The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Rev. of the Power-Purchase-Agreement Rider of Ohio Power Co. for 2018 and 2019, Slip
Opinion No. 2026-Ohio-1485.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South
Front Street, Columbus, Ohio 43215, of any typographical or other formal
errors in the opinion, in order that corrections may be made before the
opinion is published.
SLIP OPINION NO. 2026-OHIO-1485
IN RE REVIEW OF THE POWER-PURCHASE-AGREEMENT RIDER OF OHIO
POWER COMPANY FOR 2018 AND 2019; OFFICE OF THE OHIO CONSUMERS’
COUNSEL ET AL., APPELLANTS; PUBLIC UTILITIES COMMISSION OF OHIO,
APPELLEE; OHIO POWER COMPANY, INTERVENING APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Rev. of the Power-Purchase-Agreement Rider of Ohio
Power Co. for 2018 and 2019, Slip Opinion No. 2026-Ohio-1485.]
Public utilities—Public Utilities Commission did not commit reversible error in
deciding to credit evidence showing that a must-run strategy for operating
two coal plants was prudent when the decision to utilize that strategy was
made—Commission did not violate procedural due process or Adm.Code
4901-1-28(E) in denying party’s motion for subpoena to compel
commission staff member to appear and testify at commission’s hearing,
because testimony presented by other witnesses covered the topic of
concern and the party had an opportunity to cross-examine those
witnesses—Commission did not err in failing to apply an appearance-of-
SUPREME COURT OF OHIO
impropriety standard when considering whether auditor was prevented
from conducting an independent audit—Orders affirmed.
(No. 2024-1735—Submitted December 10, 2025—Decided April 29, 2026.)
APPEAL from the Public Utilities Commission, Nos. 18-1004-EL-RDR and
18-1759-EL-RDR.
__________________
FISCHER, J., authored the opinion of the court, which KENNEDY, C.J., and
DEWINE, BRUNNER, HENSAL, HAWKINS, and SHANAHAN, JJ., joined. JENNIFER
HENSAL, J., of the Ninth District Court of Appeals, sat for DETERS, J.
FISCHER, J.
{¶ 1} Appellants, the Office of the Ohio Consumers’ Counsel (“OCC”) and
the Ohio Manufacturers’ Association Energy Group (“OMAEG”), appeal from
appellee Public Utilities Commission of Ohio’s decision to adopt the
recommendations provided by an independent auditor regarding the
implementation of a power-purchase-agreement rider (“the PPA Rider” or “the
rider”) by intervening appellee Ohio Power Company (“AEP Ohio”) for 2018 and
2019. Specifically, appellants challenge the commission’s conclusion that all costs
and sales flowing through the rider were prudent and in the best interest of AEP
Ohio’s retail customers.
{¶ 2} Appellants advance three propositions of law on appeal: (1) the
commission’s decision is against the manifest weight of the evidence, (2) the
commission violated due process and a commission rule by not issuing a subpoena
for the hearing testimony of a commission staff member, and (3) the commission
adopted the wrong standard for determining whether that staff member improperly
interfered with the audit. Although not denominated as a proposition of law,
appellants also seek a refund of charges paid by AEP Ohio’s customers under the
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PPA Rider, and they ask us to overrule our precedent to the extent that it forbids
refunds.
{¶ 3} Because we find no merit in appellants’ three propositions of law, we
affirm the commission’s decision, obviating any need for us to address appellants’
refund-related arguments.
I. BACKGROUND
{¶ 4} Once again, we are asked to review AEP Ohio’s PPA Rider, which is
tied to AEP Ohio’s relationship with the Ohio Valley Electric Corporation
(“OVEC”). We have explained that
[t]he PPA Rider works as either a charge or a credit to [AEP Ohio’s]
retail customers, depending on how OVEC’s costs compare to the
market rate. PJM Interconnection (“PJM”) operates a competitive
wholesale-electricity market where rates are set.1 If the revenue
generated from sales to the PJM market is lower than the costs of
the power, [AEP Ohio’s] customers would pay a surcharge to [AEP
Ohio] through the PPA Rider to make up the difference. But if the
PJM market rates are higher than the power costs, customers would
receive a credit through the PPA Rider.
(Footnote in original.) In re Application of Ohio Power Co., 2018-Ohio-4698, ¶ 4.
{¶ 5} OVEC’s output comes from two coal plants that began operating in
the mid-1950s—the Kyger Creek plant, consisting of five generating units, is
located in Cheshire, Ohio, and the Clifty Creek plant, consisting of six generating
units, is located in Madison, Indiana. AEP Ohio is considered a sponsoring
1. PJM Interconnection is a multiutility regional transmission organization designated by the Federal
Energy Regulatory Commission to coordinate the movement of wholesale electricity in all or part
of 13 states—including Ohio—and the District of Columbia.
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company of OVEC and by contract is entitled to 19.93 percent of OVEC’s output.
