STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

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1 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter on the Commission s own ) motion, to consider changes in the rates ) of all the Michigan rate-regulated ) electric, steam and natural gas utilities ) to reflect the effects of the federal Tax Cuts and Jobs Act of 2017: ) Consumers Energy Company files an ) application for determination of ) Calculation C as described in order U / Case No. U STATEMENT OF RETRACTION AND RECTIFICATION BY RESIDENTIAL CUSTOMER GROUP AND ITS COUNSEL OF FALSE AND MATERIAL STATEMENTS CONTAINED IN PAUL KITZMANN S NOVEMBER 13 AND 15, 2018 MOTIONS IN U AND NOVEMBER 22, 2018 MOTION IN U The Residential Customer Group, by its attorneys Don L. Keskey and Brian W. Coyer, and also the Public Law Resource Center PLLC, file this retraction and rectification of false and material statements made by Paul Kitzmann in his November 13, 2018 and November 15, 2018 corrected Motion for Leave to Obtain New Counsel and to Preserve the Residential Customer Group s Right to File Direct Testimony sent by to the Administrative Law Judge and parties in DTE rate case U-20162, and Paul Kitzmann s November 22, 2018 Motion for Leave to Obtain New Counsel and to Preserve the Residential Customer Group s Right to File Objections to the Contested Settlement Agreement filed in the DTE investigation case, U This retraction and rectification statement is also filed and served upon the ALJ and parties to DTE Electric rate case, U-20162, and in U-20084, because Paul Kitzmann served by the above referenced motion in that case upon the ALJ and all parties to that case. This statement of retraction and rectification is also filed in all MPSC case dockets wherein either the 1

2 Administrative Law Judge or counsel for the MPSC Staff have filed one or more of the Kitzmann motions, which include U-18402, U-20068, U-20084, U-20165, U-20219, U-20275, U-20309, and U RCG, by its undersigned counsel, and the PLRC, are filing this Statement in accordance with Ethics Opinion RI-151, which references Rules 1.2(c) and (d), 1.6(a) and (c), and 3.3(a), of the Michigan Code of Professional Conduct (MPRC). The Headnotes in Ethics Opinion RI-151, states as follows: A lawyer who learns that a client s statements in court pleadings or to a tribunal are false and material, must counsel that if the client does not rectify the false statements the lawyer has a duty to do so. If the client still refuses to rectify the statements, the lawyer is required to rectify. In accordance with this Ethics Opinion, and the above referenced MPRC Rules, PLRC counsel promptly advised the RCG Board, including Paul Kitzmann, that his Motions included false and material statements. The PLRC did so by transmitting the attached December 3, 2018 memo (with attachments) 1 to the RCG Board responding to Paul Kitzmann s November 13 (and corrected November 15, 2018) Motions in U In accordance with Ethics Opinion TI-151, and the above-referenced MRPC Rules, PLRC counsel also promptly advised the RCG Board, including Paul Kitzmann, that his motion sent to 1 This advisement to the RCG, EXHIBIT 1 hereto, included the December 3, 2018 transmittal from PLRC to RCG with Attachment A (Ethics Opinion RI-151), Attachment B (a copy of Paul Kitzmann s and motion to ALJ Wallace and the parties in U-20162), and PLRC s December 3, 2018, Answer not yet filed or sent (Attachment C) entitled: PLRC s Answer to Paul Kitzmann s Motion dated November 13, 2018, Sent to Administrative Law Judge and Parties in DTE Rate Case U

3 the ALJ and parties in the DTE Electric investigation case, U-20084, also included false and material statements. 2 In accordance with Ethics Opinion RI-151, PLRC also provided RCG and Paul Kitzmann the opportunity to retract the false and material statements made in Paul Kitzmann s Motions. In response to PLRC s December 3 and 4 advisement answers with attachments, the RCG Board attempted to retract Paul Kitzmann s motions, and to repair any misunderstandings with the PLRC. This effort was undercut and blocked by Paul Kitzmann and by Ms. Susan Lesnek, a nonpracticing attorney advising Mr. Kitzmann, who had sought to intervene late in Case U-20084, which intervention was denied by the ALJ in that case at a hearing held on October 23, These facts are verified by the attached March 19, 2019 Affidavit of former RCG Board Member John Diehl (attached as EXHIBIT 3 hereto) and the attached April 4, 2019 Affidavit of current RCG President and Treasurer Lola Killey (Attached as EXHIBIT 4 hereto). The Affidavit of John Diehl (EXHIBIT 3) and Lola Killey (EXHIBIT 4) also establish that they both resigned from the then-existing RCG Board due to the actions or conduct of Paul Kitzmann, although both have rejoined RCG for the year 2019, with a new RCG Board, and with Lola Killey as current President and Treasurer. The attached Affidavits of John Diehl (EXHIBIT 3) and of Lola Killey (EXHIBIT 4) also establish, among other matters that: (i) Paul Kitzmann engaged in conduct resulting in the 2 This PLRC advisement to RCG, EXHIBIT 2 hereto, included the December 4, 2018 transmittal to the RCG Board, responding to Paul Kitzmann s November 22, 2018 Motion, with Attachment A (Ethics Opinion TI-151), Attachment B (a copy of Paul Kitzmann s November 22, 2018, Motion ed to the ALJ and parties in U on November 23, 2018) and PLRC s December 4, 2018 Answer (not yet filed or sent to the ALJ or case parties) entitled PLRC s Answer to Paul Kitzmann s Motion dated November 22, 2018, sent November 23, 2018, to Administrative Law Judge and Parties in the Commission s Show Cause Investigation in U , with attached s (Attachment C thereto). 3

