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Tuesday, March 22, 2011

In the Matter of the Application of Ormet Primary Aluminum Corporation for Approval of a Unique Arrangement with Ohio Power Company and Columbus Southern Power Company, Case no. 2009-2060
Appeal from order of Public Utilities Commission of Ohio

In the Matter of the Application of Columbus Southern Power Company and Ohio Power Company to Adjust Their Economic Development Cost Recovery Rider Rates, Case no. 2010-0722
Appeal from order of Public Utilities Commission of Ohio

In the Matter of the Application for Establishment of a Reasonable Arrangement Between Eramet Marietta, Inc. and Columbus Southern Power Company, Case no. 2010-0723
Appeal from order of Public Utilities Commission of Ohio

Butler County Bar Association v. William Eric Minamyer, Case no. 2009-2284

State of Ohio v. Jeremy S. Damron, Case no. 2010-0937
10th District Court of Appeals (Franklin County)

Mary H. Williams v. Director, Ohio Department of Job and Family Services, et al. , Case no. 2010-1166
8th District Court of Appeals (Cuyahoga County)


Did PUCO Err In Barring Recovery of 'Last Resort' Charges from Users Barred from Shopping for Power?

In the Matter of the Application of Ormet Primary Aluminum Corporation for Approval of a Unique Arrangement with Ohio Power Company and Columbus Southern Power Company, Case no. 2009-2060
Appeal from order of Public Utilities Commission of Ohio

In the Matter of the Application of Columbus Southern Power Company and Ohio Power Company to Adjust Their Economic Development Cost Recovery Rider Rates, Case no. 2010-0722
Appeal from order of Public Utilities Commission of Ohio

In the Matter of the Application for Establishment of a Reasonable Arrangement Between Eramet Marietta, Inc. and Columbus Southern Power Company, Case no. 2010-0723
Appeal from order of Public Utilities Commission of Ohio

[NOTE: These three cases have been consolidated for oral argument before the Court. They involve appeals filed by electric utility companies owned by American Electric Power Co. (AEP) and seek the reversal of similar orders issued by the Public Utilities Commission of Ohio (PUCO). The parties in all three cases address the same legal issues and advance virtually identical arguments.]

ISSUE: Did the PUCO act unlawfully or unreasonably when it approved arrangements in which electric utility companies owned by AEP were required to grant discounted rates to two large industrial users, and the utilities were denied recovery from their other customers for the portion of  foregone revenue claimed by the utilities as their cost of providing Provider of Last Resort service to the customers  receiving the discounts?

BACKGROUND: Under legislation adopted in 1999 for the purpose of deregulating Ohio’s electric power industry and moving it to  a market-based operating model, customers of the electric distribution utilities (EDUs) then operating across the state were offered the opportunity either to continue receiving power generation service from their EDU or instead to shop for lower-priced generation service from other providers.

As part of the regulatory scheme,  EDUs were required to maintain sufficient generating capacity to meet the needs of all power users in their geographical service areas in case “shopping” customers later decided to return to the EDU and/or if competing suppliers of generating service went out of business. In exchange for serving as the guaranteed  “Provider of Last Resort” (POLR) in their respective service areas, the EDUs were permitted to build into their standard service rates a POLR charge based on their costs of maintaining the excess generating capacity and other resources necessary to fill that role.

In this case, the PUCO approved special arrangements in which Ohio Power Company and Columbus Southern Power Company, EDUs that are both owned by AEP, were directed to charge discounted rates for power used by two large metal manufacturers located in southeastern Ohio, Ormet Primary Aluminum Corp. and Eramet Marietta Inc. The discounted rates, which were proposed by Ormet and Eramat, were granted by the PUCO as a means of sustaining employment and stimulating economic development in that part of the state.

