PSC staffers, FPL executive had BlackBerry connection

TALLAHASSEE — The Times/Herald has learned that three aides to Florida utility regulators repeatedly gave private BlackBerry messaging codes to a power company executive, potentially allowing the utility to communicate directly with them outside of public view and without leaving a paper trail.

The revelation came in the second week of a controversial Florida Power & Light rate case that has been accompanied by accusations that the Public Service Commission has become too close to the utilities it regulates.

The newspapers obtained e-mails sent between February 2008 and February 2009 that show FPL attorney Natalie Smith repeatedly requested and received the personal identification numbers, or PINs, of the state-provided BlackBerry phones of PSC staffers as well as the PIN to Commissioner Lisa Edgar's BlackBerry phone.

State law prohibits PSC commissioners from discussing a pending rate case with utility officials but it specifically excludes the PSC staff from the ban.

A 1991 grand jury report recommended that the statute be changed to close that loophole but it was never amended.

The PSC is under investigation by the Florida Department of Law Enforcement and the Leon County state attorney for possible improper communication between FPL executives and the PSC, which approves its rates.

PSC rules forbid staffers and commissioners from discussing certain types of commission business out of the public eye with those who appear before the regulatory panel. Under state law, a commissioner who engages in such discussions and fails to report them could be fined $5,000 and even removed.

Edgar said she may have received PIN messages but does not recall getting any from FPL.

"I do know this, I don't understand the whole PIN thing," she said. "I don't PIN, it's just not something I do."

FPL said in a statement that Smith never communicated via PIN with Edgar or any other commissioner, and the company defended Smith's use of them.

"Communication with staff members is a normal and appropriate part of the regulatory process in which all parties to any proceeding or issue regularly engage," said Mark Bubriski, an FPL spokesman. "All of Ms. Smith's communications have been appropriate, and any suggestion that Ms. Smith engaged in improper communication at any time is patently false."

BlackBerry devices support direct PIN-to-PIN messaging, which lets the user bypass an e-mail system. The Times/Herald asked the PSC for copies of PIN and BlackBerry messages of the five members of the PSC and their staff, but the newspaper was told no records are kept.

"Pin-To-Pin or SMS text messages are not logged," wrote Ann Cole, a PSC clerk.

The failure to retain the message may be a violation of Florida's public records law, said Tom Julin, a Miami lawyer who specializes in media law. State law says public agencies must keep a record of all documents created, "regardless of physical form."

The e-mails show that FPL attorney Smith obtained the PINs for the following people: Edgar; Edgar's aide, Roberta Bass; William Garner, the aide to PSC Chairman Matthew Carter; PSC communications director Cynthia Muir; and PSC lobbyist Ryder Rudd. Smith is a staff attorney representing FPL in the rate case. Rudd was removed from all FPL business last month after commissioners learned he had attended a party at an FPL executive's home.

In an e-mail dated Feb. 19, 2008, Bass sent an e-mail message from her state-provided BlackBerry phone to Smith that had no subject line or text, only a copy of Edgar's BlackBerry PIN. Bass could not be reached for comment.

Carter said that he did not use PIN messaging and was unaware that his staff had used it to communicate with utility officials.

"I certainly hope my staff would not be doing that," he said. "It does not look good."

On three occasions, Garner, Carter's aide, sent e-mails with Smith to exchange PINs and also invited her on Feb. 23, 2009, to join his BlackBerry messenger contact list, another messaging service that bypasses the state e-mail system. Garner could not be reached for comment.

Carter said Saturday that the "sideshows" over the staff and FDLE probe was "making it difficult for staff to do their jobs."