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Advocates, lawmakers, regulators and the public still can鈥檛 get all documents relevant to the state鈥檚 $60 million House Bill 6 scandal involving ousted Ohio House Speaker Larry Householder, FirstEnergy and others. Barriers include protective orders, privilege and confidentiality claims, delays and other roadblocks.
The Public Utilities Commission of Ohio 鈥渕ust first broadly investigate FirstEnergy in order to learn the facts for remedying any consumer harm,鈥� said Merrilee Embs, spokesperson for Ohio Consumers鈥� Counsel Bruce Weston. 鈥淥hioans are owed the facts by their state government. Unfortunately, in PUCO cases some facts can be hard to come by from FirstEnergy.鈥�
In broad terms, federal and state court cases allege that FirstEnergy, its affiliates, and others paid roughly $60 million to dark money groups to elect supporters of Householder, secure the passage of HB 6, and block a voter referendum to stop it. FirstEnergy has also admitted to paying millions of dollars to a company linked to Sam Randazzo, including $4.3 million shortly before he became chair of the Public Utilities Commission of Ohio.
HB 6鈥檚 nuclear subsidies and recession-proofing provisions have been repealed. However, other parts of the law still require Ohioans to pay roughly for two 1950s-era coal plants, known as the OVEC plants. The law also gutted .
Although FirstEnergy made some this summer, the company is 鈥渟till trying to sit on more details and information that seem really important for a lot of people to understand what potential penalties the company could still be facing going forward,鈥� said Dave Anderson, policy and communications manager for the Energy and Policy Institute.
鈥淲hat we鈥檝e seen to date suggests there鈥檚 a lot not to trust,鈥� Anderson said.
Resisting disclosures
At the Public Utilities Commission, for example, FirstEnergy wants to a by the Office of the Ohio Consumers鈥� Counsel on document production issues. Among other things, the Consumers鈥� Counsel wants copies of all documents from the investigation that led FirstEnergy to fire former CEO Chuck Jones and others. Those materials presumably include information about Randazzo. The requested documents could also reveal more about payments to Generation Now and other dark money groups that allegedly furthered Householder鈥檚 and FirstEnergy鈥檚 interests.
The Consumers鈥� Counsel also wants documents FirstEnergy may have produced in civil court cases, such as shareholder lawsuits against the company. Some of those cases are on hold during the criminal case against Householder and others. In cases that are moving ahead, FirstEnergy has sought court orders to restrict who sees documents produced to various parties. In at least one case, opponents can鈥檛 even with lawyers in other cases against the company. So, the Consumers鈥� Counsel needs an order from the PUCO to get the documents.
FirstEnergy spokesperson Jennifer Young declined to comment on pending cases. 鈥淲e have taken swift action to address events that have occurred over the past year and to ensure a culture of strong ethics, integrity and accountability at the company,鈥� she said.
鈥淲hat happened with FirstEnergy was systemic,鈥� said Ashley Brown, a former PUCO commissioner who now heads the Harvard Electricity Policy Group at the Harvard Kennedy School. In his view, the PUCO should want to get its hands on all relevant materials, including justified FirstEnergy鈥檚 ouster of Jones and others.
鈥淭he first principles of regulation are transparency, transparency, transparency, transparency.鈥� Brown said. Without it, regulatory agencies are 鈥渘ot credible.鈥� Nor, he added, can future abuses be prevented without full disclosure of all facts.
The commission has previously said it intends to base its decisions on what the evidence shows, Brown added. But based on the rulings so far, he said it鈥檚 as if 鈥渢he Commission is waiting for the evidence to voluntarily walk in the door.鈥�
Missing documents
Information gaps are also evident in a released on Sept. 13. Corporate separation requires that the business and finances of Ohio regulated utilities be separate from, and not used for the advantage of, their corporate affiliates.
