CS website Bob Anthony blasts Kangaroo Court 5-11-23
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Oklahoma Corporation Commissioner Bob Anthony. Photo Provided.
Oklahoma City, May 11 — In response to what he calls “last-minute changes to the ‘final orders’ and other deceitful statements made by Commissioners Todd Hiett and Kim David” on Thursday, April 20, 2023, yesterday, Corporation Commissioner Bob Anthony filed another 37-page dissent in the 2021 Fuel Cost and Prudence Review cases for the state’s three largest public utilities.
In his “Dissent, Part II,” Anthony augments and amplifies his earlier protest against the 2-1 “Black Thursday” vote and the orders declaring more than $6 billion of OG&E, ONG and PSO’s fuel procurement costs and expenses for 2021 to be “fair, just, reasonable and prudent” – costs and expenses that include the historically high natural gas prices paid during the February 2021 Winter Storm.
Pulling no punches in yesterday’s Dissent, Anthony writes:
Customers of Oklahoma’s largest public utilities have been fleeced billions of dollars through fraudulently manipulated natural gas prices, insider dealings, bidding irregularities, overcharges and special interest bailouts. In a series of 2-1 votes over the last two years, three different Corporation Commissioners not only let it happen, they have orchestrated and/or facilitated a massive cover-up. Their ongoing obstruction of justice and transparency shows they know it is wrong. By the willful neglect of their official duties, sham prudence reviews, and ordered findings contrary to the weight of evidence and suspicious circumstances, they have turned the Oklahoma Corporation Commission into a kangaroo court.
Despite total 2021 fuel procurement costs and expenses for OG&E, ONG and PSO that topped $6 billion, were more than five-times higher than those for 2020, and included the highest prices ever paid in the history of the United States for natural gas, this Commission amazingly could not (or, more accurately, would not) identify a single dollar that was imprudent. Nor did it offer any explanation for the historically expensive gas costs. Commissioner Hiett and David’s April 20, 2023 votes to declare all $6+ billion of the utilities’ calendar-year-2021 fuel procurement practices, policies, judgment, costs and expenses “fair, just, reasonable and prudent” when they clearly were not is the consequence of a quaisi-judicial process swimming in unethical conduct and public corruption. Since Oklahoma ratepayers will bear the burden of these costs for decades to come, they deserve to know the truth about what happened.
According to Anthony’s statements in the courtroom, the text of the final version of the OCC’s “finals orders” was not made available to him until 8:20 am before the 10:00 am OCC Special Meeting on April 20 at which the vote was held. [The commissioners’ discussion begins about 35 minutes into the video recording of the meeting.]
His dissent includes ten pages detailing and criticizing OCC Chairman Hiett’s last-minute deletions from and additions to the Administrative Law Judge’s proposed final orders in the cases. This included deleting all references to the Public Comments expressing complaints from utility customers and eight of Commissioner Anthony’s deliberations statements from the Procedural History of the cases.
Anthony writes that eliminating any mention of the Public Comments “leaves the impression that the public was wholly disinterested in these proceedings. As I am quickly reminded every time I enter a crowded room or open my inbox, nothing could be further from the truth!” He also says purging the Procedural History of his filings was “a deceptive effort to mischaracterize the OCC’s judicial processes” since his deliberations statements show he was attempting “to discuss and debate essential questions and interpretations of law in compliance with the Open Meeting Act,” while his fellow commissioners were not.
He goes on to accuse Hiett of “fabricating two entirely new ‘Findings of Fact’ unsupported by the Records of these cases” that “seem to be a last-ditch attempt to offer some kind of justification for the orders’ outrageously-broad Ordering Statements.” Those Ordering Statements, approved by Hiett and David on April 20, said the Commission orders that all $6+ billion of the utilities’ “fuel procurement practices, policies, judgment, and fuel purchase costs and expenses incurred for calendar year 2021 are approved as prudent, fair, just, and reasonable,” without disallowing a single dollar for imprudence. In Part I of his Dissent, Anthony compared such Ordering Statements to “nominations for sainthood and the Nobel Peace Prize.”
