Chapter 4911: CONSUMERS' COUNSEL

4911.01 Consumers' counsel definitions.

As used in this chapter:

(A) "Public utility" means every one as defined in divisions (A) , (C), (D), (E), (F), (G), (H), and (M) of section 4905.03 of the Revised Code, including all public utilities that operate their utilities not for profit, except the following:

(1) Electric light companies that operate their utilities not for profit;

(2) Public utilities, other than telephone companies, that are owned and operated exclusively by and solely for the utilities' customers;

(3) Public utilities that are owned or operated by any municipal corporation;

(4) Railroads as defined in sections 4907.02 and 4907.03 of the Revised Code.

(B) "Residential consumer" means urban, suburban, and rural patrons of public utilities insofar as their needs for utility services are limited to their residence.

Cite as R.C. § 4911.01

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 6/11/2012.

Amended by 128th General AssemblyFile No.43, SB 162, §1, eff. 9/13/2010.

Effective Date: 03-29-1988

4911.02 Consumers' counsel - powers and duties.

(A) The consumers' counsel shall be appointed by the consumers' counsel governing board, and shall hold office at the pleasure of the board.

(B)

(1) The counsel may sue or be sued and has the powers and duties granted the counsel under this chapter, and all necessary powers to carry out the purposes of this chapter.

(2) Without limitation because of enumeration, the counsel:

(a) Shall have all the rights and powers of any party in interest appearing before the public utilities commission regarding examination and cross-examination of witnesses, presentation of evidence, and other matters;

(b) May take appropriate action with respect to residential consumer complaints concerning quality of service, service charges, and the operation of the public utilities commission;

(c) May institute, intervene in, or otherwise participate in proceedings in both state and federal courts and administrative agencies on behalf of the residential consumers concerning review of decisions rendered by, or failure to act by, the public utilities commission;

(d) May conduct long range studies concerning various topics relevant to the rates charged to residential consumers.

(C) The counsel shall follow the policies of the state as set forth in Chapter 4929. of the Revised Code that involve supporting retail natural gas competition.

Cite as R.C. § 4911.02

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 09-01-1976

4911.021 Customer telephone complaints.

The consumers' counsel shall not operate a telephone call center for consumer complaints. Any calls received by the consumers' counsel concerning consumer complaints shall be forwarded to the public utilities commission's call center.

Cite as R.C. § 4911.021

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 2007 HB119 09-29-2007

4911.03 Qualifications.

(A) No person may be appointed consumers' counsel unless he is admitted to the practice of law in this state and is qualified by knowledge and experience to practice in public utility proceedings.

(B) No person who is in the employ of or acting in an official capacity with any public utility, subject to regulation by the public utilities commission or who is pecuniarily interested in, or holds stocks or bonds of any such utility or is a candidate for elective public office may be appointed to the office of the consumers' counsel or be appointed or employed by the counsel. If any such appointed or employed person becomes, subsequent to his initial appointment or employment, the owner of such stocks or bonds, or otherwise becomes pecuniarily interested in such utility, he shall divest himself, within a reasonable time, of such ownership or interest. If he fails to do so, his tenure shall be terminated. If any such appointed or employed person becomes a candidate for elective public office his tenure shall be terminated.

Cite as R.C. § 4911.03

Effective Date: 09-01-1976

4911.04 Residency requirement - other employment prohibited.

The consumers' counsel shall be a resident of this state and during the counsel's term of office shall not hold any other office of either trust or profit under the government of the United States, this state, or any political subdivision of this state, except that this section shall not be construed to preclude the consumers' counsel from serving as a member of the reserve of the armed forces of the United States or the Ohio organized militia. The counsel shall not engage in any other occupation or business, but shall devote full time to the duties of the office of consumers' counsel.

Cite as R.C. § 4911.04

Effective Date: 09-18-1997

4911.05 Oath of office - surety bond.

Before entering upon the duties of his office, the consumers' counsel shall subscribe to an oath of office, which shall be filed in the office of the secretary of state, and shall give bond of five thousand dollars with a sufficient surety approved by the treasurer of state. After approval the bond shall be filed with the secretary of state.

Cite as R.C. § 4911.05

Effective Date: 09-01-1976

4911.06 Consumers' counsel considered state officer.

The consumers' counsel shall be considered a state officer for the purpose of section 24 of Article II, Ohio constitution.

Cite as R.C. § 4911.06

Effective Date: 09-01-1976

4911.07 Salary.

The salary of the consumers' counsel shall be determined by the consumers' counsel governing board but shall be in pay range 49 as set forth in section 124.152 of the Revised Code.

Cite as R.C. § 4911.07

Effective Date: 07-01-1993

4911.08 Office location.

The office of the consumers' counsel shall be in Columbus.

