Wednesday, December 10, 2025
State of Ohio v. Lavontae Knight, Case No. 2024-1475
Seventh District Court of Appeals (Mahoning County)
State of Ohio v. Rasheed Mathis, Case No. 2025-0091
Eighth District Court of Appeals (Cuyahoga County)
L.H. Hipshire and mother Kelly Hipshire v. Oakwood Village et al., Case No. 2025-0175
Second District Court of Appeals (Montgomery County)
In re review of power purchase agreement riders of Ohio Power Company for 2018 and 2019, Case No. 2024-1735
Public Utilities Commission of Ohio
Were Errors in Youngstown Murder Trial Cumulative, Affecting Trial Outcome?
State of Ohio v. Lavontae Knight, Case No. 2024-1475
Seventh District Court of Appeals (Mahoning County)
ISSUES:
- If individual errors in the legal process don’t affect the outcome of a trial, can they be considered under a legal doctrine that analyzes whether there were cumulative errors?
- If a trial court denies a continuance at a hearing held after the trial, can the denial be considered in the cumulative error doctrine?
BACKGROUND:
Trevice Harris and Quanisha Bosworth were dating in December 2018. Earlier that year, a man who Harris knew was shot and killed. On Dec. 30, Harris and Bosworth drove separately to a home in Youngstown to make a donation to the man’s family, which included the man’s brother Lavontae Knight.
Bosworth later testified that when she and Harris entered the kitchen of the home, Knight and another man pointed guns at them. She and Harris were told they were going for a ride, and the men took them to another location. Bosworth said Knight and the unidentified man got out of the car, shooting started, and she and Harris were both shot while in the car. Bosworth was able to get into the driver’s seat, drive away, and call 911. She identified Knight as the shooter. She survived her injuries, but Harris was shot in the head and died.
Knight was charged with aggravated murder, attempted aggravated murder, aggravated robbery, kidnapping, felonious assault, and illegally having a weapon, along with firearm specifications.
CODIS Report Shared With Defense Three Years After Given to Prosecutors
In April 2019, a DNA report was completed by the Bureau of Criminal Identification and sent to the prosecutor. It referenced DNA found in the vehicle from an unknown male, not Knight. About that time, there was also a notification of a hit in the Combined DNA Index System (CODIS) associating the unknown male DNA with someone named Allen May. The state didn’t provide that connection to Knight’s attorney until February 2022, about 12 days before a scheduled trial date. The state noted that it disclosed years earlier that another person’s DNA had been found in the vehicle and the state’s theory was that two male suspects were present during the shooting. The Mahoning County Common Pleas Court concluded that the DNA report was provided in accordance with the local court rules – at least seven days before the date scheduled for trial.
A jury trial was held in the summer of 2022. On a Friday, the jury found Knight guilty of the charges presented to it. The night before, a juror felt like she had been followed home after leaving the courthouse, and she told other jurors before deliberations began on Friday. After the jury had been released, a bailiff overheard another juror talking about it and notified the judge.
Jury Recalled After Juror Thought She Was Followed
The trial court investigated and summoned the parties and the jurors back to court the following Wednesday. Knight requested more time to research the related legal issues. However, the judge wanted to address what happened in a timely manner before the jurors’ memories faded. The judge said the court ruling wouldn’t be immediate, though, and each side could research and brief the issue before the court ruled. The jurors were asked separately about the incident, and they individually responded under oath that what the juror said wasn’t considered during deliberations and didn’t impact their verdict. In September 2022, the court sentenced Knight to 58 years to life in prison.
Knight appealed to the Seventh District Court of Appeals. Two determinations made by the appeals court: the prosecutor delayed too long in disclosing DNA evidence favorable to Knight, and the trial court was incorrect when refusing to give Knight’s attorney more time to prepare for the discussion with jurors. The Seventh District ordered a new trial, ruling in June 2024 that these cumulative errors compromised Knight’s constitutional right to a fair trial.
The Mahoning County prosecutor appealed to the Supreme Court of Ohio, which accepted the case. In February 2025, the new chief of the Criminal Department in the prosecutor’s office notified the Supreme Court that he had represented Knight as a defendant in the case. The Cuyahoga County Prosecutor’s Office agreed to be appointed special prosecutor in the case.
