Former Indiana Utility Regulatory Commissioner Andy Zay is suing Gov. Mike Braun, accusing the governor of illegally firing him for voting to approve a utility rate case for AES Indiana rather than any legitimate cause.
Zay filed the lawsuit Monday in Marion Superior Court and is seeking a court order declaring his Aug. 3 removal from the IURC unlawful and reinstating him to the seat now held by new Braun appointee Joshua Bain.
Indiana law allows a governor to remove an IURC commissioner “for cause.” Zay’s complaint argues Braun had none, and Braun’s own public statements indicates the real reason for removing him was political disagreement over utility rates.
Speaking with reporters after Zay was fired, Braun said he made it clear he was looking for commissioners who are ratepayer-conscious.
“The first thing out of the gate was granting a big increase,” he told reporters Aug. 6. “If you don’t have staff, people working with you, in the same mindset, it’s better to find somebody that does.”
The governor’s office did not immediately respond to WFYI’s request for comment.
Zay left a seat in the Indiana Senate in January after Braun appointed him chair of the IURC. The five-member commission presides over rate change cases from utility companies in the state and is bound by state code to balance the interests of utility companies and ratepayers in its decisions.
In June, Zay and Commissioners David Veleta and David Ziegner voted 3-1 to approve a $71 million rate electricity rate increase for AES Indiana customers.
The next day, the complaint alleges, Zay joined Braun, Energy and Natural Resources Secretary Suzanne Jaworowski, Utility Consumer Counselor Abby Gray and Braun’s Chief of Staff Joshua Kelley in a meeting. During the meeting Braun allegedly asked Gray: “How are we going to fix this?”
Days later, Braun removed Zay as chair of the commission, replacing him with Anthony Swinger. Zay alleges in the complaint this occurred because he refused to resign at the request of the governor.
According to the complaint, the decisions of the commissioners, under the state’s statute, should be independent. Zay’s suit notes that he felt pressure from the governor regarding the AES rate case both before and after it was decided.
The complaint alleges the governor’s office also made requests for ongoing IURC investigations that were not yet public, violating the IURC’s obligation to act independently.
Zay was fired Aug. 3. According to the complaint, Indiana State Personnel Department Director Matthew Brown and Deputy Counsel for Appointments Steve Carter arrived unannounced at Zay’s office, tried to interview him, and presented him with a letter from the governor announcing his removal. But that letter did not make clear what, exactly, Zay had done wrong.
"Only after Commissioner Zay had been removed did a representative (or representatives) of the Indiana State Personnel Department ('SPD') provide statements to the media identifying purported 'potential violations' of state policies or laws as supposed grounds for his removal," the complaint said.
The complaint contests potential violations of state policies and notes that in public Braun made statements indicating that Zay’s removal had more to do with the AES rate case.
“Indiana law does not permit the Governor to transform a statutory 'for cause' appointment into an at-will political appointment,” the complaint reads.
Contact Government Reporter Benjamin Thorp at bthorp@wfyi.org.
