A disagreement over a purported conflict of interest at the Maine Public Utilities Commission has meant an important water utilities case involving Nestle Waters, owner of Maine-based water company Poland Spring, has been delayed for more than a year, according to the Maine Center for Public Interest Reporting.

The case involves Nestle Waters and the family-owned utility Fryeburg Water Co., which are seeking approval of a 25-year contract allowing Fryeburg to sell water to Nestle. The proposal is opposed by some Fryeburg-area residents and national water rights advocates, who say the price Nestle will pay for the water is too low, and that the deal could put Nestle’s claim on Fryeburg water ahead of residents’ right to it, according to the center, which is why the PUC is needed to make the decision.

An article by the center’s Naomi Schalit published last week reported that the case has been delayed due to recusal of all three members of the PUC. The panel sets rates and regulates the approximately 430 telephone, electric, gas and water utility companies and districts in the state, according to Schalit.

Commissioner Mark Vannoy and Chairman Thomas Welch both previously worked for Nestle Waters, which is why both removed themselves from presiding over the case. Vannoy worked on many projects for the company as an engineer, and Welch, an attorney, worked on Nestle’s legal affairs at the Pierce Atwood law firm. Vannoy recused himself before the case was taken up by the commission; Welch remained on the case for a year.

Commissioner David Littell also previously worked as a partner at Pierce Atwood. The law firm represents Nestle and the Fryeburg Water Co., and although he didn’t work directly on Nestle’s cases, he did say that he worked on legal matters for Poland Spring before the brand was acquired by Nestle, according to Schalit.

At first, Littell did not recuse himself. When the PUC began consideration of the case in October of 2012, he said he “was not personally and substantially involved in any matters related to Nestle Water North America, Inc. and the Fryeburg Water Company,” while working at Pierce Atwood. But, after an article was published in the Portland Press Herald last year detailing the conflicts of interest faced by the other two PUC commissioners, Littell said it became more controversial and his opinion changed about the need to recuse himself after the story was published. He said that even the appearance of a conflict of interest is a serious matter, according to Schalit’s article, and so he removed himself from the case May 5.

Now, Gov. Paul LePage says he doesn’t want to appoint another judge to help decide the case because an appearance of a conflict of interest isn’t enough to disqualify a commissioner from deciding a case.

State law gives the governor the ability to appoint a replacement commissioner to sit on any case where there’s not a quorum, but LePage said he won’t replace Littell, because he’s already done so to replace one of the other two commissioners. He said in a letter to the PUC that he does not plan to appoint another alternative commissioner.

That leaves this case at a standstill until one side caves.

That does not bode well for Maine’s “business friendly” slogan, nor the ability of the stakeholders involved to have a resolution to the issue.

It’s also difficult to believe this posturing doesn’t have some level of politicking involved, since Littell is the last remaining Baldacci-appointee on the PUC.

The governor should appoint another alternate if for no other reason than to get this case moving.

However, if Littell is concerned about a conflict ”“ or even the appearance of one ”“ he should not be strong-armed into deciding this case. If he were to preside over the case, and one of the parties objects to a decision, it could put the case back at square one, because Littell could be accused of not providing full disclosure and not making an impartial decision.


Today’s editorial was written by City Editor Robyn Burnham Rousseau on behalf of the Journal Tribune Editorial Board. Questions? Comments? Contact Managing Editor Kristen Schulze Muszynski by calling 282-1535, ext. 322, or via email at [email protected]