staff recommendation which states that the PSC and only the PSC has the power to determine territorial boundaries.

Since the PSC assigned Vero its territory decades ago, the logic is that Vero gets to keep its territory, as-is, until and unless the PSC changes it.

In the 21-page document, the PSC staff recommends that the five-person board reiterate the PSC's "exclusive and superior" authority over setting territories for electric service.

"Florida Statute provides that the jurisdiction conferred upon the Commission shall be exclusive and superior to that of all other boards, political subdivisions, municipalities, towns or counties, and in case of conflict therewith, all lawful orders of the Commission shall in each instance prevail."

Indian River County’s petition with the PSC filed last summer was scheduled to be heard on Tuesday, with the City of Vero Beach’s own petition originally scheduled for March 3. With the two items being so closely related, the PSC moved Vero’s docket up to Feb. 3 so they could dispose of both matters.

This gets Vero’s PSC petition out of the way four weeks prior to the end of Indian River Shores’ “options review period,” and the Shores resumes its effort in circuit court to expel Vero from the town in November 2016 and switch to another provider.

Though it’s still up in the air what will happen with that lawsuit, if the PSC goes along with its staff, Vero will at least have the PSC proceedings, and one notch in the win column, next week.

City Manager Jim O’Connor said, “It just repeats what we have been saying all along.”

The County seems to come out on the losing end of this one, with its options now limited to appealing the PSC’s decision or suing Vero in court.  County officials aren’t commenting other than County Attorney Dylan Reingold saying on Monday, “We are reviewing the PSC staff recommendations and we look forward to presenting our position on February 3rd,”

Vero’s utility attorney Robert Scheffel “Schef” Wright will argue for Vero, as will attorneys for most of Florida’s big power companies who also want to defend their right to permanent territories.

Reingold said the county’s utility attorney Floyd Self will be giving the the county’s presentation.

On Friday, the lead attorney for Indian River Shores, Bruce May, after conferring last Thursday with attorneys from the PSC, commented, “The recommendations make it clear that neither petition addresses nor undermines the Town’s lawsuit against the City. In fact, the PSC staff cautions that it would be an abuse of the PSC’s authority to permit the use of a declaratory statement ‘as a means to attempt to obtain an administrative preemption over legal issues pending in the courts.’”

Later that day, Shores Mayor Brian Barefoot issued a statement, emphasizing that the PSC’s ruling is specifically meant to clarify the situation between Vero and unincorporated Indian River County – not the Shores.

“Should the PSC follow its staff recommendation, it would confirm that the City has the right and obligation to continue providing service in the unincorporated areas of the County upon expiration of the franchise agreement,” Barefoot said. “It is important to repeat that the PSC staff recommendation has no bearing on the lawsuit our Town has filed in circuit court, and indeed the staff acknowledged this in its recommendation. The staff made clear that the City’s petition does not concern or address the pending lawsuit.”

Should Vero Beach be inclined to hammer out some sort of settlement with the Shores that would end the lawsuit, but assure Vero’s taxpayers that they’ll still have funding coming in from 20,000 Indian River County ratepayers at the end of the day, the PSC’s decision might be the window of opportunity Vero and the Shores have been looking for.

Barefoot again emphasized the daylight between the County’s position and the Town’s rights under state law.

“As I have said before, our lawsuit is fundamentally different than the County’s filing,” he said. “One of the key issues in our pending lawsuit is that, under Florida’s constitution and municipal law, the City (of Vero Beach) does not have the extraterritorial powers to encroach and serve within the Town’s corporate limits without the Town’s consent. The PSC staff’s recommendation on the County’s petition recognized that such constitutional issues are reserved for the courts, not the PSC.”

The hearing is scheduled to take place at 9:30 a.m. Tuesday at the PSC’s headquarters in Tallahassee.