Specifically, one of the new “Findings of Fact” says that “there is no basis in which to deny or otherwise disallow recovery of [the utility’s fuel purchase costs and expenses.” But Anthony points out that the law requires, “The utility shall bear the burden of proof as to prudence.” Among his deleted deliberations statements were dozens of questions Anthony says were intended to help the OCC Public Utility Division (“PUD”) assess the prudence of the 2021 costs and expenses in accordance with state statutes and OCC rules. But Anthony writes that:
Either the PUD and my fellow Commissioners didn’t want to ask such questions, or the utilities preemptively made it clear they didn’t want to answer them. Either way, as it turns out, Commissioners Hiett and David simply eliminated the necessity for “proof” altogether, reinterpreting the law to mean that actually, “Finding no proof of imprudence has become a basis for a finding of ‘prudence.’” Such a “finding” epitomizes the conduct of a kangaroo court.
Anthony then spends twenty pages dissecting what he calls the “astounding judicial garbage spewed forth” in Kim David’s concurring statements filed in the cases on April 20. He repeatedly denounces her for contradicting herself and “flip-flopping” on her legal arguments (sometimes multiple times in the same page), for her failure to cite authoritative legal opinions to support her own theories of the case, and for citing irrelevant Supreme Court decisions and reaching erroneous conclusions when she finally does.
The 34-year veteran of the OCC then chastises the new Commissioner (who took office in January) for attempting to “redefine utility regulation” with her statements claiming that “time periods” like the February 2021 Winter Storm can be found prudent instead of the utilities’ actual costs and expenses. Doing so, he says, improperly excludes millions of dollars of the utilities’ “normalized” costs “that were just as vulnerable to the corrupting influences of fraud and market manipulation as any other costs incurred during the 2021 Winter Storm.”
Anthony says if you look at the details, David’s calls for the Attorney General to investigate market manipulation are actually so narrow, they leave out dozens of other potential crimes by a multitude of other actors, including the utility companies themselves and their energy producer suppliers. He points out that in contrast to David’s repeated claim that the A.G. is “the only Oklahoma official with the authority to conduct an investigation,” many state agencies and other officials have investigative authority in Oklahoma – including the Corporation Commission.
He calls David’s statement that “There is nothing more to be investigated by the OCC because all investigations by the OCC and its staff have been thoroughly exhausted,” another “flip-flop” because she just said only the Attorney General could investigate. He adds she got her facts wrong when she accused Anthony of “hypocritical[ly] and unethical[ly]” posting dozens of earlier Fuel Cost and Prudence Review cases on the OCC’s 24-hour Agenda, because for most of the prior decades, including when he was OCC chairman, that authority was delegated to the OCC’s Office of General Counsel.
Anthony’s harshest criticisms come in response to David’s allegation that by referencing an Oklahoma Statute (21 O.S. § 540) against “Obstruction of a Public Officer,” Anthony has been “threatening criminal punishment by using an inappropriate statute” that David claims “is only applicable to law enforcement.” In response, Anthony offers a ten-page legal analysis of the statute, including the definition of a “public officer” that he says is not limited to “law enforcement” but pertains to “any public officer” including Corporation Commissioners. Anthony writes:
I adopt a deadly serious tone because the consequences of anyone taking Commissioner David’s sophomoric paralegal pontificating seriously might reverberate throughout State Government with dire consequences. … Commissioner David has embarrassed herself. When it comes to 21 O.S. § 540, her half-page “analysis” is faulty, and her conclusion that the statute is only applicable to law enforcement is erroneous. … Is David publicly stating that delaying or obstructing Corporation Commissioners discharging the duties of their office is NOT a crime? Such a conclusion is not only UNTRUE, it is DANGEROUS.
Anthony goes on to question if Commissioner David is “inviting – or even suborning! –employees across the whole of State Government to delay or obstruct their elected public officials whenever it suits them?” He then asks her to “imagine what that could mean for the Rule of Law in this state.” He concludes his denunciation by warning that “any staff member of the Corporation Commission or State Government who follows legal advice from Commissioner Kim David does so at his/her own peril,” and suggesting,
Commissioner David should immediately and publicly retract this disgraceful display of legal ineptitude. Whether or not she chooses to apologize for it is up to her.
