FirstEnergy’s headquarters in Akron. Source: Google Maps.
Akron-based utility FirstEnergy Corp., which has admitted to spending tens of millions bribing top government officials, asked state regulators to shield documents about its bribes from release to the public.
The company’s request will soon be decided by the Public Utilities Commission of Ohio, whose former chairman Sam Randazzo allegedly accepted a $4.3 million bribe from the company for favorable regulatory treatment. FirstEnergy said in court filings last summer that it bribed not only Randazzo but also Ohio’s then-Speaker of the House Larry Householder.
Randazzo has not been charged with a crime and denies wrongdoing. Householder has pleaded not guilty and awaits a criminal trial in January 2023 for a charge of racketeering.
The dispute at hand traces back to 39 documents, a sliver of the 470,000 records FirstEnergy produced to the Ohio Consumers’ Counsel, an independent state watchdog agency that represents the interests of residential electric customers. The company gave the records to the OCC under a protective order in response to a subpoena from the agency. The subpoena called for documents FirstEnergy produced in a related shareholders’ lawsuit against the company.
Among the records is a key that would unmask the identities of several government officials and energy executives that FirstEnergy anonymously identified in its deferred prosecution agreement with the U.S. Department of Justice.
The company argued that release of the records would undermine a pause on the regulatory investigations made at the behest of federal prosecutors working on the criminal case; that the records aren’t the OCC’s to share; that they’re “commercially sensitive;” and that they violate FirstEnergy’s rights laid out in the protective order.
The OCC, which has doggedly sought to unearth a fuller picture of the bribery scheme that FirstEnergy admitted to, said the company has repeatedly misused its confidentiality rights. For instance, the company claimed all the documents it provided to the OCC are confidential — even those that have previously been filed publicly with various federal agencies.
Moreover, the OCC noted the protective order says if the records are requested by the public, only a “court of competent jurisdiction” can block the request. While the PUCO mimics basic judicial procedure, the OCC argued that FirstEnergy should be making its case in a courthouse and not at an administrative agency.
“FirstEnergy Corp. has adopted a tactic of forum-shopping,” OCC attorneys wrote. “It seeks a ruling from the PUCO, its apparent favored forum.”
Alongside the Randazzo bribe, FirstEnergy said in a deferred prosecution agreement with the U.S. Department of Justice it paid a nonprofit secretly controlled by Householder $60 million through other nonprofits that aren’t required to disclose the source of their funding. Householder allegedly used the funds for personal and political gain, and to engineer the passage of House Bill 6 in 2019 — energy legislation worth an estimated $1.3 billion to the company.
In the current dispute, Kathiann Kowalski, a journalist with the Energy News Network, filed an Aug. 23 records request seeking copies of exhibits tied to the deposition of Tracy Ashton, a FirstEnergy assistant controller. She testified on the company’s behalf in a civil lawsuit filed by shareholders in connection with the criminal charges.
Federal Magistrate Judge Kimberly Jolson eventually found Ashton to have been so unprepared for a substantive deposition — Ashton didn’t know the answer to more than 100 questions — that Jolson ordered FirstEnergy to agree to another deposition and pay the legal fees of all the other parties’ attorneys.
Jolson also wrote that this wasn’t a fluke but “appears to be part of a developing pattern of disputes which threaten to unduly slow the progress” of the pre-trial exchange of evidence between parties.
In response to a similar records request from the Ohio Capital Journal and other media outlets, the OCC declined to provide all 39 records, stating it’s still assessing how to proceed given state records law and FirstEnergy’s claims to confidentiality. Some records the agency released, however, contain text chains between FirstEnergy CEO Charles “Chuck” Jones, company executive Mike Dowling, and Randazzo.
The two executives have been identified in a related shareholders’ lawsuit as the architects of the company’s bribery operation.
“Thanks Chuck – the last four days have been tuff [sic] — AEP was tossing a lot of stuff at the wall to see if anything would stick,” Randazzo texted Jones in February 2019. “I don’t know what AEP does next but it has hurt itself significantly with the new administration.”
At the time, a lawyer with ties to American Electric Power, a Columbus-based utility, provided Gov. Mike DeWine’s nascent administration a dossier warning against appointing Randazzo to the PUCO due to his “opaque and undisclosed” ties to FirstEnergy. DeWine moved forward with the nomination regardless. In November 2020, a few months after Householder’s arrest, FBI agents were seen removing boxes of material from Randazzo’s Columbus home. Randazzo resigned shortly thereafter.
FirstEnergy declined to comment on the dispute beyond its legal arguments. The OCC declined a request to further characterize the records in question.
The recent dispute follows a larger pattern of both FirstEnergy and the PUCO resisting public disclosures into the details of the passage of HB 6 and the full scope of Randazzo’s conduct, allegedly on the company’s behalf.
The PUCO recently froze its four investigations into FirstEnergy’s conduct, heeding a request from the U.S. Department of Justice. In those cases, FirstEnergy has filed at least 30 legal motions trying to keep records related to the case from reaching the public eye.
The agency is also currently fighting a lawsuit filed by The Ohio Capital Journal regarding a still-unfulfilled records request from February for documents the agency gave to the DOJ in response to two subpoenas in 2021 in connection with the scandal.
The agency has at this point produced most, but not all materials, claiming it’s reviewing outstanding documents for exemptions to Ohio public records law for things like attorney client privilege or trade secrets.
However, records the PUCO released last week instead detail Randazzo scheduling a PUCO senior staff meeting on HB 6 in September 2019; Randazzo scheduling another meeting on a $460 million sum FirstEnergy charged its customers that was later overturned by the Ohio Supreme Court; and a PUCO administrative judge lamenting the firing of two top lawyers for FirstEnergy shortly after Householder’s arrest.
“That’s a shame but not surprising,” wrote PUCO Attorney Examiner Greg Price. “I am afraid it won’t be the last.”
That email was written to Randazzo after the firing of the FirstEnergy executives and mere days before FBI agents raided Randazzo’s home.
Price helped draft legislative text of HB 6 and reviewed it on the PUCO’s behalf. As an attorney examiner, he issued several rulings that stymied OCC efforts to probe FirstEnergy’s conduct. After the OCJ reported on his involvement with the legislation and subsequent rulings, he withdrew himself from the case.
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