Prosecutor Asserts That Errors Didn’t Occur During Trial
A conviction will be reversed if the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial, even if each of the trial court errors don’t individually warrant reversal, the prosecutor explains, citing Ohio case law. This is referred to as the cumulative error doctrine.
The prosecutor contends that the doctrine applies only to errors that take place during a trial. In the prosecutor’s view, the Seventh District improperly expanded the doctrine by including the alleged error regarding the delayed disclosure of the CODIS hit, which took place before the trial, and the alleged error related to questioning jurors, which happened after the trial ended. In addition, cumulative errors must affect the trial’s outcome, but neither of these did, the prosecutor argues.
With the CODIS hit, the prosecutor notes that the trial was ultimately delayed, and maintains that Knight had adequate notice of the male DNA because he was aware of it for more than five months. As for Knight’s request for a continuance when the jurors were called back after the verdict, the trial court decision to deny the request was reasonable given the risks of delaying the inquiry, the prosecutor asserts. These errors couldn’t be combined to find cumulative errors, the prosecutor concludes.
Offender Argues Fair Trial Rights Encompass Mistakes Throughout Criminal Process
Knight’s brief counters that errors that could affect a trial’s outcome don’t necessarily occur “between voir dire and verdict.” Mistakes can arise at any stage of the criminal process, the brief states. It cites federal decisions where courts applied the cumulative error analysis to legal proceedings that weren’t part of the trial, including sentencing, guilty pleas, and pretrial proceedings. The analysis isn’t constrained to the boundaries the prosecutor draws, Knight maintains.
Knight emphasizes that the prosecutor was aware of the CODIS hit in 2019 but waited three years to release the information to him, despite ongoing discovery requests. The issue is whether the disclosure “occurred in a meaningful and constitutionally adequate timeframe” and whether the defense had a fair opportunity to prepare for the state’s case, his brief maintains. Delaying the trial a few more months wasn’t a remedy that could overcome this violation, the brief argues.
Knight also maintains that the defense was entitled to research legal standards and develop targeted questions that applied to the juror issue, and possible misconduct by the jurors discussing what happened, before the jurors were interviewed. The trial court’s failure to grant a short delay left unresolved doubts about whether the jury’s deliberations might have been tainted, he argues. And the jurors’ discussion about what happened before deliberations began could have affected the fairness of the proceedings and its outcome, Knight maintains, even though the court addressed the issue after the verdicts were issued.
The combination of pretrial discovery violations, the state’s shifting theories of the case, the court’s failure to sanction the state for delays, and the refusal to investigate possible jury misconduct left a legal proceeding that didn’t meet the standards of fairness that are constitutionally required, Knight argues. The cumulative error doctrine exists to counter attempts to isolate each error and downplay its significance to the trial outcome, Knight concludes.
State Attorney General Files Additional Brief, Will Argue in Court
The Ohio Attorney General’s Office filed an amicus curiae brief supporting the prosecutors, asserting because the only two perceived errors were harmless and unrelated, there were no cumulative errors. The attorney general will be permitted to argue the case before the Supreme Court, sharing the time allotted to the Cuyahoga County prosecutor.
State Public Defender Submits Additional Brief
An amicus brief submitted by the Ohio Public Defender’s Office raises a challenge to the attorney general’s brief. The public defender argues the attorney general has asked the Court to create a new rule that “unrelated and independently harmless errors are not cumulatively prejudicial.” However, an entity filing an amicus brief isn’t a party to a case and can’t interject issues and claims that weren’t raised by the parties, the public defender maintains.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Chauncey Keller III, ckeller@prosecutor.cuyahogacounty.us
Representing Lavontae Knight: Rhys Cartwright-Jones, rhys@cartwright-jones.com
Representing the Ohio Attorney General’s Office: Mathura Jaya Sridharan, mathura.sridharan@ohioago.gov
Representing the Ohio Public Defender’s Office: Craig Miller Jaquith, craig.jaquith@opd.ohio.gov
Could Officer Search Driver After Determining Vehicle Not Used in Robbery?
