Southwestern Bell Telephone Co. v. Oklahoma Corporation Commission

SIMMS, Justice:

In this original proceeding Southwestern Bell Telephone Company (SWB) seeks this Court’s order disqualifying Corporation Commissioner Anthony (Anthony) from further participation in Corporation Commission proceeding PUD-260, a rate hearing, as well as in all pending and future SWB cases. SWB asserts that Anthony is biased and prejudiced against it, and his continued participation in eases where its substantive rights are at issue will deny SWB its right to due process of law because it will not be able to receive a fair hearing from an impartial tribunal.

I.

The focus of SWB’s claim centers on Commissioner Anthony’s startling public announcement on October 2, 1992, that for four years he had been secretly acting as an investigator and informant in an ongoing FBI investigation concerning the conduct of his fellow commissioners and employees and representatives of SWB.¹ SWB asserts that Anthony’s announcement makes it clear that he has formed an opinion that SWB’s agents and employees have engaged in improper conduct; that he has conflicting interests because of his different public and undisclosed roles, and, as a result of his investigation, he may be a potential witness in future proceedings against SWB. These facts, SWB argues, make it patently impossible for Anthony to be a neutral and unbiased adjudicator of its rights and interests before the Commission.

SWB argues that the same federal and state due process requirements which assure litigants in judicial proceedings a right to be heard by an impartial judge in a fair hearing apply with equal force in administrative hearings, and they should apply to the Corporation Commission hearing on PUD-260 and to Commissioner Anthony who sits, SWB contends, in an adjudicatory capacity. SWB asserts that Anthony’s conduct and public statement, together with a motion he filed in the case below, seeking to compel SWB to produce certain records, present fundamental issues regarding its right to due process. SWB claims that Anthony’s position is the same as a judge and the Canons of Judicial Conduct, 5 O.S.1991, Ch. 1, App. 4, require him to voluntarily disqualify in these circumstances. Because he refuses to do so, this Court should exercise its Okla. Const. Art. 7, Sec. 4 superintending control over the judiciary and issue its writ to prohibit Anthony from further participation in an adjudicatory capacity in SWB’s cases.

We assume original jurisdiction but deny the requested relief. Rehearing of our decision issued on May 25, 1993, is granted and that decision is withdrawn.

II.

The Corporation Commission is created by Article 9 of our Constitution. Its three members are elected by the people at a general election and a concurrence by a majority of the Commission is necessary to decide any question. Among the many powers and duties given the Commission, it is re-quired to exercise the authority of the state to supervise, regulate and control public service corporations, and to that end it has been clothed with legislative, executive and judicial powers. Okla. Const. Art. 9, §§ 15, 18, 19, and 20. St. Louis & S.F.R. Co. v. Williams, 25 Okla. 662, 107 P. 428 (1910). Russell v. Walker, 160 Okla. 145, 15 P.2d 114 (1932); Oklahoma Cotton Ginners’ Ass’n. v. State, 174 Okla. 243, 51 P.2d 327 (1935).

The validity of the union of these powers in one constitutional body has been upheld and found consistent with the separation of powers provision, Okla. Const. Art. 4, § 1, as well as Okla. Const. Art. 7, § 1, which vests judicial power in certain constitutionally and statutorily created courts and tribunals. Monson v. State, ex rel., Oklahoma Corp. Comm., 673 P.2d 839 (Okla.1983); Oklahoma Cotton Ginners’ Ass’n., supra. In any proceeding the requirements which the Commission’s actions must meet and the standards by which they are measured, depend on the character of the particular power being exercised in the matter at issue. Monson, supra; Oklahoma Cotton Ginners’ Ass’n., supra.

For example, in Monson, an action involving the drilling of salt water disposal wells, we recognized that when the Commission sits and decides matters in its adjudicative capacity, it exercises the power of a court of record pursuant to Okla. Const. Art. 9, § 19, and the Commission should therefore be treated as the “functional analogue of a court of record.” We held that because the Commission’s actions in question were a judicial function, the exemption accorded the judiciary in the Open Meeting Law would apply to the Commission. Likewise, in Hair v. Okla. Corp. Comm., 740 P.2d 134 (Okla.1987), which involved a drilling and spacing order, we held that because the Commission is considered a court of record when it is performing in a judicial capacity, it may correct its orders by order nunc pro tunc.

