Stratego

Remember the game, Stratego? It was supposed to be a great strategy game, requiring you to think far in advance about your opponent's moves and possible moves. I liked the game, but always thought it was more simplistic and tactical than strategic.

The law business, though, is more strategic. When you do something, you should have a specific reason for doing it, and you had better anticipate just what your adversary might do in response. If you do not anticipate opposing arguments, you can easily find yourself in a difficult position explaining to your client why you opened a particular can of worms to begin with.

Normally, though, when you're litigating, you do not try to 'refute' your adversaries arguments until he or she raises them. You see, there is always a chance that a good counter-argument could be missed, and we are not in the business of educating our opponents.

The same is true here. When I write a piece, I often try to anticipate what I think those with a differing opinion might say in response. Whether or not I include those arguments and try to 'refute' them in posts is primarily dependent on time.

I posted a piece a couple days ago about the City of Great Falls' Pilot Program. In that piece, I pointed out that the available evidence suggests that members of City Staff, Electric City Power's Board of Directors, and others, are receiving electricity from Electric City Power at a price below ECP's cost. In other words, according to what I can find, these people's electric bills are being subsidized by taxpayers. When I wrote the piece, I anticipated a few arguments against it, but time constraints prevented me from considering them at the time. So now I'll lay out what I think they are.

It's De Minimus.

This argument was already raised by our friend Wolfpack, and I think it's a relatively effective argument, at least against suggestions that the Pilot Program demonstrates some sort of inside dealing as opposed to simple ineptitude.

In other words, if one were acting with malfeasance instead of misfeasance, would one really go out on a limb for a few dollars a month? I don't think so.

On the other hand, given the amount of controversy engendered by the entire ECP and coal plant issue, one can easily infer that more adept management would anticipate that a sub-market power deal would simply look bad and given the de minimus nature of it (it is, after all, a few dollars a month either way) would not have bothered to risk the negative publicity in exchange for such relatively small savings.

The assertions about power costs are factually incorrect.

This might well be a legitimate statement. ECP purchases power from SME under various contracts at various prices. I focused on the November 2006 purchase contract because the Small Customer Pilot Program was specifically offered as a justification for purchasing that additional block of power. I fully concede that, by blending the rates from the various blocks of power, the actual cost to ECP of the power resold to Mr. Lawton, et. al., might be lower. There's really no way for us citizens to know.

But I do stand by this: Taxpayers are subsidizing the rates that the Pilot Program customers are paying. ECP has, in fact, lost money according to the audited financial statements (in excess of $400,000.00). Taxpayer dollars are helping to fund the development costs of the Highwood Generating Station and a public asset (water) is being used to subsidize some of the rates offered by ECP. ECP is being operated at a loss by government officials who are compensated by City of Great Falls tax dollars (some of whom are also getting below market power).

Given all of the taxpayer involvement in this particular operation, can one truly justify selling the insiders power for less than Great Falls citizens can buy it?

The below-market power is an incentive for the Pilot Program customers to take the risk of buying their power from ECP.

What risk? Seriously, what risk?

All Electric City Power does is buy power from SME and then re-sell it to ECP's customers. ECP is not out on the open power markets, buying contracts, hedging prices, etc.

SME says it is more than qualified to provide power. The "core staff that launched Southern Montana Electric G&T (Warren Bickford and [Tim Gregori]) has a total of 58 years experience in the electric utility industry. [They] have a combined 32 years experience in wholesale power supply and transmission capacity procurement. From the time the decision was made to form Southern Montana Electric G&T in November 2003, Warren Bickford and [Tim Gregori]have negotiated contracts with the Bonneville Power Administration Power Business Line(BPA PBL), the Western Area Power Administration (Western), PPL Montana LLC, NorthWestern Energy Transmission Services Group, the Bonneville Power Administration Transmission Business Line (BPA TBL) and the Western Area Power Administration – Transmission Services Group."

So, then, what is this great risk that justifies below market power to insiders?

Avoidance of the Issue/Personal Attack:

This has occurred. First, we have some individual named "bramble," who argues that my position on the coal plant is 'revenge' against John Lawton.

"The blog I refer to is run by a local attorney who has ownership interest in local casinos. He believes the city's sign ordinance and other zoning policies hurt casinos, so he is trying to get even with Lawton by distorting the Highwood Power Plant facts."

Do you know what? The City's sign ordinance and other zoning policies do hurt casinos. They hurt lots of businesses. (Newsflash: It wasn't all, or even very many, casino owners who spoke vehemently against the sign code.) Do you know how many businesses I own that have been affected by the sign code or the zoning law? Zero. So, "bramble" wants to allege a conflict of interest on my part, but ignores the fact that power plant advocates get sub-market priced power.

I would like to believe that "bramble" is an insider, someone who works in City Government. Why? Because "bramble's" post confirms two assumptions many people make about City Government.

First, many critics allege that John Lawton, rather than the City Commission, really makes policy. The assumption in "bramble's" post is that John Lawton created the sign code and the zoning law. If not, why would I want revenge against him rather than the Commissioners that adopted these two acts?

Second, why would stopping the coal plant "get even" with John Lawton unless he has some personal stake in the process? He's about to retire; his benefits are not contingent on the coal plant's success. So, "bramble," what difference does it make to Mr. Lawton whether or not it gets built? Do you know something we don't?

There are several other 'critics' over at the Tribune's forums. That's fine. All I ask, though, is that readers note that not one of them directly questions any factual assertions; they just accuse me of being a "hateful zealot" who "distorts" facts. You tell me who is hateful. Have I personally attacked anyone, called them names, because of a political disagreement?

If one of them, just one, would show up and take issue with a fact, we could then have a discussion. When virtually everything I say is linked to a source document, or if my assertion of an unsourced 'fact' is qualified as such, it's hard to dispute, isn't it?

Conclusion

Those are what I believe to be the primary refutations of my position on the Pilot Program. I wish the Tribune would cover this story so we could see which ones the insiders will use.

To be honest, and I mean that, what I am about to say is absolutely true: I hope that our City's representatives can document that they are not receiving power at a sub-market price. If they can, I will apologize and be duly chastened. I don't want to think that people would do this.

I have friends, clients, and family who live on fixed incomes. They pay taxes. Their power bills hurt.