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NEM Asks ALJs To Subpoena NYS Office of General Services Regarding Retail Market Testimony

December 13, 2017

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

The National Energy Marketers Association (NEM) has requested that the presiding ALJs in the New York PSC's evidentiary proceeding reviewing the retail energy mass market issue a subpoena to the New York State Office of General Services (OGS) to produce responses to prior requests for admissions propounded on OGS by NEM

NEM's subpoena was filed on the same day that the ALJs, from the bench, denied a motion from NEM seeking to compel testimony from the OGS

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

Subsequently, in November, OGS filed a communication with the PSC stating that OGS, "withdraws the Direct Testimony of John T. Haff submitted in these proceedings on September 15, 2017. Mr. Haff will not be appearing as a witness in these proceedings."

The National Energy Marketers Association moved to compel testimony from Mr. Haff, arguing that the operative rules do not provide a party the right to submit and later unilaterally 'withdraw' pre-filed testimony that was submitted in an evidentiary proceeding.

The New York State Office of General Services (OGS) provided notice of its withdrawal as a party from the New York PSC's evidentiary proceedings reviewing the retail energy mass markets. As it is no longer a party, OGS said that it cannot provide testimony in the proceedings under the PSC's regulations, and said that a motion to compel its testimony should be denied

In a December 12 ruling from the bench, the presiding ALJs said that they could not compel a party to testify in the case. In any event, the ALJs noted that, as OGS has withdrawn as a party to the proceedings, OGS now falls outside the scope of the ALJs' procedural rulings, and the NEM motion to compel was denied

In the newly filed subpoena, which the ALJs said they would address in due course, NEM seeks responses from OGS to several requests for admissions previously propounded on OGS by NEM. The requests for admissions generally ask that OGS confirm the contents and conclusions of its withdrawn testimony, and seeks information concerning the reasons for the withdrawal of the testimony

In its motion for the subpoena, NEM said, "Rather than comply with its obligations as a party to these proceedings for almost one year, OGS elected to seek to evade its obligations and thwart NEM’s lawful attempt to obtain plainly relevant discovery by withdrawing as a party from these proceedings on December 4, 2017."

In its motion, NEM alleged that, "In its letter withdrawing from these proceedings, OGS’s counsel made the bald assertion that its reasons for withdrawing its testimony in these proceedings, and its reasons for withdrawing as a party from these proceedings, are 'irrelevant and immaterial.' OGS is not a private party; it is a state agency that is obligated by law to serve the public’s interests, not its own interests or those of the executive branch. To the extent that a public agency has information relevant to a matter of public concern, OGS should be required to provide it. That is particularly true here, where OGS participated in these proceedings for many months, and submitted highly relevant and informative testimony on which the parties relied."

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