CURB releases email that got the state utility consumer counsel fired

CURB chairwoman Ellen Janoski, left, and former consumer counsel Niki Christopher attend a board meeting on Jan. 6.
CURB chairwoman Ellen Janoski, left, and former consumer counsel Niki Christopher attend a board meeting on Jan. 6. The Wichita Eagle

The Citizens’ Utility Ratepayer Board on Friday released the email that prompted the board to fire Consumer Counsel Niki Christopher.

Christopher, a lawyer for the agency for 15 years, was fired Monday after she bluntly advised the board in the e-mail to reverse a December decision to strip her office of authority over cases and prohibit her from talking with lawmakers and the media about utility issues.

The CURB board released the email four days after The Eagle had requested it under the Kansas Open Records Act. Shortly after that, Christopher released two follow-up e-mails between her and board chairwoman Ellen Janoski.

In the e-mail that led to Christopher’s firing, she advised the board to reverse its decisions cutting the authority of the consumer counsel in orderto head off a potential public fight in the Legislature over House Bill 2500, a bill to limit the board’s powers. She said such a fight would damage the agency’s standing and credibility with lawmakers and the media.

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Until her firing Monday, Christopher was serving temporarily as the agency’s chief consumer counsel while the board seeks a replacement for David Springe, who served 14 years in the position before departing to take a job with a national utility advocacy organization.

Christopher’s four-page email was mostly advice on how to effectively oppose HB 2500, introduced by state Rep. Jim Ward, D-Wichita, and Rep. Annie Kuether, D-Topeka.

Christopher’s key piece of advice: “Publicly restore the powers you took away from me. Hope that these actions kill any interest in hearing the bill.”

She said that would save CURB “considerable grief and criticism.”

“When legislators are so motivated and concerned that they are introducing legislation to undo what you have done, be prepared for bear,” she wrote. “You better be prepared to defend the decisions the board has made to the committee members with all the confidence and skills of a Clarence Darrow or an F. Lee Bailey.

“Unfortunately, I don’t think any of you are capable of playing F. Lee Bailey,” she continued. “I certainly can’t do it for you either. … No attorney could credibly argue for limiting their powers to act on behalf of their clients.”

CURB board chairwoman Ellen Janoski called Monday’s meeting to fire Christopher, saying she thought the e-mail made unsolicited demands and was “very disrespectful” to the board.

“Making demands that we allow you to talk to whoever and that basically you said, ‘I told you so,’ is absolutely upsetting to me,” Janoski said at that meeting. “I don’t like your legal advice, and I just think that it’s unreasonable and it’s unnecessary. … It seems part of a planned crisis with the intent of creating your own desired outcome.”

Christopher said she didn’t make any demands on the board, but she acknowledged that she assumed the board would oppose HB 2500 and that hearings would harm the agency.

She also said she told the board members that she thought she had given them good advice and urged them to take it this time.

After the board released her email, Christopher released a copy of Janoski’s reply to her and her subsequent reply to Janoski.

Janoski wrote that she didn’t think there was any urgency or crisis to the House bill.

“You are creating controversy rather than helping us contain it; this is a problem,” Janoski wrote. “Finally, something about this entire gambit seems too well-planned. These two Democrat legislators are now showing a sudden interest in offering up legislation, redefining the board’s ability to control the consumer council’s abilities.

“I have sat on the board for nearly five years and not once has there been media present. … I believe they had your inspiration. We add this to your recent e-mail, which is so forcefully alarmist and unreasonable that it seems necessarily part of a planned ‘crisis’ with the intent of creating your own desired outcome.”

Janoski requested that Christopher forward her e-mail to the rest of the board. In her reply, Christopher refused, saying that would be a violation of the Kansas Open Meetings Act, which prohibits a majority of a board from communicating on agency business outside public meetings.

“Maybe I’m not the most tactful attorney, and I admit I am struggling somewhat with my triple roles of serving the board, the agency, and the customers,” Christopher wrote. “I am confident that I have stayed within the ethical lines, stayed within the board’s restrictions on what I can do, and have served the board as a client the best I can.”

Christopher said her 15 years of experience had given her “a pretty good sense of how the Legislature and the press would react to some of the board’s discussions.”

“If the board doesn’t want to follow my advice, that is your prerogative,” she wrote. “But I believe it is important to give it, not just for your benefit, but for the benefit of the agency and the customers we represent.”

New role discussed

For years, the CURB consumer counsel has been a near daily presence at legislative utility committee meetings and often a primary source in news reports on utility consumer issues.

Reps. Ward and Kuether said they introduced HB 2500 to put brakes on the board because they were concerned after the Dec. 11 meeting.

In addition to cutting the consumer counsel’s power, the board members discussed shifting the agency’s mission away from fighting for consumers in rate cases and toward supporting efforts to deny global climate change and battle federal anti-pollution regulations that are increasing the cost of generating electricity.

Within days of that meeting, CURB board chairman Brian Weber resigned, saying he wanted to spend more time with his family and business and that he disagreed with the direction in which the rest of the board wanted to go.

At Friday’s meeting, Janoski recommended releasing Christopher’s original e-mail, although she claimed the board didn’t have to. One board member questioned whether it should be withheld to keep from embarrassing Christopher.

Christopher responded that the last advice she gave CURB, just after she was fired and while she was cleaning out her office, was to release it — a decision that was countermanded by Janoski for four days.

“I don’t think it (the email) is embarrassing at all,” Christopher said. “It was not intended for public distribution, but I don’t have any problem with it.”

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