The proceeding at issue here, PUD-260, is a rate hearing.² The authority to establish rates for all public service corporations is exclusively vested in the Corporation Commission by Art. 9, § 18, of the Oklahoma Constitution. Rate hearings are legislative in nature, and SWB’s assertion that this was a proceeding of a judicial nature is erroneous. Turpen v. Oklahoma Corp. Comm., 769 P.2d 1309 (Okla.1989); State, ex rel. Cartwright v. Southwestern Bell Tel. Co., 662 P.2d 675 (Okla.1983); Chickasha Cotton Oil Co. v. Corp. Comm., 562 P.2d 507 (Okla.1977); Wiley v. Oklahoma Natural Gas Co., 429 P.2d 957 (Okla.1967).

When Anthony and his fellow Commissioners hear PUD-260 they will act in their legislative capacity. That distinction is determinative of the issue presented for, as discussed below, proceedings which are legislative in nature do not implicate judicial processes and do not require application of the judicial standards urged by SWB. More importantly, this Court has no power to grant the relief sought against constitutional officers acting in a legislative capacity.

In Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), the Supreme Court of the United States was asked to determine whether the federal courts could enjoin the Virginia Corporation Commission from enforcing railroad rates alleged to be confiscatory. At issue was the nature of the challenged commission action. The Virginia constitutional provision (which is nearly identical to provisions of our article 9) invested the Commission with legislative, executive, and judicial powers. The Court assumed that while the Commission was for some purposes, a court, which would be protected from interference by federal courts, in setting the rates the Commission had acted in a legislative capacity and could therefore be enjoined. Speaking through Justice Holmes, the court analyzed the distinctions between legislative and judicial proceedings:

“A judicial inquiry investigates, declares, and enforces labilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind, ...”

The Court then made the point that:

“Proceedings legislative in nature are not proceedings in a court, * * * no matter what may be the general or dominant character of the body in which they may take place. ⅜ ⅜ ⅜ That question depends not upon the character of the body, but upon the character of the proceedings. * * * And it does not matter what inquiries may have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up ... The nature of the final act determines the nature of the previous inquiry. As the judge is bound to declare the law, he must know or discover the facts that establish the law. So, when the final act is legislative, the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case.” 211 U.S. at 226-27, 29 S.Ct. at 69-70 (Citations omitted).

The Supreme Court of the United States has quite recently reaffirmed both the general mode of analysis used in Prentis, see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and the specific holding of Prentis that ratemaking is a legislative act and ratemaking proceedings are legislative in nature. See Colorado Interstate Gas Co. v. Federal Power Comm., 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945) and New Orleans Public Service v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989).

We recognized and addressed the distinction between legislative and judicial functions in Wiley v. Oklahoma Natural Gas, 429 P.2d 957 (Okla.1967), where, in a case with some obvious factual similarities to the matter before us, we held the court was without power to declare rate increases void based on allegations that the Commission had been wrongfully influenced to approve them by contributions and favors from a lobbyist. The action was not an appeal from the amount of the rate as being either excessive or constitutionally confiscatory, only the decision making process was attacked. We stated:

“It is universally recognized that the fixing of rate schedules for public utilities is a legislative process, and that a public service regulatory body acts in a legislative capacity in approving rate schedules. It necessarily follows that a rate order is a legislative enactment and not a judgment of a Court. Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150; Pioneer T. and T. Co. v. State, 40 Okl. 417, 138 P. 1033; 43 Am.Jur.Public Utilities and Services, Sec. 226; City of Poteau v. American Indian Oil and Gas Co., 159 Okl. 240, 18 P.2d 523; Ft. Smith and W. Ry. Co. v. State, 25 Okl. 866, 108 P. 407; Community Natural Gas Co. v. Corporation Commission, 182 Okl. 137, 76 P.2d 393; Western Oklahoma Gas and Fuel Co. v. State, 113 Okl. 126, 239 P. 588. “In the last cited cases this Court said, at page 591 of the Pacific Reporter that ‘in the last analysis an order of the Corporation Commission fixing rates is entitled to the same consideration as if the Legislature had fixed them * *

“It is equally well settled that the judiciary cannot annul or pronounce void any act of the Legislature on any ground other than that of repugnancy to the constitution. Constitutionality of legislative acts is to be determined solely by reference to the limits imposed by the constitution. The Court may not inquire into the motives of the Legislature, as motives cannot be made a subject of judicial inquiry for the purpose of invalidating an act of the legislature.” 429 P.2d at 958.

