You asked for an overview of the proceedings and activities of the Select Committee of Inquiry from its establishment in January 2004 through June 21, the day that Governor Rowland announced his resignation. This report is the third 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 extended the deadline to June 30. The Select Committee of Inquiry 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 affected 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:

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 15 times (including one meeting that continued into a second day), sometimes in executive session. It held eight evidentiary hearings beginning on June 8.

The select committee’s budget totals $ 4. 4 million, including $ 2. 35 million for attorney fees, almost $ 2 million for investigation services, and the remainder for equipment and operations. As of June 22, it spent $ 3 million and has encumbered $ 754.

The committee must report to the House of Representatives by June 30. On June 21, Governor Rowland announced that he will resign his office effective at noon on July 1, 2004. On that day, Lieutenant Governor M. Jodi Rell will take the oath of office and become governor to serve the remainder of the term. The president pro tempore of the Senate, Senator Kevin B. Sullivan, will take the oath and be lieutenant governor until the next election for statewide officers.

The House will consider the committee’s findings. If the governor had not resigned, under the State Constitution, any question of impeachment would have gone to the House of Representatives. If a majority of the House votes to impeach the governor, the matter goes to the Senate for an impeachment trial. In such a 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

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

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:

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 presided over a large and active investigation. It issued a total of over 125 subpoenas and acquired over 59,000 documents and more than 400,000 pages. Its attorneys and investigators reviewed thousands of documents and interviewed many people who have volunteered information.

The committee took 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. Peter Ellef appealed the ruling to the Appellate Court. The Appellate Court dismissed the appeal on June 22. The court ruled that it did not have jurisdiction to hear the appeal because Ellef was not a party to the underlying pro hac vice proceeding.

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:

The following parties remained in the case and argued that the committee’s subpoenas violated their constitutional rights including the right against self-incrimination:

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 the appeal.

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 was no egregious or irreparable constitutional violation.

The governor appealed the ruling to the state Supreme Court. The court heard arguments on June 18 and later that day ruled, by a 5 to 2 vote, that (1) it had jurisdiction to hear the case, (2) the governor did not have categorical immunity from compelled testimony by the subpoena, and (3) the subpoena was not inconsistent with the constitutional separation of powers. The court stated that it will give its full reasons for the ruling “in due course. ”

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

MEETINGS AND HEARINGS

Since January 2004, the committee has met 15 times. Table 3 shows the date and activity that took place during each meeting.

Table 3: Select Committee of Inquiry Meetings in 2004

The committee also held eight evidentiary hearings. Table 4 identifies the witnesses and topics at the first three hearings. The committee also held hearings on June 14 through June 18. Since the record of witnesses has not yet been posted, information on these hearings will be included in the next issue of this report.

Table 4: Select Committee of Inquiry Evidentiary Hearings in 2004

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 22, 2004), the committee has spent $ 3 million, most of it for attorney fees ($ 2 million) and investigation services ($ 868,646). Table 5 lists the amounts budgeted, spent, and encumbered for personal services, other expenses, and equipment. Attachment A shows the details for each account.

Table 5: Select Committee of Inquiry Budget

POST-COMMITTEE PROCESS

The Committee of Inquiry expects to issue a final report to the House by its June 30 deadline. It will likely be a report of its findings. On June 21, Governor Rowland announced that he will resign at noon on July 1, effectively making the impeachment moot. On that day, pursuant to Article IV, Section 18a of the State Constitution, Lieutenant Governor M. Jodi Rell will take the oath of office as governor and will serve the remainder of the term that ends in January 2007.

The president pro tempore of the Senate must take the oath of office of the lieutenant governor when the lieutenant governor succeeds to the office of governor (Art. IV, Sec. 19). Senator Kevin B. Sullivan will serve the remainder of the term in the office of lieutenant governor.

Had the governor not resigned, the process prescribed in Article IX of the State Constitution that sets out the authority and framework for impeaching a governor would have been followed. After the Select Committee of Inquiry reported its findings and recommendations to the House, including whether sufficient grounds exist to impeach the governor, the House would have made 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).

As noted above, 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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