State of Ohio v. Rasheed Mathis, Case No. 2025-0091
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Can an officer who made a valid traffic stop and began investigating a crime continue the investigation based on suspicions unrelated to the initial reason for the stop?
BACKGROUND:
In January 2023, the Euclid Police Department received a report of an armed robbery. The four suspects fled in a gold or tan Dodge or Chrysler minivan after stealing a dishwasher. Officers were told the license plate may have started with TWL. Euclid police officer Brandon Moore is a member of Euclid’s Community Response Unit, which makes “proactive traffic stops” that they think will lead to the recovery of guns and drugs. Two nights after the robbery, Moore was on patrol and observed the vehicle of Rasheed Mathis. Moore noted that the minivan had illegally tinted windows. He followed the vehicle and reported to dispatchers that he was investigating a suspect in an armed robbery.
Moore ordered Mathis to roll down all his vehicle windows, but the driver’s side window was broken. Moore spoke to Mathis through the open rear, passenger-side window. He and another officer approached Mathis, who asked what he had done to be pulled over. Moore, who recorded the interaction on his body camera, stated, “Not gonna lie, your vehicle matches the description of a suspect vehicle used in an armed robbery.” The encounter occurred after 9 p.m., and when Moore got a better look at Mathis’ vehicle, he saw that it was blue or silver in color, and the first letters of the license plate were JWL. Moore wasn’t part of the robbery investigation, but he had heard the minivan he was searching for was gold or tan.
Moore stated he smelled marijuana in the vehicle and asked Mathis if he had been smoking marijuana, which Mathis denied. He asked Mathis if there were weapons in the car, and he denied there were any. Mathis provided Moore with his identification, and when Moore went to his cruiser to verify the information, the other officer noted there were butts of marijuana cigarettes in the ashtray. Moore returned and frisked Mathis. He found a gun in Mathis’ pocket, and he arrested him. He then tested the windows and found that only 12% of light could pass through them. Ohio law doesn’t permit tinting that blocks more than 50% of light.
Mathis, who had a previous felony conviction, was indicted for illegally possessing a weapon, carrying a concealed weapon, and improperly handling a firearm in a motor vehicle.
In trial court, Mathis sought to suppress the evidence, arguing the police didn’t have probable cause to detain and arrest him. The trial court ruled that Moore stopped Mathis because he suspected his vehicle was the one used in the robbery, and that once he observed by its color that it wasn’t the suspected vehicle, the traffic stop should have ended. The court ruled that the evidence from searching Mathis couldn’t be admitted at trial.
The Cuyahoga County Prosecutor’s Office appealed the decision to the Eighth District Court of Appeals. The Eighth District affirmed the trial court’s decision.
The prosecutor appealed to the Supreme Court of Ohio, which agreed to hear the case.
Stop and Search Legal, Prosecutor Asserts
The prosecutor’s office argues that Ohio case law allows an officer to stop a vehicle based on probable cause that a traffic violation occurred. And if a stop is based on reasonable and articulable suspicion, the search doesn’t violate the right against unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution.
The test of whether a stop is reasonable uses an objective test of whether a stop is justifiable based on what the officer knew at the time of the stop, and not merely what the officer learned after the stop, the prosecutor explains. Moore clearly observed that the window tint of Mathis’ minivan was illegal and that alone justified the stop, even if he was more interested in whether the van was used in a robbery, the prosecutor argues. The minivan was stopped because it had illegal window tint, which is a traffic violation and permits the officer to stop it, the office maintains.
Once Moore learned the stopped vehicle wasn’t the van suspected in the robbery, he detected a marijuana odor from the van and observed that Mathis was acting very anxious. At the time, recreational use of marijuana in Ohio wasn’t legal, and it’s illegal to drive under the influence of marijuana, the prosecutor notes. While the suspicion of a robbery no longer existed, Moore had reasonable suspicion that another violation, the illegal window tint, did occur, the office explains. This provided Moore with an independent and intervening justification to conduct a search of Mathis, and the search was legal, the prosecutor argues. The legal search led to the discovery of the illegal possession of a weapon, and the evidence should be admitted in Mathis’ trial, the prosecutor argues.