This recognition of the legislative nature of ratemaking proceedings and the resulting inapplicability of judicial concerns and standards, including due process notice and hearing requirements, has been repeatedly affirmed by this Court. In our recent decision in State v. Southwestern Bell Tel. Co., 662 P.2d 675 (Okla.1983), we set forth and relied on the following statement from Chickasha Cotton Oil Co. v. Corporation Commission, 562 P.2d 507, 509 (Okla.1977):

‘“We hold that the Corporation Commission was acting in a legislative capacity when it restructured the rates with which we are here concerned and was not required to give judicial due process notice and hearing to the Petitioners (users), unless specifically required by statute. There is no present statutory provision requiring notice.’

Accord, State ex rel. Oklahoma Natural Gas Co. v. Hughes, Okl., [204 Okla. 134] 227 P.2d 666 (669) (1951).”

See Southern Oil Corp. v. Yale Natural Gas Co., 89 Okla. 121, 214 P. 131 (1923); City of Bartlesville v. Corporation Commission, 82 Okla. 160, 199 P. 396 (1921); Chickasha Cotton Oil Co. v. Corporation Commission, 562 P.2d 507 (Okla.1977); State v. Southwestern, Bell Tel. Co., 662 P.2d 675 (Okla.1983); Henry v. Corporation Commission, 825 P.2d 1262 (Okla.1992). See also, Teleco, Inc. v. Southwestern Bell Telephone Co., 392 F.Supp. 692 (WD Okla.1974), aff'd 511 F.2d 949, cert. denied 423 U.S. 875, 96 S.Ct. 145, 46 L.Ed.2d 106 (1975).

Based on the foregoing analysis we are convinced that SWB’s position that this was a judicial proceeding where Commissioner Anthony was performing an adjudicatory function which demanded the application of due process requirements, including neutrality, is erroneous. Instead, PUD-260 was unarguably legislative in nature, and while participating in it Commissioner Anthony was acting in a legislative capacity which did not require him to comply with judicial standards of conduct. Accordingly, this Court is without jurisdiction to disqualify Commissioner Anthony from participation in this or any other SWB rate hearing.

Additionally, because of the legislative character of these proceedings, mandamus will not lie to compel Anthony’s disqualification. As the terms of 12 O.S.1991, § 1451 make clear, mandamus will issue only where petitioner has a clear legal right to the relief sought and respondent has a plain legal duty which he refuses to perform. These requisites, together with inadequacy of other relief, must coincide to warrant issuance of the writ. Oklahoma Gas & Electric Co. v. District Court, 784 P.2d 61 (Okla.1989). Here, respondent has no legal duty to perform, and petitioner has no right to the relief sought. Neither is prohibition a proper remedy to reach an act which is legislative in nature. Prohibition will lie only where an inferior court or officer is acting in a judicial capacity exercising judicial or quasi-judicial power not granted by law or making an unauthorized or excessive application of judicial force. James v. Rogers, 734 P.2d 1298 (Okla.1987); Stover v. Alfalfa County Election Board, 530 P.2d 1020 (Okla.1975).

We are also unpersuaded by the additional argument urged by SWB that although the Corporation Commission is exempted from the provisions of Art. II of the Administrative Procedures Act, 75 O.S.Supp.1992, §§ 308a, et seq., we should nonetheless hold it bound by provisions of that article which impose certain due process requirements on agency proceedings, and especially by the terms of § 316 which call for the disqualification of agency members in some situations. That section provides:

“A hearing examiner or agency member shall withdraw from any individual proceeding in which he cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of a hearing examiner or agency member, on the ground of his inability to give a fair and impartial hearing, by filing an affidavit, promptly upon discovery of the alleged disqualification, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue shall be determined promptly by the agency, or, if it affects a member or members of the agency, by the remaining members thereof, if a quorum. Upon the entry of an order of disqualification affecting a hearing examiner, the agency shall assign another in his stead or shall conduct the hearing itself. Upon the disqualification of a member of an agency, the Governor immediately shall appoint a member pro tern to sit in place of the disqualified member in that proceeding. ⅜ * ⅜: V

The legislative nature of ratemaking ends any argument that the APA’s standards of due process require treating the Commission the same as “other” agencies. Also, the Commission’s constitutional creation distinguishes it from other administrative agencies which derive their authority “not from a direct constitutional grant but rather from statutory delegation.” Monson, supra, at 842.

