Mr. Petro: You are already up to your neck in this.

February 9, 2004

Jim Petro, Attorney General
State of Ohio
30 East Broad Street, 17th Floor
Columbus, Ohio 43215

Dear Attorney General Petro:

Thank you for your January 30 reply.

Our January 14 letter urged you to speak out on the breakneck pace adopted by the Public Utilities Commission for approval of the $3 billion FirstEnergy case.

You declined, referring generally to "statutory requirements" preventing you from saying anything.

Your letter cites no specific provision of the Ohio Revised Code in this regard -- understandably, since there is nothing to cite, nothing in the statutes barring you from commenting on state policy or process.

As the most casual newspaper reader can confirm, you do comment on state policy routinely, as did every one of your predecessors as Attorney General.

In recent weeks, for example, you have held press conferences or been interviewed concerning issues such as the concealed-carry law, Ohio Defense of Marriage Act, and soon-to-be-proposed legislation on home repair rules. Each of these involves state agencies for which the Attorney General serves as counsel -- Ohio Office of Criminal Justice Services, Department of Job and Family Services, and the Department of Commerce, respectively. Nevertheless, you did not hesitate to address these issues of state policy.

On the issue of utility regulation, state law specifically puts you in a position to affect policy, your role as the Public Utilities Commission's lawyer notwithstanding. Ohio Revised Code 4911.17 creates the Ohio Consumers' Counsel Governing Board, whose members are appointed by the Attorney General. The board thus accountable to you hires and fires the official who is supposed to do nothing but question the Commission's process and policy.

Further, we urged you to speak out as a candidate for Ohio Governor, not as Attorney General. I am sure you agree that gubernatorial candidates who hold the position of Attorney General are permitted to address state policy and process matters. Otherwise, you would have to resign your current position before the campaign, or to campaign for governor without mentioning state policy.

The claim that you can't say anything can't be taken seriously.

Further, it is simply too late for you to say you don't want to get involved in the FirstEnergy case. You are already up to your neck in it.

  • Other than the deregulation case itself, this is the biggest rate case in Ohio history, and yet Ohio consumers are not represented in the proceedings by a Consumers' Counsel. Why? Because the Consumers' Counsel Governing Board, in full knowledge of the Public Utilities Commission's schedule, decided that the hiring of Robert Tongren's replacement could wait until it was too late for his replacement to represent consumers in this case. You had to understand the implications of the board's schedule. And as the elected official to whom the Governing Board is accountable, you also knew that you could influence the board to change it. Manifestly, you did not.

  • In the wake of Robert Tongren's resignation, the Office of Consumers' Counsel staff asked the Commission to extend the FirstEnergy deliberations to June 30, 2004, and then said their fall-back position was one week. This showed clearly how not having a real advocate hurts consumers. (The Commission changed to a four-month schedule, which still meant too little time for crucial discovery, public hearings before people had a clue what the case means, and proceeding with decisions without requiring FirstEnergy to provide the most minimal documentation or justification.) Then, according to reports in the Cleveland Plain Dealer, the Consumers' Counsel staff helped FirstEnergy keep from public view information on the amount of transition charges they were collecting. Finally, under pressure last week, both the company and the staff released the numbers.

    These actions mirror those that came to be known as the Tongren scandal and forced him out -- yet the staff continued doing them. To whom was the staff accountable at this point? With a vacancy in the position of Consumers' Counsel, the chain of accountability leads to the Governing Board, and then to you. You either advised the staff to proceed as it did, or you let it happen, knowing you could have stopped it.

  • The voters don't know your precise relationship to FirstEnergy, except that part of it involves money. According to state reports we have compiled, in the last election cycle, FirstEnergy PACs and employees gave you directly $10,120. We do not know how much money you received from company interests indirectly, through FirstEnergy contributions to the Ohio Republican Party State Candidate Fund, Ohio Republican State Central and Executive Committee funds, county party committees, or passing through accounts of lobbyists and agents.
You can help clear up some of these questions about your relationship with FirstEnergy by releasing records of all such indirect contributions, and all contacts since you took office as Attorney General between you, your staff and agents, and any officers, employees, or agents of your campaign committee, with employees, officers, board members, and agents of FirstEnergy and its subsidiaries, Office of Ohio Consumers' Counsel, and the Consumers' Counsel Governing Board. These records should include all written communication, phone records, emails, and meetings.


Shari Weir
Cleveland Program Director