The Virginia Statute

How many readers criticizing me for calling Cuccinelli out have bothered reading the actual Virginia statute?

Let’s consider something practical – like Mann’s failing to disclose the adverse verification r2 results – and see whether it fits within the statute. Cuccinelli doesn’t need to go fishing around emails to find this issue. It’s been on the table for a long time – it was even mentioned in Cicerone’s letter to Barton. Despite claims to the contrary, this piece of potential misconduct has never been investigated. Yes, inquiries have been formed, but they’ve all avoided this issue.

But the problem, folks, is that however much you want to fume about life, the Virginia statute in question offers no particular relief.

Here are the causes of action. Even if Mann were shown to have knowingly withheld an adverse verification r2 result, I don’t see how that fits into any of the following causes of action, all of which are structured towards relatively narrow financial things like fake invoices. Trying to shoehorn verification r2 statistics into these causes of action is the wrong case.

§ 8.01-216.3. False claims; civil penalty.

A. Any person who:

1. Knowingly presents, or causes to be presented, to an officer or employee of the Commonwealth a false or fraudulent claim for payment or approval;

2. Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Commonwealth;

3. Conspires to defraud the Commonwealth by getting a false or fraudulent claim allowed or paid;

4. Has possession, custody, or control of property or money used, or to be used, by the Commonwealth and, intending to defraud the Commonwealth or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt;

5. Authorizes to make or deliver a document certifying receipt of property used, or to be used, by the Commonwealth and, intending to defraud the Commonwealth, makes or delivers the receipt without completely knowing that the information on the receipt is true;

6. Knowingly buys or receives as a pledge of an obligation or debt, public property from an officer or employee of the Commonwealth who lawfully may not sell or pledge the property; or

7. Knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Commonwealth;

shall be liable to the Commonwealth for a civil penalty of not less than $5,000 and not more than $10,000, plus three times the amount of damages sustained by the Commonwealth.

In addition to the above, the statute of limitation would preclude anything done in the course of MB98 and MBH99, as well as the trick to hide the decline:

§ 8.01-216.9. Procedure; statute of limitations.

A subpoena requiring the attendance of a witness at a trial or hearing conducted under this article may be served at any place in the Commonwealth.

A civil action under § 8.01-216.5 may not be brought (i) more than six years after the date on which the violation is committed or (ii) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act in the circumstances, but in that event no more than ten years after the date on which the violation is committed, whichever occurs last.

I don’t see any connection between Mann’s emails and offences under this statute. As such, Cuccinelli’s actions seem to me to be a capricious exercise of executive power.

People also need to realize that exercises like Cuccinelli’s debase legitimate exercise of executive power.

31 Comments

  1. BillyBob
    Posted May 3, 2010 at 11:58 AM | Permalink

    Steve, are you claiming you know exactly what Mann billed UofV for?

  2. Steve McIntyre
    Posted May 3, 2010 at 11:59 AM | Permalink

    nope. but whatever it was, his correspondence with Pielke Sr wasn’t relevant to it.

  3. Gad Levin
    Posted May 3, 2010 at 12:09 PM | Permalink

    Dear Mr. McIntyre,

    I look up to you as a hero for Science in general and Climate Science in particular, so I will not pass a judgment on your peculiar reaction in the case of Mann. If somebody has a right to his opinion, it is you, since you exposed his fraudulent behavior.

    However, I think that you are missing the point. As far as I understand the actions of Mr. Cuccinelli, he is looking into the funding of Mann’s “research” and the methods he and others used in order to obtain them from the State of Virginia.

    I’m sure that if the situation was reversed, and you were under investigation for the actions you took in order to expose the fraud of Mann et al, Michael Mann would encourage such an investigation and complain that it is not harsh enough. So let’s all wait and see what comes out of this and then comment based on facts not speculation.

    Respectfully,

    Gad Levin

  4. yguy
    Posted May 3, 2010 at 12:18 PM | Permalink

    “Even if Mann were shown to have knowingly withheld an adverse verification r2 result, I don’t see how that fits into any of the following causes of action…”

    Seems to me any deception along those lines would be a violation under #2.

    “I don’t see any connection between Mann’s emails and offences under this statute.”

    How can anyone see such a connection at this point, seeing his emails that reside on the UoV server, which the AG is demanding, haven’t yet been made public?

    Or am I misunderstanding what emails you refer to?

  5. Ron Cram
    Posted May 3, 2010 at 12:19 PM | Permalink

    Steve,
    Perhaps I was wrong about the purpose of the statute. I have not looked at it closely. However, there is no doubt in my mind that Mike’s intent was to deceive and there is no question he took taxpayer money to achieve his deception. To me, it is clear he has defrauded taxpayers. And that should be criminally punishable by prosecutors. Taxpayers have to be protected from Mannian shenanigans.

