June 8, 2004 |
2004-R-0485 | |
ACTIVITY OF THE SELECT COMMITTEE OF INQUIRY UPDATE | ||
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By: Daniel Duffy, Principal Analyst Sandra Norman-Eady, Chief Attorney Christopher Reinhart, Senior Attorney Mary M. Janicki, Director | ||
You asked for an overview of the proceedings and activities of the Select Committee of Inquiry from its establishment in January 2004 through court activity that took place on June 7. This report is the second in a series describing the select committee’s activities. Each report is cumulative with a separate description of events that have occurred since the prior issue.
SUMMARY
The House of Representatives met in Special Session on January 26, 2004 and adopted a resolution creating a 10-member, bipartisan committee to consider whether sufficient grounds exist for the House to impeach Governor John G. Rowland. The resolution directed the committee to complete its work by April 14, but using authority granted in the resolution, the House speaker has extended the deadline to June 30. The Select Committee of Inquiry has retained special counsel (Steven F. Reich of the New York firm Manatt, Phelps & Phillips, LLP) and an investigator (James Mintz of the James Mintz Group of New York City). It adopted impeachment inquiry and deposition procedures.
The General Assembly passed two bills during its regular session that affect the committee. PA 04-2 specifies that the law prohibiting a person from practicing law in Connecticut unless admitted by the Superior Court must not be construed to apply to an attorney who is retained in relation to an impeachment proceeding.
PA 04-37 exempts from the Freedom of Information Act (FOIA) all information, interview records, reports, statements, and other materials obtained by the House of Representatives or its committee regarding impeachment. The exemption applies during the committee’s inquiry and investigation and expires when it makes its final report to the House.
In the course of the committee’s investigation to date, it has issued more than 125 subpoenas, collected over 371,000 pages of documents, interviewed dozens of people, and taken five depositions.
The select committee has been a party to several court cases, including:
• A challenge to the committee’s out-of-state counsel’s ability to act as an attorney in Connecticut (the court granted the committee’s request, an appeal is pending)
• Motions to quash subpoenas (in a case involving a number of parties, the judge ruled that the court could not yet intervene, but the plaintiffs could assert their case later if they refuse to comply and the committee holds them in contempt;
after appealing the ruling, plaintiffs withdrew it)
• Actions to enforce subpoenas (when the committee went to court to enforce a number of subpoenas, the parties reached settlements)
• A motion by the Office of the Governor to quash the subpoena for the governor’s testimony before the committee (the court ruled in favor of the committee on June 7 and the governor’s counsel indicated he intended to appeal to the state Supreme Court).
The select committee has also been the subject of FOIA complaints. The complaints were either denied or dismissed by the Freedom of Information Commission (FOIC) or, where the FOIC ruled against the committee and ordered disclosure of a document or opening a meeting, are in Superior Court on appeal.
The select committee has met 14 times (including one meeting that continued into a second day), sometimes in executive session.
The select committee’s budget totals $ 4. 4 million, including $ 2. 35 million for attorney fees, $ 2 million for investigation services, and the remainder for equipment and operations. As of June 7, it has spent $ 2. 46 million and has encumbered another $ 563,346.
The committee must report to the House of Representatives by June 30, at which point the House will consider its recommendations. If a majority of the House votes to impeach the governor, the matter will go to the Senate for an impeachment trial. In this situation, the lieutenant governor exercises the powers and authority of the office of the governor. A two-thirds vote of senators is required to convict and remove a governor from office.
In the event of a conviction, the lieutenant governor takes the oath of office and becomes the governor. In the event of an acquittal, the governor resumes office.
CHANGES SINCE PRIOR ISSUE
• The Superior Court granted the Select Committee’s motion to stay the FOIC’s ruling ordering the committee to open to the public meetings where depositions are taken.
The committee met in executive session on June 7.
• Since May 27, the Office of Legislative Management has paid attorney fees of $ 833,165 and encumbered $ 450,343 for investigation services and $ 111,312 for attorney fees.
• On June 7, Judge Langenbach ruled in favor of the committee in the lawsuit to quash the subpoena for the governor’s testimony. The governor’s counsel indicated he would appeal to the state Supreme Court.
ESTABLISHMENT AND APPOINTMENT
On January 26, 2004, the House of Representatives met in special session to adopt a resolution to appoint a 10-member select committee to look into the matter of the impeachment of Governor Rowland (“Resolution Appointing a Select Committee of Inquiry to Recommend Whether Sufficient Grounds Exist for the House of Representatives to Impeach Governor John G. Rowland Pursuant to Article Ninth of the State Constitution” (HR 702)).
