AES Indiana filed a motion Wednesday asking the Indiana Utility Regulatory Commission to hold off on a second look at a recent rate case during legal action over the firing of a commissioner by Gov. Mike Braun.
Braun fired Andy Zay on Aug. 3 after he was one of three votes supporting a $71 million AES Indiana rate hike. Zay fired back Aug. 10 in a lawsuit against Braun, alleging the governor’s office improperly pressured him to deny the settlement and that he wasn’t fired “for cause.”
AES Indiana doesn’t want any action taken in a rehearing Braun sought of the AES Indiana case, with newly appointed commissioner Joshua Bain replacing Zay.
Zay has also asked a trial court judge to stop Bain from taking over the spot or exercising any commissioner powers until the lawsuit is settled. Ultimately, Zay wants his seat on the IURC back.
The rate reconsideration was sought by the Indiana Office of Utility Consumer Counselor and Citizens Action Coalition. A decision is expected by a Sept. 8 deadline.
“AES Indiana respectfully submits that the allegations in the Zay Complaint, if true, may well invalidate any attempted action by the Commission on the OUCC and CAC Petitions in which Mr. Bain participated as a member of the Commission and Mr. Zay did not,” the filing said.
It went on to argue that any adverse action to AES Indiana “would necessarily have to be addressed in any judicial review proceeding then initiated by AES Indiana.”
The investor-owned utility also said that Zay’s allegations “merit particular consideration” since the IURC is, by law, an “impartial fact-finding body” in utility proceedings. The Commission is not supposed to advocate for the public or the utilities in its decisions.
Zay’s complaint alleges that Secretary of Energy and Natural Resources Suzanne Jaworowski called him on June 15 — two days before the AES decision — to tell him, “You know affordability is a big deal to this governor” — as well as the day of, to “conve(y) Governor Braun’s disappointment with the outcome.”
Other representatives of the governor’s office told Zay he had “let the governor down” and that they’d “told (him) not to do this” in a meeting he attended later on June 17, according to the complaint.
Zay was called into another meeting on June 18 — this time featuring Braun, Chief of Staff Joshua Kelley, Jaworowski and Utility Consumer Counselor Abby Gray, whose office represents ratepayers in IURC matters.
“During that meeting, after discussion concerning utility rates and the AES Rate Proceeding decision, Governor Braun asked Gray, ‘How are we going to fix this?’” Zay’s complaint alleges.
He excused himself from the meeting, believing discussions had crossed into banned “ex parte” communications — seeking to sway a decision-maker in a case without the other parties to the case present. He was fired after seeking guidance from the Office of Inspector General about his ex parte communications and impartiality concerns.
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