The prosecutor maintains that the Eighth District ruled to suppress the evidence because Moore’s testimony and bodycam footage indicated he originally stopped Mathis based on the robbery suspicion. The bodycam footage indicated Moore didn’t ask Mathis about the window tint until 10 minutes into the encounter. The prosecutor argues the appeals court held the officer to an improper legal standard by only allowing him to investigate what he was most interested in when stopping Mathis. The ruling ignores that Moore immediately observed a traffic violation, excessive window tint, from the moment he spotted the minivan, the office asserts. The officer didn’t have to abandon his investigation simply because the crime he pursued, the window tint, wasn’t the stated purpose of the initial stop, the prosecutor concludes.
Search Was Illegal, Driver Argues
Mathis doesn’t dispute that his windows were illegally tinted, nor that Moore had the right to pull him over for that. But all the evidence, from Moore’s report to the dispatcher to his bodycam video, indicated the purpose of the stop was to investigate the robbery, he notes. Moore had almost immediate confirmation while walking up to the van that the vehicle wasn’t the one police were looking for, and his inquiry should have ended there, Mathis asserts. There was no valid reason to remove him from the vehicle and search him, and nothing about the window tint was discussed, he maintains.
Mathis explains the U.S. Supreme Court has ruled a valid traffic stop under the Fourth Amendment uses an objective test to determine if the search was reasonable. But before that test is considered, there is one moment where a subjective test is imposed. It requires understanding what facts are known to the arresting officer at the time of the arrest, and whether that would make the search reasonable. At the time Moore pulled him over, the officer’s reasonable suspicion of wrongdoing was based on an awareness of the robbery, Mathis notes. When that issue was resolved, there was no reason to continue the stop and to search him, Mathis argues. Moore wasn’t able to produce an after-the-fact justification for continuing the search because that isn’t objectively reasonable, the driver asserts.
Mathis notes the Eighth District considered whether the trial judge had competent and credible evidence to believe the search was illegal. The appeals court noted that Moore was part of a specialized unit seeking out guns and drugs and wasn’t conducting routine patrols for traffic stops, nor taking on the duty of citing motorists for traffic violations that night. The specialized unit’s mission was more consistent with looking for evidence of violent crime, such as armed robbery, he observes.
Mathis concludes that it would have been reasonable for Moore to pull him over for the window tint violation, but that isn’t what happened. The reason was clearly for the robbery, and there was no reason to continue the stop and search him after Moore learned what he wanted, and that was whether this minivan was the vehicle suspected in the robbery, he asserts.
Attorney General Permitted to Argue
An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Attorney General’s Office. The attorney general will also participate in oral argument, sharing the prosecutor’s time.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Owen Knapp, oknapp@prosecutor.cuyahogacounty.us
Representing Rasheed Mathis from the Cuyahoga County Public Defender’s Office: Thomas Lampman, tlampman@cuyahogacounty.gov
Representing the Ohio Attorney General’s Office: Mathura Sridharan, mathura.sridharan@ohioago.gov
Is Landlord Responsible for Injuries Caused by Dog Bite in Complex’s Common Areas?
L.H. Hipshire and mother Kelly Hipshire v. Oakwood Village et al., Case No. 2025-0175
Second District Court of Appeals (Montgomery County)
ISSUE: Does a landlord meet the definition of “harborer” under state law if the landlord allows for dogs to be present in common areas of a rental housing complex?
BACKGROUND:
In 2020, an 11-year-old boy lived with his mother, Kelly Hipshire, in the Oakwood Village community in Montgomery County. Oakwood Village is a manufactured housing community with streets, sidewalks, and playgrounds. Beth Anne Lake resided at Oakwood Village. Lake’s son took the family cocker spaniel to one of Oakwood Village’s playgrounds. The dog was on a leash, and the leash was tied to a swing set. Hipshire’s son approached the dog and patted it on its head. The dog bit the boy on his scalp and face, requiring an emergency room visit and more than 50 stitches.
