The fight over a clean-energy ballot measure has several counties and one state agency confronting allegations of improperly using government resources to oppose the measure. 

An Arizona public utilities regulator says one of his counterparts may have violated state law by using government resources to oppose the renewable-energy ballot measure, which will be decided by voters in the Nov. 6 election.

The dispute started when a press release came from the office of Arizona Corporation Commissioner Andy Tobin detailing his formal opposition to Proposition 127, which would require half of Arizona’s energy to come from renewable sources like solar and wind by 2030.

Much of the release focuses on what Tobin sees as gaps in the ballot measure like excluding utility Salt River Project from the mandate and not counting nuclear power as a form of clean energy. Tobin urges his fellow commissioners to oppose the initiative and promotes his own renewable-energy proposal, which is under consideration at the commission.

But that release came through the state agency’s press office and on the commission’s official letterhead.  

A fellow member of the commission, Bob Burns, says that may be illegal.

On Wednesday, Commissioner Burns filed paperwork suggesting the move violated the commission’s code of ethics and Arizona state law, which stipulates public resources cannot be used to influence an election.

In his filing, Burns write that “much of the public that we serve currently believes that the Commission is less than ethical in many of its dealings.”

He goes on to say that any violation of state law “will just add to the public’s distrust.”

The commission is now scheduled to discuss the issue at a meeting Monday afternoon.

Meanwhile, a blog post published this week by the Energy and Policy Institute — a group that describes its mission as exposing the fossil fuel industry's attacks on renewable energy — draws attention to how Arizona Public Service has lobbied some Arizona towns and counties to pass formal resolutions opposing the ballot measure, which is backed by progressive California billionaire Tom Steyer.

For example, Greenlee and Gila counties passed such resolutions this summer. 

But other counties have shied away from the move.

Yuma County Attorney Jon Smith advised against the Yuma County Board of Supervisors passing a resolution in a public meeting that would urge voters to vote against the initiative, according to an email provided to KJZZ by the county.

“I feel that the BOS meeting is not set up for such a forum or debate as allowed by statute, and that the allowance of APS to use the county resources otherwise would result in a violation of A.R.S. 11-410,” Smith wrote.

Smith explains that a government forum about a ballot measure would have to provide an impartial setting for people of all viewpoints to discuss the issue.  

The county attorney goes on to write that allowing supervisors to sign onto the resolution would also “fall into the category of a violation,” but that a supervisor “may use his or her personal resources, or those other than the county’s, to influence the outcome of an initiative, including noting that he or she is a supervisor.”

Joe Kanefield, a partner at Ballard Spahr and a former Arizona elections director, says using public resources to communicate a position doesn’t necessarily mean an elected official broke the law.

“You have to put the issue on a spectrum,” Kanefield said. “If an elected official is asked at a press conference and they offer an opinion, that is not going to invoke this statute.”

“On the other hand, if a county or city went further and drafted a letter and sent one to every resident in the jurisdiction, I think that would be too far, that would be an illegal use of government resources to electioneer.”

The allegations at the commission and against some municipalities appear to fall somewhere in the middle of these two situations and would require a more detailed analysis about how much public resources were actually used, Kanefield said.

“You could certainly come up with an argument for why the First Amendment speech of individuals might come into play.”

A statement from APS reiterated concerns about the renewable energy ballot initiative.

“The passage of Proposition 127 would be detrimental to both the state and our customers and elected officials deserve to have accurate information from reliable sources on the effects of this proposition.”