Anthony concludes his dissent with a laundry-list of wrongdoings, omissions, legal shenanigans, “irregularities,” and regulatory failures he says have led to “the failed state of judicial integrity at the kangaroo court the Oklahoma Corporation Commission has become.” He specifically calls out, “the epidemic of regulatory capture spreading throughout this agency” and “an appalling failure to protect ratepayers at every opportunity since February 2021.” He writes:
Consequently, customers of OG&E, ONG and PSO will be paying for two weeks of energy use in 2021 over the next 20, 25 or 28 years. That is an impact of anywhere from $1,800 to $4,000 or more for each of their more-than-1.5-million Oklahoma customers – “Two weeks of heat; Two decades of burn.” – an impact that is NOT fair, or just, or reasonable regardless of what these orders may say.
Anthony calls approving the orders declaring everything that happened in 2021 “prudent” both “absurd” and “shameful” in light of recent litigation in Kansas and Texas “alleging fraud and market manipulation by several of the same companies who did business in Oklahoma in 2021.” He labels the “prudence reviews” conducted in these cases “a sham” because “they improperly and unlawfully ignored, omitted, bypassed, avoided or excluded anything that might have resulted in imprudent findings, and they did not require the utilities to bear ‘the burden of proof as to prudence’ as the law requires.”
Commissioner Anthony points out that “these orders offer no explanation for the highest-in-the-history-of-the-nation natural gas prices paid by Oklahoma’s public utilities in 2021,” and questions “how such astronomical costs can be declared “prudent” when they have not even been explained.” “Anyone who believes in the utter perfection of the public utilities decreed in these orders should be locked up for their own protection,” Anthony says. Instead, he writes:
These “final orders” are about damage control. They are another attempt to whitewash and cover up, not only the initial mistakes and wrongdoing during the February 2021 Winter Storm, but now the subsequent and ongoing wrongdoing – including obstruction and public corruption – committed in the last year+ in an attempt to conceal what came before. For the ratepayers of Oklahoma, these orders add insult to injury and compound what is being revealed to have been a manufactured tragedy.
He goes on:
The judicial integrity and fundamentals of the Rule of Law that Oklahomans have a right to expect in such proceedings have been eviscerated by my fellow Commissioners’ public corruption and willful neglect of their official duties. The “irregularities,” omissions and legal shenanigans in these cases are a direct result of their efforts to facilitate, expedite and defend the very costly cover-up that the special interests orchestrated to conceal their multi-billion-dollar 2021 profiteering and bail-outs at the expense of Oklahoma ratepayers.
Anthony says if Commissioners Hiett, Murphy and David “did not believe my pages and pages of citations from the Constitution, Statutes and Rules about their duties and responsibilities” to investigate fraud and market manipulation impacting Oklahoma ratepayers, they had every opportunity to ask the Attorney General for a written legal opinion, but they did not. He judges that
This Commission’s abject failure to seek, let alone find, justice in these cases is not the result of confusion or misunderstanding on the part of my fellow Commissioners; it is the result of deliberate efforts to undermine the law and subvert justice.
Anthony ends by predicting that
Just because two Commissioners voted to approve these orders, no one should “rest easy” that anything about 2021 has been “resolved” by them. Truth and justice have a habit of being unrelenting.
ALSO (in case you missed it the morning after the Shawnee and Cole tornadoes):
Media Advisory – April 20, 2023
Editor’s Note: This is not formatted.
After a hurried two months of stops and starts, and last-minute changes delivered less than two hours before the meeting, today Corporation Commissioners Todd Hiett and Kim David approved orders declaring more than $6 billion of OG&E, ONG and PSO’s fuel procurement costs and expenses for 2021 to be “fair, just, reasonable and prudent” – costs and expenses that include the historically high natural gas prices paid during the February 2021 Winter Storm.
In his 180-page dissent, Commissioner Bob Anthony, who voted against all three orders, details how the orders were approved without conducting a lawful prudence review of all the utilities’ 2021 fuel costs and expenses as the constitution, state statutes and commission rules require.