The committee was empowered to adopt rules and procedures, hire special counsel and other necessary personnel, and investigate allegations of gubernatorial misconduct, and required to report to the House of Representatives. The resolution directed the committee to complete its work by April 14, 2004, but it authorized the speaker of the House to grant one-week extensions beyond that date.
The speaker appointed the members listed in Table 1.
Table 1: Members of the House Select Committee of Inquiry
Member |
District |
Political Party |
John Wayne Fox, Co-Chair |
144 |
Dem. |
Arthur J. O’Neill, Co-Chair |
69 |
Rep. |
James W. Abrams |
83 |
Dem. |
Jacqueline M. Cocco |
127 |
Dem. |
Ruth C. Fahrbach |
61 |
Rep. |
William A. Hamzy |
78 |
Rep. |
Wade A. Hyslop |
39 |
Dem. |
Raymond C. Kalinowski |
100 |
Rep. |
Michael P. Lawlor |
99 |
Dem. |
Claudia M. Powers |
151 |
Rep. |
ORGANIZATION
The speaker designated the committee co-chairs. Members met initially to hire a committee clerk, special counsel, and an investigator. After hiring counsel, the committee adopted its procedural rules and rules for taking depositions.
Speaker Lyons granted the committee two extensions to complete its work: (1) on April 7, three one-week extensions until May 5 and (2) on May 4, eight one-week extensions, which require the committee to conclude its work by June 30.
RELATED LEGISLATION
The General Assembly considered and passed two bills during the 2004 regular session that directly affect the select committee’s work.
Practice of Law
On March 9, 2004, Senator Sullivan and Representative Lyons certified for action, without a public hearing, HB 5665, “An Act Concerning the Practice of Law. ” The House and Senate each debated and passed the bill on March 10. The governor signed it into law on March 11, 2004 (PA 04-2).
The act specifies that the law prohibiting a person from practicing law in Connecticut unless admitted by the Superior Court cannot be construed to prohibit an attorney from practicing law in relation to an impeachment proceeding if he is:
1. admitted to practice in another state or the District of Columbia and
2. retained by (a) the General Assembly, the House of Representatives, the Senate, a House or Senate committee, or the presiding officer at a Senate trial or (b) any officer subject to impeachment.
The act is applicable to the practice of law beginning January 26, 2004.
Freedom of Information Act and the Committee of Inquiry
On April 6, 2004, the Government Administration and Elections Committee held an informational hearing on proposed legislation to allow the select committee to keep confidential documents related to the impeachment until its investigation ends. The select committee’s co-chairmen; Mitchell Pearlman, FOIC’s executive director and counsel; Ross Garber, counsel in the Office of the Governor; and representatives of the media testified.
On April 14, Representatives O’Rourke, Fox, O’Neill, and Spallone offered an amendment to HB 5545, “An Act Concerning the Governor’s Mansion Conservancy and Other Foundations Related to State Government,” to exempt certain select committee records from disclosure under FOIA. The House and Senate debated and passed the amended bill on the same day. The bill became law and took effect without the governor’s signature on April 20, 2004 (PA 04-37).
The relevant part of the act exempts from FOIA all information, records of interviews, reports, statements, depositions, notes, memoranda, or other data in the custody of, or obtained or prepared by, the House of Representatives, a House committee regarding impeachment, or the House or committee’s staff. The exemption applies during any inquiry, investigation, impeachment, or other proceeding that began on or after January 1, 2004. It expires when the committee transmits its final report to the House.
The act allows the committee to exercise its discretion to disclose any of the information before it sends the final report. It requires a public agency to continue to disclose any information it provides to the committee that is otherwise subject to FOIA disclosure. It also specifies
that it should not be construed to mean that an individual waives any privilege provided by law when he provides a document or other information to the committee.
Within 90 days after the conclusion of the final event in a House or Senate impeachment proceeding, the act directs all documents, recorded data, information, and other tangible materials prepared, received, owned, used, or retained in the course of the inquiry, investigation, impeachment, trial, or other proceeding (except those that state or federal law exempt from disclosure) to be delivered to the State Library for preservation and archiving. It also requires electronic versions of these materials to be provided to the House and Senate clerks.
INVESTIGATIONS
The committee presides over a large and active investigation. It has issued a total of over 125 subpoenas and has acquired over 371,000 pages of documents. Its attorneys and investigators have reviewed thousands of documents and interviewed many people who have volunteered information.