4 resignation of Mr. Diehl and Ms. Killey from the then-existing RCG Board in January 2019; (ii) the motions filed by Mr. Kitzmann in U and U were unauthorized by the RCG Board; (iii) that the RCG Board did not authorize the contents of statements made in the Kitzmann motions; and (iv) that Paul Kitzmann and Susan Lesnek obstructed the retraction and rectification of said motions, and the repairing of the relationship of RCG and the PLRC. The April 4, 2019 Affidavit of Lola Killey, (EXHIBIT 4, paragraphs 24, 25, 26, 27, 28, 30 and 30d(i), also establishes that the February 2, 2019 Special Meeting of the Residential Customer Group was properly called and noticed, and that at said RCG meeting; (i) a new RCG Board was installed; (ii) Mr. Kitzmann was removed as RCG President; (iii) PLRC was reconfirmed as counsel for RCG in all casework and cases; (iv) that Mr. Kitzmann s motions in U and U should be retracted; and (v) PLRC should send formal communication to the ALJs and parties to retract and correct the false and damaging statements made in the Kitzmann motions. At the March 9, 2019 RCG membership and Board meeting, the RCG Board reaffirmed that Mr. Kitzmann s November 2018 motions in U and U were unauthorized by the RCG Board and should be withdrawn, and that PLRC should continue to be retained as RCG counsel (April 4, 2019 Affidavit of Lola Killey, EXHIBIT 4, paragraph 30); March 19, 2019 Affidavit of John Diehl, EXHIBIT 3, paragraphs 3 through 11). As more fully documented in attached EXHIBIT 1, Mr. Kitzmann s motion in U included false and material statements, in asserting that: PLRC failed or refused to file RCG Testimony and Exhibits in DTE Electric rate case U on the due date of November 7, 2018 (or any other date). To the contrary, despite full notice of the U case schedule months earlier, RCG indicated no interest or ability to file expert testimony in the case as RCG had no budget or resource to do so. 4

5 However, RCG verbally notified PLRC counsel on or about November 7, 2018, of RCG s intention to file testimony in U-20162, which was followed in the late afternoon and evening of November of some 18 s attaching hundreds of pages of nonexpert customer letter or complaints which comprised disorganized bulk material which clearly did not meet any MPSC standards applicable to expert testimony and exhibits. Much of this information had already been filed in MPSC Case U on July 16, 2018, and during the period July 17-22, PLRC counsel immediately notified Mr. Kitzmann that such filings did not constitute proper, fileable, expert testimony but offered to file expert testimony, with a motion for extension, if proper expert testimony was forthcoming to file with the motion within a reasonable time. No such valid reconstituted expert testimony or exhibits were thereafter received from Mr. Kitzmann or any other RCG source. Thus, PLRC never refused to file a motion to extend the date for filing testimony in DTE Case U-20162, but instead immediately advised RCG that such a motion should be accompanied by actual acceptable expert testimony, which was never provided to PLRC by RCG. Mr. Kitzmann s motion in U falsely asserts that the voluminous disorganized bulk of customer letters or attachments submitted to PLRC late on November 7, 2018, was not filed by PLRC because PLRC was focused on filing expert testimony on behalf of the Great Lakes Renewable Energy Association (GLREA); while PLRC did file GLREA s expert testimony in DTE electric rate case U on the due date of November 7, 2018, this in no way distracted PLRC from the ability to file any valid testimony by RCG (if it had been developed). The two GLREA expert witnesses prepared their own testimony in 5

