The Oklahoma Corporation Commission said a pending Supreme Court appeal prevents it from considering OG&E’s challenge to CWIP billing language, leaving justices to weigh separate claims involving Commissioner Todd Hiett’s participation.
OKLAHOMA CITY – The Oklahoma Corporation Commission voted unanimously Monday to dismiss Oklahoma Gas & Electric Co.’s challenge to mandated customer-bill language tied to a Public Service Company of Oklahoma financing order, concluding the matter is now before the Oklahoma Supreme Court.
Commissioners approved the dismissal on a 3-0 vote during a special meeting after determining they no longer have authority to consider OG&E’s motion because the underlying order is already the subject of a pending appeal filed by Rep. Tom Gann, R-Inola.
The commission’s action was procedural rather than substantive. Commissioners did not address OG&E’s claim that the required billing language constitutes compelled speech under the First Amendment. Instead, they concluded that the pending Supreme Court appeal removed the commission’s jurisdiction to consider the utility’s request.
The dispute stems from a recent commission decision authorizing customer charges associated with PSO’s Northeastern power plant projects. Gann appealed the commission’s decision to the Oklahoma Supreme Court on May 22.
During Monday’s meeting, commissioners cited Oklahoma Supreme Court precedent holding that once an order has been appealed, further disputes over that order generally must be resolved by the court rather than the commission.
OG&E filed its motion for reconsideration and modification after the commission ordered utilities to identify the charge on customer bills as “State Legislature Mandated CWIP Recovery – $X.XX.”
The utility argued the language violates the First Amendment by forcing utilities to communicate a government-selected message assigning responsibility for the charge to the Legislature. Because the commission dismissed the motion without addressing the merits, those constitutional arguments remain unresolved.
Supreme Court appeal focuses on Hiett participation, customer notice
Although OG&E’s motion focused on the billing-language requirement, the appeal already pending before the Supreme Court raises different questions about the underlying commission decision.
One of the central issues in the appeal involves Corporation Commissioner Todd Hiett’s participation in the case.
Part of Gann’s appeal stems from allegations involving Hiett’s conduct at a 2024 regulatory conference in Minnesota. Hiett later apologized for what he described as alcohol-related behavior, stepped down as commission chairman and sought treatment.
In the appeal, Gann argues Hiett should have recused himself from proceedings involving attorneys or parties whom Gann alleges had knowledge of the incident or could be called as witnesses. Hiett has previously argued that recusal was not required in certain cases and, in related litigation, invoked the legal “rule of necessity” as a basis for participating in commission matters.
Gann argues Hiett’s participation in the case violated the due-process rights of utility customers and asks the Supreme Court to determine whether the financing order can stand if a commissioner who should have been disqualified participated in the proceeding.
Gann also challenges the notice provided to PSO customers before the financing order was approved. He argues the commission authorized notice that was inadequate and misleading because it failed to inform customers of their right to intervene and participate in the proceeding.
The appeal asks the Supreme Court to determine whether ratepayers were denied meaningful notice and an opportunity to be heard before the order was issued.
As a result, the appeal asks the Supreme Court to determine whether the financing order should stand.
Monday’s vote leaves Gann’s appeal of the financing order pending before the Oklahoma Supreme Court while ending, at least for now, the commission’s consideration of OG&E’s challenge to the billing-language requirement.