OVEC has an operating committee that establishes a framework for OVEC’s
management to conduct OVEC’s daily operations. Operational decisions require a
two-thirds vote by committee members. AEP Ohio has one committee vote on
behalf of itself and its affiliates.
A. The commission authorizes the PPA Rider on a placeholder basis
{¶ 6} In 2015, the commission authorized AEP Ohio to establish the PPA
Rider on a placeholder basis with a rate of zero. See In re Application of Ohio
Power Co., 2018-Ohio-4697, ¶ 3-4. We dismissed OCC and OMAEG’s appeal of
the commission’s decision in that case, observing that it was unclear how harm
could arise from a rider that did not recover money from customers. Id. at ¶ 1, 10-
18.
B. The commission authorizes cost recovery under the PPA Rider, subject to a
prudency review
{¶ 7} In 2016, the commission authorized AEP Ohio to begin collecting
money from its customers through the PPA Rider. See In re Application Seeking
Approval of Ohio Power Co.’s Proposal to Enter into an Affiliate Power Purchase
Agreement for Inclusion in the Power Purchase Agreement Rider, PUCO Nos. 14-
1693-EL-RDR and 14-1694-EL-AAM, 2016 WL 3482857, *91 (May 31, 2016).
In doing so, the commission emphasized that the rider would be subject to an annual
audit, and it explained that recovery of retail costs under the rider may be
disallowed “if the output from the units was not bid in a manner that is consistent
with participation in a broader competitive marketplace comprised of sellers
attempting to maximize revenues.” Id. at *75. The commission noted that AEP
Ohio would bear the burden of proving that its “bidding behavior [was] prudent and
in the best interest of retail ratepayers.” Id. We affirmed the commission’s decision
on appeal. See Ohio Power Co., 2018-Ohio-4698, at ¶ 1-2, 68.
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C. The commission conducts a prudency review of the PPA Rider
{¶ 8} The present case began when the commission entered an order
directing its staff to issue a request for proposal (“RFP”) for the purpose of
obtaining audit services to assist in an audit of the PPA Rider. See 2020 WL
12813029, *1 (Jan. 15, 2020). The audit’s purpose was to “establish the prudency
of all costs and sales flowing through the PPA Rider and to demonstrate that [AEP
Ohio’s] actions were in the best interest of retail ratepayers . . . for the period
spanning January 1, 2018, through December 31, 2019.” Id. at *6. The
commission selected London Economics International, L.L.C. (“LEI” or “the
auditor”), to conduct the audit. OCC and OMAEG later intervened in the
commission proceedings. See 2021 WL 228925, *3 (Jan. 19, 2021) (granting
OCC’s motion to intervene); 2021 WL 4169349, *4 (Sept. 10, 2021) (granting
OMAEG’s motion to intervene).
{¶ 9} On September 16, 2020, LEI issued an audit report. LEI found that
the “processes, procedures, and oversight [employed by AEP Ohio] were mostly
adequate and consistent with good utility practice.” LEI did not make any findings
of imprudence, but it did find “that the OVEC plants cost customers more than the
cost of energy and capacity that could be bought on the PJM wholesale market.”
LEI recognized, however, that other considerations, such as the plants’
contributions to employment and fuel diversity in the State, could outweigh the
energy cost paid by AEP Ohio’s customers.
{¶ 10} LEI also found the following:
• The true-up process between forecasted PPA Rider charges and actual PPA
Rider charges were accurate but the lag in that process should be reduced from
two billing cycles (six months) to one billing cycle (three months);
• OVEC should reconsider its must-run offer strategy since markets can change
and at times a must-run strategy may not be optimal;
• The plants performed well with some “small exceptions”;
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• OVEC’s operating-committee meetings should be held more frequently to
discuss energy-offer strategies, which could help prevent the plants from
running when energy prices are too low to cover variable costs.
{¶ 11} While this case was pending before the commission, OCC filed a
public-records request with the commission, through which OCC received a copy
of an email exchange between commission staff member Mahila Christopher and
Dr. Marie Fagan, LEI’s chief economist. In the email exchange, Dr. Fagan
confirms that LEI shared a draft of its audit report with commission staff. After
reviewing the draft, Christopher responded to Dr. Fagan with what she described
as “Staff’s editorial suggestions” regarding the “overall tone of the draft report.”
Christopher informed Dr. Fagan that a “[m]ilder tone and intensity of language
would be recommended” for the following sentence in the report: “Therefore,
keeping the plants running does not seem to be in the best interests of the
ratepayers.” In a later version of the draft report that LEI shared with AEP Ohio,
that sentence was replaced with the following: “However, LEI’s analysis shows
that the OVEC contract overall is not in the best interest of AEP Ohio ratepayers.”
But neither sentence is in the final audit report.
