Lawmaker Questions New Mexico Ag's Handling Of Solar Case

ALBUQUERQUE, N.M. (AP) — New Mexico Attorney General Hector Balderas’ handling of a now-settled case involving a large solar installation company has spurred a request from a state lawmaker for an investigation.

Rep. Daymon Ely is asking State Auditor Brian Colón, who is a friend of Balderas, to look into why the attorney general agreed to seal all documents in the case against Vivint Solar Inc. Ely also wants to know why Balderas didn’t pursue any specific restitution for thousands of customers as part of the settlement reached last fall.

The request comes on the heels of a separate complaint against Balderas in a multibillion-dollar utility merger case involving a subsidiary of global energy giant Iberdrola and New Mexico’s largest electric provider. State regulators have yet to approve the deal, which will affect a half-million customers and likely change the way electricity is generated and delivered in the state.

Ely, a Democrat from Corrales, says the Democratic attorney general agreed to a protective order requested by Vivint Solar that obstructs the ability of consumers to gather critical evidence when pursuing individual complaints against the company.

The order also may violate the state’s Inspection of Public Records Act, according to Ely and attorneys seeking restitution for defrauded clients.

“The AG’s office appears to be complicit in hiding from public scrutiny what could be a million documents, including critical documents on the allegedly abusive practices employed by Vivint,” Ely said in a letter to Colón that was obtained by the Albuquerque Journal.

Stephanie Telles, spokeswoman for the state auditor, said Colón’s staff is looking into Ely’s request.

Balderas initially filed the case against Vivint Solar in 2018, accusing the company of deceptive marketing practices that resulted in consumer fraud and racketeering involving thousands of homeowners in central New Mexico.

Although Vivint Solar denied the allegations, it agreed to modify its practices to ensure prospective customers are fully informed about the details of contracts. It also agreed to a $1.95 million settlement payment, most of which was for the AG’s office and legal expenses and attorney fees for a private law firm that helped with the case.

The settlement included no restitution for individual consumers.

Vivint Solar was acquired by national firm SunRun last fall. The legal agreement binds the new owners as well.

Balderas said earlier this year that the outcome can help shield potential customers from deceptive marketing going forward and that settlement funds will be reinvested in future AG consumer protection efforts.

Balderas said his office agreed to the confidentiality order because it protected private information about individuals gathered during discovery.

But lawyers representing individual consumers said the order sets a dangerous precedent for New Mexico's open records law.

“It’s my belief that information and evidence gathered by the AG when investigating a case belongs to the people of New Mexico,” said attorney Patrick Griebel, who has been unable to access documents for cases he's pursuing. “The victims in this case should have the tools to pick up where the AG left off. The AG’s investigation was done on taxpayers’ money, and if the settlement agreement means everyone is on their own to pursue restitution, then we should have access to the fruits of that investigation.”

In the utility merger case, watchdog groups filed complaints last week with the state auditor, the state Ethics Commission and the disciplinary board of the New Mexico Supreme Court that highlight Balderas’ relationship with a local law firm. They allege that Albuquerque-based attorney Marcus Rael Jr. used his influence to convince Balderas to sign off on the merger and that Balderas awarded numerous contracts to Rael and approved improper invoices.

Balderas and Rael both graduated from the University of New Mexico law school in 2001 and briefly worked together before Balderas ran for public office.

New Energy Economy Executive Director Mariel Nanasi said she became interested in the matter when Rael was hired at $400 an hour by Iberdrola, the Spanish company that is looking to increase its U.S. holdings by acquiring Public Service Co. of New Mexico through a subsidiary.

Balderas gave his support to the proposed merger, Nanasi said, after his own expert witnesses criticized it.

Balderas in a statement denied any claims of favoritism or conflict of interest. Rael said his firm adheres to the state’s Rules of Professional Conduct.

Since taking office in 2015, Balderas has hired Rael or others at his firm to help represent the state in at least 19 cases, which is at least triple the number of cases farmed out to any other private law firm, according to a review by Searchlight New Mexico.

Invoices and contracts from the attorney general’s office obtained by New Energy Economy show more than $3 million in direct payments of fees and expenses to the Robles, Rael & Anaya law firm.