Hipshire filed a lawsuit against Lake and the Oakwood Village owners, Sun Secured Financing. Sun had adopted community-wide rules that prevented tenants from owning restricted breeds of dogs and required dogs to be on leashes in the common areas, like the playground. The cocker spaniel wasn’t a restricted breed. Hipshire’s lawsuit claimed that under R.C. 955.28(B), Lake and Sun were both strictly liable for the injuries caused by the dog. The statute imposes liability on dog owners, keepers, and harborers, and Hipshire claimed that Sun was a harborer of Lake’s dog.
Lake didn’t respond to the lawsuit, and a default judgment was issued against her. Sun asked the trial court to grant it summary judgment, arguing it wasn’t a harborer of Lake’s dog under the law’s definition of the term. The court granted Sun summary judgment, and Hipshire appealed to the Second District Court of Appeals,
In a 2-1 decision, the Second District reversed the trial court’s judgment and remanded the case for further proceedings.
Sun appealed to the Supreme Court of Ohio, which agreed to hear the case.
Control of Premises Required To Be Liable, Landlord Asserts
Sun notes that the dissenting judge on the Second District panel conducted comprehensive research of all cases regarding strict liability imposed on a harborer of a dog. Sun asserts those opinions indicate that Ohio law requires active control over a dog to be a harborer. The landlord suggests that silent acquiescence, in which a landlord allows a dog to be kept by a tenant and to use the common areas, is a component of being a harborer, but is not the sole factor.
Sun maintains that simply presenting tenants with a list of breeds that cannot be owned and requiring a dog to be leashed while in the common areas isn’t enough to hold a landlord liable for any injuries a dog might cause. If such were the case, nearly all dog owners would have difficulties finding places to rent, as landlords wouldn’t take on the risk of incurring liability and damages for dogs they don’t control or have a close relationship with, Sun asserts.
Sun notes that the cases where landowners or landlords were found liable involve incidents where a dog is owned by a family member, friend, or neighbor; the landlord was familiar with the pet or the owner; and the landlord didn’t object to the dog being on the property.
Sun also points to R.C. Chapter 955, a whole section of state law covering dog laws, and notes that the words “owners, keepers, and harborers” are used together more than 100 times. The state places similar requirements on all of them, and in some court cases, the terms “keeper” and “harborer” are considered to have the same meaning. Sun maintains it would be odd for the General Assembly to have inconsistent definitions of harborer in the same chapter in which some laws required a close relationship to a dog, and others would just consider allowing a dog on the property.
Law Applies to Landlords, Tenant Maintains
R.C. 955.28(B) doesn’t exempt landlords, and the law doesn’t require day-to-day control of a dog to apply, Hipshire argues. The law considers owners and keepers to be in control of a dog. A harborer is one who exercises control over the premises where the attack occurred and allows for the dog’s presence.
Landlords who reap the benefit of billing their properties as “dog friendly” do have the responsibility for injuries that occur when the attack occurs in a common area where the landlord allowed dogs, Hipshire maintains. Sun retained exclusive control over the playground where Hipshire’s son was bitten, and it created and enforced the rules that governed dog behavior in the shared spaces, the tenant asserts. That meets the definition of harborer in state law, she concludes.
Hipshire notes the Second District’s definition of a harborer is consistent with Black’s Law Dictionary’s, which in this context means “to afford lodging to, to shelter, to give refuge to.” It doesn’t define harboring in any terms of ownership or direct management. Sun may not be liable for an injury caused by a wandering dog trespassing onto the property, but it is harboring dogs that it permits its tenant to keep and to take to the common areas, she argues.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing L.H. Hipshire and his mother, Kelly Hipshire: John Smalley, jsmalley@dgmslaw.com
Representing Oakwood Village et al.: David Kerns, david.kerns@fisherbroyles.com
Did Independent Audit Find Utility Rider for Coal Plant Power Was in Customer Best Interests?
In re review of power purchase agreement riders of Ohio Power Company for 2018 and 2019, Case No. 2024-1735
Public Utilities Commission of Ohio
ISSUES:
- Did the order from the Public Utilities Commission of Ohio (PUCO) ignore evidence from the independent auditor of the utility’s imprudence in a draft of the audit report?
