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Ohio Partners for Affordable Energy v. The Public Utilities Commission of Ohio, Case no. 2006-1633
Disciplinary Counsel v. P. Robert Broeren, Case no. 2007-0333
Knox County
Cleveland Bar Association v. Howard V. Mishler, Case no. 2007-0344
Cuyahoga County
Disciplinary Counsel v. Judge Carole H. Squire, Case no. 2007-0492
Franklin County
Ohio Partners for Affordable Energy v. The Public Utilities Commission of Ohio, Case no. 2006-1633
ISSUE: Did the Public Utilities Commission of Ohio act within its statutory authority in May 2006 when it issued an order authorizing the East Ohio Gas Company, d.b.a. Dominion East Ohio, to abandon the “Gas Cost Recovery” rate-setting formula prescribed in R.C. Chapter 4905 and instead to begin charging its retail “commodity” gas service customers a “Standard Service Offer” rate based on the current market prices charged by competitive natural gas suppliers?
BACKGROUND: Dominion East Ohio (DEO) is a state-regulated utility company that provides natural gas service to customers in northeastern Ohio.
In April 2005, DEO filed an application with the Public Utilities Commission of Ohio (PUCO) seeking to “restructure its commodity service” to retail customers who were still purchasing natural gas directly through DEO rather than through one of a dozen competing gas suppliers who have entered the market since the adoption of legislation deregulating Ohio's natural gas industry. The application sought PUCO authorization for DEO to stop using a statutory “gas cost recovery” formula to set the rates it charged its own retail supply customers and instead to adopt a new market-based rate-setting process in which DEO would conduct an auction among the other competing gas suppliers in its service area and procure gas for its customers from the other suppliers at the best rates attainable through the auction process. The long-term objective of the proposal was for DEO to terminate its role as a direct supplier of natural gas to retail customers and restrict its future business to the distribution and transmission of gas from third-party suppliers to end users.
The PUCO classified DEO's request as an application for exemption from the statutory requirement that regulated gas utilities must set the rates they charge customers who procure gas supplies directly from the utility company according to the gas cost recovery formula prescribed in R.C. 4905. Based on that determination, the PUCO published a notice inviting comments on the DEO petition from interested parties and stating that the application would be reviewed under R.C. 4929.04, which sets guidelines for applications for exemption from state utility regulations. Several consumer groups submitted comments on the DEO application and appeared at the commission's hearings on it, including Ohio Partners for Affordable Energy (OPAE), a non-profit corporation that advocates for low-income utility customers and conducts consumer education and weatherization programs to help low-income households reduce utility costs.
After reviewing comments and completing the hearing process, in May 2006 the commission approved a modified version of DEO's application, thereby authorizing the company to abandon the statutory gas-cost-recovery formula and adopt new “standard service offer” rates for its direct-supply customers based on the bids of competing suppliers. OPAE and other parties filed objections to the commission's order and moved for a rehearing. Their motions were denied. OPAE has exercised its right to appeal the PUCO's order to the Supreme Court.
In urging the Court to vacate the PUCO order and invalidate the new schedule of gas rates adopted by DEO, attorneys for OPAE argue that:
1) The commission erred by classifying and reviewing DEO's petition as an application for exemption from regulation rather than as a proposed change in the company's gas pricing tariffs.
2) If the petition was an application for exemption, the commission erred in approving it without making statutorily required findings that the requested exemption would promote competition, diversity of suppliers and reasonable consumer energy costs for consumers; and had also not made required findings that the proposed new regulatory scheme would advance the state's public policy interests of demand-side assistance to consumers, energy conservation and financial assistance to low-income customers.
Attorneys for the PUCO argue that in granting DEO's application for exemption from the former gas-cost-recovery pricing guidelines and approving a new market-based pricing process, the commission substantially complied with procedural requirements, acted within its sound discretion and followed the legislative intent underlying deregulation of the natural gas industry.
Contacts
Colleen L. Mooney, 614.488.5739, for
Ohio Partners for Affordable Energy.
Anne L. Hammerstein, 614.644.8669, for the Public Utilities Commission of Ohio.
Disciplinary Counsel v. P. Robert Broeren, Case no. 2007-0333
Knox County
The Board of Commissioners on Grievances & Discipline has recommended that the Supreme Court impose a six-month license suspension against Mt. Vernon attorney P. Robert Broeren for violating several provisions of the Code of Professional Responsibility while defending a client in a 2004 debt-collection case.
The board found that after the client rejected two settlement agreements Broeren had negotiated with his creditor, Broeren neglected to advise his client of a scheduled trial date until it was too late for the client to attend and subsequently failed to notify the client that a $2,000 judgment had been entered against him. The board also found that Broeren later sent the client a copy of a back-dated letter that purported to have notified the client about the judgment and alerted him to a debtor's collection conference at which neither the client nor Broeren had appeared, resulting in an additional $500 court assessment against the client.
Broeren, who was in private practice at the time of the charged misconduct and now serves as an assistant Knox County prosecutor, admits neglecting the client's case but disputes the board's finding that the wrongly dated letter he sent to the client was a deliberate attempt to mislead the client rather than a clerical error. He urges the Court to impose a reprimand or stayed license suspension as the appropriate sanction for his misconduct.
Contacts
Stacy Solochek Beckman, 614.461.0256, for
the Office of Disciplinary Counsel.
William Mann, 614.224.4114, for P. Robert Broeren.
