As the 2011 General Assembly opens, Democratic lawmakers are coming together to back legislation limiting Attorney General Ken Cuccinelli's powers of investigative demand, citing concerns stemming from his subpoena of former University Prof. Michael Mann's records last April.
Separately, Sen. Donald McEachin, D-Henrico, and Sen. J. Chapman "Chap" Petersen, D-Fairfax, have proposed legislation designed to limit the attorney general's power to issue civil investigative demands, which are similar to court subpoenas. Each senator seeks to amend the Virginia Fraud Against Taxpayers Act, which permits the current implementation of CIDs.
The two bills are a reaction to Cuccinelli's controversial demands to the University last April. The attorney general used his civil investigation powers to subpoena records regarding climate research grants given to Mann. Cuccinelli, a University alumnus, accused Mann of manipulating climate change data to fraudulently obtain grants funded by taxpayers. The University opposed the original request, and Albemarle County Circuit Judge Paul Peatross, Jr. rejected the demand, saying that it lacked necessary information and did not focus exclusively on grants funded by tax dollars. Cuccinelli reissued his demand in October, and the request is still pending.
An investigative panel at Pennyslvania State University, where Mann is currently a professor, cleared him of falsifying data in July.
Del. David Toscano, D-Charlottesville, who is co-sponsoring Petersen's bill, expressed concern that CIDs enable "fishing expeditions" for an attorney general to pursue a political agenda. Toscano expressed concerns that the attorney general is taking "the position that climate change is not a human-generated activity" and "wants to discredit the thousands and thousands of scientists who believe that climate change is real." Consequently, Toscano said he is wary that Cuccinelli's investigations of Mann are politically motivated.
"People need to be very concerned about what the attorney general is doing and what precedent it sets for any attorney general, whether conservative or liberal, to invade the lives of private citizens in order to pursuer a political agenda," Toscano said.
McEachin stated that in Mann's case, the attorney general is acting as a civil attorney and should not have powers greater than any other civil attorney.
In addition to political concerns, McEachin commented about the "chilling effect on academic freedom" the attorney general's actions could have.
Unlike McEachin's legislation, Petersen and Toscano do not propose to eliminate CIDs entirely. In what Toscano termed "a more targeted approach,' their legislation is specifically designed to create an exemption for academic research and inquiry.
Petersen was careful to point out that he has few problems with the Fraud Against Taxpayers Act or even with CIDs, but that he objects to using those powers in cases of academic research and inquiry, citing the importance of research in society.
"There are better things to spend tax dollars on than investigating professors for scientific research," Petersen said.
According to a statement from Cuccinelli's office, the Virginia's Fraud Against Taxpayers Act and its current provisions for CIDs provides a mechanism for the commonwealth to investigate alleged fraud against taxpayers.
"If CID authority is taken away," the statement reads, "that leaves the attorney general's office only with the option of filing suit and obtaining the additional information through the discovery process once the case is filed."
The statement also points out potential negative consequences of removing or limiting CIDs, noting that such action could jeopardize Virginia's compliance with the Deficit Reduction Act of 2005. This federal act lays out a variety of means for debt reduction, with prosecutions for fraud being among those methods. Along with many other provisions, the act rewards states for compliance by giving that state an additional 10 percent of revenues from prosecuted fraud cases.
Cuccinelli's office has stated that limiting CIDs could damage the state's compliance with the act, which would decrease its rewards - equivalent to losses of $1 million per year during the last four years. This money has gone into the commonwealth's general fund and has been earmarked to fund health care for the underprivileged, the office said.
But Toscano said this practice is "inconsistent with the attorney general's general belief that federal law should not supersede Virginia law."
Both Petersen and Toscano expressed prudence when asked about how their legislation will fare in the General Assembly. Petersen described his feelings as "cautiously pessimistic," saying the bill will likely pass in the Senate, where there is a Democratic majority, but it will "get hit very hard" in the Republican-dominated House of Delegates.
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