The Lesson That Matters from the Ombudsman Suspension of the ERC Commissioners
David Celestra Tan, MSK
12 February 2018
When the Office of the Ombudsman handed down on December 21, 2017 its decision finding the Five (5) Commissioners of the ERC guilty of neglect of duty and abuse of discretion in favoring Meralco by extending the implementation of the CSP (Competitive Selection Process or bidding) for power supply contracts from November 5, 2015 to April 30, 2016, and suspended them for one year , it felt like it was a rare but major victory for the electric consumers.
MSK however did not view it as a conquest with the Ombudsman delivering to the consumers the heads of the four (4) Commissioners on a sling. Rather it was a validation of MSK’s reading that the extension of the CSP was improper and illegal, a betrayal of the public trust by an agency unequivocally mandated by law to look after the public interest.
Court Findings
It was really the principle of the ruling and not the punishment that should matter to consumers and the country.
Based on certified documents submitted by both the complainant, the Alyansa Para SaBagongPilipinas (ABP) and the respondent Commissioners of the Energy Regulatory Commission, the Office of the Ombudsman, found the following:
- “In sum, respondents are guilty of Conduct Prejudicial to the Best Interest of the Service, aggravated by Simple Misconduct and Simple Neglect of Duty; while the alleged Abuse of Authority is deemed included in the findings of misconduct” (P. 18 of 21).
- “the CSP is an acknowledged mechanism to make the cost of PSAs more reasonable. Hence, accommodating companies request to be exempted from CSP was a deviation from respondents’ duty to promote public interest through the CSP requirement. (p.15 of 21),
- “Respondents, in dismissing the allegation that they have given undue favor to MERALCO claim that they denied its request to be exempted from CSP’s requirement. However, the issuance of the 2016 CSP Resolution, which provided a window period to DUs and GenCos to file their PSCs without the need to comply with CSP requirement, patently shows that they actually heeded MERALCO’s request.”
- “Respondents act of extending the effectivity of the CSP requirement, which effectively accommodated PSC’s entered by Meralco with its affiliates, and of other DUs, is beyond the authority entrusted to them by the EPIRA” “It is required that the regulation be germane to the objects and purposes of the law; and that it be not in contradiction to, but in conformity with the standards prescribed by law” (p.16 of 21).
- “Conduct Prejudicial to the Best Interest of the Service is a grave offense defined as any act which tarnishes the image and integrity of public office. By not implementing the CSP requirement which favored the filing of PSAs of Meralco and other DUs, respondents tarnished the image and integrity of their public office and reneged on their duty to protect the consumers by implementing the policy of the government against Anti-Competitive Behavior in the electricity market.”
- “Clearly, respondents’ acts as established by the evidence on record have prejudiced the public service and undermined the confidence of the public in the capacity of ERC to effectively implement the EPIRA and protect the interests of the public”.
- “By wrongfully denying the consumers the benefit of CSP, and allowing high valued and long term PSA’s and PSCs to be filed without complying with the requirement of CSP, respondents failed to do their duty to encourage market development, ensure customer choice, penalize abuse of market power in the restructured electricity industry, and enforce the implementing rules and regulations of EPIRA”
Punishment
The Ombudsman suspended for one year all Five sitting Commissioners of the ERC. Previously removed Chairman Salazar was instead penalized equivalent to six month’s salary. Whether or not the suspension will stick depends on the grind of our justice system…. A lesson we learned many times over.
The punishment however does not really matter to the consumers. Let us not lose sight of the real issue which is the approval of the seven (7) midnight contracts signed by Meralco with various project companies controlled by its sister company MeralcoPowerGen.
Atonement and Respect for Consumers
As a measure of atonement and enlightenment, let us hope that the ERC Commissioners, if they are given reprieve from suspension, immediately and expeditiously approve or extend the operating permits (called COC) of the reported 5,000mw of existing power plants to assure that the power supply of the country during this Summer is not threatened.
And in a display of humility and respect for the consumers and the law, the ERC Commissioners should stay off the approval of the questionable seven (7) midnight negotiated by Meralco with its sister companies.
If the ERC Commissioners committed a misjudgment the first time “By wrongfully denying the consumers the benefit of CSP, and allowing high valued and long term PSA’s and PSCs to be filed without complying with the requirement of CSP, respondents failed to do their duty to encourage market development, ensure customer choice, penalize abuse of market power in the restructured electricity industry, and enforce the implementing rules and regulations of EPIRA”, them trying this time to one-up the consumers by nonetheless approving any of Meralco’s midnight contracts despite the Ombudsmans findings, would be a greater crime against the consumers and an even more serious betrayal of public trust.
If these happen then the consumers really have lost and we as a nation have not learned any lesson from the clear Ombudsman ruling.
MatuwidnaSingilsaKuryente Consumer Alliance Inc.
matuwid.org
Words to Live by: “Only a life lived in the service of others is worth living….after you have raised and educated your kids well”
Recent Movies I loved: Shape of Water, don’t miss it… Also “Worlds Greatest Showman” and Jumanji.