{¶ 12} To understand why these sentences were removed from the final
audit report, OCC filed with the commission a motion for a subpoena to compel
Christopher to appear and testify at the commission’s hearing. An attorney
examiner held the motion in abeyance, pending the questioning of Rodney Windle,
who was Christopher’s supervisor, and Dr. Fagan at the commission’s hearing.
{¶ 13} At the commission’s hearing, Dr. Fagan testified that commission
staff had asked LEI to make revisions to its audit report and that LEI had agreed to
do so. She added that LEI does not make revisions that it does not agree with and
that the revisions that LEI agreed to make in this case did not change its material
findings from the audit. Near the conclusion of the commission’s hearing, the
attorney examiner denied OCC’s motion for a subpoena.
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January Term, 2026
{¶ 14} In its opinion and order, the commission affirmed the denial of
OCC’s motion for a subpoena, observing that the parties had been granted
“considerable leeway” to question Dr. Fagan about the language in the draft audit
reports. 2024 WL 4039778, *12 (Aug. 21, 2024). It further found no evidence that
undue influence had prevented LEI from conducting an independent audit of the
PPA Rider. Id. at *22. Regarding the merits of the prudency review, the
commission determined that all costs and sales flowing through the rider were
prudent; it affirmed the findings as stated in LEI’s audit report and adopted LEI’s
recommendations as its own. Id.
{¶ 15} According to the commission, the “dominant” issue to be determined
was whether it was prudent for the OVEC plants to operate under a must-run
strategy. Id. at *23. Under a must-run strategy, an operator determines when to
schedule a generating unit to run, regardless of wholesale-energy prices. Thus,
even if the market price of energy falls below a unit’s operating costs, the unit will
remain on, thus incurring losses. In contrast to a must-run strategy, a plant may
commit its output under an economic strategy, whereby the plant’s units will run
only if it is the least costly option available to the market. The commission
determined that OVEC’s decision to employ a must-run strategy in 2018 and 2019
was prudent when viewed as of the time OVEC made its decision. Id. However,
in hindsight, the commission recognized that an economic strategy may have been
prudent for OVEC to adopt in some months; therefore, the commission adopted
LEI’s recommendation that AEP Ohio and OVEC revisit the soundness of the must-
run strategy. Id.
{¶ 16} The commission denied appellants’ first and second rehearing
applications and, in doing so, clarified that the actions taken by AEP Ohio were in
the best interests of its customers. 2024 WL 4581311, *1, 4, 25 (Oct. 15, 2024);
2024 WL 5009879, *1, 3-4 (Dec. 4, 2024).
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{¶ 17} This appeal followed. Appellants challenge the commission’s
decision as set forth in its opinion and order, as well as the commission’s entry on
rehearing and second entry on rehearing. We granted AEP Ohio’s motion to
intervene as an appellee. 2025-Ohio-86.
II. ANALYSIS
{¶ 18} “R.C. 4903.13 provides that a [commission] order shall be reversed,
vacated, or modified by this court only when, upon consideration of the record, the
court finds the order to be unlawful or unreasonable.” Constellation NewEnergy,
Inc. v. Pub. Util. Comm., 2004-Ohio-6767, ¶ 50. We have “complete and
independent power of review as to all questions of law.” Canton Storage &
Transfer Co. v. Pub. Util. Comm., 1995-Ohio-282, ¶ 16. But we do not “reweigh
the evidence or second-guess the [commission] on questions of fact.” In re
Complaints of Lycourt-Donovan v. Columbia Gas of Ohio, Inc., 2017-Ohio-7566,
¶ 35.
A. Whether the commission’s orders are against the manifest weight of the
evidence
{¶ 19} In their first proposition of law, appellants contend that the
commission’s determination regarding the prudency of the costs and sales flowing
through the PPA Rider for 2018 and 2019 was against the manifest weight of the
evidence. In their view, the commission overlooked evidence of imprudence and
failed to account for language in the draft audit reports that cast doubt on the
wisdom of OVEC’s strategy for running the plants. Before analyzing this
argument, we clarify two concepts: the standard of review applicable to our review
of commission decisions and what constitutes a prudent decision.
{¶ 20} Under the standard applicable to our review of commission
decisions, we will not disturb the commission’s factual determinations when the
record contains sufficient probative evidence showing that the commission’s
decision was not manifestly against the weight of the evidence and was not so
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clearly unsupported by the record as to show misapprehension, mistake, or willful
disregard of duty. Monongahela Power Co. v. Pub. Util. Comm., 2004-Ohio-6896,
¶ 29; see also R.C. 4903.13 (this court shall modify a commission order only if, on
consideration of the record, the order is found to be unlawful or unreasonable). To
this end, we will not second-guess the commission on questions of fact unless the
appellants have shown that the commission’s findings are manifestly against the
weight of the evidence. Ohio Consumers’ Counsel v. Pub. Util. Comm., 2007-
Ohio-4276, ¶ 29. In conducting a manifest-weight-of-the-evidence review, we
determine whether, in view of the conflicting evidence, the fact-finder (here, the
commission) clearly lost its way, resulting in a miscarriage of justice. See In re
Z.C., 2023-Ohio-4703, ¶ 14.
