AG Dann asks 3 PUCO officials to resign: nominations done in secret

3 PUCO officials asked to resign
Their nominations violated Sunshine Law, Dann says
Columbus Dispatch, April 4, 2007
By Alan Johnson

Attorney General Marc Dann has asked three members of the Public Utilities Commission of Ohio to resign, saying they were illegally nominated in secret.

All three were appointed by former Gov. Bob Taft, a Republican; if they leave, Gov. Ted Strickland, a Democrat, could name a majority of the powerful five-member board, which regulates electricity, gas, telephone, water and commercial transportation.

If they don't resign, Dann said last night that he is prepared to file a "quo warranto" with the Ohio 10th District Court of Appeals in Columbus seeking to force them to quit.

"That's an action to remove somebody who is not properly holding office," Dann said. "We already have a draft of it."

Those asked to resign are PUCO Chairman Alan R. Schriber and Commissioners Ronda Hartman Fergus and Valerie A. Lemmie. Dann said their appointments were "tainted" by a nominating process that violated the state's open meetings law.

Dann also informed Strickland that the recent nomination and his subsequent appointment of Paul Centolella is invalid and must be redone.

Donald L. Mason, the fifth PUCO member, was appointed by Taft in 2003, outside the three-year statute of limitations to challenge his appointment, Dann spokeswoman Michelle Gatchell said.

The appointments were improper, Dann said, because the special 12-member PUCO Nominating Council that recommends four people to the governor to fill vacancies met behind closed doors and voted by secret ballot. He said both violate the state's Open Meetings Act, also known as the Sunshine Law. That act requires decisions by public bodies to be made in open meetings.

"They (the commission members) haven't done anything wrong, and we're not suggesting that they have," Dann said. "But public-meetings laws are there for a reason.

"Their appointment was tainted. …The governor's appointment does not cure the taint from the nominating council."

Dann said the problem came to light after his Feb. 28 letter in which he warned Ohio State University Board of Trustees that secret ballots on public issues should be "strictly avoided" because they violate "both the letter and intent" of the Open Meetings Act.

He said the PUCO nominating process was brought to his attention by Duane W. Luckey, a lawyer in charge of his office's public utilities section.The current procedure for nominating PUCO members was developed in the 1980s to cure what was seen as a politicized process for picking state regulators.

Currently, the majority of the PUCO members are either Republicans or independents. The resignations would allow Strickland to quickly name four members to the commission, which affects everyday lives with decisions on how much utilities can charge customers.

Contacted late yesterday, Schriber wouldn't comment on Dann's resignation request. He said he had not been contacted directly by the attorney general or his staff.

Schriber said even if he and his fellow commissioners are forced to resign, hundreds of regulatory decisions they have made would not be invalidated.

"I believe we would be acting de facto," he said, meaning that all commission actions would be considered legal and binding.

Dann agreed: "This would have been a much tougher decision had it resulted in voiding four years worth of decision-making."

Thomas C. Green, chairman of the nominating council, told The Dispatch that while he doesn't consider the process illegal or improper, he will comply with Dann's request.

"There was no intent to violate the law," he said. "Clearly, we are allowed to talk about personnel matters in an executive session.

"In order to arrive at the four names, we write them down on a piece of paper and vote on them to see if we have consensus. Then we vote on the four names in public.

"We don't consider that a secret ballot," Green said.

He added, "I'm not about to challenge it. We'll do what they want to be done."

Strickland spokesman Keith Dailey said the governor's office received a letter on Monday from Dann's office regarding his recent appointment of Centolella. He was to replace Judy Jones on the commission on April 12.

Now that nomination and appointment must be redone.

"We're working under the assumption that the Public Utilities Commission will fully comply with the attorney general's determination," Dailey added.