Daymark, the company preparing that audit report, for a former compliance officer from 2016 through 2020. That鈥檚 the most relevant time frame for HB 6. And FirstEnergy鈥檚 compliance officer was let go in the wake of HB 6. The auditors also said they couldn鈥檛 get backup documents from others at FirstEnergy.
鈥淭he fact that they lost that compliance officer doesn鈥檛 mean they don鈥檛 have the documents,鈥� Brown said.
Without the documents, Daymark鈥檚 report found no major violations on the part of FirstEnergy and its utilities. Yet it noted eight 鈥渕inor violations鈥� and 13 鈥渙pportunities for improvement,鈥� which might have enabled or contributed to improper charges to consumers and money transfers for the alleged scheme.
Meanwhile, raise questions about how independent the Public Utilities Commission鈥檚 independent audits really are. Last year the PUCO arranged for American Electric Power to get an advance copy of an on the pre-2020 costs for the OVEC coal plants 鈥渇or redacting.鈥� The PUCO staff also sought changes to the report鈥檚 conclusion, tone and level of detail about the HB 6 scandal. The Consumers鈥� Counsel included the documents with its testimony supporting a bill to.
鈥淎s the state consumer advocate, we are dismayed with the utility-friendly emails between the PUCO, the PUCO鈥檚 auditor and AEP that cater to the utility AEP in the audit of the coal power plant bailout that Ohioans were made to pay,鈥� Embs said.
It鈥檚 not yet known how FirstEnergy or the PUCO staff might have shaped the corporate separation report or another HB 6-related audit that came out in August. It is known that made extensive comments on a in at least one other case.
Government roadblocks
Members of the public are also having trouble getting materials from the Public Utilities Commission under. On Jan. 4, for example, Anderson asked the PUCO for all emails from Randazzo relating to HB 6 during his tenure at the commission. PUCO鈥檚 deputy legal director, Donald Leming, advised that materials were being reviewed and should be ready by early July.
Nine months after his initial request, Anderson still hasn鈥檛 gotten any documents from the PUCO.
On Oct. 1, after multiple follow-up emails from Anderson, Matt Schilling, PUCO鈥檚 public affairs director, noted that Anderson鈥檚 records request 鈥渉as significant overlap with the PUCO鈥檚 search and production of records related to the subpoena from the U.S. Attorney鈥檚 Office we received on April 13, 2021, which is ongoing and that we anticipate will take some time.鈥�
鈥淭he failure to produce records related to a major bribery investigation in a timely manner indicates that transparency, accountability, and ratepayer protection remain low on PUCO鈥檚 priority list,鈥� Anderson said.
鈥淲hen faced with difficult decisions about access to information, the public is always best served when there鈥檚 a thumb on the scale in favor of disclosure,鈥� said Andrew Alexander, a visiting professional with Ohio University鈥檚 Scripps College of Communication. 鈥淢aximum, timely transparency arms citizens with quality information that enhances understanding and leads to better decision-making. It also helps members of the public 鈥� not just members of the press 鈥� serve as watchdogs against official misconduct or incompetence.鈥�
Even some Ohio lawmakers have been 鈥渕et with nothing but roadblocks鈥� in their efforts to get documents related to the House Bill 6 scandal.
Speaking on Sept. 28, Rep. Jeffrey Crossman, D-Parma, he and Casey Weinstein, D-Hudson, faced in getting records from the governor鈥檚 office about communications between Gov. Mike DeWine鈥檚 former chief of staff Laurel Dawson and Randazzo about his and the he got from FirstEnergy.
鈥淣o responsive records were found,鈥� Matthew Donahue, DeWine鈥檚 chief legal counsel, wrote on Sept. 17, adding that the request also was 鈥渓egally deficient in certain aspects.鈥�
鈥淭he public deserves answers about what happened here, because it鈥檚 going to continue to cost us money,鈥� Crossman said, noting that the assertion that there were no records at all of any of the communications just wasn鈥檛 credible.
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