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NEM Seeks To Compel Testimony In NY Retail Evidentiary Hearings From NYS Office of General Services, Which Had Filed, Then Withdrawn, Testimony Which Had Highlighted Inequities In Utility Pricing Versus ESCOs

November 30, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The National Energy Marketers Association filed a motion, in the New York PSC's evidentiary proceeding reviewing the retail energy mass market, seeking to compel testimony from the New York State Office of General Services

As previously reported, On September 15, 2017, John Haff of the New York State Office of General Services ('OGS'), submitted testimony in the proceedings which had argued that New York's current market structure favors utilities over ESCOs and direct customers, and had said any prohibition on mass market sales by ESCOs is premature until such inequities are fixed. See a full discussion of the testimony here

As described by NEM in its motion, "On November 16, 2017, Ken Podolny, sent an email to ALJs Moreno and Bergen, purporting to 'withdraw' Mr. Haff’s testimony and 'notifying' the parties that Mr. Haff would not appear as a witness in these proceedings. Mr. Podolny provided no explanation of what 'withdrawing' a witness’s testimony meant, no reason for the purported 'withdrawal' of Mr. Haff’s testimony, and did not submit an application for relief from the ALJs. As Mr. Podolny noted in his email, the purported 'withdrawal' came at the eleventh hour – after not only the formal submission of the testimony but also after the close of rebuttal testimony in these proceedings, and after parties already had expressly relied on Mr. Haff’s testimony in their submitted rebuttal testimony."

NEM in its motion stated, "Mr. Haff’s testimony is particularly valuable and telling because he is employed by OGS, which is a state agency that is in the position of participating in the New York energy markets as both a direct customer and as an Energy Service Company (ESCO). Because OGS occupies a unique position in the marketplace, Mr. Haff’s testimony is critical and offers a perspective that cannot be, and is not, offered by any other party to these proceedings. NEM thus moves to confirm that Mr. Haff’s testimony remains part of the record in these proceedings; that OGS’s 'withdrawal' letter is of no effect; and that Mr. Haff be compelled to confirm his written testimony via a sworn affidavit. In the alternative, NEM moves to compel Mr. Haff to be available for cross examination in these proceedings at a date and time convenient for Mr. Haff."

NEM further stated in its motion that, "In its email purporting to 'withdraw' Mr. Haff’s testimony from these proceedings, OGS does not cite any basis under the operative rules, nor under the 16 NY ADC 4.5 et seq., for withdrawing testimony that was submitted in these proceedings. Nor do the operative rules provide a party the right to submit and later unilaterally 'withdraw' pre-filed testimony that was submitted in an evidentiary proceeding."

NEM further stated in its motion that, "The purported withdrawal of testimony is particularly problematic and prejudicial here, where parties to these proceedings already relied on the pre-filed testimony in submitting their rebuttal testimony and preparing for the hearing. Further, the withdrawal was made without explanation, raising many possibilities, including that the testimony was withdrawn for improper reasons, including internal or outside pressures from other departments or officials who did not approve of OGS’s testimony or of OGS supporting a position that differed from that of Staff of the Department of Public Service. Such a circumstance would be highly relevant to these proceedings."

"For these reasons, NEM thus moves to confirm that Mr. Haff’s testimony remains in the record and that OGS’s 'withdrawal' letter is of no further effect and that Mr. Haff be compelled to confirm his written testimony via a sworn affidavit; alternatively NEM moves to compel Mr. Haff to be available for cross examination in these proceedings at a date and time convenient for Mr. Haff," NEM said in its motion

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