This statutory provision of directives for voluntary disqualification of agency members who sit by appointment and hearing officers who are agency employees together with a mechanism for their replacement, raise very different considerations from those presented by the situation before us. Here, we are asked to use the power of the judiciary to involuntarily disqualify an elected constitutional state officer in the absence of any constitutional or statutory provision allowing his disqualification or providing for a replacement. This Court has no power or authority to alter or interrupt the lawful term of Commissioner Anthony’s office based on allegations of bias in a rate hearing where he is acting in his legislative capacity, and any attempt to do so would be an encroachment by the judiciary on both the legislative and executive powers.

In addition to establishing his powers and duties, the constitution and statutes fix Commissioner Anthony’s term of office. He is the legal incumbent and, pursuant to 51 O.S.1991, § 8, his office will not become vacant unless he should resign, die, move from the state, be convicted of certain offenses or be lawfully removed from office. State, ex rel., Blankenship v. Freeman, 440 P.2d 744 (Okla.1968). The law does not recognize “bias” as creating a vacancy and, as no vacancy established by law exists, there is none to fill. Carpenter v. Carter, 167 Okla. 238, 29 P.2d 83 (1934).

Under Okla. Const. Art. 9, § 15 and 51 O.S.1991 § 10, the power to fill a vacancy in the office of Corporation Commissioner is placed in the governor. The law does not recognize a “temporary” vacancy as would result from a disqualification, however, as section 15 directs that the governor shall fill such vacancy by appointment until the next general election, when a successor shall be elected to fill out the unexpired term.

The Court’s lack of power to disqualify Commissioner Anthony from participation in SWB’s rate hearing does not leave SWB defenseless and without a remedy for what it perceives as unfair treatment from a biased tribunal; SWB may appeal the Commission’s rate order if it feels aggrieved by its provisions.

The denial of a fair rate of return resulting in confiscation of a utility’s property is a constitutional concern of this Court. Okla. Const. Art. 9, § 20. After the ratemaking hearings on PUD-260 have concluded, if SWB believes that those Commission proceedings were so unfair because of Anthony’s prejudice that the resulting rate order is unreasonable and confiscatory, it would be in a position to assert that bias as a ground for reversal of the rate order. A record of the proceeding would exist to support its contentions of unfair treatment and arbitrary rulings on evidence and testimony.

As is appropriate in reviewing an order of the Corporation Commission involving an asserted constitutional violation, this Court will exercise its independent judgment as to both the law and the facts. Atchison, Topeka & Santa Fe Ry. Co. v. State, 692 P.2d 554 (Okla.1984); Application of Southwestern Bell Tel. Co., 575 P.2d 624 (Okla.1978). We would therefore not be bound by the findings and conclusions of the Commission but would independently weigh the evidence in our determination of whether SWB had met its burden of proving the rates ordered by the Commission were confiscatory and fundamentally unfair.

III.

We recognize that an argument could be made that the provisions of Art. 9, § 20 which grant this Court the power to issue writs of mandamus and prohibition to the Commission in a proper case, support the power of this Court to disqualify a corporation commissioner, if he were sitting in a judicial capacity.

In pertinent part, that section provides: “From any action of the Corporation Commission prescribing rates, charges, services, practices, rules or regulations of any public utility or public service corporation, or any individual, person, firm, corporation, receiver or trustee engaged in the public utility business, an appeal may be taken by any party affected, or by any person deeming himself aggrieved by any such action, or by the State, directly to the Supreme Court of the State of Oklahoma,

... [I]n all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence.