Under the provision of state law that authorizes such arrangements, R.C. 4905.31, the commission allowed the utility companies to recover the difference between their normal rates and the discounted amounts that it actually collected from Ormet and Eramet, referred to as “delta revenue,” through increased charges collected from other utility customers. In its orders approving the special arrangements, the PUCO authorized the power companies to recover all of their claimed delta revenue from other customers with the exception of POLR charges to which the utilities claimed to be entitled. The PUCO order noted that the special arrangement agreements contractually barred Ormet and Eramet from shopping for electric service from any other provider during the term of the agreements, and therefore the AEP companies bore “no risk” of exposure to POLR costs arising from its service to Ormet or Eramet.

The utilities filed objections to the commission’s order and entered  a request for rehearing, which was denied. AEP has exercised its right to appeal the PUCO orders granting the Ormet and Eramet special arrangements to the Supreme Court.

Attorneys for the utilities argue that when the PUCO grants special electric power arrangements, R.C. 4905.31 requires that a utility ordered to provide discounted service must consent to the terms of the agreement before it is approved, and must be permitted to recover all of its foregone revenue, including POLR charges, from other users. They also contend that the commission erred in ruling that there was “no risk” of Ormet or Eramet shopping for an alternative supplier because there was a possibility that those companies could violate the agreements, shop for a better rate elsewhere and later return to claim POLR service from AEP.

Attorneys for the PUCO, supported by briefs submitted by Industrial Energy Users-Ohio and the state’s Office of Consumers Counsel, respond that the applicable language of R.C. 4905.31 states that arrangements for discounted service “may include a device to recover costs incurred, including recovery of revenue forgone.”  They assert that the statute does not mandate either that the PUCO obtain the assent of an affected utility to all details of a special arrangement before approving it, or that the commission allow recovery of every dollar of revenue that a utility claims to have foregone as a result of the agreement. In this case, they argue, the PUCO did approve recovery of most of the utilities’ claimed delta revenue, and acted within its discretion in denying additional customer charges for POLR “risk” that the commission determined did not exist based on Ormet and Eramet’s contractual obligations to buy power exclusively from the AEP companies during the terms of the agreements.

Contacts
Steven T. Nourse, 614.716.1608, for Ohio Power Company and Columbus Southern Power Company.

Thomas McNamee, 614.466.4396, for the Public Utilities Commission of Ohio.

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Attorney Discipline

Butler County Bar Association v. William Eric Minamyer, Case no. 2009-2284

The Board of Commissioners on Grievances and Discipline has recommended that the license of Butler County attorney William E. Minamyer be suspended for two years, with the final 18 months of that term stayed on conditions, for professional misconduct in his representation of a client in a civil lawsuit.

The board found that Minamyer failed to appear for scheduled court proceedings or to respond to motions filed by the opposing party, resulting in the dismissal of his client’s complaint, then failed to inform the client about the dismissal and instead made statements that misled her about the status of her case. The board also found that Minamyer failed to advise his client that he was not covered by malpractice insurance, and failed to answer the complaint filed against him or otherwise cooperate with disciplinary authorities investigating his misconduct.

Minamyer has entered objections to the board’s findings and recommended sanction. He asserts that he did not receive notice of pretrial proceedings in his client’s case, possibly due to a change in the location of his office, and did not receive a copy of the opposing party’s motion to dismiss his client’s complaint until after it had been granted. He has also submitted a medical report indicating that he suffered from depression at the time of his alleged misconduct and that this condition contributed to any rule violations that occurred. He urges the court to stay any license suspension it might impose, and allow him to continue to practice under appropriate supervision to ensure that his medical condition is not impairing his current performance.

The Butler County Bar Association, which prosecuted the misconduct charges against Minamyer before the board, characterizes Minamyer’s objections as consistent with his ongoing failure to accept responsibility for neglecting his client’s case and other rule violations.  They point out that Minamyer failed to file an answer to the complaint filed against him or appear at a hearing to dispute the charges against him, and argue that he should not be permitted to do so after the board has heard and decided those charges in default proceedings.  They urge the Court to impose the board’s recommended sanction of a two-year suspension with 18 months stayed on conditions.

Contacts
Bennett A. Manning: 513.425.6609, for the Butler County Bar Association.

