FirstEnergy’s headquarters in Akron. Source: Google Maps.
Despite public promises of transparency, FirstEnergy Corp. is fighting a legal battle to slow-walk its production of documents subpoenaed by a consumer watchdog agency related to the company’s self-professed bribery operation.
FirstEnergy, which owns three electric utilities in Ohio, has already successfully narrowed the scope of the documents it was ordered to turn over related to the scandal around the 2019 passage of House Bill 6. The company has previously given these thousands of pages to federal regulators for their investigation but fought efforts to provide them to the Ohio Consumers’ Counsel, a watchdog state agency.
At a hearing Monday, one day after the documents from the company were due, FirstEnergy requested from the Consumers’ Counsel an extra four-month period, over which it would produce the records on a “rolling” basis.
An attorney examiner — essentially an administrative law judge who oversees quasi-courtroom proceedings for the Public Utilities Commission of Ohio (PUCO) — affirmed that FirstEnergy will produce the records in question. At issue is the timing, which is typically settled between the parties and doesn’t require any public hearing or judge getting involved.
“If this is the way the parties are going to conduct themselves in this already contentious proceeding, then we will certainly have a very long road ahead of us,” said attorney examiner Megan Addison.
In a deferred prosecution agreement FirstEnergy entered with the U.S. Department of Justice last summer, the company admitted to two bribery schemes designed to enrich itself. One involved a $60 million payment to a nonprofit secretly controlled by former House Speaker Larry Householder. The other involved a $4.3 million payment to the former chair of the PUCO, Sam Randazzo. Householder has pleaded not guilty and awaits trial. Randazzo has not been charged with a crime and has maintained his innocence.
The state, via PUCO, and the federal government, via the Federal Energy Regulatory Commission (FERC), have both launched their own investigations into FirstEnergy’s conduct. However, FERC’s efforts have proved more robust, unearthing new information about the scandal. The PUCO, meanwhile, has been dogged by accusations of failing to diligently investigate the conduct of both FirstEnergy and its former chief.
In an audit released in February, FERC determined FirstEnergy paid $71 million to various “dark money” nonprofits between 2015 and 2021 that aren’t required to disclose the sources of their funding. Those nonprofits supported House Bill 6, a piece of Householder-backed legislation worth an estimated $1.3 billion to FirstEnergy.
The Ohio Consumers’ Counsel, a state agency that represents residential ratepayers’ interests before the PUCO, requested in June 2021 the documents that FirstEnergy provided to FERC. That request was denied by Attorney Examiner Greg Price, who said he wanted to let the auditors proceed in a “confidential” manner but would revisit the issue when they release their audit.
In February, the Ohio Capital Journal reported that Price was involved in the drafting of HB 6 and reviewed the bill on the PUCO’s behalf. Amid investigations into the scandal, Price blocked several investigations into FirstEnergy. Price stepped aside from the case one week after the article published.
Addison, in a March 11 order, revisited the case and granted the OCC’s request to obtain some of the records FirstEnergy gave to FERC. However, instead of ordering production of the records from 2015 to 2021, she ordered production of records dated between 2017 and 2019. FirstEnergy argued in regulatory filings that the broader timeline exceeds the scope of the PUCO’s review.
The records mentioned in that order were due Sunday. On Monday, Addison gave the parties until noon Tuesday to work it out among themselves. If they fail to do so, she said she’d order a round of briefings and another hearing on April 20.
Attorneys with the OCC declined to comment after Monday’s hearing. However, in an email to Addison prior to Monday’s hearing, an agency attorney argued FirstEnergy had plenty of time to prepare and turn over the requested records. She called the company’s approach to handling subpoenas “problematic” in the case, given how long it takes the agency to receive documents on the “rolling” timeline.
Agency spokesman J.P. Blackwood offered a statement Monday evening.
“More delay from the PUCO and FirstEnergy. More frustration for our consumer protection fact-finding,” he said.
Two attorneys with FirstEnergy declined to comment after Monday’s hearing. Spokeswoman Jennifer Young said the company is working “expeditiously” to comply with the PUCO order.
“This requires reviewing approximately 19,000 pages so as to identify the correct information,” she said.
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