Cite as R.C. § 4911.08

Effective Date: 09-01-1976

4911.09 Public utilities commission to furnish materials.

The public utilities commission shall supply the consumers' counsel, without cost to the counsel, with all books, maps, charts, and such other items as may be necessary for carrying out the purposes of Chapters 4909. and 4911. of the Revised Code.

Cite as R.C. § 4911.09

Effective Date: 09-01-1976

4911.10 Records are public.

Except as provided in section 149.43 of the Revised Code, all documents and records in the possession of the consumers' counsel are public records.

Cite as R.C. § 4911.10

Effective Date: 09-17-1996

4911.11 Data and information to be furnished.

The consumers' counsel may, whenever called upon by any officer, board, or commission of this state or of any political subdivision of this state, furnish any data or information to the officer, board, or commission. All officers, boards, or commissions of this state or of any political subdivision of this state may furnish to the counsel, upon his request, any data or information which he requests in the discharge of the powers and duties vested in him under Chapters 4909. and 4911. of the Revised Code.

Cite as R.C. § 4911.11

Effective Date: 09-01-1976

4911.12 Employees.

(A) Notwithstanding Chapter 4117. of the Revised Code, the consumers' counsel may employ and fix the compensation of such officers, experts, lawyers, engineers, economists, statisticians, accountants, investigators, and employees in fiduciary, supervisory, or policy-making positions as are necessary to carry out Chapters 4909. and 4911. of the Revised Code or to perform the powers and duties conferred or imposed upon him by law. These employees shall be in the unclassified civil service, shall not be considered public employees for purposes of Chapter 4117. of the Revised Code, and shall serve at the pleasure of the counsel. The counsel may also employ such clerical employees, including clerks and stenographers, as are necessary to carry out Chapters 4909. and 4911. of the Revised Code or to perform his duties and exercise the powers conferred by law upon him. These clerical employees shall be in the classified civil service. All officers, lawyers, engineers, economists, statisticians, accountants, investigators, stenographers, clerks, and other employees of the counsel and the expenses of the office of the counsel, the expenses of the counsel, and the expenses of the employees of such office shall be paid from funds appropriated for the use of the consumers' counsel after being approved by the consumers' counsel.

(B) The consumers' counsel may contract for the services of technically qualified persons in the area of public utility matters to assist him in carrying out the duties of his office. Such persons shall be paid from funds appropriated for the use of the consumers' counsel after being approved by the consumers' counsel.

Cite as R.C. § 4911.12

Effective Date: 09-29-1995

4911.13 Using engineers and experts employed by state universities.

In the employment of engineers, experts, or other assistants, the consumers' counsel may make use of the services of engineers and experts employed by any university operated by this state in a manner provided by mutual arrangement between the counsel and the trustees and faculty of the university. Any necessary information, data, and equipment of the university shall be placed at the disposal of the counsel and paid for by the office of the consumers' counsel at the university's cost.

Cite as R.C. § 4911.13

Effective Date: 09-01-1976

4911.14 Jurisdiction.

The jurisdiction of the consumers' counsel extends to every case that he or another party brings before the public utilities commission involving the fixing of any rate, joint rate, fare, charge, toll, or rental charged for commodities or services by any public utility, the plant or property of which lies wholly within this state. Where the property of a public utility lies partly within this state, the jurisdiction of the consumers' counsel extends to that part of the plant or property which lies within this state, the persons or companies owning, leasing, or operating the public utility, and the records and accounts of the business thereof done within this state.

Cite as R.C. § 4911.14

Effective Date: 09-01-1976

4911.15 Counsel may represent residential consumer or municipal corporation.

The consumers' counsel, at the request of one or more residential consumers residing in, or municipal corporations located in, an area served by a public utility or whenever in his opinion the public interest is served, may represent those consumers or corporations whenever an application is made to the public utilities commission by any public utility desiring to establish, modify, amend, change, increase, or reduce any rate, joint rate, toll, fare, classification, charge, or rental. The consumers' counsel may appear before the public utilities commission as a representative of the residential consumers of any public utility when a complaint has been filed with the commission that a rate, joint rate, fare, toll, charge, classification, or rental for commodities or services rendered, charged, demanded, exacted, or proposed to be rendered, charged, demanded, or exacted by the utility is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of the law. Nothing in Chapter 4911. of the Revised Code shall be construed to restrict or limit in any manner the right of a municipal corporation to represent the residential consumers of such municipal corporation in all proceedings before the public utilities commission, and in both state and federal courts and administrative agencies on behalf of such residential consumers concerning review of decisions rendered by, or failure to act by, the public utilities commission.