The committee has taken depositions from five witnesses: Mary Ann Hanley, Michael Cicchetti, Jo Mackenzie, David O’Leary, and Marc Ryan.
COURT CASES
Admission Of Attorneys
The committee asked the court to admit committee counsel Steven Reich, an out-of-state attorney, to practice temporarily in Connecticut (to appear pro hac vice). The court granted the request, and Peter Ellef appealed the ruling to the Appellate Court. The appeal is pending.
Motions To Quash Subpoenas
Twelve motions to quash subpoenas for documents were initially filed in court in response to the committee’s subpoenas. The court consolidated these claims into a single case at the committee’s request. The following parties reached settlements with the committee and dropped out of the case:
1. Mark Wertheim and 184 Windsor Avenue LLC;
2. Vincent DeRosa;
3. Patrick Delahunty;
4. Robert V. Matthews; and
5. several companies related to Matthews: Matthews Ventures LLC, Fabricated Metals Products Inc. , New Haven Manufacturing, and New Haven Manufacturing Company LLC.
The following parties remained in the case and argued that the committee’s subpoenas violated their constitutional rights including the right against self-incrimination:
1. Peter Ellef;
2. Michael and William Tomasso;
3. three Tomasso companies: TBI Construction Company, LLC, Tunxis Management Company, and Tenergy Water, LLC; and
4. Anthony Cocchiola and Cocchiola Paving, Inc.
On April 8, Judge Kevin E. Booth dismissed the case finding that the committee’s issuance of the subpoenas was not subject to judicial review before the committee attempted to force compliance with them. He stated that it was premature for the parties to claim their constitutional rights had been violated.
The judge found the committee’s request for information through subpoenas immune from judicial review under the Speech or Debate clause of the Connecticut Constitution. Based on the Connecticut Supreme Court’s ruling in the state’s only previous impeachment
proceeding (Kinsella v. Jaekle, 192 Conn. 704 (1984)), he stated that “the court may not intervene in the legislature’s exclusive jurisdiction over impeachment proceedings when the plaintiffs have not alleged sufficient facts to support an egregious and irreparable constitutional violation. ”
He stated that the court could decide the issue if the plaintiffs refuse to comply and the committee decides to hold them in contempt.
Michael and William Tomasso and the three Tomasso companies appealed the ruling to the Appellate Court but later withdrew it.
Other Motions to Quash
Tunxis Plantation Country Club, Inc. also filed a motion to quash a subpoena on April 7 that was dismissed on April 26, Michael Cicchetti filed a motion to quash on April 14 that was withdrawn on April 23.
Committee’s Action to Enforce Subpoenas
When a number of parties failed to comply with subpoenas, the committee authorized its attorneys to seek court enforcement. The committee filed in court on April 20, 2004 against TBI Construction Company, LLC; Tunxis Management Company; Tenergy Water, LLC; Tunxis Plantation Country Club, Inc. ; Peter Ellef; and Cocchiola Paving Inc. The committee reached settlements with the parties.
Motion to Quash Subpoena for the Governor’s Testimony
The committee subpoenaed Governor Rowland to testify as the committee’s first witness on June 7 (later delayed to June 8 due to the governor’s counsel’s scheduling conflict). On May 27, 2004, the Office of the Governor filed in Hartford Superior Court to quash the subpoena arguing that it is inconsistent with the separation and balance of powers. The court scheduled a hearing for June 7.
On June 7, Judge Langenbach heard oral arguments from the parties and ruled that (1) the court had jurisdiction to hear the case because the governor alleged egregious and irreparable violations of the state and federal constitutions and (2) the legislature is not categorically barred by the separation of powers doctrine from compelling the governor to testify. He stated that an absolute executive privilege from compelled testimony “would impede the legislature’s core, jurisdictional authority of impeachment,” which is “one of the constitutional checks on executive authority necessary to preserve the constitution’s balance of powers. ” The judge also ruled that the court did not have jurisdiction to address specific issues related to the subpoena, such as the committee’s order of witnesses or disclosures to subpoenaed witnesses before their testimony, because there is no egregious or irreparable constitutional violation.
The governor’s counsel, Ross Garber, stated that he intends to appeal the ruling to the state Supreme Court.
FREEDOM OF INFORMATION PROCEEDINGS
The FOIA identifies the information held by public agencies that must be made available for public inspection and copying. This public information must be available unless the law prohibits its disclosure. The Act also requires that state and local agency meetings be open to the public.
The Act applies to all state and local governmental agencies, departments, institutions, bureaus, boards, and commissions.
This includes all executive, administrative, and legislative offices, and the administrative functions of the Judicial Branch and the Division of Criminal Justice.
