Cincinnati Gas & Electric Co. v. Public Utilities Commission

86 Ohio St. 3d 53
CourtOhio Supreme Court
DecidedJuly 7, 1999
DocketNos. 97-738 and 97-2199
StatusPublished
Cited by7 cases

This text of 86 Ohio St. 3d 53 (Cincinnati Gas & Electric Co. v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Gas & Electric Co. v. Public Utilities Commission, 86 Ohio St. 3d 53 (Ohio 1999).

Opinion

Pfeifer, J.

We find that the commission did not abuse its discretion in excluding a portion of the development costs of CG&E’s customer service system from its rate base. We find, however, that the commission did act unlawfully in imputing revenue levels for ratemaking purposes that differ significantly from the actual revenue collected from customers during the test period pursuant to contracts previously approved by the commission.

[58]*58Rate Base

CG&E argues that the commission abused its discretion by ignoring evidence and the cross-examination of witnesses, thereby producing an order that was contrary to the manifest weight of the evidence. It has been long held in commission matters that “this court will not reverse or modify a [commission] decision as to questions of fact where the record contains sufficient probative evidence to show that the [commission’s] determination is not manifestly against the weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.” Ohio Edison Co. v. Pub. Util. Comm. (1992), 63 Ohio St.3d 555, 556, 589 N.E.2d 1292, 1294.

Pursuant to R.C. 4909.15(A), the commission in a rate case is to determine the rate base as being “[t]he valuation as of the date certain of the property of the public utility used and useful in rendering the public utility service for which rates are to be fixed and determined.” (Emphasis added.)

There is no dispute in this case that the CSS itself is used and useful. The dispute resides in the development costs of the project, which were capitalized and treated as property in CG&E’s rate base. Still, those expenses were in the first instance operating expenses, and, as such, they must meet the prudency test in R.C. 4909.154 before they can gain the status of “used and useful.” R.C. 4909.154 provides:

“In fixing the just, reasonable, and compensatory rates, joint rates, tolls, classifications, charges, or rentals to be observed and charged for service by any public utility, the public utilities commission shall consider the management policies, practices, and organization of the public utility. * * *

“* * * [T]he public utilities commission shall not allow such operating and maintenance expenses of a public utility as are incurred by the utility through management policies or administrative practices that the commission considers imprudent.”

Thus, it follows that operating expenses that the commission determines under R.C. 4909.154 were imprudently incurred will be disallowed, when capitalized, as not being used and useful property under R.C. 4909.15(A)(1) and therefore deducted from capitalized expense included in rate base.

This court set forth in Cincinnati v. Pub. Util. Comm. (1993), 67 Ohio St.3d 523, 530, 620 N.E.2d 826, 830, what constitutes a prudent decision:

“ ‘[0]ne which reflects what a reasonable person would have done in light of conditions and circumstances which were known or reasonably should have been known at the time the decision was made.’ In the Matter of the Investigation into the Perry Nuclear Power Station (Jan. 12, 1988), PUCO No. 85-521-EL-[59]*59COI, at 10-11. The standard contemplatés a retrospective, factual inquiry, without the use of hindsight judgment, into the decisionmaking process of the utility’s management.”

The commission considered CG&E’s mismanagement of the CSS project to constitute imprudence, resulting in the disallowance of a substantial portion of CG&E’s proposed CSS rate-base property. We find that the commission did not abuse its discretion in making that determination.

Institutional hubris is at the heart CG&E’s problems with the development of the CSS. The stubborn belief that the project could be completed in-house, despite continued rising costs and missed deadlines, was the source of much of the project’s expense. By the time the company hired an independent consultant to complete the CSS on deadline for a fixed fee, the damage had been done. It is that period before the hiring of the consultant, when the company sought to develop the project itself, that the commission points to in finding that CG&E acted imprudently. We find that the record supports that conclusion.

We need not slog through the daily history of the development of this project to determine that it was mismanaged. The big picture tells the tale. When CG&E commenced development of the system in 1987, it projected that the project would.be completed by July 1990. In 1990, CG&E revised its projected completion date to June 1991, and projected the capitalized cost to be $24 million. Prior to 1990, CG&E had already spent $17 million in ordinary operating expenses on the CSS project, but those expenditures are not at issue in this case. As of April 1991, the CSS project team was reporting in its status reports that the project was running only two months behind schedule. By fall 1991, the truth was known: since 1990, CG&E had spent $47 million on the CSS, and it was only half complete. All of these figures reveal that CG&E was an entity in over its head.

The evidence showed that at least ten other utilities undertaking computer projects of similar complexity sought, without’exception, independent professional supervision of project development. From virtually the time project development began in 1987, CG&E knew, or should have known, that it was involved in a massive undertaking that far exceeded the expertise of its in-house project team. CG&E had already sunk $47 million in capitalized expenditures into the project when it finally relinquished project development supervision to CSC in November 1991. Based on its 1990 projection of $24 million to complete the project, CG&E went one hundred sixty percent over its budget.

Evidence obtained from independent consultant Andersen Consulting established that the project was approximately fifty percent completed when CSC took over supervision in 1991. The CSC contract called for project completion for a [60]*60relatively frugal fixed fee of $14,875 million and established July 1993 as the deadline. CSC completed the job on time.

The CSC contract amount of $14,875 million and the fifty-percent completion figure when CSC took over the job are the two most important elements in the commission’s disallowance of a portion of the CSS costs from the rate base. First, those figures help establish that the project was mismanaged by CG&E. CG&E had nearly doubled its budget and had completed only half of the project when CSC stepped in. For less than $15 million, CSC was then able to complete in two years as much of the project as CG&E had completed at a cost of $47 million in four years.

Second, the commission used the CSC contract to compute its rate-base deduction. The commission’s staff used the amount paid to CSC to determine the reasonable cost of the entire project. Using simple, but not simplistic, logic, the commission’s staff reasoned that the one-half of the CSS development project completed before CSC took over would reasonably cost the same as the amount paid to CSC for the one-half of the project that CSC completed. The commission thus doubled the fixed contract rate to arrive at its $29.75 million estimate of a reasonable cost for the project.

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Bluebook (online)
86 Ohio St. 3d 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-gas-electric-co-v-public-utilities-commission-ohio-1999.