William E. Minamyer, pro se, 513.885.6294.

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Is Sentence 'Contrary to Law' If Court Did Not Impose Consecutive Prison Terms Based on Misreading of Law?

Where Judge Incorrectly Believed Concurrent Sentences Were Mandatory

State of Ohio v. Jeremy S. Damron, Case no. 2010-0937
10th District Court of Appeals (Franklin County)

ISSUE: Does a judge sentencing a criminal offender for two different crimes impose a sentence that is “contrary to law” when he states on the record that a defendant’s crimes merit consecutive sentences, but proceeds to impose two separate, concurrent sentences based on the judge’s mistaken belief that by doing so the court is complying with the requirement in R.C. 2941.25 that convictions for allied offenses of similar import must be “merged” for sentencing purposes?

BACKGROUND: Jeremy Damron of Columbus entered guilty pleas to separate counts of domestic violence and felonious assault for assaulting his wife. He was found guilty of both offenses. At his sentencing hearing, the trial judge stated that the severity of the injuries Damron had inflicted on his wife merited prison terms of eight years for the assault count and five years for the domestic violence count. The judge also stated that he would have ordered the prison terms to be served consecutively (one after the other), but for his determination that the two charges on which Damron had been convicted were “allied offenses of similar import,” and therefore the court was compelled to merge the two offenses for sentencing pursuant to R.C. 2941.25. Based on that rationale, the judge then sentenced Damron to separate prison terms of eight years and five years, but ordered those sentences to be served concurrently (at the same time).

The Franklin County prosecutor appealed the imposition of concurrent rather than consecutive sentences. He argued that the sentencing order must be vacated as contrary to law because a) domestic violence and felonious assault as charged against Damron are not “allied offenses” subject to merger under R.C. 2941.25; and b) the trial court’s imposition of two separate sentences to be served concurrently was contrary to R.C. 2941.25 because that statute requires that allied offenses be merged into a single conviction subject to a single sentence.

The 10th District Court of Appeals did not reach the issue of whether the two crimes for which Damron was convicted are or are not allied offenses subject to merger.  Instead the court held that although the trial judge was mistaken in believing that a merger of Damron’s convictions was accomplished by imposing two separate but concurrent sentences, the sentence the court had pronounced was not “contrary to law” because it did not actually merge Damron’s convictions, and because a sentence of concurrent eight-year and five-year prison terms was within the statutory sentencing range for the offenses he committed.

The prosecutor sought and was granted Supreme Court review of the 10th District’s decision.

Attorneys for the prosecutor’s office argue that provisions of the state’s criminal sentencing statutes, including R.C. 2929.11 and 2929.12, require a judge sentencing an offender to consider the full range of available sentencing options and exercise the court’s discretion to select the sentence most appropriate to address the primary purposes of felony sentencing, which are to punish the offending conduct and deter future criminal acts.  In this case, they assert, the record of Damron’s sentencing hearing shows that the trial judge found consecutive sentences to be appropriate for his crimes, but the judge mistakenly believed he had “no alternative” but to impose concurrent sentences based on his misinterpretation of the allied offenses statute. 

Attorneys for Damron argue that the state’s right to challenge a criminal sentence on appeal is more limited than that of a defendant, and in this case the law requires that the state show not merely that the trial judge made a legal mistake in the sentencing process, but that the sentence actually imposed on the defendant was “contrary to law.”  They urge the Court to affirm the 10th District’s ruling that, despite the trial judge’s mistaken reading and application of the allied offenses statute, Damron’s convictions were not merged for sentencing purposes, the concurrent prison terms he received were within the allowable sentencing range for his crimes, and therefore his sentence was not contrary to law.

Contacts
John H. Cousins IV, 614.462.3555, for the state and Franklin County prosecutor's office.

Keith O'Korn, 614.318.7140, for Jeremy Damron.

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Is Employee Fired for Failing License Test Dismissed for 'Just Cause,' Ineligible for Unemployment Benefits?