- Did the PUCO violate the state and federal constitutions by denying a party’s subpoena for a PUCO staff member to testify at a hearing?
- In determining whether a PUCO staff member improperly interfered with the audit, did the PUCO apply the wrong standard?
BACKGROUND:
The Public Utilities Commission of Ohio (PUCO) in February 2015 authorized Ohio Power Company, known as AEP Ohio, to establish a placeholder “power purchase agreement rider” (PPA rider). The PPA rider is based on AEP Ohio’s agreement to buy power from Ohio Valley Electric Corporation (OVEC). AEP Ohio is a part owner of two coal plants – the Kyger Creek Power Plant in Cheshire, Ohio, and the Clifty Creek Power Plant in Madison, Indiana – built in the 1950s and operated by OVEC.
AEP Ohio is entitled to a share of the electricity OVEC generates from the coal plants and also must pay a share of OVEC’s costs. The energy produced isn’t supplied to AEP Ohio customers. Instead, the coal plants act as a “financial hedge” against fluctuating prices in the wholesale power market with the goal of stabilizing customer rates. The energy is sold to PJM Interconnection, the regional operator of a wholesale electricity market, as part of a competitive auction to set wholesale prices. If the revenue generated by sales to the PJM market is lower than the electricity costs, AEP Ohio’s customers pay a surcharge through the PPA rider to make up the difference. If the PJM market rates are higher than the power costs, customers receive credit through the rider. AEP has 1.53 million residential and manufacturer customers.
In March 2016, the PUCO ordered annual audits of the PPA rider. The audit’s purpose is to determine the “prudency of all costs and sales flowing through the PPA rider and to demonstrate that the Company’s actions were in the best interest of ratepayers.” The PUCO selected London Economics International (LEI) to conduct an audit of the rider for calendar years 2018 and 2019.
Auditor Submits Report With Recommendations to Commission
LEI filed its audit report in September 2020. LEI found that “the processes, procedures, and oversight were mostly adequate and consistent with good utility practice.” The auditor also made several recommendations.
Among them, LEI recommended that OVEC reconsider its strategy when bidding coal power units into the PJM market. Typically, the OVEC coal power units are “self-scheduled,” also called “must-run” or “self-committed.” The approach means that the power generated through OVEC won’t turn off even if the market price drops below the OVEC operational costs. Must-run setups can incur losses for a utility company because the market prices don’t cover the costs of running the plants to generate electricity. LEI recommended that OVEC “carefully consider when and whether the must-run strategy is optimal, as it appears that in some months, it may result in negative energy earnings for the plants.” A few ways LEI suggested to address the concern were for OVEC to rely on weekly demand and price outlooks and have OVEC’s operating committee meet more frequently to be able to respond to changing conditions.
The PUCO scheduled a January 2022 hearing on the report. The Office of the Ohio Consumers’ Counsel (OCC), which is an intervening party in the case, asked to subpoena LEI’s chief economist Maria Fagan, PUCO staff member Mahila Christopher, and the “PUCO Admin” referred to in a September 2020 email between Christopher and Fagan about a draft version of the audit report.
The PUCO administrative law judge denied the request to subpoena Fagan because of testimony that had already been submitted. The other subpoena requests were deferred because the PUCO requires questions to first be directed to the designated staff witness. If needed, other witnesses can later be called to testify. After hearing the testimony, the administrative law judge denied the deferred subpoenas.
PUCO Approves Auditor’s Final Report
In August 2024, the PUCO adopted the audit report. The commission concluded that the must-run bidding strategy was prudent during the 2018-2019 time period, finding that AEP Ohio earned approximately $32 million in net revenue from selling OVEC energy into the PJM markets. The revenue reduced costs to customers under the PPA rider, the PUCO stated.
The PUCO agreed that AEP should reconsider the must-run strategy going forward and use shorter-term forecasts to set its price offers. More frequent meetings were also endorsed by the commission.