Cleveland Bar Association v. Howard V. Mishler, Case no. 2007-0344
Cuyahoga County
Westlake attorney Howard V. Mishler and the Cleveland Bar Association have each filed objections to a report by the Board of Commissioners on Grievance & Discipline finding that Mishler engaged in a pattern of professional misconduct in his financial dealings with two clients and recommending that his law license be suspended for one year, with the final six months of that term stayed on conditions.
The disciplinary board found that in one case Mishler settled a client's employment discrimination claim with his employer without the knowledge or consent of the client and executed a settlement agreement and negotiated a settlement check both of which bore the client's reputed signature despite the client's denial that he either knew of or signed either document. Mishler subsequently failed either to notify the client of the settlement or to pay the proceeds to the client for nearly four years.
In a second case, the board found that Mishler made statements to a client suggesting a high probability that he could win a job discrimination lawsuit against his employer that induced the client to reject a severance offer and pay a $5,000 retainer to Mishler to file suit in federal court on his behalf. When the client was subsequently deposed by the employer's attorneys and again when he participated in a mediation session to seek resolution of the case, on both occasions Mishler did not attend but instead sent another attorney not affiliated with his firm and unknown to the client to represent him without the client's consent. The employer ultimately obtained a summary judgment dismissing the client's federal claim.
The board found that Mishler's conduct in both cases violated, among others, the state attorney discipline rules that prohibit charging a clearly excessive fee; failing to properly account for and promptly pay monies to which a client is entitled; and engaging in conduct involving fraud, deceit, dishonesty or misrepresentation, conduct prejudicial to the administration of justice, and conduct that adversely reflects on an attorney's fitness to practice law.
The Cleveland Bar Association has filed objections to the board's recommended sanction, arguing that Mishler's actions in fraudulently executing a settlement agreement, cashing the settlement check and then withholding the proceeds from his client for years amounts to misappropriation of client funds. They urge the Court to impose an indefinite license suspension as a more appropriate punishment for such serious misconduct.
In his objections to the board's report, Mishler disputes a finding that his use of an outside “contract” attorney violated the disciplinary rule that bars the division of legal fees between attorneys without the client's consent. Mishler also disputes the bar association's claim that he should receive a more severe penalty than that recommended by the disciplinary board, and urges the Court to consider his 33 years of legal practice without prior disciplinary action as a significant mitigating factor favoring the board's recommended sanction of a partially stayed one-year suspension.
Contacts
Robert Hanna, 216.592.5000, for the
Cleveland Bar Association.
Lester S. Potash, 216.771.8400, for P. Robert Broeren.
Disciplinary Counsel v. Judge Carole H. Squire, Case no. 2007-0492
Franklin County
The Board of Commissioners on Grievances & Discipline has recommended that the law license of former Franklin County domestic relations Judge Carol Squire be suspended for two years, with the second year of that term stayed on conditions, for violating multiple provisions of the Code of Professional Responsibility and Code of Judicial Conduct in her dealings with attorneys and clients during her service on the bench. Squire was defeated in a November 2006 campaign for reelection, and is now in private practice in Columbus.
Squire has filed objections urging the Court to overrule the disciplinary board's findings of rule violations and to reject its recommendation that she be sanctioned.
Following a disciplinary hearing that included eight days of testimony, the board concluded that in multiple cases Squire failed to follow the law when she refused to promptly conduct hearings on requests for civil protective orders and/or emergency child custody orders sought by parties in cases until she had conducted her own independent inquiry into their claims. In several cases the board found that Squire's “investigations” involved initiating improper communications with opposing parties and counsel, children services agencies and other non-parties to the case.
The board found that in several cases where parties who were unable to obtain timely rulings from Squire raised objections to her conduct and obtained orders from another domestic relations judge, Squire summoned those parties and their counsel to her courtroom and engaged in intemperate and unprofessional verbal confrontations with them. In several such cases, the board found that Judge Squire engaged in conduct prejudicial to the administration of justice when she ignored or countermanded valid orders issued by another judge and entered alternative orders or stays that were unfavorable to the parties and counsel who had challenged her actions.
The board also found that Squire violated judicial ethics canons by refusing to recuse herself from further proceedings in cases where her impartiality had been challenged through affidavits of bias and prejudice; and found that she had repeatedly violated provisions of Judicial Canon 3 that require judges to perform the duties of their office “impartially and diligently,” and require judges to be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”
In her objections to the board's findings and recommended sanction, Squire asserts that the cases in which her conduct has been challenged represent a tiny fraction of the thousands of cases she handled, and notes that most of the cited cases involved ex parte petitions for protective orders and emergency custody orders that are often subject to abuse as tactical maneuvers by parties involved in bitterly contested divorces and child custody disputes.
Her attorneys argue that as a domestic relations judge, Squire had a duty and wide discretion to seek factual verification of claims of a danger of domestic violence or child abuse before granting custody to one parent over another or barring a parent from all contact with his or her child. They also argue that state law cited by the board requires a same-day hearing but does not require a same-day ruling on petitions for protective orders, and assert that Ohio rules of court do not require a judge to automatically recuse him or herself or stay future proceedings in a case when, as in several of the cited cases, a party submits an affidavit of bias against the judge less than seven days prior to a court proceeding.
Contacts
Jonathan Coughlan, 614.461.0256, for the
Office of Disciplinary Counsel.
Richard M. Kerger, 419.255.5990, for Carol H. Squire.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point 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.