The Freedom of Information Commission (FOIC) hears complaints from people who have been denied access to public agency records or meetings.
Several complaints have been filed with the FOIC claiming that the Select Committee of Inquiry unlawfully excluded the public, including the press, from meetings and failed to disclose public records. Table 2 shows the dates and nature of the complaints and their disposition.
Table 2: FOIC Complaints And Dispositions
Date (all 2004) and Nature of Complaint |
FOIC Action and Disposition |
• On February 20, the New York Times, the Day, Connecticut Post, the News-Times, and the Associated Press (2/23), complained that the committee improperly convened in executive session |
• On March 16, the FOIC heard the complaints • On April 28, it issued final decisions, denying the New York Times’ complaint for lack of specificity and dismissing the others |
• On April 14, the Governor’s Office complained that it was improperly denied documents and records that the committee received regarding Kurt Claywell or Claywell Electric |
• On April 19, the FOIC heard the complaint • On April 20, the FOIC issued its final decision, concluding that the committee improperly withheld the records and ordering it to disclose them • On May 7, the Committee filed an appeal to Superior Court, which is still pending |
• On April 14 and April 16, the Governor’s Office asked for a declaratory ruling and filed a complaint, respectively, alleging that the committee violated FOIA by announcing a schedule of depositions that were not open to the public |
• On April 19, the FOIC heard the complaint and considered the request • On April 20, it declined to issue a ruling and dismissed the complaint |
• On April 26, the Governor’s Office complained that the committee would violate the open meeting law by holding a private deposition on May 11. |
• On April 29, the FOIC heard the complaint • On May 12, the FOIC issued its final decision, concluding that the depositions constitute public meetings and ordering the committee to open future such “meetings” to the public • On May 17, the committee filed an appeal to the Superior Court, which is still pending • On May 24, the court granted a stay |
MEETINGS AND HEARINGS
Since January 2004, the committee has met 13 times. Table 3 shows the date and activity that took place during each meeting.
Table 3: Select Committee of Inquiry Meetings in 2004
Date |
Actions |
January 30 |
• Distribute Kinsella impeachment precedent procedures • Accepted communication from governor • Entered executive session to discuss hiring special counsel |
February 2 |
• Notified U. S. Attorney concerning the committee’s presence and activities • Entered executive session to interview candidates for special counsel |
February 4 |
• Entered executive session to interview candidates for special counsel |
February 11 |
• Entered executive session to discuss selection of special counsel • In public meeting, voted to employ Steven Reich of Manatt, Phelps, and Philips as special counsel |
February 13 |
• Took final step to employ Reich |
February 19 |
• Entered executive session to discuss hiring staff, scope of the investigation, and employing private investigator • In public meeting, voted to hire committee clerk • Adopted committee rules • Voted to authorize hiring of private investigator |
February 26 |
• Entered executive session to discuss hiring private investigator • In public meeting, voted to retain James Mintz as private investigator |
March 8 |
• Special Counsel Reich gave a presentation on impeachment standards under the Connecticut constitution • Attorney Ross Garber of the Office of the Governor gave a presentation on impeachment standards on behalf of the governor |
March 19 |
• Entered executive session to receive confidential legal advice from Special Counsel Reich concerning rules for taking depositions • In public meeting, adopted deposition rules |
|
April 19 |
• Special Counsel Reich gave a presentation on (1) the status of the investigation, (2) subpoena compliance, and (3) issues relating to obtaining information • Concerning Michael Cicchetti, who was unwilling to cooperate, the committee voted to direct special counsel to take steps to enforce compliance to make certain that requested testimony and documents were provided • Concerning the Tomasso entities, Peter Ellef, Anthony Cocchiola and Cocchiola Paving, the committee voted to direct special counsel to take steps to enforce compliance to make certain that requested testimony and documents were provided • Concerning information not yet provided by Governor and Mrs. Rowland, the committee voted to (1) subpoena the governor and Mrs. Rowland, or the custodians of their records, seeking an accounting of what records they have and do not have, what records they have sought, information they have received, whether any records have been provided to another entity, and what needs to be done to discover why compliance has not been forthcoming and (2) subpoena documents from the various financial institutions, credit card companies, telephone companies |
|
April 30 |