  6. Craig Loehle
    Posted May 3, 2010 at 12:32 PM | Permalink

    The theory here may be “honest services fraud” which is a very squishy concept. If they are claiming merely that Mann lied about his work or distorted it, they better not make that a crime. Academics are prone to all sorts of distortions and selective quoting and semi-plaigerism etc etc. Just look at some post-modernism or literary criticism. It would also be possible to prosecute people who are merely sloppy or not very adept under such a theory. Academic misconduct maybe–criminal fraud no.

    • mpaul
      Posted May 3, 2010 at 2:14 PM | Permalink

      It all relates to a subject that has been discussed here on numerous occasions: what standard of professional conduct should climate scientist be held to? A stock broker who knowingly produces false data to induce me to buy a stock can have his/her license revoked and could face civil or criminal penalties. What penalties should exist to prevent scientist from knowingly producing false conclusions that impact public policy in a material way? I can’t accept the idea that we should put unquestioned faith in the results of climate scientists (because they know their field better than anyone else) yet allow them complete immunity from the normal standards of conduct of other professions.

      Look at this 31 year old Goldman Sachs trader who is now at the center of the criminal probe of Goldman. He is accused of selling securities that he believed were no good. Yet he was selling them to the world’s most sophisticated investors — investors who were clearly capably of discerning the quality of the securities they were buying. He is being held to a very high standard.

      The conclusions that Dr. Mann is selling are being relied upon to make public policy decisions that have a much large long term economic impact than the securities that the Goldman trader was selling. Yet we are supposed to say, “well, its just a bunch of academics, we really shouldn’t hold them to any kind of standard”?

      And, I’m sure that if we asked the Goldman guy’s peers what they thought of his trades, they would say that they are perfectly appropriate. So peer review is not an adequate standard when dealing with things of such proportion.

  7. Eric
    Posted May 3, 2010 at 12:34 PM | Permalink

    While I completely agree with Steve that this is a flagrant and repugnant abuse of power that appears to strictly be for the purposes of grabbing the spot-light and prolonging public flogging of climate science…

    I wonder if Cuccinelli might be confusing Mann with Jones and trying to build a case on #4 based on obstructing or obfuscating access to data and methods owned and paid for the Commonwealth of VA.

    It is a real stretch and very ugly precedent. I sincerely hope this gets nipped in the bud.

  8. QBeamus
    Posted May 3, 2010 at 12:38 PM | Permalink

    I don’t believe the statute of limitations would be an obstacle. Generally, the statute doesn’t begin to run until the plaintiff “knew or should have known” the facts constituting the cause of action. Here I’d say the statute didn’t begin running until climategate.

    I do generally agree that this would be a case of obnoxious shoe-horning, and nine courts in ten would probably toss it on 12(b)(6) grounds.

    Of course, filing such shoe-horning cases (repeatedly) is how much of the political change over the past 30 years has been driven. But, then, the folks likely to be angry about this case aren’t the sort to wage such campaigns.

    • QBeamus
      Posted May 3, 2010 at 2:29 PM | Permalink

      I guess I have to correct myself. Reading the rest of the statute, I see that it provides its own statute of limitations, which, unusually, includes a 10 year drop-dead provision, even for cases where the fraud was not uncovered in time to comply.

  9. TAC
    Posted May 3, 2010 at 12:41 PM | Permalink

    Steve,

    You are absolutely right to support Mann on thus. A witch hunt is a witch hunt, regardless of victim.

    I am appalled by Cuccinelli’s actions.

  10. Stevo
    Posted May 3, 2010 at 12:45 PM | Permalink

    Was he paid by the state of Virginia for publishing the paper in which the r2 statistics were missing but which he said were “robust”, or for the time he said calculating them would be a silly and incorrect thing to do? If so, he knowingly made false statements for which he was paid. He did the work and published the results in order to get paid.

    If the government employ me to produce, say, unemployment statistics, and I save myself the cost and effort by publishing random numbers (undercutting the competition and making a vast profit), are you saying that the government has no come-back? They employed me to produce a product, I lied to them in saying my random numbers were the product they wanted, and they paid me for it. You’re really saying you don’t see anything legally wrong with that, that it’s just a matter of honourable science?

    Pure science is pure science, but when you take money for it, it’s also a product with customers and legal contracts, too. And if what you deliver is not what you say it is, and you know it as you collect the money, it’s like selling faulty or counterfeit goods in a shop. The customer wants to complain. Is it your answer to shrug, point to the small print, and tell the irate customer to go away?