{¶ 21} Regarding prudency, a prudent decision “contemplates a
retrospective, factual inquiry, without the use of hindsight judgment, into the
decision-making process of the utility’s management,” Cincinnati v. Pub. Util.
Comm., 1993-Ohio-79, ¶ 13; see also In re Application of Suburban Natural Gas
Co., 2021-Ohio-3224, ¶ 32 (“the prudent-investment test is backward-looking,”
asking whether the investment was “prudent when it was made”).
1. OVEC’s method of running the plants
{¶ 22} Appellants begin their manifest-weight-of-the-evidence challenge
by claiming that the OVEC plants were run imprudently, leading to $74.5 million
in charges for AEP Ohio’s customers. They point to evidence in the record that
shows a reasonable plant operator in a competitive marketplace would have
conducted a daily financial analysis to determine whether a plant should be
operated under an economic or must-run strategy. Such an analysis would account
for the plant’s operating costs and the expected revenues that would be gained from
participating in the wholesale market. If the analysis shows that expected revenues
will cover a plant’s variable operating costs, the operator could commit the plant’s
output to the market. But if the analysis shows that the plant’s variable operating
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and other costs would exceed expected revenues, the operator should either operate
the plant under an economic strategy or shut it down and await more favorable
market conditions. Although AEP Ohio generally performs this type of analysis
for its non-OVEC plants, OVEC failed to perform this analysis for 10 of its 11 units
at the Kyger Creek and Clifty Creek plants. Appellants stress that instead of cycling
the units on and off based on this type of daily analysis, OVEC kept the plants
online in a must-run status for the vast majority of 2018 and 2019, leading to
significant net-revenue losses.
{¶ 23} If this were the only record evidence bearing on the question whether
the plants were prudently run, appellants’ manifest-weight argument might have
some merit. But the evidence presented at the commission’s hearing ran in both
directions, and the commission credited the evidence before it as establishing that
AEP Ohio “prudently handled its OVEC entitlement,” 2024 WL 4039778 at *23.
{¶ 24} The commission determined that it is “typical and common” for coal
plants, such as the OVEC plants at issue here, to operate under a must-run strategy
whereby they stay “essentially always online,” but the commission added that some
utilities and other stakeholders had begun to revisit this conventional wisdom. Id.
Jason M. Stegall, manager of regulatory and pricing analysis for American Electric
Power Service Corporation, testified on behalf of AEP Ohio. He explained that a
must-run strategy was reasonable because the plants were designed to operate for
baseload generation. A plant that operates for baseload generation is “normally
operated to take all or part of the minimum load of a system, and . . . consequently
produces electricity at an essentially constant rate and runs continuously.” United
States Energy Information Administration, Glossary,
https://www.eia.gov/tools/glossary/?id=B (accessed Mar. 18, 2026)
[https://perma.cc/8SWT-9326] (defining “base load plant”); see also Merriam-
Webster’s Collegiate Dictionary (12th Ed. 2026) (defining “baseload” as “the
amount of power made available by an energy producer (such as a power plant) to
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meet fundamental demands by consumers”). Stegall explained that “OVEC’s units,
as coal-fired generating units designed for baseload generation, are not capable of
instantaneous startup and shutdown and, as wet-bottom coal units, are not designed
to be cycled on and off frequently.” He testified that frequently cycling the units
on and off would introduce greater risks and costs, such as through wear and tear
of the facilities due to thermal cycles or other cycling issues. He opined that
because shutting down, restarting, and then ramping up a unit to a higher level of
output comes with these risks and significant costs, “it may be more economical in
the long run to keep the [OVEC] units on even if they lose money in the short run.”
{¶ 25} The Natural Resources Defense Council (“NRDC”), which
intervened in the proceedings below, see 2021 WL 4169349 at *10, also recognized
that it may be true that keeping units online can be more economical because of
cycling costs. Yet, NRDC criticized that process, noting that if the OVEC units
were unable to cycle in accordance with profitability timelines, then the question
was really whether they should run at all.
{¶ 26} But even despite the perceived shortcomings of the OVEC units, the
commission relied on evidence, like Stegall’s testimony, showing that AEP Ohio
earned about $32 million in net revenue (i.e., revenues less variable costs) from
selling its share of energy produced by the OVEC plants in the wholesale market
during the audit period. While the commission noted that the net revenue was
overcome by fixed costs, resulting in a net charge to AEP Ohio’s customers, it
observed that the charges would have been higher absent the net revenue.
{¶ 27} In view of the evidence outlined above, the commission concluded
that AEP Ohio had deployed a prudent strategy with regard to operation of the
OVEC plants during the audit period. 2024 WL 4039778 at *23. The commission
recognized that in retrospect, it may have been more prudent in some months to
favor an economic strategy over a must-run strategy, but it noted that a prudency
inquiry assesses the soundness of a decision as of the time that it was made. Id.