Cite as R.C. § 4911.15

Effective Date: 06-12-1980

4911.16 Access to materials possessed by public utilities commission.

For the purpose of carrying out the duties given him in Chapter 4911. of the Revised Code, the consumers' counsel shall have access to all books, contracts, records, documents, and papers in the possession of the public utilities commission at any time.

Cite as R.C. § 4911.16

Effective Date: 09-01-1976

4911.17 Consumers' counsel governing board.

There is hereby created a nine-member consumers' counsel governing board consisting of three representatives of organized groups representing each of the following areas: labor; residential consumers; and family farmers. No more than five members of this board may be members of the same political party. The members of the board shall be appointed by the attorney general with the advice and consent of the senate. No later than January 1, 1977, the attorney general shall make initial appointments to the board. Of the initial appointments made to the board, three shall be for a term ending one year after September 1, 1976, three shall be for a term ending two years after that date, and three shall be for a term ending three years after that date. Thereafter, terms of office shall be for three years, each term ending on the same day of the same month of the year as did the term that it succeeds. Each member shall hold office from the date of the member's appointment until the end of the term for which the member was appointed. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which the member's predecessor was appointed shall hold office for the remainder of that term. Any member shall continue in office subsequent to the expiration date of the member's term until the member's successor takes office. The governing board shall meet at least every third month of the year. Meetings may be held more often at the request of a majority of the members or upon call of the chairperson. At the first meeting of each year, the board shall select a chairperson and vice-chairperson. With the approval of the board, the chairperson may designate the vice-chairperson to perform the duties of the chairperson, including those provided in section 4901.021 of the Revised Code. A majority of the members constitutes a quorum. No action shall be taken without the concurrence of a majority of the full membership of the board. The consumers' counsel shall at all times remain responsible to the governing board. Members of the board shall be compensated at the rate of one hundred fifty dollars per board meeting attended in person, not to exceed one thousand two hundred dollars per year. All members shall be reimbursed for actual and necessary expenses incurred in the performance of their official duties. The board shall submit to the general assembly no later than the first day of April, annually, a report outlining the expenditures of the office of consumers' counsel, a full record of participation in any and all proceedings, and an outline of other relevant activities of the office.

Cite as R.C. § 4911.17

Effective Date: 09-05-2001

4911.18 Assessments - consumers' counsel operating fund.

(A) For the sole purpose of maintaining and administering the office of the consumers' counsel and exercising the powers of the consumers' counsel under this chapter, an amount equal to the appropriation to the office of the consumers' counsel in each fiscal year shall be apportioned among and assessed against each public utility within this state, as defined in section 4911.01 of the Revised Code, by first computing an assessment as though it were to be made in proportion to the intrastate gross earnings or receipts of the public utility for the calendar year next preceding that in which the assessment is made, excluding earnings or receipts from sales to other public utilities for resale. The office may include in that first computation any amount of a public utility's intrastate gross earnings or receipts underreported in a prior year. In addition to whatever penalties apply under the Revised Code to such underreporting, the office shall assess the public utility interest at the rate stated in division (A) of section 1343.01 of the Revised Code. The office shall deposit any interest so collected into the consumers' counsel operating fund. The office may exclude from that first computation any such amounts that were over-reported in a prior year. The final computation of the assessment shall consist of imposing upon each public utility whose assessment under the first computation would have been one hundred dollars or less an assessment of one hundred dollars and recomputing the assessment of the remaining companies by apportioning an amount equal to the appropriation to the office of consumers' counsel in each fiscal year less the total amount to be recovered from those paying the minimum assessment, in proportion to the intrastate gross earnings or receipts of the remaining companies for the calendar year next preceding that in which the assessments are made, excluding earnings or receipts from sales to other public utilities for resale. In the case of an assessment based on intrastate gross receipts under this section against a public utility that is an electric utility as defined in section 4928.01 of the Revised Code, or an electric services company, electric cooperative, or governmental aggregator subject to certification under section 4928.08 of the Revised Code, such receipts shall be those specified in the utility's, company's, cooperative's, or aggregator's most recent report of intrastate gross receipts and sales of kilowatt hours of electricity, filed with the public utilities commission pursuant to division (F) of section 4928.06 of the Revised Code, and verified by the commission. In the case of an assessment based on intrastate gross receipts under this section against a retail natural gas supplier or governmental aggregator subject to certification under section 4929.20 of the Revised Code, such receipts shall be those specified in the supplier's or aggregator's most recent report of intrastate gross receipts and sales of hundred cubic feet of natural gas, filed with the commission pursuant to division (B) of section 4929.23 of the Revised Code, and verified by the commission. However, no such retail natural gas supplier or such governmental aggregator serving or proposing to serve customers of a particular natural gas company, as defined in section 4929.01 of the Revised Code, shall be assessed under this section until after the commission, pursuant to section 4905.26 or 4909.18 of the Revised Code, has removed from the base rates of the natural gas company the amount of assessment under this section that is attributable to the value of commodity sales service, as defined in section 4929.01 of the Revised Code, in the base rates paid by those customers of the company that do not purchase that service from the natural gas company.

