Former Indiana Utility Regulatory Commission Chair Andy Zay has filed a lawsuit against the state of Indiana and Gov. Mike Braun.
According to Zay’s complaint, he’s asking the court to find that Braun’s firing of him was “unlawful and without legal effect,” alleging that he was let go without cause. He’s also asking to be reinstated as a commissioner.
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“The Indiana General Assembly has expressly limited the Governor’s authority to remove an IURC Commissioner,” the complaint says. “Indiana Code … provides that members of the IURC ‘may be removed at any time by the governor for cause.’ The statute does not permit an IURC Commissioner to be removed at the Governor’s pleasure, based upon political disagreement, or simply because the Governor disagrees with the Commissioner’s exercise of independent judgment.”
According to the complaint, Zay also seeks immediate equitable relief and asks to be reinstated as commissioner while it’s determined whether his removal complied with Indiana Code.
“Immediate relief is necessary,” the complaint says. “Every day Commissioner Zay remains excluded from the Commission, he is prevented from exercising the statutory responsibilities of the public office to which he was appointed, including participating in matters pending before the IURC. The loss of the ability to exercise those governmental duties cannot adequately be remedied through an after-the-fact award of monetary damages.”
Zay filed the lawsuit Monday in Marion Superior Court, according to online court records. In addition to suing Braun and the state, he’s also targeting Matthew Brown, director of the Indiana State Personnel Department; Steve Carter, deputy counsel for appointments for the governor’s office; Joshua Bain, new member of the IURC; and Suzanne Jaworowski, state secretary of energy and natural resources.
According to Post-Tribune archives, Braun removed Zay as chairman at the end of June, appointing Anthony Swinger as its next leader. Zay, at the time, was to stay on the commission, but Braun dismissed him from the role on Aug. 3.
In the complaint, Zay alleges Brown and Carter attempted to interview him in person on Aug. 3. Zay declined to talk without counsel, and they allegedly presented him with a letter removing him from the IURC effective immediately.
Brown then allegedly required Zay to collect his personal belongings and escorted him from the building.
“Neither Governor Braun in his removal letter nor Brown nor Carter provided Commissioner Zay with any cause for his removal,” the complaint says. “Commissioner Zay was not provided notice of any specific allegations before his removal, was not afforded an opportunity to respond to any allegations, and was not informed of any process through which the purported grounds for his removal would be adjudicated.”
His complaint also alleges that the state only identified violations following his removal and to media members.
The State Personnel Department has accused Zay of several “potential violations” of state policy, according to the Indiana Capital Chronicle, but he alleges the firing was about his vote to support an AES rate increase “and for control over what happens next.”
Kerwin Olson, executive director of the Citizens Action Coalition, said in a Tuesday statement that the organization found it “very curious” that the personnel department accused Zay of “potential violations.”
“One would think that if the statute requires ‘cause’ to support a Governor’s termination of a Commissioner, the allegations would be actual violations and not potential,” Olson said. “But I’ll let the lawyers argue in the courts about the definition of ‘cause.’”
The IURC, in June, voted 3-1 to approve a $71 million electricity rate increase for AES Indiana customers, according to Post-Tribune archives. The approved rate increase was about 37% of what was initially requested and lower than a settlement agreement proposed in October.
“My top priority is affordability, which is why I am deeply disappointed by the IURC’s approval of another AES rate increase,” Braun said after the vote, according to Post-Tribune archives. “Hoosiers have spent years tightening their belts and making tough decisions. It’s time for utility companies to do the same.”
A Braun spokesperson was unable to immediately respond to a request for comment Tuesday. An IURC spokesperson was also unable to immediately respond to a request for comment.
Olson said the Citizens Action Coalition appreciates and shares Braun’s affordability concerns, but the agency finds it concerning that his administration “put their thumb on (regulatory) scales in such a manner.”
“(The IURC) is not there to serve the whims and wishes of any politician or political party, or the agenda of either,” Olson said. “Lastly, one would hope that this entire episode and this revolving door of Commissioners will finally motivate the General Assembly to change the way in which Indiana selects those that regulate our investor-owned utilities. Reform is desperately needed, which recent events make crystal clear.”