When Passing Test Was Identified at Hiring as Condition for Retention

Mary H. Williams v. Director, Ohio Department of Job and Family Services, et al. , Case no. 2010-1166
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When an employee was notified at the time of hiring that obtaining a specified professional license or certification within a specified time period was a condition for continued employment, and the employee attempted but failed to obtain the required license or certification within the stated time period and was fired solely for that reason, under Ohio’s unemployment compensation laws, was the employee terminated for “just cause in connection with work” and therefore ineligible to receive unemployment benefits?

BACKGROUND: In January 2007 Mary Williams of Cleveland, who was employed as a social worker at a mental health facility operated by Bridgeway, Inc., was promoted to the position of Residential Program Manager.  At the time of her promotion, Williams received and signed a letter of appointment stating that as a condition of continued employment in her new position she was required to obtain state certification as a Licensed Independent Social Worker (LISW) within 15 months.

Williams applied for LISW certification and took the required license examination, but failed to obtain a passing grade within the specified time period. In June 2008 Bridgeway terminated her employment, citing her failure to obtain an LISW license as the sole reason.  Williams applied for state unemployment compensation benefits.  Bridgeway contested her application, asserting that she had been discharged for “just cause in connection with work” and therefore was not eligible to receive unemployment benefits under R.C. 4141.29. The director of the Ohio Department of Job and Family Services (ODJFS), which administers the state unemployment fund, denied Williams’ application on the basis that she had been discharged for just cause.

Williams appealed the denial of benefits to the Unemployment Compensation Review Commission and then to the Cuyahoga County Court of Common Pleas, both of which upheld the director’s determination.  She then appealed the common pleas court ruling to the 8th District Court of Appeals, which reversed the director’s determination and held that Williams was entitled to benefits. In its opinion, the 8th District noted that at the time of Williams’ employment two other Bridgeway employees held the position of Residential Program Manager without being licensed as an LISW, and held that Bridgeway had not made a showing that Williams had failed to perform or was unable to satisfactorily perform the duties of her job.

Bridgeway sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for Bridgeway, supported by an amicus curiae (friend of the court) brief submitted by the Ohio Department of Job and Family Services, argue that Bridgeway’s firing of Williams meets the four-part test established by this Court in a 1995 decision, Tzangas, Plakas & Mannos v. Ohio Bureau of Employment Services for establishing that an employee was at fault for his or her own firing and therefore was fired “for just cause.”  In this case, they say, Williams did not perform a job duty (the requirement to obtain an LISW license), was aware that failure to perform that duty would result in dismissal, was given a reasonable time within which to perform the duty, and the duty was not changed between the time of Williams’ hiring and her dismissal.

They argue that the 8th District’s ruling improperly compared Bridgeway’s treatment of Williams with its treatment of two other employees, whereas the only proper standard for determining just cause in Williams’ case was whether she met the known job requirement of LISW licensure within the known time limit of 15 months, which she clearly did not.

Attorneys for Williams, supported by an amicus brief jointly submitted by the Legal Aid Society of Cleveland and Ohio State Legal Services Association, respond that the four-part test set forth in Tzangas was not propounded as a uniform “just cause” standard for an employee’s firing applicable to any and all circumstances, but rather applies only to cases in which the stated reason for a worker’s  discharge was failure or inability to perform that person’s assigned job duties. In this case, they argue, Bridgeway never claimed that Williams was being fired because she had failed to perform any of her job functions as a program manager in a satisfactory manner, or was incapable of doing so in the future, but rather fired her for the sole reason that she had failed to obtain a license that was not required by law for persons in her position, and that had not been obtained by other Bridgeway employees who held program manager positions.

Contacts
Fred J. Pompeani, 216.443.2541, for Bridgeway, Inc.

Alexandra T. Schimmer, 614.995.2273, Amicus Curiae Ohio Dept. of Job and Family Services.

Kenneth J. Kowalski, 216.687.3947, for Mary Williams.

Thomas W. Weeks, 614.221.7201, Amicus Curiae Ohio State Legal Services Assn.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.