6 advance of the filing date, and the filing of same on November 7, 2018, did not require significant time by PLRC. As more fully documented in attached EXHIBIT 2, Paul Kitzmann s motion sent to the ALJ and parties in the MPSC investigation case involving DTE Electric, U-20084, also included false and material statements, as follows: The November 2018 motions sent by Mr. Kitzmann to the ALJ and parties also suggest that PLRC refused to file a proper motion for extension to file testimony in U-20084, and did not assert that PLRC s computer suffered an interruption during the filing process on July 16, However, PLRC s computer and IT outage during the night of July 16, 2018 only commenced at 10:45 pm on July 16, 2018, and continued for 1.5 hours, and was not the cause for any late filings after July 16. Any RCG fillings after July 16, 2018 was caused by their late receipt from RCG thereafter, and not due to the brief computer system outage. Moreover, PLRC did file such a motion for extension in U on July 22, 2018 to accept the filings made after July 16, 2018, which motion was denied by the ALJ at a hearing held on July 27, The motion falsely suggests the PLRC failed to timely prepare for the case when in fact PLRC counsel immediately informed Mr. Kitzmann and Michelle Rison of RCG of the schedule at the start of the case and schedule changes thereafter, exchanged up to 100 e- mails regarding case preparation, and engaged in both phone calls and in-person meetings to prepare for the case. Despite case schedule extensions, RCG never provided PLRC counsel with promised discovery questions, or analysis of issues. PLRC also immediately transmitted proposals for settlement to RCG as soon as they were received, and arranged and participated in up to four (4) in-person settlement discussions with the other parties 6

7 (counsel for the Staff, Attorney General, and DTE) held on October 23, 2018 (after the hearing on Susan Lesnek s unsuccessful motion to intervene) 3 and settlement meetings held on November 1, 3 and 7, 2018 (with Paul Kitzmann and Michelle Rison participating). PLRC also carefully reviewed in advance the testimony filed by other parties in the case, and suggested language changes to the various settlement proposals, many of which were accepted by the other parties. Paul Kitzmann s motion relating to U falsely asserts that PLRC counsel was not prepared to cross-examine other party witnesses at the hearing on November 7, 2018, when in fact both PLRC counsel Don Keskey and Brian Coyer had re-reviewed said testimony prior to the scheduled hearings, and determined that no cross-examination could better RCG s case compared to the results obtained by the circulated settlement agreement; the motion also ignores PLRC counsel s recommendations that RCG enter into the settlement agreement with the language improvements recommended by PLRC counsel with input from RCG. Paul Kitzmann refused to agree to any settlement, but without any explanation; the motion also ignores that Paul Kitzmann refused to suggest to PLRC counsel any issues or suggested questions that could comprise competent or meaningful cross-examination. Paul Kitzmann s motion also fails to reveal that PLRC counsel prior to the November 7, 2018 hearing date in U had received the agreement of all other parties to bind into the evidentiary record the testimony and exhibits of the parties, including RCG, to waive cross-examination of same, and to then brief all issues (which provided RCG the 3 Michelle Rison of RCG participated in this meeting (with Paul Kitzmann and Susan Lesnek refusing to do so by adjourning to the MPSC parking lot). 7

8 opportunity to then present all of its relevant positions and issues in RCG s brief and to also appeal the ALJ s ruling excluding some of RCG s pre-filed customer testimonials, pursuant to MPSCR Rule 433(5). 4 RCG directed by Paul Kitzmann mandated that RCG counsel should not agree to this approach of binding in testimony of all parties and to proceed to the briefing process. Mr. Kitzmann thereafter blocked off PLRC communications with RCG, and never discussed any of the matters included in his November 2018 motions prior to the sending of same to the ALJs and parties in U and U PLRC s counseling and advisement to RCG concerning the false and material statements contained in Paul Kitzmann s November 2018 Motions, are contained in PLRC s December 3, and December 4, 2018 advisory answers with attachments (not yet filed or sent to the ALJs or parties at that time), now filed and attached within EXHIBITS 1 and 2 hereto). Additional rectifications of false and material statements made in Paul Kitzmann s November 2018 motions are contained in those Exhibits, which are incorporated herein by reference. The RCG and PLRC, pursuant to this Statement of Retraction and Rectification, submitted in accordance with MRPC Rules and Ethics Opinion RI-151, properly provided Paul Kitzmann (and his advisors) an ample opportunity in December 2018 to retract and rectify the false and material statements made in his motion ed to the ALJ and parties and parties to Case U and in U Moreover, it is also documented that (i) Paul Kitzmann s November 2018 motions in U and U were unauthorized by the RCG Board; (ii) that the content in said motions was not reviewed or approved by the RCG Board; and (iii) that the RCG Board in 4 Some 10 testimony and exhibits of RCG witnesses were filed on or by the July 16, 2018 deadline, while 20 other testimonials were filed 1-3 business days after the July 16, 2018 filing date solely because they were received late (after the deadline) from RCG. 8

