Duke Energy submits thousands of pages of records in CEO firing probe

jmurawski@newsobserver.comAugust 7, 2012 

Duke Energy turned over several thousand pages of internal corporate records to state officials Tuesday in what is expected to be the power company’s first of several responses to an investigation by the N.C. Utilities Commission.

But only about 600 of those pages in the initial filing were available for public review on the commission’s website, because Charlotte-based Duke filed the bulk of its documents under seal as confidential trade secrets.

The spare emails, and some brief text messages sent from smartphones, offer glimpses into the delicate ego-stroking and corporate jockeying that Duke board members and CEO Jim Rogers engaged in during the 18 months that it took to complete their merger with Raleigh-based Progress Energy.

Many of the details of the merger’s internal power struggle were aired last month during hearings before the N.C. Utilities Commission. But the emails also underscore some of the anxiety sweeping through Duke’s boardroom as the $32 billion deal, creating the nation’s largest electric utility, became increasingly complicated and expensive.

In one email, sent in January, Rogers discloses that the mounting complications will prevent him from attending the star-studded World Economic Forum in Davos, Switzerland. In a May email, sent to Duke board director Ann Maynard Gray, Rogers’ regrets that the pending merger had prompted two senior women executives to leave Duke for jobs in other states.

“Both expressed deep concern about whether they would be valued at the new organization,” Rogers wrote to Gray. “Each had shared their concerns and disheartening conversations with their new bosses from Progress with me many months before receiving their offers.

“I am disappointed,” Rogers wrote. “I have worked diligently to create a pipeline of strong women leaders.”

The N.C. Utilities Commission had approved the merger in June on the expectation that Progress CEO Bill Johnson would head the combined company.

Parallel investigation

Johnson’s abrupt removal July 2, just hours after Duke closed the merger, is the subject of the probe launched July 6 by the commission and a parallel investigation started by the North Carolina attorney general.

After the merger was completed on the afternoon of July 2, Duke’s board went into executive session to fire Johnson. Duke’s 10 board members knew about the plan beforehand; the five new board members from Progress, attending their first Duke board meeting, were blindsided.

Just as the executive session was getting under way, Gray emailed Johnson before 5 p.m., requesting that he remain in Charlotte so she could talk to him after the meeting. The filings made Tuesday, however, show that she vetted that email with Rogers three hours earlier, at 1:49 p.m., with a subject heading “test.”

“Bill, I am in Charlotte and would like to meet with you at the company’s headquarters following the executive session, so I would appreciate your waiting for me there,” Gray wrote. The filings do not include a response from Rogers.

The commission and AG will scour the emails, employment contracts, board minutes and other documents in search of potential leads and for contradictions to last month’s hearings, which featured testimony from Rogers, Johnson, Gray and other board members.

Duke filed about 1,900 pages of confidential documents Tuesday, saying they are protected by attorney-client privilege or trade secrets.

More bulk filings were submitted late in the day, containing potentially thousands more pages filed under seal.

Some of the public emails, dating as far back as 2010, schedule meetings and phone calls between board members and Rogers. At least one mentions that Duke’s corporate jets and helicopters are available to facilitate face-to-face meetings.

The scheduling arrangements include the fateful June 24 strategy meeting between Rogers and directors Gray and Michael Browning to discuss the board’s serious misgivings about Johnson.

It was at this meeting, over dinner in the Jefferson Room in the Quail Hollow Country Club in Charlotte, that Gray and Browning asked Rogers if he would step back into the CEO role if the board fired Johnson after the merger was completed.

The emails show that one Duke board member, Daniel DiMicco, the CEO of Nucor Corp. in Charlotte, had grave doubts about Johnson from the start. DiMicco was suspicious about Johnson as early as November 2010, seven weeks before the proposed merger was announced in January 2011.

DiMicco, who sparred by email with Rogers over public policy, fired off an angry missive to Rogers, suggesting that Duke’s board was already thinking about contingency plans if Johnson were to prove unsatisfactory.

“I have to tell you I was very disturbed by the view if it doesn’t work out with Bill we will make the change in 2 years or so,” DiMicco wrote. “This needs to be done right from the beginning – he is either the right guy or he is not.

“If he is not then it is a deal killer for me,” DiMicco wrote.

DiMicco was also irked by Progress insisting on Johnson becoming CEO.

“There is a certain arrogance in his take it or leave it view of the deal with him as CEO or the deal is a bad deal and they don’t do it!” DiMicco wrote to Rogers. “If it is such a great deal then make their board and shareholders a direct offer without Bill as guaranteed the CEO slot.”

But none of that antagonism was evident when the merger was announced in January 2011, prompting several Duke board members to sent congratulatory messages to Johnson.

“I just wanted you to know you can count on me for complete support as we move forward with this historic combination,” wrote board member G. Alex Bernhardt, CEO of Bernhardt Furniture in Lenoir. “Feel free to call on me at any time I can be supportive to you and our team efforts.”

Lead director Gray, who led the effort to engineer Johnson’s ouster, extolled Duke’s “great future under your leadership as CEO.”

“You can count on the support of our entire board in the months and years ahead,” Gray wrote to Johnson.

Gray shared her missive with Rogers, who gave her top marks for her email etiquette.

“Ann, terrific note,” Rogers responded. “It is an important message at a critical juncture.....very classy.”

Murawski: 919-829-8932

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