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{¶ 28} Based on the record evidence, we conclude that the commission did
not clearly lose its way in reaching its determination. The commission was
presented with conflicting evidence concerning the prudence of the must-run
strategy, and it decided to credit the evidence showing that the strategy was prudent
when the decision to utilize that strategy was made. That decision does not
constitute reversible error. See Ohio Power Co., 2018-Ohio-4698, at ¶ 45 (“the
mere fact that evidence before the commission points both ways does not justify
reversal”).
2. Removal of language from the draft audit reports
{¶ 29} Appellants’ arguments concerning LEI’s removal of language from
its draft audit reports do not alter the analysis. The auditor wrote in its initial draft
report that “keeping the plants running does not seem to be in the best interests of
ratepayers,” but after receiving input from commission staff, the auditor replaced
that language in a subsequent draft report with a statement that its analysis “shows
that the OVEC contract overall is not in the best interest of AEP Ohio ratepayers.”
The auditor omitted this language from its final report. In its opinion and order, the
commission disregarded the language in the draft reports because “rely[ing] upon
draft language that was not included in the final audit report would be
irresponsible.” 2024 WL 4039778 at *22.
{¶ 30} According to appellants, “[o]nly by ignoring the draft audit reports
and Staff’s actions was the [commission] able to reach the exact opposite
conclusion”: that continuously running the OVEC plants was in the best interest of
ratepayers. But appellants do not develop their argument much beyond this
assertion. They seem to imply that commission staff thwarted an independent audit
by improperly interfering with the auditor’s work and that because staff’s conduct
was improper, the commission erred by not accounting for the draft-audit-report
language that predated staff’s interference.
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{¶ 31} If appellants’ depiction of the facts were all that the commission had
before it, this might be a closer call. But the evidence is not so one-sided.
{¶ 32} On one hand, the RFP provided that the auditor must render an
“independent audit.” 2020 WL 12813029 at *6. The RFP did not flesh out what
the commission meant by “independent audit,” but that phrase commonly means
“an audit made by usu[ally] professional auditors who are wholly independent of
the company where the audit is being made,” Webster’s Third New International
Dictionary (2002).2 On the other hand, even if the phrase were broadened to
include the auditor’s independence from commission staff, the RFP specifically
required the auditor to send “[t]wo copies of a draft” of the audit report to staff at
least ten days before the final audit report was due, 2020 WL 12813029 at *9. It
appears that this is a routine practice before the commission. See In re Rev. of Duke
Energy Ohio, Inc.’s Distrib. Capital Invest. Rider, PUCO No. 23-549-EL-RDR,
2025 WL 71755, *12 (Jan. 8, 2025) (“it is routine and reasonable in third-party
audits of utility rider cases before the Commission for the Auditor, utility, and Staff
to meet or exchange correspondence when a draft audit [report] is circulated in
order for the utility to identify portions of the audit that contain confidential
information and to correct factual errors like typographical mistakes as well as
verify calculated figures”).
{¶ 33} In reaching its decision to adopt the audit report and the auditor’s
recommendations in this case, the commission disregarded the draft audit reports’
language, because it “[did] not find any evidence of undue influence in the creation
of the audit report or any reason to consider that LEI was prevented from
conducting an independent review,” 2024 WL 4039778 at *22. This determination
2. Since rendering its opinion and order in this matter, the commission has criticized a public utility’s
attempt to meddle in the audit process. See In re Rev. of Duke Energy Ohio, Inc’s. Distrib. Capital
Invest. Rider, PUCO No. 23-549-EL-RDR, 2025 WL 71755, *12-13 (Jan. 8, 2025) (chastising the
public utility for engaging in “improper” conduct by attempting to sway an independent auditor’s
view of a legal issue that arose during an audit).
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is supported by evidence in the record. Dr. Fagan testified that commission staff
had asked her to make revisions to the final report based on its submission of the
draft reports as required by the RFP; she testified that “upon reflection and getting
the reaction back from [the] client,” LEI agreed to make the requested revisions
because the draft language had been “overly broad.” But she added that LEI does
not make revisions to a final audit report that it does not agree with and that the
revisions LEI agreed to make in this case did not change the material findings of
the audit. In other words, staff made suggestions about the draft reports, but Dr.
Fagan retained the prerogative to decline those suggestions, which shows that LEI
retained its independence from commission staff. In view of the totality of the
record, we fail to see how the commission lost its way in declining to consider the
draft audit reports’ language.