    And why get angry about it? It’s Cuccinelli’s problem if there’s no chance of success. And elected officials do stupid stuff all the time, often at great cost to the taxpayer. Is the problem that somehow you think that you’re somehow going to get the blame for it? Well, you’re not.

    I find it peculiar that you seem more worked up about this than the IPCC’s manoeuvrings, even though this is just small-town politics, where the other has global consequence. What’s up?

    • Eric
      Posted May 3, 2010 at 1:35 PM | Permalink

      re:
      “I find it peculiar that you seem more worked up about this than the IPCC’s manoeuvrings, even though this is just small-town politics, where the other has global consequence. What’s up?”

      There is most certainly adverse global consequence to the politicization and sensationalization of science. IMO this would be a very bad development for the future of scientific innovation.

  11. Ron Cram
    Posted May 3, 2010 at 12:49 PM | Permalink

    Okay, having read the statute briefly, it does not seem to put Mann at any risk of losing his liberty. It seems the statute only provides for a civil penalty, basically a return of monies taken inappropriately.

    The nice thing about the statute is private citizens can begin the action and get a piece of monies collected, similar to a finder’s fee. Of course, if you lose the action, you can lose money also.

    A big issue is the statute of limitations. I think Mann should be held accountable for his actions, but it does not appear this statute will cover the known issues of academic misconduct. However, when courts see bad behavior they will often allow prosecutors to keep turning over rocks to see what else may be found. I wish the Attorney General of Virginia the best of success in seeking uphold the law.

  12. windriven
    Posted May 3, 2010 at 12:52 PM | Permalink

    The point is that the “court” of scientific judgment is the court of competent jurisdiction in this matter. Any effort to transform a scientific debate into a criminal trial is dangerous to science and dangerous to a jurisprudence ill-equipped to confront the issues at hand.

    • Ron Cram
      Posted May 3, 2010 at 1:10 PM | Permalink

      windriven, you are missing the point. What is being questioned is not which of two scientists is correct, but did Mann fraudulently report or fail to report his results? We already know the Mann has failed to report a failed verification statistic. Steve learned this fact himself in the CENSORED folder. See http://www.uoguelph.ca/~rmckitri/research/Climate_L.pdf

      But it does not appear this act is under the jurisdiction of Virginia because no Virginia funding was provided on that study. So then, should the AG investigate to see if Mann has defrauded Virginia? I’m not sure the move is unwarranted. But some may complain it is a fishing expedition. All I can say is – I wish the AG success.

  13. Steve McIntyre
    Posted May 3, 2010 at 1:05 PM | Permalink

    I’ve taken a consistent position that the ends don’t justify the means. I don’t agree that you can justify withholding adverse verification r2 because you think that your cause is righteous or that you should exercise executive power capriciously or vindictively because you think that your cause is righteous. Both are slippery slopes. This is bedrock in our civil society.

    Cuccinelli hasn’t singled Mann out for special attention because he’s got reasonable grounds to suspect the financial probity of the invoices. Give me a break. He’s going after an unpopular figure.

    Cuccinelli’s enterprise is singularly stupid because, aside from anything else, he’s investigating an offence that is not clearly related to verification r2 or that sort of stuff. As a result, he poisons the well for serious critics. Cuccinelli is just as bad as Oxburgh. If I were Mann, I would privately be thanking my lucky stars that Cuccinelli had come along.

    • Stevo
      Posted May 3, 2010 at 2:35 PM | Permalink

      I’ll ask again – If the government employ me to produce, say, unemployment statistics, and I save myself the cost and effort by publishing random numbers (undercutting the competition and making a vast profit), are you saying that the government has no come-back? They employed me to produce a product, I lied to them in saying my random numbers were the product they wanted, and they paid me for it. You’re really saying you don’t see anything legally wrong with that, that it’s just a matter of honour between gentlemen of science?

  14. geronimo
    Posted May 3, 2010 at 1:05 PM | Permalink

    It is irrelevant what the Virginia statute says, the witch hunting of scientists, no matter what their reputation and past form, is unacceptable. Those who are cheering this action by the Virginia AG should take note that many CAGW fanatics want to bring people like Steve and other sceptics to court for denying the “science”.

    We should assure Mann that if this goes ahead we sceptics will contibute to his defence funds, and once he’s cleared begin hostilities again.

