NASHVILLE - Gov. Bill Haslam's staff solicited input from nearly a dozen regulated utilities or industry associations about the administration's controversial legislation to overhaul the Tennessee Regulatory Authority, records obtained by the Chattanooga Times Free Press show.
But the governor and his legal counsel Herbert Slatery are refusing to divulge some of the advice they received or who provided it.
In a letter, Slatery's deputy, Ashleigh M. Harb, said:
"After a review of the records, this Office is unable to provide you with some of the requested records. The basis for this denial is that some of the records are protected by attorney work product and deliberative process privilege."
The bill is scheduled to come before the House for final action today as lawmakers scramble to conclude their annual session by day's end. It turns the TRA's current four-member full-time board of directors into a five-member, part-time board with a full-time executive director.
Much of the bill deals with qualifications for the new directors. Currently, there are no qualifications and the agency has traditionally been headed by one-time politicians, their relatives or aides.
Tennessee Press Association Policy Director Frank Gibson questioned the lack of a full response to the Times Free Press' Open Records Act request. Saying that records "are protected by attorney work product" doesn't wash when Slatery and Harb were gathering information to change public policy, Gibson said.
"We're not talking about legal advice that the governor's counsel is providing the governor," Gibson said.
As for the administration's claim to a "deliberative process privilege," Gibson said, "I do not know that it exists in state law. The law makes it incumbent upon the ... government to show that the exemption exists.
"Again," Gibson said, "you're not talking about conversations between the governor and his lawyer. You're talking about information gathered in the formation of public policy."
After the Times Free Press obtained records through an Open Records Act request, Slatery's office released a "TRA Stakeholder" document, which contained such names as officials and lobbyists from Tennessee-American Water Co., which has frequent rate-hike cases before the TRA, ands AGL Resources, the parent company of Chattanooga Gas, which comes before the TRA less frequently.
Others consulted were current TRA directors, who openly oppose the bill, and state Attorney General Bob Cooper and members of his office, which operates the Consumer Advocate and Protection Division. The division often intervenes in utility rate cases on behalf ratepayers.
But noticeably absent from the list were two of the most-frequent groups that intervene in rate cases - the city of Chattanooga and the Chattanooga Manufacturers Association, which have been locked in bitter struggles with Tennessee-American Water for years.
Chattanooga city attorney Mike McMahan said while the city was not consulted by the governor's staff, he noted that really couldn't have advised them whether they should go with a full or part time board.
Chattanooga Manufacturers Association President Tim Spires did not respond to a request for comment.
In response to additional Times Free Press questions, the Haslam administration on Friday released a letter from current TRA Chairman Kenneth Hill, who repeatedly has testified against the proposal.
Also released was a two-page document that contains portions of the bill and recommendations by unspecified parties on possible changes. The document also cites a "proposed amendment" - it doesn't specify by whom - that sought to require that any report, audit, examination, analysis or recommendation prepared by TRA staff be made a part of the record of proceedings and be subject to discovery or cross-examination.
The two-page document also lists recommendations by unknown parties on qualifications for the new TRA board members. For example, Haslam's bill originally said each director should have at least a bachelor's degree and experience in "one or more of the industries regulated by the authority, executive level management experience or experience" that otherwise qualifies the director.
The recommendation - it's unclear which parties made it - changes that to the "regulated utility industry" or economic, law, finance, accounting or engineering. The administration went with that.
"This was their kind of response to our bill early on," Haslam Press Secretary Alexia Poe said Friday, but did not provide additional details.