(B) Through calendar year 2005, on or before the first day of October in each year, the office of consumers' counsel shall notify each public utility of the sum assessed against it, whereupon payment shall be made to the counsel, who shall deposit it into the state treasury to the credit of the consumers' counsel operating fund, which is hereby created. Beginning in calendar year 2006, on or before the fifteenth day of May in each year, the consumers' counsel shall notify each public utility that had a sum assessed against it for the current fiscal year of more than one thousand dollars that fifty per cent of that amount shall be paid to the consumers' counsel by the twentieth day of June of that year as an initial payment of the assessment against the company for the next fiscal year. On or before the first day of October in each year, the consumers' counsel shall make a final determination of the sum of the assessment against each public utility and shall notify each public utility of the sum assessed against it. The consumers' counsel shall deduct from the assessment for each public utility any initial payment received. Payment of the assessment shall be made to the consumers' counsel by the first day of November of that year. The consumers' counsel shall deposit the payments received into the state treasury to the credit of the consumers' counsel operating fund. Any such amounts paid into the fund but not expended by the office shall be credited ratably by the office to the public utilities that pay more than the minimum assessment, according to the respective portions of such sum assessable against them for the ensuing fiscal year, after first deducting any deficits accumulated from prior years. The assessments for such fiscal year shall be reduced correspondingly.

(C) Within five days after the beginning of each fiscal year through fiscal year 2006, the director of budget and management shall transfer from the general revenue fund to the consumers' counsel operating fund an amount sufficient for maintaining and administering the office of the consumers' counsel and exercising the powers of the consumers' counsel under this chapter during the first four months of the fiscal year. Not later than the thirty-first day of December of the fiscal year, the same amount shall be transferred back to the general revenue fund from the consumers' counsel operating fund.

(D) As used in this section, "public utility" includes:

(1) In addition to an electric utility as defined in section 4928.01 of the Revised Code, an electric services company, an electric cooperative, or a governmental aggregator subject to certification under section 4928.08 of the Revised Code, to the extent of the company's, cooperative's, or aggregator's engagement in the business of supplying or arranging for the supply in this state of any retail electric service for which it must be so certified;

(2) In addition to a natural gas company as defined in section 4929.01 of the Revised Code, a retail natural gas supplier or governmental aggregator subject to certification under section 4929.20 of the Revised Code, to the extent of the supplier's or aggregator's engagement in the business of supplying or arranging for the supply in this state of any competitive retail natural gas service for which it must be certified.

Cite as R.C. § 4911.18

Effective Date: 06-26-2001; 09-29-2005

4911.19 Response of utility to billing or service inquiry on behalf of residential customer.

Any utility to which the consumers' counsel makes an inquiry on behalf of a residential customer concerning that customer's billing, or the availability, unavailability, or quality of that customer's service shall respond to the consumers' counsel on the merits of that inquiry within a reasonable time. If a definitive response cannot be made within three weeks of the making of the inquiry, the utility initially shall send an acknowledgment of receipt of the inquiry to the consumers' counsel and indicate the position of the utility concerning the nature of any investigation of the facts that it considers necessary to an ultimate response, and then, when it becomes possible to make a definitive response, shall respond to the consumers' counsel on the merits of the inquiry. The failure of a utility to comply with this section is admissible evidence in a complaint proceeding under section 4905.26 of the Revised Code, upon the motion of the consumers' counsel, regardless of whether further evidence concerning the subject of the inquiry is offered.

Cite as R.C. § 4911.19

Effective Date: 04-10-1985

4911.20 Appointment of deputy consumers' counsel.

If the consumers' counsel governing board determines that the appointment of a deputy consumers' counsel is necessary to ensure the full and proper performance of the powers and duties of the consumers' counsel, the board may appoint a deputy consumers' counsel. The board may assign the deputy consumers' counsel any of the duties and powers of the consumers' counsel, and the deputy shall perform the assigned duties and powers. The deputy consumers' counsel shall report to the board on all matters assigned to him by the board, and shall serve at the pleasure of the board. The board may appoint an employee of the office of the consumers' counsel as deputy consumers' counsel. The board shall determine the salary of the deputy consumers' counsel. If a deputy consumers' counsel is appointed, the consumers' counsel shall not perform the duties and powers that are assigned by the governing board to the deputy.

Cite as R.C. § 4911.20

Effective Date: 06-01-1994