Judge Who Issued Gag Order Against PULP in Utility Service Denial Case Resigns in Disgrace

The state supreme court judge who issued an ex parte order in 2001 to gag PULP and chill public discussion of the Velma Fordham case records has resigned in the aftermath of his effort to fix a case involving drunk driving charges against a former prosecutor who taught at Buffalo Law School. According to a Feb. 21, 2009 article in the Buffalo News:

State Supreme Court Justice Joseph G. Makowski resigned Friday in disgrace, and former prosecutor Anne E. Adams pleaded guilty to three misdemeanors for their roles in trying to clear her in a drunken-driving case.

"They tried to fix a case, and they got caught," District Attorney Frank A. Sedita III said. "His reputation is disgraced," Sedita said of Makowski. "Her conduct was disgraceful."

Makowski, 55, avoided criminal charges by recanting an affidavit he submitted in September, cooperating with prosecutors, agreeing to testify against Adams and resigning as a State Supreme Court justice.

See also, Makowski resigns as State Supreme Court justice, State is probing tie to friend's DWI case; Judge Resigns After Trying To Cover Up DWI Case; Hamburg Police Officer Vindicated in DWI Case Against Lawyer; Judge resigns after DWI coverup scandal - Justice Joseph Makowski abruptly resigned; Makowski Exit as Judge Doesn't Preclude Possible Disbarment.

Makowski issued an ex parte order in 2001 that had the effect of gagging PULP and the Attorney General from discussing papers filed at the PSC by NFG in the case of a Buffalo woman who died in 2000 of hypothermia after being denied service in violation of HEFPA, and after the utility refused an Emergency HEAP payment. As stated by the PSC in its order commencing an investigation of the death of the customer, Velma Fordham:

When Ms. Fordham left National Fuel's Customer Assistance Center on November 29, 2000, she visited the Erie County Office of Temporary and Disability Assistance. According to company records, Ms. Fordham qualified for two payments (emergency and basic) under the Home Energy Assistance Program (HEAP) totaling $710. She then returned to National Fuel with her HEAP authorization, but the NFG representative still denied her service.

Eventually the administrative case was settled by the PSC and NFG. See NFG Not Penalized for Woman Freexing to Death.

Subsequently a private wrongful death lawsuit that had been dismissed by Judge Makowski was reinstated. The Appellate Division held that a utility can be held liable for violations of HEFPA and rebuked Makowski for his orders sealing public records. See Lawsuit Involving Death of Velma Fordham Settled by National Fuel. See also, PULP's website page on the Velma Fordham Case.

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Will there be more tragic cases like the case of Velma Fordham? Perhaps. Nearly a decade after her death, OTDA and the PSC still allow utilities to decide whether to provide service to a customer who receives an Emergency HEAP payment. OTDA and the PSC have been capitulating to the private utilities instead of protecting customers in the OTDA vendor agreements and with PSC regulatory oversight.

Allowing utilities to pick and choose which eligible HEAP recipients have service risks lives, as in the case of Velma Fordham, and frustrates the purpose of Emergency HEAP, which is to promptly resolve crisis situations. The Low Income Home Energy Assistance Act (LIHEAA) requires the state plan for HEAP to resolve emergencies within 24 or 48 hours depending on urgency of the circumstances. In PULP's recent comments to OTDA we repeated our longstanding urgings that OTDA toughen up its vendor agreements with utilities to require utilities, as a condition of their receiving direct vendor payments, to provide service whenever an Emergency HEAP payment is proffered. See PULP Files Comments on Improving Next Year's HEAP Program.

The PSC also has power to direct utilities to resume service whenever an Emergency HEAP payment is proffered.

Instead of promoting the public interest in continuous utility service to residential customers, however, the PSC instead has issued letters to utilities asking them only to minimize the number of cases in which the utility rejects HEAP and leaves customers without service. The PSC thus supports the position of utilities that they are not obligated to provide service when an Emergency HEAP payment is proffered, as they clearly must under Public Service Law 65-b when they receive a four-month partial payment of arrears under Social Services Law 131-s, and has not asked the legislature to correct its perceived powerlessness to protect low-income customers.

These weak PSC supplications to the utilities by the agency charged to regulate could be seen as "comfort letters" that would serve to defend the utility legal position in court if a person dies or is injured after an Emergency HEAP grant is refused.

In light of the lack of any real action by OTDA and the PSC on this issue, the continued risk to public health and welfare when households lack safe utility service, and frustration of the language and purpose of LIHEAA and HEFPA, the story of Velma Fordham illustrates the need for the legislature to act to clarify the duties of the utilities when an Emergency HEAP grant is proffered.