{¶ 34} Finally, in their merit brief, appellants point to the Michigan Public
Service Commission’s decision in In re Application of Indiana Michigan Power
Co., Mich.Pub.Serv.Comm. No. U-20530, 2023 WL 1816183 (Feb. 2, 2023), as a
decision “disallow[ing] costs from the same OVEC plants, involving the same
‘must-run’ bidding strategy, for [AEP Ohio’s] affiliated Indiana/Michigan utility
company.” The problem with appellants’ reliance on that decision is that they have
asked us to determine whether the commission’s decision in this case is against the
manifest weight of the evidence. To answer that question, we must confine our
review to the evidence that was presented below. Whatever evidence may have
been presented to the Michigan Public Service Commission, and whatever
conclusion that agency reached based on that evidence, is not germane to the fact-
bound analysis required in this case.
{¶ 35} For these reasons, we reject appellants’ first proposition of law.
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B. Whether the commission erred in denying OCC’s request to issue a subpoena
for the testimony of a commission staff member
{¶ 36} Appellants divide their second proposition of law into two parts,
both of which focus on the commission’s denial of OCC’s motion for a subpoena
to compel Christopher to appear and testify at the commission’s hearing. First,
appellants claim that in denying the motion, the commission violated their due-
process rights under both the United States and Ohio Constitutions. Second,
appellants contend that in denying the motion, the commission violated its own rule
governing the issuance of subpoenas. See Adm.Code 4901-1-28(E). Both
arguments fail.
1. Due process
{¶ 37} Appellants contend that in denying OCC’s motion for a subpoena,
the commission violated appellants’ right to a fair hearing under the Fourteenth
Amendment to the United States Constitution, which provides that no State shall
“deprive any person of life, liberty, or property, without due process of law.” U.S.
Const., amend. XIV, § 1. They also contend that in denying OCC’s motion for a
subpoena, the commission violated the Ohio Constitution’s Due Course of Law
Clause, which provides that “every person, for an injury done him in his land,
goods, person, or reputation, shall have remedy by due course of law.” Ohio Const.,
art. 1, § 16. This court has construed the Ohio Constitution’s Due Course of Law
Clause as the functional equivalent of the United States Constitution’s Due Process
Clause. See Arbino v. Johnson & Johnson, 2007-Ohio-6948, ¶ 48. However, the
Ohio Constitution remains a document of independent force. See State ex rel.
Cincinnati Enquirer v. Bloom, 2024-Ohio-5029, ¶ 19. Therefore, since appellants
do not ask us to interpret the state Constitution’s Due Course of Law Clause
differently from the federal Constitution’s Due Process Clause, we are constrained
to review their argument under the federal clause. See State v. Carter, 2024-Ohio-
1247, ¶ 34.
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{¶ 38} The Due Process Clause “centrally concerns the fundamental
fairness of governmental activity.” (Cleaned up.) North Carolina Dept. of Revenue
v. Kimberley Rice Kaestner 1992 Family Trust, 588 U.S. 262, 268 (2019).
Appellants’ concern here is with the clause’s guarantee of procedural fairness,
which provides the “opportunity to be heard at a meaningful time and in a
meaningful manner.” (Cleaned up.) Lyle Constr., Inc. v. Dept. of Natural
Resources, Div. of Reclamation, 34 Ohio St.3d 22, 25 (1987). Appellants rely on a
passage from the United States Supreme Court’s decision in West Ohio Gas Co. v.
Pub. Util. Comm., a case that involved an appeal from this court’s affirmance of a
commission order in which the Supreme Court observed that to comply with the
federal due-process clause, a commission proceeding must afford parties a “suitable
opportunity through evidence and argument to challenge the result” (citation
omitted), 294 U.S. 63, 70 (1935). Appellants maintain that without Christopher’s
testimony at the commission’s hearing, they were prevented from challenging the
result in this case.
{¶ 39} However, appellants fail to locate these broad precepts in the
caselaw addressing due-process challenges to an agency’s denial of a motion for a
subpoena. Without attempting an exhaustive treatment of the relevant caselaw, we
note that federal courts have held that a party’s inability to subpoena a witness to
testify at an administrative hearing does not constitute a per se violation of
procedural due process. See, e.g., Foxy Lady, Inc. v. Atlanta, 347 F.3d 1232, 1237
(11th Cir. 2003); Amundsen v. Chicago Park Dist., 218 F.3d 712, 717 (7th Cir.
2000); Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998); United States v. Woods,
931 F.Supp. 433, 442 (E.D.Va. 1996). “As with other due process violations, to
secure a reversal on the basis that the administrative agency failed to issue a
requested subpoena, a party must demonstrate that the failure resulted in prejudice.”
(Cleaned up.) Flynn v. State Med. Bd., 2016-Ohio-5903, ¶ 58 (10th Dist.).
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{¶ 40} Here, appellants were not prejudiced by the commission’s denial of
OCC’s motion for a subpoena. Dr. Fagan testified at the commission’s hearing and
was subject to cross-examination. Christopher’s supervisor, Windle, also testified
at the hearing and was subject to cross-examination. Windle testified that it was
his decision—not Christopher’s—to approach the auditor with concerns about
language in the draft audit reports: he explained that his concern was that the
language used in the draft reports arguably could have been viewed as criticizing
the commission’s decision to approve the PPA Rider in the first place.