The OCC and the Ohio Manufacturers Association Energy Group (OMAEG), also an intervening party, appealed the PUCO decision to the Supreme Court of Ohio, which must hear the appeal.
Operating Coal Plants 24/7 Doesn’t Benefit Customers, Groups Argue
The brief from the OCC and OMAEG states that AEP Ohio projected that the PPA rider would give ratepayers a net credit of $110 million over the term of the rider. Between 2016 and 2019, however, the rider generated zero credits for customers, while producing $135.4 million in charges, the groups maintain. In 2018 and 2019, AEP Ohio charged customers $74.5 million through the PPA rider, the groups note.
They argue these excess charges were driven by running the coal plants 24 hours a day, seven days a week, and bidding that energy into the PJM market even though the plants weren’t covering their operating costs. The evidence submitted by AEP Ohio didn’t demonstrate that the PPA rider was prudent and in the best interests of customers, the groups allege.
To support this conclusion, they point to an email about the draft audit report between LEI and PUCO staff. In the email, the PUCO staff member sent LEI initial comments regarding the draft report recommending a milder tone and intensity, giving as an example a sentence that stated, “Therefore, keeping the plants running does not seem to be in the best interests of ratepayers.” The sentence didn’t appear in the final report. The email also recommended reducing the subjectivity and the level of detail in sentences that referenced House Bill 6 and the subsequent federal bribery investigation.
The OCC and OMAEG assert that the email shows that the PUCO staff improperly influenced an independent auditor. The groups contend that when evaluating the audit report, the PUCO refused to give any weight to the draft reports that were toned down. The commission also refused subpoenas that would have allowed the individuals who sent the emails to be questioned during the hearing. The denials of the subpoenas and refusing to allow the cross-examination of the witnesses violated the due process rights of the OCC and OMAEG to a fair hearing, they argue.
The groups also maintain that the PUCO used the wrong legal standard when evaluating whether the staff member improperly influenced the auditor’s report. The commission used an undue influence standard, but should have relied on a standard that certified public accountants must follow in order to uphold the public’s trust, the groups assert. They contend that the PUCO should have determined whether the relationship between the auditor and the PUCO staff member appeared to impair the auditor’s objectivity in conducting the audit. This appearance-of-impropriety standard should have been applied instead, the groups argue.
Evidence and Final Audit Report Support PPA Rider, PUCO Contends
The PUCO responds that there was ample evidence to support its findings that costs billed to AEP Ohio customers through the rider were prudent and in the best interest of the customers. The commission cites the content of the final LEI audit report and the testimony in support of the report. The OCC and OMAEG ignore the final report and supporting testimony and instead focus on a sentence in an early draft, the PUCO argues. But when viewing the record in the case in its totality, the commission maintains that the evidence supports its findings.
Regarding the subpoenas, the PUCO contends that the administrative law judge had the discretion to deny the subpoenas and that denial didn’t deprive the OCC and OMAEG of their due process rights.
The commission also asserts that it applied the correct standard to decide whether the auditor’s and the report’s independence and integrity were compromised. This standard has been consistently used in these contexts in other cases, the commission maintains.
Commission Rejected Groups’ Arguments Multiple Times, Company Maintains
AEP Ohio, which was permitted to intervene in the case, notes that it doesn’t unilaterally control how OVEC is operated or how the power generated is bid into the PJM market. In 2018 and 2019, the company said it had one voting member on the OVEC operating committee, which had seven other voting members from other companies.
The company adds that the 118-page audit report found that nothing done by AEP Ohio or OVEC was imprudent. The company’s brief describes the OCC and OMAEG as “fixated” on edits sent by staff to the draft report. The groups have repeatedly raised this complaint and the other arguments – all of which have been properly rejected by the PUCO, the company concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Ohio Consumers’ Counsel Office: John Finnigan Jr., john.finnigan@occ.ohio.gov
Representing the Ohio Manufacturers’ Association Energy Group: Kimberly Bojko, bojko@carpenterlipps.com
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Julian Johnson, julian.johnson@ohioago.gov
Representing Ohio Power Company, doing business as AEP Ohio: Steven Nourse, stnourse@aep.com
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