NEWS ANALYSIS

MARK SCHUMANN

Lawyers hired to help the Town of Indian River Shores prevent Vero Electric from continuing to serve its Shores customers were busy last week. First, they appeared before the Florida Public Service Commission on March 1 seeking clarification of the PSC’s jurisdiction and authority to hear the Town’s grievances. By Friday, the high-priced attorneys, who so far have been paid some $800,000 by the Town, filed a petition with the PSC seeking modification to long-standing territorial orders.

Those orders give Vero Electric the right and responsibility to serve within the Shores.

The Shores argument rests on special counsel Bruce May’s claims that the Town has “sovereign” powers. May reasons that, as a “sovereign” power, the Shores Town Council, and not the PSC, should determine which electric utility provider will serve Shores residents and businesses. In a petition filled with the PSC March 4 May wrote, “Up until now, every time the Commission has reviewed and approved the territorial agreement and any amendments thereto relating to City’s service within the Town’s municipal limits, the City has enjoyed the Town’s express written consent.”

The written consent to which May referred is the Shore’s 30-year franchise agreement with Vero Beach, which is set to expire this November.

In response to a similar petition filed by the Indian River County Commission last year, the PSC, in a 5-0 decision, affirmed that it, and not counties or municipalities, has the superior and exclusive authority to establish electric service territories across the state. That power and authority was given to the PSC in the late 1970s in state legislation known as “the Grid Bill.”

Much like the Shores is now doing, attorneys for the Indian River County Commission argued that upon the expiration of the County’s franchise agreement with Vero Beach, the City would no longer have the legal right to serve electric customers in the unincorporated areas of the county. The PSC rejected the County’s claim and affirmed Vero Beach’s “right and obligation” to serve its county customers upon expiration of the franchise agreement.

On behalf of the Shores, May is offering a slightly different argument than the one put forward by the County. Essentially, May contends the wealthy island enclave is a “sovereign” power. May’s reasoning has earned him some $800,000 in legal fees, but his novel claim of sovereign powers for the Shores is not likely to go over well at the PSC.

On behalf of Shore’s taxpayers, one has to wonder why May did not submit a petition to the PSC more than a year ago. Instead, he first filed a four-count lawsuit in circuit court. Three of those counts have already been dismissed. Prevailing on the fourth count is a long-shot at best.

The only count/complaint Circuit Court Judge Cynthia Cox is allow the Shores to litigate it its claim Vero Beach’s rates are unreasonable. Given that Vero Beach leaders have acted in good faith and have made what seemed at the time to be reasonable decision in investing in power generating project, May will have a difficult time persuading the court the City’s rates are unreasonable.  After all, several investor-owned utilities are charging PSC-approved rates higher than those charged by Vero Electric.

Could it be that the members of the Shores Town Council, all formerly successful men who are accustomed to getting their way, are pushing May to stretch the bounds of reason? Or, is May prevailing on Shores leaders to follow him down one rabbit hole after another? Either way, Shores taxpayers are picking up the tab.

Fortunately for Shores taxpayers, and for the customers of Vero Electric, who are bearing the cost of defending the City’s case, a PSC ruling unfavorable to the Shores can and almost surely will be appealed directly to the Florida Supreme Court. An appeal to the Supreme Court of Florida will at least yield a definitive resolution to a dispute that has dragged on for years, and has lead to much animus in the community.