{¶ 41} In view of the cross-examinations of Dr. Fagan and Windle, it is
unclear whether Christopher’s testimony would have added anything meaningful
to the record. And appellants offer no more than speculation in claiming that her
testimony was needed for them to challenge the commission’s decision in this case.
Appellants “presume” that Christopher knew more than anyone else about what
transpired between commission staff and the auditor regarding changes made to the
draft audit reports. But that presumption is dubious in view of Windle’s testimony.
And in any event, testimony by Dr. Fagan and Windle adequately covered the topic
of appellants’ concern.
{¶ 42} Accordingly, appellants have not shown that the commission
committed a procedural due-process violation by denying OCC’s motion for a
subpoena to compel Christopher to appear and testify at the commission’s hearing.
2. Adm.Code 4901-1-28(E)
{¶ 43} In addition to their due-process argument, appellants claim that in
denying OCC’s motion for a subpoena, the commission violated Adm.Code 4901-
1-28(E). That rule provides that “any person making or contributing to the report
[of an investigation into rate proceedings] may be subpoenaed to testify at the
hearing,” if a hearing is scheduled in the case in which the report is filed. In
appellants’ view, Christopher contributed to the final audit report by way of her
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email to the auditor, which led to the removal of certain language that had been
contained in the draft reports.
{¶ 44} Even if Christopher’s conduct falls within the meaning of
“contributing,” as that term is used in Adm.Code 4901-1-28(E), the rule says that
any person “may”—rather than “shall”—be subpoenaed to testify at a commission
hearing. As the attorney examiner observed in initially holding the motion for a
subpoena in abeyance—which she later denied at the hearing—the rule’s use of
“may” conveys that no party is automatically entitled to the issuance of a subpoena.
See 2022 WL 94394 at *3. That observation squares with the axiom that the word
“may” generally signifies the grant of discretionary authority unless the context
shows otherwise. See State v. Stutler, 2022-Ohio-2792, ¶ 15; Renacci v. Testa,
2016-Ohio-3394, ¶ 31. Here, appellants have not pointed to anything in the context
of Adm.Code 4901-1-28(E) that suggests its use of the word “may” should be
understood according to anything other than that axiom.
{¶ 45} In upholding the attorney examiner’s denial of OCC’s motion for a
subpoena, the commission observed that the attorney examiner struck the proper
balance between permitting latitude in questioning witnesses and keeping the
hearing moving in an orderly and expeditious manner. See 2024 WL 4039778
at *12. The commission did not abuse its discretion in reaching this conclusion.
See In re Application of Champaign Wind, L.L.C., 2016-Ohio-1513, ¶ 16 (applying
an abuse-of-discretion standard to the Power Siting Board’s decision to quash a
third-party subpoena). The record here establishes that appellants had a full
opportunity to cross-examine Dr. Fagan and Windle at the commission’s hearing,
during which they could have asked about the reasons underlying the removal of
certain language from the final version of the audit report. Appellants have failed
to advance a cogent argument explaining why, after several days of hearing, it was
essential to plow this same ground with Christopher.
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{¶ 46} Consequently, appellants have not shown that the commission
violated Adm.Code 4901-1-28(E) in denying OCC’s motion for a subpoena.
C. Whether the commission erred in applying an undue-influence standard to its
determination whether LEI was prevented from conducting an independent audit
{¶ 47} In their third proposition of law, appellants contend that the
commission erred in applying an undue-influence standard to its determination
whether commission staff or AEP Ohio prevented LEI from conducting an
independent audit. Appellants assert in their merit brief that the correct legal
standard to be applied in such cases is found in the American Institute of Certified
Public Accountants’ Code of Professional Conduct, which provides that a member
of the institute “in public practice should be independent in fact and appearance
when providing auditing and other attestation services” and that “[i]ndependence
precludes relationships that may appear to impair a member’s objectivity in
rendering attestation services,” AICPA Code of Professional Conduct 0.300.500.01
and 0.300.50.02 (Dec. 15, 2014),
https://pub.aicpa.org/codeofconduct/ethicsresources/et-cod.pdf (accessed
Mar. 20, 2026) [https://perma.cc/X47B-M7JQ]. Appellants characterize this as an
appearance-of-impropriety standard.
{¶ 48} We first consider whether appellants properly preserved this
argument. In its first rehearing entry, the commission cited In re Buckeye Wind,
L.L.C., 2016-Ohio-5664, ¶ 14, in support of its determination that appellants failed
to preserve their appearance-of-impropriety argument because they asserted that
argument for the first time in their initial applications for rehearing. See 2024 WL
4581311 at *5. In Buckeye Wind, we held that opponents of a wind-farm project
forfeited their objection to the Power Siting Board’s decision limiting the scope of
its hearing by failing to object to an administrative-law judge’s determination in a
prehearing entry that certain issues fell outside the scope of the hearing. See
Buckeye Wind at ¶ 3, 7, 15, 18-19. We rejected the opponents’ argument that they
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had preserved their objection by advancing it in their rehearing application,
observing that the “availability of [the rehearing] process does not mean that a party
may sit idly and withhold all objections before and during a board hearing and then
belatedly raise them in a rehearing application.” Id. at ¶ 18.
