Public Counsel: Motion To Recuse Two On Northern Pass Panel Is Flawed

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Nancy West photo

Counsel for the Public Chris Aslin, left, and Tom Pappas, who works for the Office of the Public Counsel. They are pictured on a Site Evaluation Committee tour of downtown Plymouth the same day opponents staged a protest on Oct. 3, 2017.

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CONCORD — The recusal of two members of the Site Evaluation Committee sought by supporters of the Northern Pass project asserts bias for doing what they are required to do as regulators, several intervenors said Wednesday.

Counsel for the Public said in its motion opposing recusal that the request by the Business Intervenors Group to have SEC members Patricia Weathersby and Kathryn Bailey recuse themselves from future proceedings is “legally and factually flawed.”

“It should be denied because the alleged basis for recusal is that the judicial (or quasi-judicial) officials formed an opinion concerning the merits of the case that our system of justice not only expects but asks those individuals to form,” wrote attorney Thomas Pappas for the Counsel for the Public. “Were it otherwise, each and every judge would find himself or herself forced to recuse themselves after each and every ruling in a case because the judge would be alleged to have thereby formed an opinion on the case as a result of a prior adverse ruling.”

Similar to a filing by several municipal groups opposing the recusal motion, the Counsel for the Public states the Business Intervenor Group sites the wrong standard in making its request and uses the two members’ statements out of the context.

Last month, the International Brotherhood of Electrical Workers and the Coos County Business and Employers Group, or the Business Intervenor Group, said Weathersby and Bailey made statements during deliberations indicating they could not be unbiased moving forward.

Also opposing the recusal motion Wednesday, the Society for the Protection of New Hampshire Forests, said the request is flawed and inaccurate.

Citing a state Supreme Court decision in Tapply & Zukatis, attorney Amy Manzelli writes there is no “basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible,” and she said that is not the case.

“Put differently, the Business Intervenor Group simply complains that member Weathersby continued to believe that the February 1, 2018, oral decision was correct,” writes Manzelli. “The Business Intervenor Group fails to appreciate the difference between a decision-maker denying a motion for rehearing because the moving party failed to persuade her and a decision-maker who has predetermined the outcome prior to a hearing.”

Weathersby and Bailey were explaining their opinion that because the SEC concluded the applicant failed to meet its burden on one standard, no conditions on any other standard could change this conclusion, Manzelli notes. “This is legal conclusion, not a basis for recusal,” she said.

In their recusal motion for the Business Intervenors Group, attorneys Brian Murphy and James Bianco argued continued participation by Weathersby and Bailey would “deprive the parties of their due process rights.”

Weathersby, a Rye attorney, and Bailey, who also serves on the Public Utilities Commission, both voted to deny the project along with the other five SEC members in a unanimous vote.

The SEC released it written order March 30 denying the $1.6 billion, 192-mile high-voltage transmission line from Pittsburg to Deerfield to carry Hydro-Quebec electricity to Massachusetts.

Northern Pass filed its motion for rehearing last Friday and the SEC will hold deliberations on May 24 in Concord.

The Business Intervenor Group’s recusal motion quoted Bailey as saying: “I’m worried that if we continue with our deliberations, we will really need to figure out what conditions we would impose on a lot of things. And that’s not – that’s not going to be simple and it’s not going to be fast. And there’s going to be a lot more things to appeal. And I think we have a pretty good record right now…”

It quoted Weathersby as saying: “I don’t think we should vacate our oral decision. I’m pretty confident that the decision was well-reasoned, lawful, made in accordance with the statute and the administrative rules. So I think that suspending the oral decision until such time there’s actually a final written decision does sort of add some clarity without just a dismissal.”

The recusal motion further quoted Weathersby as saying: “My opinion still stands, that they did not meet their burden concerning orderly development of the region.”

Bailey’s comments “demonstrate a focus on the number of issues that a party could take on appeal and the ‘risks’ to the subcommittee if they continued their deliberations, rather than focusing on the appropriate procedure  for evaluating  the application,” the recusal motion argued.

The Counsel for the Public notes the motion cites cases where there is a conflict-of-interest, which is not the issue raised.

“The motion does not assert any other basis for alleged bias, such as a personal outcome in the proceedings or a conflict of interest,” the Counsel wrote.

And he said the SEC members would be expected to believe an important decision they made is the right direction. “It is the desired outcome of our legal system,” according to the Counsel for the Public.

Also filing motions in support of the municipal groups’ motion opposing the recusal were the Grafton County Commissioners, Deerfield abutters, and McKenna’s Purchase.

The municipalities filing Monday to oppose recusal were Concord, New Hampton, Littleton, Deerfield, Pembroke, Ashland Water and Sewer, Bristol, Easton, Franconia, Northumberland, Plymouth, Sugar Hill, and Whitefield.

Their lawyers are Concord Deputy City Solicitor Danielle Pacik, and attorneys Steven Whitley and Christine Fillmore.

The Abutting Property Owners, Bethlehem To Plymouth, also joined in the objection of the Society for the Protection of New Hampshire Forests
to Business Intervenor Group’s motion for recusal.

The project was first proposed in 2010.

Garry Rayno may be reached at


IBEW, Coos County Business Group Want Two SEC Members Recused From Northern Pass

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