Subject: [NEXTEL-1] Appeals court rules in favor of ex-PUC official

From: Marcel <[email-masked]>
Date: Tue, 14 Jan 2003 15:08:24 -0500

Appeals court rules in favor of ex-PUC official

The panel concludes Duque violated no laws
and should not have been removed.

By Gary Delsohn -- Bee Capitol Bureau
Published 2:15 a.m. PST Tuesday, January 14, 2003

A judge should not have removed Henry Duque from the
California Public Utilities Commission for an alleged
violation of conflict-of-interest laws, a state appeals court
has ruled.

Duque, a former banking executive appointed to the state agency by then-Gov. Pete
Wilson in 1995, was sued by a consumers group after news reports said he had
purchased 700 shares of stock in 1999 in Nextel Communications Inc., a phone
company regulated by the commission.

San Francisco Superior Court Judge Alfred Chiantelli last April ordered Duque
removed from the commission for investing in a company regulated by the PUC,
although the order was stayed pending appeal.

Chiantelli also ordered
Duque to pay a $5,000 fine
and attorneys' fees.

But in its narrow ruling
published last Friday, the
state's 1st District Court of
Appeal in San Francisco
said Duque, who stayed on
the PUC until his term
expired Jan. 1, violated no
laws and shouldn't have
been removed.

"It's great news because
obviously this clears him," said Thomas A. Willis, Duque's attorney. Duque was also
represented by San Francisco lawyer Joseph Remcho, a well-known attorney for
numerous California politicians who died earlier this month in a helicopter crash.

"This was Joe's last oral argument," Willis said of Duque's appeal. "He would have
been very pleased to know it turned out this way."

The appellate decision didn't address the propriety of Duque owning stock in a
company the PUC regulated. The decision simply interpreted a law that the appellate
panel said was flawed.

The law says a commissioner who comes to possess an interest in a PUC-regulated
company "other than voluntarily" must divest himself of the interest or be removed.

"The statute does not describe what occurs when a commissioner voluntarily acquires
an interest in a regulated company," the appeals ruling said.

The court went on to say it had the option of prescribing "an implied remedy" by
agreeing that Duque should be removed, "but we decline to do so."

Pamela Pressley, an attorney for the Foundation for Taxpayer and Consumer Rights
that filed the original lawsuit, said her group will appeal the ruling to the California
Supreme Court.

"It's not a great outcome," she said of the appellate ruling. "It allows a commissioner
who goes out and voluntarily purchase something and holds it to suffer no
consequences for his actions.

Duque was not available for comment.

http://www.sacbee.com/content/politics/story/5884892p-6848659c.html

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