No court of this State, except the Supreme Court, shall have jurisdiction to review, affirm, reverse, or remand any action of the Corporation Commission with respect to the rates, charges, services, practices, rules or regulations of public utilities, or of public service corporations, or to suspend or delay the execution or operation thereof, or to enjoin, reverse, or interfere with the Corporation Commission in the performance of its official duties; provided, however, that writs of mandamus or prohibition shall lie from the Supreme Court to the Corporation Commission in all cases where such writs respectively would lie to any inferior court or officer.” [Emphasis Added]

While this provision does not alter the fact that extraordinary relief would not be available to disqualify Anthony while acting in his legislative capacity, see Wilson & Co., Inc. v. Oklahoma Gas & Electric Co., 190 Okla. 528, 126 P.2d 1009 (1942); Oklahoma Operating Co. v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596 (1920), it might be argued that it could extend this Court’s supervisory control over the issue of his disqualification while exercising judicial power. In this application SWB seeks relief in all its pending and future Commission matters in addition to PUD-260. We are aware that some of these proceedings may be of a judicial nature, and disqualification of Commissioner Anthony in his judicial capacity may be sought.

In an attempt to conserve judicial resources, as well as the resources of the rate payers, we observe in passing that while an attempt to disqualify Anthony in a proceeding involving a judicial function might arguably be cognizable, it would likely lead to the same result reached in this legislative function decision today: Commissioner Anthony would not be disqualified but would be allowed to continue to hear the matter despite assertions of bias and prejudice. This is so because the “rule of necessity”, which would undoubtedly be held applicable, would require that Anthony not be disqualified because the concurrence of a majority of the Commissioners is necessary for a decision, and there is no mechanism in the law for appointment of a replacement commissioner. The rule of necessity is a common law rule recognizing that a judge should not be disqualified where his jurisdiction is exclusive or there is no provision for appointing a replacement so that his disqualification would deny the constitutional right to a forum. United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980). The rule has been held applicable to state administrative proceedings where the administrative body was acting in an adjudicatory capacity. Barker v. Secretary of State’s Office of Missouri, 752 S.W.2d 437 (Mo.App.1988); First American Bank & Trust Co. v. Ellwein, 221 N.W.2d 509 (N.D.1974), cert. denied, 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301 (1974). It operates on the principle that “a biased judge is better than no judge at all” and the disqualification of a judge cannot be allowed to “bar the doors to justice or to destroy the only tribunal vested with the power” to hear the matter. Barker, supra, at 440.

A review by heightened scrutiny in the appellate court has been adopted as one means of compensation for any taint of bias that arises from a decision reached by an administrator who cannot be disqualified because of the rule of necessity. In Barker v. Secretary of State’s Office, supra, the court considered a situation similar to the one before us in many respects other than the fact it involved an adjudicative process rather than a legislative one. There, Barker, an employee of the Secretary of State’s office in Missouri, allegedly received a back injury at work and filed a workers compensation claim which was denied at trial. Representing Barker’s employer at the trial was an assistant attorney general, Hannelore Fischer, who was later appointed to the Labor and Industrial Relations Commission which hears appeals from the workers compensation trial courts. This three-member commission ruled against Barker 2 to 1. Fischer took no part in the review until a stalemate occurred; her vote against Barker was the deciding one.

Barker then appealed the commission decision to the Missouri Court of Appeals arguing Fischer should have been disqualified. After a discussion of the rule of necessity, the appellate court determined that it must be applied in the case because the Commission is the only tribunal for review of workers compensation cases provided by Missouri law. The court further found that a valid decision by the commission must be by majority of two members and that no mechanism for substituting a disqualified member existed. Hence, for the commission to perform its role of reviewing workers compensation eases, the rule required Fischer to sit and hear the matter, disagreeable as it may have been to Barker.

The appellate court determined that a heightened scrutiny on review was warranted, and stated:

“This [consideration of the rule of necessity] does not, however, end our inquiry. We have agonized at great length to arrive at a fair and just solution to the problem posed by the unusual circumstances in the instant case. To this end we adopt the suggestion made by Professor Davis in his treatise on administrative law. Davis in his review of the law of necessity states:

The doctrine is so clear that it is seldom litigated, but when it causes results that are palpably unjust, perhaps it ought to be litigated, because ways can sometimes be found to relieve against the injustice. Whenever the rule of necessity is invoked and the administrative decision is reviewable, the reviewing court, without altering the law about scope of review, may and probably should review with special intensity.

