From: jennifer.rudolph@enron.com
To: ca.team@enron.com
Date: 2001-05-03 11:09:00+00:00
Subject: NEWS:  article about Secret Deal

*  See text in red for quick read
*  New York Times yesterday


---------------------- Forwarded by Jennifer Rudolph/HOU/EES on 05/03/2001 
10:48 AM ---------------------------


Susan J Mara@ENRON
05/02/2001 11:57 AM


Power Concern Offers California a Secret Deal


By JEFF GERTH and LOWELL BERGMAN

 Duke Energy, a power-generating company accused of overcharging
customers millions of dollars during California's year-old energy
crisis, has secretly offered Gov. Gray Davis a deal that it hopes
will solve its legal problems while helping to calm the state's
chaotic electricity markets.

 The proposed settlement, outlined in documents prepared in March
by Duke's lawyers, calls for an end to various state
investigations, private lawsuits and state complaints to federal
authorities accusing Duke of overcharging.

 In return, Duke would make an unspecified "appropriate payment"
but admit no wrongdoing.

 "Duke is committed to sharing pain" and "expediting high-level
confidential discussions that would embrace the governor's
political and public relations needs," according to the documents,
which were given to The New York Times by someone who wanted the
issue aired publicly.

 Governor Davis acknowledged the secret discussions in an interview
in San Francisco yesterday, and said he hoped to meet with more
generators soon. But he insisted that none of the companies would
escape a substantial payment because, he said, they have penalized
the state with excessive prices.

 "My general approach to the energy companies is that you have
already charged the utilities a 50 percent credit penalty for the
power they were buying from you," Mr. Davis said, so "you're going
to have to have a very substantial reduction" in what the companies
are owed.

 Mr. Davis said Duke had walked in with "a number of demands,"
including an end to state inquiries but that that was not likely to
happen.

 "We're not about to call off the dogs," said the governor, a
Democrat who will seek re-election next year.

 Duke, based in Charlotte, N.C., is a major investor in
California's wholesale electricity market, having spent more than
$1 billion since the state opened its generating plants to outside
operators in 1996.

 It is also near the top of the list of companies accused of
overcharging. Duke has been ordered by federal regulators to
justify or refund $20 million in disputed charges this year, an
amount that is third-highest among federally regulated companies in
the California market.

 By entering secret negotiations with Mr. Davis and being the first
generator to settle, Duke could gain a public-relations advantage,
in much the same way that the Liggett Group donned a white hat by
being the first company to open talks with the state governments in
the tobacco-litigation wars.

 "We've just simply tried to be part of the solution," Richard B.
Priory, Duke's chairman and chief executive, said in an interview,
adding that the company was "offering ideas" and "throwing in
suggestions."

 Publicly, Mr. Davis has disparaged out-of-state electricity
generators before and after he began talking with them privately.
In an interview two weeks ago with The Los Angeles Times, he called
the generators "the biggest snakes on the planet Earth" for their
pricing practices.

 California's electricity costs have risen to about $28 billion
last year from $7 billion in 1999. By some estimates, they could
approach $70 billion this year * $2,000 for every resident. The
state has stepped in to buy power for financially crippled
utilities, including Pacific Gas and Electric, which is now in
bankruptcy court. 

 The Davis administration has struck power deals with companies
like Duke in hopes of securing a stable and affordable source of
power. To pay those bills, Mr. Davis is seeking the largest
municipal bond issue in American history, $12 billion, although
some state officials privately estimate that the final amount will
be higher.

 The governor hopes the bond issue will eventually take the state's
taxpayers off the hook. But how those costs are allocated among
ratepayers, utilities and generators, and whether the bond issue
can even succeed, remain unanswered questions. A major impediment
to resolving the electricity crisis, according to state officials,
utility executives and economists, is the secrecy surrounding the
administration's negotiations.

