Former Ohio public utilities chair Sam Randazzo, on right. Credit: David Dermer / AP Photo

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Attorneys representing FirstEnergy shareholders say the company is needlessly dragging out pre-trial discovery by taking “up to eight bites at every apple,” while the death of a key figure in the Ohio’s House Bill 6 scandal underscores a growing sense of urgency among plaintiffs and prosecutors to gather evidence and testimony before it’s lost to time.

Here are the key developments since our last newsletter:

  • Sam Randazzo, Ohio’s former top utility regulator, was found dead of an apparent suicide soon after a second criminal indictment and an ethics complaint were filed against him. FirstEnergy admitted in 2021 that it bribed Randazzo, although he denied liability.
  • A newly revealed company email shows FirstEnergy gave $1 million to a group that supported Lt. Gov. Jon Husted’s 2017 gubernatorial campaign before he eventually became Gov. Mike DeWine’s running mate and worked behind the scenes to win support for the HB 6 power plant bailout. 
  • A special master in the HB 6 shareholder cases recommends letting discovery move ahead for fact witnesses but delaying depositions of experts until after an appeals court rules on whether the litigation should move ahead as a class action.
  • Larry Householder, the former Ohio House speaker currently serving a 20-year sentence in federal prison, faces additional charges in state court, including allegations about criminal activity even after his arrest on the federal charges in 2020.

Regulator’s death leaves questions unanswered

Columbus firefighters found Randazzo’s body April 9 during a wellness check after he missed a scheduled court check-in. Randazzo had faced state and federal criminal charges, including allegations of corruption and embezzlement. He also was a defendant in the state of Ohio’s civil action, in which the Ohio attorney general took action to freeze various assets.

Randazzo also faced disciplinary charges for alleged ethical breaches that could have cost him his law license after nearly 49 years as an Ohio lawyer. When Randazzo failed to answer those charges, the Ohio Board of Disciplinary Conduct had said it planned to make a finding of default and refer the case to the Supreme Court of Ohio.

Randazzo’s death makes it less likely the public will ever know the full extent of what actions he may have taken at FirstEnergy’s behest, both during the HB 6 scandal and in prior years, as well as how those actions may have increased charges for FirstEnergy utilities’ customers. 

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FirstEnergy’s ‘Golden Boy’

Lobbyist and HB 6 co-defendant Neil Clark, whose 2021 death was ruled a suicide, once referred to Ohio Lt. Gov. Jon Husted as the “Golden Boy” for FirstEnergy. Newly revealed company emails obtained by a group of news organizations shed light on the utility’s relationship with the politician, including a $1 million payment to a dark money group that backed Husted’s 2017 campaign for governor.

Husted has not been charged with wrongdoing relating to HB 6, and a spokesperson said his campaign was not affiliated with Freedom Frontier, the group that received the $1 million. The spokesperson has not responded to other questions about when Husted learned about the donation or the group’s support for his first gubernatorial campaign.

The payment by FirstEnergy raises more questions about his behind-the-scenes actions to help the company get a bailout for struggling nuclear and coal plants. Also: What was Husted’s role at the December 2018 dinner with FirstEnergy executives just before they firmed up payment arrangements with Randazzo weeks before he became chair of the Public Utilities Commission of Ohio? 

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Shareholders — and the public — want answers

Even before Randazzo’s death, the special master in FirstEnergy’s HB 6 shareholder cases noted how delays risk the further loss of evidence. “As time moves forward, memories fade, and this problem will likely worsen,” Special Master Shawn Judge wrote in a March 15 recommendation to let factual discovery resume in those cases.

“Moreover, as time has passed, potential witnesses [have] been indicted and one witness, Neil Clark, even committed suicide,” Judge added. Randazzo, who was not a party to the case, had fought against providing more documents and information before his indictments and subsequent death.

Fact-finding in the proceedings has been on hold since December 1, after FirstEnergy asked for a stay while appellate judges review whether the court properly let the litigation move ahead as a class action. Although Judge wants factual discovery to move ahead, he recommended continuing a stay on expert discovery, which could be affected by the higher court’s ruling.

Judge Algenon Marbley still needs to approve the special master’s recommendation, as well as his rulings on other issues, such as production of FirstEnergy’s internal investigation report.

Objections by FirstEnergy and other defendants prompted shareholders’ lawyers to complain in an April 8 filing that FirstEnergy was taking “up to eight bites at every apple” throughout the case, leading to unnecessary delays. “FirstEnergy is burying the Court in paper, making it near impossible for it to render decisions in a timeframe that would allow the merits of this matter to be decided in a timely manner,” they wrote.

Attorneys are not supposed to file motions solely for purposes of delay, although lawyers have an ethical obligation to represent clients diligently within the bounds of the law. Resolving each round of objections, motions for stay and requests for reconsideration takes time. 

“We are unable to comment on ongoing litigation,” said FirstEnergy spokesperson Jennifer Young.

Meanwhile in state court…

A March 29 filing by Ohio Attorney General Dave Yost details how prosecutors allege that former FirstEnergy executives Chuck Jones and Michael Dowling, together with Randazzo and companies run by him, engaged in a “largescale covert scheme” starting in 2010 to criminally corrupt the chair of the PUCO, steal millions from a utility company and a group of large energy users, fake a contract to cover up a side deal in a ratemaking case, and tamper with government records for financial and lobbying disclosures.

A potential witness list in the case includes current and former PUCO commissioners and other current and former FirstEnergy executives and lobbyists. Others on the list include Gov. Mike DeWine’s counselor and former chief of staff, Laurel Dawson, whose husband lobbied for FirstEnergy and who apparently received a 198-page dossier that warned about the company’s ties to Randazzo before he was appointed to the PUCO. DeWine has supported Dawson even as she has declined to comment on Randazzo’s appointment. Dawson’s husband also is on the witness list.

Lawyers for Jones and Dowling have asked the court to delay a status conference in the case from April 19 until May 2. Both also asked the court to let them take part via Zoom if Judge Susan Baker Ross requires their attendance.

Former Ohio House speaker Larry Householder also now faces state criminal charges. While the charges arise out of the HB 6 scandal, they are distinct from the federal charges for which he is now serving a 20-year sentence.

Some of the indictment’s ten counts include claims that Householder continued to engage in criminal activity even after his arrest on federal charges in July 2020, including an alleged theft of $1.2 million from a campaign fund. Conviction on a related theft-in-office count could bar him from serving again in public office in Ohio if he winds up being released from federal prison.

In another twist, Dave Wondolowski, the grand jury foreperson who signed the Householder indictment, is known to have been a supporter of HB 6. Data from OpenSecrets also show the union Wondolowski leads gave $14,000 to Householder’s campaign in the 2019-2020 election cycle.

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Kathi is the author of 25 books and more than 600 articles, and writes often on science and policy issues. In addition to her journalism career, Kathi is an alumna of Harvard Law School and has spent 15 years practicing law. She is a member of the Society of Environmental Journalists and the National Association of Science Writers. Kathi covers the state of Ohio.