• Convened a hearing to accept testimony from the subpoenas issued at the April 19 meeting to Governor and Mrs. Rowland • Special Counsel Reich stated that information subpoenaed on February 26, 2004 had not yet been provided • Reich reported that he and the attorneys for the governor and his wife negotiated an agreement under which the governor and wife agreed to obtain and provide subpoenaed information to the committee after redacting personal information • Reich reported that six weeks after making the agreement, he has seen no evidence that the governor and his wife have tried to obtain the information from the financial institutions and credit card companies • Reich stated that the committee issued subpoenas to the governor and Mrs. Rowland requiring them, or their designated custodians of records, to appear • Attorney William Dow, representing the governor, stated that he is not the custodian of the governor’s records • Dow stated that he filed with the committee a motion to quash the subpoena, that the governor has not appointed a custodian of records, and that the governor is not prepared to testify • Dow reported that he informed Reich the night before the hearing that the governor would not testify and filed the motion to quash about noon on the day of the hearing • Dow informed the committee that he could not answer whether the governor was prepared to testify before the committee on the issues stated in the subpoena until some issues concerning subpoena compliance are resolved • Committee Chairman Fox ruled that the motion to quash was not properly before the committee • Attorney Robert Casale appeared representing Mrs. Rowland. He stated that he is not the custodian of Mrs. Rowland’s records • Casale stated that he is joining in Attorney Dow’s motion to the committee for it to quash • Casale stated that it is difficult to answer whether Mrs. Rowland was prepared to testify with respect to the issues stated in the subpoena • Chairman Fox stated that the motion to quash is not properly before the committee and is out of order • The committee directed Reich to draft, for the committee’s consideration, an Article or Articles of Impeachment relating to the failure to provide within a reasonable time information that was requested • The committee released information that had been prepared in connection with the hearing |
|
May 14 |
• Discussed appeal of adverse Freedom of Information Commission ruling • Reich reported that compliance with committee’s subpoenas has generally improved, but that cooperation with governor’s counsel, beyond the provision of documents, has not; that cooperation with Mrs. Rowland has been even more limited; and that the committee needed at least two more weeks to obtain all available information from financial institutions • Reich reviewed historical precedents for a draft article of impeachment |
|
May 24-25 |
• Entered executive session to (1) review information exempt from disclosure under PA 04-37, (2) review interviews and depositions exempt from disclosure under PA 04-37, (3) discuss a document prepared by the committee’s attorney Reich concerning information obtained by its investigation and legal strategy to be followed in the presentation of evidence, and (4) discuss the committee’s legal strategy concerning pending appeals from FOIC decisions • Recessed on May 24 and reconvened on May 25 |
June 7 |
• Entered executive session to (1) review information exempt from disclosure under PA 04-37, (2) review interviews and depositions exempt from disclosure under PA 04-37, (3) discuss a document prepared by the committee’s attorney Reich concerning information obtained by its investigation and legal strategy to be followed in the presentation of evidence, and (4) discuss the committee’s legal strategy concerning pending litigation |
COST
The Select Committee of Inquiry’s expenses are paid through the Office of Legislative Management. Based on its most recent budget information (as of June 7, 2004), the committee has spent $ 2. 46 million, most of it for attorney fees ($ 1,966,861) and investigation services ($ 440,030, with another pending invoice for $ 450,344). Table 4 lists the amounts budgeted, spent, and encumbered for personal services, other expenses, and equipment. Attachment A shows the details for each account.
Table 4: Select Committee of Inquiry Budget
Budgeted Amount |
Expended Amount |
Encumbered Amount | |
Personal Services |
$ 19,775 |
$ 17,275 |
- |
Other Expenses |
4,377,749 |
2,440,607 |
$ 563,346 |
Equipment |
2,476 |
2,476 |
- |
Total |
$ 4,400,000 |
$ 2,460,358 |
$ 563,346 |
POST-COMMITTEE PROCESS
Article IX of the State Constitution sets out the authority and framework for impeaching a governor. After the Select Committee of Inquiry reports its findings to the House, including whether sufficient grounds exist to impeach the governor, the House makes the final determination on the question (Sec. 1). A majority vote is required to impeach.
The Senate must try all impeachments. The Senate conducts a trial at which the chief justice of the Connecticut Supreme Court presides. A two-thirds vote of the members present is required to convict (Art. IX, Sec. 2).
Article IV establishes the succession in the event a governor is impeached and removed from office. If the House impeaches the governor, the lieutenant governor exercises the powers and authority and performs the duties of the Office of Governor until the process is resolved
(Sec. 18(b)). If the Senate acquits, the governor resumes office; if the Senate convicts, the lieutenant governor takes the oath of office and becomes the governor (Sec. 18(a)) and the Senate president pro tempore becomes the lieutenant governor (Sec. 19).
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