2018 had decided to retract said motions which action was blocked by Paul Kitzmann and Susan Lesnek; and (iv) that the 2019 RCG Board formally acted in its February 2, 2019 and subsequent meetings to

9 2018 had decided to retract said motions which action was blocked by Paul Kitzmann and Susan Lesnek; and (iv) that the 2019 RCG Board formally acted in its February 2, 2019 and subsequent meetings to retract said motions and to rectify the false and material statements therein, and to authorize this filing. The RCG, and the PLRC, therefore file this Statement of Retraction and Rectification of Paul Kitzmann s motion filings, in all of the above-referenced MPSC dockets, along with service upon the ALJ and all parties to said cases. Respectfully submitted, Dated: April 8, 2019 Don L. Keskey (P23003) Brian W. Coyer (P40809) Public Law Resource Center PLLC University Office Place 333 Albert Avenue, Suite 425 East Lansing, MI Telephone: (517) donkeskey@publiclawresourcecenter.com bwcoyer@publiclawresourcecenter.com 9

10 EXHIBIT 1

11 From: Sent: To: Cc: Monday, December 03, :07 AM Diehl, John; Ebaugh, Lori; Killey, Lola; pmkitzmann; Rison, Michelle pkitzmann aqp7 Subject: FW: PLRC counseling and request for RCG retraction in U Attachments: pdf RCG Board and Paul Kitzmann: Please find the attached memo, with attachments, sent to you in accordance with MRPC Rules and Ethics Opinion R1-151 (also attached). This memo request RCG to retract the statements made in Paul Kitzmann's motion dated November 13 and 15, and served upon all parties, in the above case. Don L. Keskey Public Law Resource Center PLLC University Office Place 333 Albert Avenue, Suite 425 East Lansing, MI Telephone: (517) Original Message----- From: Sent: Monday, December 03, :53 AM To: Subject: Message from "RNP002673EC14CE" This was sent from "RNP002673EC14CE" (MP 305+). Scan Date: :53:01 (-0500) Queries to: 1

57 EXHIBIT 2

58 From: Sent: To: Cc: Subject: Attachments: Tuesday, December 04, :44 PM Diehl, John; Ebaugh, Lori; Killey, Lola; pmkitzmann; Rison, Michelle; pkitzmann aqp7 U PLRC counseling memo with attachments and rectification request--ethics Opinion R1-151 PLRC memo to Kitzmann, RCG Board re U pdf RCG: Please find attached a PLRC memo with attachments regarding the above matter. Don L. Keskey Public Law Resource Center PLLC University Office Place 333 Albert Avenue, Suite 425 East Lansing, MI Telephone: (517) donkeskey@publiclawresourcecenter.com 1

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110 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter on the Commission s own ) motion, to consider changes in the rates ) of all the Michigan rate-regulated ) electric, steam and natural gas utilities ) to reflect the effects of the federal Tax Cuts and Jobs Act of 2017: ) Consumers Energy Company files an ) application for determination of ) Calculation C as described in order U / Case No. U PROOF OF SERVICE On April 8, 2019, an electronic copy of the Statement of Retraction and Rectification by Residential Customer Group and its Counsel of False and Material Statements Contained in Paul Kitzmann s November 13 and 15, 2018 Motions in U And November 22, 2018 Motion in U was served on the following: Name/Party Administrative Law Judge Hon. Sharon Feldman Consumers Energy Company Bret A. Totoraitis Michael C. Rampe Ian F. Burgess Theresa A. G. Staley MPSC Staff Heather M. S. Durian Benjamin Holwerda Hemlock Semiconductor Operations LLC Jennifer U. Heston Attorney General Celeste Gill Energy Michigan, Inc. Laura A. Chappelle Timothy J. Lundgren] Address feldmans@michigan.gov mpscfilings@cmsenergy.com bret.totoraitis@cmsenergy.com michael.rampe@cmsenergy.com ian.burgess@cmsenergy.com theresa.staley@cmsenergy.com durianh@michigan.gov holwerfdab@michigan.gov jheston@fraserlawfirm.com gillc1@michigan.gov lachappelle@varnumlaw.com tjlundgren@varnumlaw.com - 1 -

111 Justin K. Ooms Association of Businesses Advocating Tariff Equity Bryan A. Brandenburg The statements above are true to the best of my knowledge, information and belief. PUBLIC LAW RESOURCE CENTER PLLC Dated: April 8, 2019 Carol A. Dane Public Law Resource Center PLLC University Office Place 333 Albert Avenue, Suite 425 East Lansing, MI Direct Dial: (517)

STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter, on the Commission s own motion, to open a docket to implement the provisions of Section 6w of 2016 PA 341 for CONSUMERS ENERGY