 Several Republicans have sued the Davis administration to learn
the terms of specific contracts entered into by the state. On
Monday, the administration released a 67-page financial analysis,
including its most detailed disclosure about the overall costs of
state electricity contracts. Last week Republicans blocked
legislation that Mr. Davis says he needs to pass the bond issue.
The bill could come up for a vote later this week.

 "The thing that has hindered Governor Davis the most among the
legislative ranks is the demand for secrecy over the negotiations
and the agreements that have been reached," said Senator Joseph L.
Dunn, a Democrat from Santa Ana and the chairman of a select
committee investigating the price spikes.

 Mr. Davis, in the interview, said there were legitimate commercial
reasons for keeping contract terms confidential.

 The political uncertainty has spilled over into the markets, where
the bonds would have to be sold. The state's credit rating, while
still solid, is slipping.

 Already companies that do business with California, like Duke, are
citing the state's creditworthiness as a reason for charging higher
prices in their dealing with the state, though the state has
stepped in as buyer since February.

 The Federal Energy Regulatory Commission recently ordered
generators to justify high prices in California this year or pay
$125 million in refunds. The companies * including Duke, Reliant
Energy, Dynegy Inc. and the Williams Company * deny any wrongdoing
and cite the state's credit situation as one reason for the high
prices.

 Mr. Priory, the Duke chairman, said that resolution of credit
issues would lead his company to drop the so-called "credit
premium" it now charges on power sales. As of March 7, Duke was
owed more than $100 million by the state's power managers,
documents show.

 In its confidential submission to Mr. Davis and his aides, Duke
said it would "forgive an appropriate amount of certain
receivables, or make an appropriate payment based upon a
methodology that fairly represents its share of alleged
overcharges." 

 The documents do not give an amount, but Duke's 2000 annual report
shows that its wholesale energy division had written off $110
million for power sales to California that had not been collected.
(Even with that write-off, the unit's profits before taxes doubled
from 1999 to 2000, and quadrupled for the first quarter of this
year.)

 Duke's "preliminary global settlement template" of March 9 goes
on: "Duke is committed to sharing pain with state and others on a
fair and equitable basis, without admitting legal liability,
because Duke has done nothing illegal."

 Duke says that much of its California power was sold last year on
the forward markets, not the more volatile and higher-priced spot
markets. But Mr. Priory also noted in his interview that at least
10 percent was sold for "whatever the market price is."

 On March 23, Duke's lawyer, at the request of Mr. Davis's legal
affairs secretary, forwarded to the governor's office additional
information about pending litigation involving Duke and its power
sales in California. The documents show that a top Duke priority is
the "prompt suspension of state investigations, lowering of
rhetoric and stay of state litigation," as well as the withdrawal
of state-related claims at the federal energy commission.

 Also in March, the operators of the state's power grid told the
Federal Energy Regulatory Commission that wholesale electricity
prices in California were more than $6 billion above competitive
prices over the previous 10 months. Duke has questioned the
methodology of that submission and wants the claim withdrawn.

 The inquiries of concern to Duke include those being conducted by
the office of the attorney general, William Lockyer, and the
California Public Utilities Commission. 

 Barry P. Goode, the governor's legal affairs secretary, says he
subsequently referred Duke's lawyer to the attorney general's
office. The two state agencies say that their inquiries are
continuing. Sandra Michioku, a spokeswoman for Mr. Lockyer, said,
"Our investigation is ongoing."

 Loretta Lynch, the president of the utility commission, said in a
telephone interview yesterday, "The public utilities commission has
not been involved in any settlement discussions with generators and
our investigations into overcharges and withholding are ongoing and
strong."

 The Duke documents say the company should be given preferential
treatment for its conciliatory stance.

 Other generators said they were not involved in settlement
discussions with Mr. Davis. 

http://www.nytimes.com/2001/05/02/national/02DAVI.html?ex=989822260&ei=1&en=70
3c8bd8125d53df

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