The stench of these rotten deals is so pervasive, people on the outside are beginning to pinch their noses and look toward the Jim Thorpe Building with wrinkled brows wondering what the hell is going on at the Oklahoma Corporation Commission. Not only are these public injustices rotting from a putrid core of greed, public corruption and regulatory capture, but so are the various layers of whitewash that have been repeatedly and sloppily applied by their proponents and apologists over the last two years.
Anthony says that “Giving these utilities an unqualified clean bill of health for all their calendar year 2021 fuel procurement processes and costs is improper, irresponsible, negligent, an abuse of discretion, and a slap in the face to the hardworking ratepayers of Oklahoma who will ultimately pay for them.”
Today’s orders are the worst abuse of public utility ratepayers in decades. Involving OG&E’s $2.1 billion, PSO’s $1.8 billion and ONG’s $2.6 billion, this $6+ billion sellout is probably the most expensive utterance ever in my 34 years at this Commission.
In his dissent, Anthony calls the orders approved today “shameful public policy and legal malpractice” and says they “make a mockery of fairness and the judicial process.” “The Commission is talking out of both sides of its mouth and contradicting itself repeatedly in these orders,” Anthony points out. “With their approval, the Oklahoma Corporation Commission has officially become a kangaroo court.”
Anthony accuses his fellow Commissioners of hurrying to “fast-track” the 2021 prudence review cases and their “final orders approving everything that happened in 2021” after the multi-billion-dollar lawsuits in Kansas and Texas came to light in February accusing companies that also did business in Oklahoma of natural gas market manipulation. “Unnecessarily hurrying these ‘prudence review’ cases through in the face of mounting evidence of wrongdoing makes no lawfully or economically justifiable sense,” Anthony writes. “But if you are engaging in a multi-billion-dollar cover-up, it makes perfect sense!”
Asking “How can historically high fuel costs that were potentially the result of unlawful conduct – including price-gouging, fraud and market manipulation – possibly be declared ‘fair, just, reasonable’ or ‘prudent’ before the true origins of those costs are thoroughly investigated and determined?” Anthony concludes that “Apparently Commissioners Hiett and David’s earlier concern was all for show.” On February 28, Commissioners Hiett and David had voted to hire an “independent expert” to “review” the 2021 fuel procurement processes and costs for these exact cases, but it appears now Commissioner David believes that is unnecessary. It is not clear what new evidence emerged to change her mind.
Anthony also repeats his criticism of “the ongoing obstruction of my attempts to perform my constitutional duties and actually investigate these 2021 fuel costs and the circumstances surrounding them,” pointing out that he has received thousands of pages of information from other entities of state government while his own agency has been largely unresponsive. He says last week, after seven months, he finally received 250 “cherry-picked” emails of the more than 40,000 he requested from the OCC. “At this rate, it will literally be more than 100 years before OCC fulfills this one request!” Anthony points out.
The dissent goes on:
The truth is that there has never been a proper or thorough “prudence review” of these 2021 fuel procurement processes and costs in full compliance with relevant State Statutes and OCC Rules, by the OCC PUD or anyone else. The reason is simple: there are too many special interests – and two very obliging Corporation Commissioners – who don’t want the public to know or understand the crooked conspiracies at work and just how reprehensible the behavior of certain public officials and some of our state’s leading corporate citizens has really been.
It appears that not a single dollar of these utilities’ billions in 2021 fuel costs and expenses was disallowed for imprudence – not $1! That alone probably says all that needs to be said about the thoroughness and legal validity of these “comprehensive” calendar-year-2021 prudence reviews.
Anthony concludes:
Make no mistake, this is damage control. Today’s orders are yet another layer of whitewash – another attempt to cover up, not only the initial mistakes and wrongdoing during the storm, but now the subsequent and ongoing wrongdoing committed in the last year+ in an attempt to conceal what came before. But the truth will not stay buried, and the public deserves to know what happened.
Oklahomans deserve honesty and integrity from their public officials and competence and transparency in the regulatory processes they oversee. They have been shortchanged.
Read Part I of Commissioner Anthony’s dissenting opinion here:
When available the video recording of the 10:00 am meeting will be online here:
Note that discussion of the 2021 prudence review orders only took place during the last 30 minutes of the meeting.
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