3 K. Davis Administrative Law Treatise § 19.9 (2d ed.1980)

The heightened scrutiny with which we review this case does not mean, however, that wes are undertaking a de novo review. Our scope of review is rigidly prescribed by statute and we will not stray out of the perimeters set for us by the legislature.

* ⅜ * * * *

Our review of this case rather, will be done with a more critical eye than is usual. The record will be thoroughly examined to determine if any injustice has been done to Barker given the circumstances present. 752 S.W.2d at 441 (Emphasis added).”

If we applied the rule of necessity to a SWB adjudicatory matter with allegations similar to those urged here, it is likely that we would review the decision under a heightened appellate scrutiny or implement some other procedure to reach a just resolution of the competing interests involved in these strained circumstances.

We recognize that in a previous decision, ETSI Pipeline Project, et al. v. Townsend, Sup.Ct.No. 58,707, we granted a writ by unpublished order of September 9, 1982, disqualifying Commissioner Townsend from sitting in an adjudicative capacity. In that matter, however, no arguments were presented that the law did not provide for disqualification or replacement, and no argument as to the application of the rule of necessity was before us. This order is not precedent. To the extent, however, that it is or may be seen as conflicting with today’s decision, it is expressly overruled.

ORIGINAL JURISDICTION ASSUMED. PETITION FOR WRIT OF PROHIBITION DENIED. REHEARING GRANTED AND THE OPINION OF THE COURT ISSUED MAY 25, 1993 IS WITHDRAWN AND THIS OPINION IS ORDERED SUBSTITUTED THEREFOR.

ALMA WILSON and WATT, JJ., and ADAMS and BOUDREAU, Special Justices, concur. LAVENDER, V.C.J., and HARGRAVE, OPALA and KAUGER, JJ., dissent. HODGES, C.J., and SUMMERS, J., disqualified.

1 . That statement in its entirety follows:

“As Chairman of this Commission, I feel compelled by judicial ethics to advise the parties to Southwestern Bell case PUD 260 that there have been serious irregularities and unethical conduct involving this matter while it has been before the Commission. There is evidence that one or more commissioners were involved in improper conduct, and I have given this evidence to the FBI. Furthermore, I have filed a bar complaint against two attorneys who have been associated with Southwestern Bell and who may have been engaged in improper activities. The parties to this case should pursue whatever remedies are necessary to protect their rights.

"As an additional matter which has at least partial bearing on the PUD 260 case or other Southwestern Bell cases, I am advising the parties that since late 1988 I have worked with the FBI to investigate corruption at the Corporation Commission. On numerous occasions since I became a commissioner in 1989, individuals associated with regulated companies have offered me cash or inducements.

"With the FBI advised in advance, on several occasions, I have received thousands of dollars in cash which I immediately gave to the FBI as evidence in their investigation. In cases where cash was received, a utility attorney, a utility lobbyist, and/or a utility officer was involved. "Furthermore, I will report that more than a year ago I separately advised a Southwestern Bell senior corporate officer and then later a senior corporate attorney with Southwestern Bell of the conduct of persons associated with their firm.

"I have delayed making this announcement for as long as possible in order to avoid compromising the Federal investigation. I have been advised a limited announcement pursuant to my commission responsibilities should have no adverse consequence on the FBI’s investigation. I come forward at this time because the parties to cases at the Corporation Commission have rights which must be protected.”

2 . PUD-260 began as an investigation into the effect of the Federal Tax Reform Act of 1986 on Oklahoma utilities. The initial Commission order was affirmed in part and reversed in part and remanded for further proceedings in Henry v. Southwestern Bell, 825 P.2d 1305 (Okla.1992). No argument is advanced here that this is not a rate hearing nor could such an argument be sustained, for the Court found in Henry that the rates charged were authorized and were not obtained by overcharging rate payers, and that the surplus cash at issue did not result from charges in excess of the legal rate. The Court specifically held at 1311 that the refund statute, 17 O.S.1991, § 121, was therefore not applicable to these facts ^ afforded no authority for requiring the re-fond sought by ⅛6 parties.