{¶ 49} This case, however, presents a different situation. The commission
first applied the undue-influence standard in its opinion and order. See 2024 WL
4039778 at *22; 2024 WL 4581311 at *5. Therefore, unlike in Buckeye Wind,
appellants’ first opportunity to challenge the commission’s application of the
undue-influence standard in this case was by way of their initial rehearing
applications.
{¶ 50} Although appellants preserved their argument concerning an
appearance-of-impropriety standard, we need not dwell long on the argument’s
merits, because appellants fail to support their argument with any authority that
binds the commission to use that standard. Moreover, the commission has
previously applied the undue-influence standard when deciding whether to approve
an independent audit report. See In re Rev. of the Reconciliation Rider of Duke
Energy Ohio, Inc., PUCO No. 20-167-EL-RDR, 2023 WL 5880399, *13
(Sept. 6, 2023) (“The Commission . . . does not find any evidence of undue
influence in the creation of the audit report or any reason to consider that LEI was
prevented from conducting an independent review.”). And we have observed that
the commission should respect its own precedents to ensure predictability. See In
re Application of Ohio Power Co., 2025-Ohio-3034, ¶ 36. If, as a matter of policy,
it would be sensible to require the commission to apply an appearance-of-
impropriety standard in cases involving independent-audit reports prepared for the
commission’s benefit, then the General Assembly, not this court, must be the one
to require such a standard. See Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-
1027, ¶ 61 (the General Assembly is responsible for weighing policy concerns and
making policy decisions; the courts are charged with evaluating the legality of the
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General Assembly’s legislative choices, not second-guessing those choices);
Arbino, 2007-Ohio-6948, at ¶ 71 (same); Weidman v. Hildebrant, 2024-Ohio-2931,
¶ 61 (Kennedy, C.J., dissenting) (“The General Assembly is the final arbiter of
public policy in Ohio.”).
{¶ 51} The United States Supreme Court’s decision in United States v.
Arthur Young & Co., 465 U.S. 805 (1984), which appellants cite, is not to the
contrary. The question in that case was whether tax-accrual workpapers prepared
by an independent auditor for a corporate client should be excepted from disclosure
to the Internal Revenue Service under a federal statute based on a form of work-
product immunity. See id. at 815. In answering that question, the Court adverted
to an auditor’s role as a “public watchdog” who demands total independence from
the client. Id. at 818. Missing from the Court’s analysis is any reference to an
appearance-of-impropriety standard.
{¶ 52} Appellants next advance an argument under this proposition of law
that is unrelated to the appearance-of-impropriety standard: they insist that the
commission ran afoul of this court’s precedent in Tongren v. Pub. Util. Comm.,
1999-Ohio-206. In Tongren, the commission issued an order in which it relied on
numerous references to “findings” of its staff. Id. at ¶ 10. Yet nothing in the record
contained those “findings.” Id. We held that the commission committed reversible
error by rendering a decision on an issue without disclosing the facts on which it
relied. Id. at ¶ 19-20.
{¶ 53} In contrast to Tongren, it is clear here which evidence the
commission relied on in determining that LEI did not sacrifice its independence in
the audit process: the commission pointed to the testimony of Dr. Fagan, who had
testified that LEI takes responsibility for the contents of its audit reports and that
notwithstanding any comments that LEI received from commission staff or AEP
Ohio regarding the draft audit reports in this case, the final report reflects her “own
view of what ought to be in there.” See 2024 WL 4039778 at *22.
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{¶ 54} For these reasons, we reject appellants’ third proposition of law.
III. CONCLUSION
{¶ 55} The orders of the Public Utilities Commission are affirmed. Because
we reject appellants’ three propositions of law, we do not reach their refund-related
arguments.
Orders affirmed.
__________________
Maureen R. Willis, Ohio Consumers’ Counsel, and John Finnigan, John R.
Varanese, and William J. Michael, Assistant Consumers’ Counsel, for appellant
Office of the Ohio Consumers’ Counsel.
Carpenter Lipps, L.L.P., Kimberly W. Bojko, and Emma Y. Easley, for
appellant Ohio Manufacturers’ Association Energy Group.
Dave Yost, Attorney General, John H. Jones, Public Utilities Section Chief,
and Julian P. Johnson and Thomas G. Lindgren, Assistant Attorneys General, for
appellee.
Steven T. Nourse and Michael J. Schuler; and Porter, Wright, Morris &
Arthur, L.L.P., L. Bradfield Hughes, and Eric B. Gallon, for intervening appellee.
________________________
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