  15. bubbagyro
    Posted May 3, 2010 at 1:07 PM | Permalink

    Steve:
    You are indulging in the same Peter Principle behavior, that is into law, that you accused Cuccinelli of doing, into science. Enough already! As a scientist of some note, I will pretend that this never happened so your credibility with me remains as high as it should.

    BTW: If you want to pay into a putative legal defense fund for Mann, as you volunteered earlier, please be my guest and do that. I suggest you get a notarized receipt, however.

  16. Ivan
    Posted May 3, 2010 at 1:18 PM | Permalink

    Steve,

    I must say I see a strong cognitive dissonance in your last three posts. The first one is a vitriolic political condemnation of Cuccinelli’s initiative to investigate Mann; the second one is an advice to Cuccinelli how to do that “with-hunt” most effectively (garnered with some juicy details from your correspondence with the Mann’s university that suggests Cuccinelli could be onto something) while in the third post you again retreat on the general condemnations line, but this time with the practical, and not political “arguments” (“that ain’t gonna work”).

    What’s happening? It seems that you are not sure whether you want to oppose this on the pragmatical grounds or as a matter of principle (namely, the principle of protecting the science from persecution). If you defend the science against the political persecution then it is entirely irrelevant how competent is Cuccinelli and what Virginia statute says. If you do not defend Mann in principle, but only doubt the competence of the investigator, then please stop talking about the politics and with-hunt and help Cuccinelli to get job done in a best possible way, as you seemed to try in your second post.

    Steve: I acknowledge the mixed message, as there are a number of issues at work. Most fundamentally, I think that this is an arbitrary exercise of official power. As a different point, I think that it is a stupid arbitrary exercise of official power as it poisons the well against valid criticism. That’s not inconsistent with the first point, it’s just a different point. Thirdly, I recorded my own exchanges with UVa – dealing with unsuccessful requests for computer code and with unprofessional language. Neither is really at issue with Cuccinelli.

  17. Ron Cram
    Posted May 3, 2010 at 1:18 PM | Permalink

    geronimo, you are missing the point. This action has nothing to do with deciding which scientist has it right. The question is did Mann fraudulently report or fail to report his results. We already know Mann failed to report his failed verification statistic. Steve found this himself. See http://www.uoguelph.ca/~rmckitri/research/Climate_L.pdf

    But that action is not under the jurisdiction of this statute because the Commonwealth of Virginia did not provide any funding for that study. So, does the AG have probable cause to investigate Mann’s studies which did get Virginia funding? I don’t know. Some may call it a fishing expedition.

    Personally, I wish the AG success.

    Steve, I think you are wrong about this being good for Mann. There is no way another investigation helps him. It has more people talking about his academic misconduct and more and more come to an understanding of what he did. And there is the possibility the AG may find something significant.

  18. Nathan Schmidt
    Posted May 3, 2010 at 1:26 PM | Permalink

    Though the scope of the investigation is limited to the five grants/awards listed in the Civil Investigative Demand, the fact that they want to look at the grant applications and supporting documents likely expands it to any work that was referenced in those applications.

    Perhaps the AG is looking for evidence that Mann withheld information, or made statements that he knew to be untrue, in the grant applications.

  19. windriven
    Posted May 3, 2010 at 2:06 PM | Permalink

    @ etudiant-

    You seem to suggest that elements of the scientific community have brought this upon themselves and I infer a certain satisfaction that the legal carrion-birds are circling. Unfortunately, law and politics are incestuous lovers. Let’s not add science and make it a menage a trois. In VA Mann may seem an attractive target, in Wisconsin or Oregon it might be McIntyre or Pielke. And who knows from what quarter then next legal attack might come … and at whom it could be directed.

    • Redbone
      Posted May 3, 2010 at 2:19 PM | Permalink

      Too late. Science has prostituted herself to politics. And yes, she brought it on herself by abandoning accepted standards and procedures to reach politically desired results.

  20. QBeamus
    Posted May 3, 2010 at 2:10 PM | Permalink

    Several people seem to be confusing a suit for fraud with a suit for giving a scientific opinion the AG disagrees with. I’m a bit shocked to find such fuzzy-headed thinking from the folks on this site.

    Please note, the AG is not now, and is not threating in the future, to sue scientists for publishing pro-AGW results. The basis of the suit, I believe, is the conjunction of two facts: (1) the defendant accepted public money that was given for the purpose of conducting (valid) scientific research; and (2) the defendant failed to carry out the promise that he gave which induced the public to pay him–i.e., he failed to conform to the accepted standard of scientific research. It’s not enough, to sustain such a case, to show that Mann got the wrong answer. It must be shown that he failed to do the work up to the expected standards of the industry. In theory, this is no different than suing a building contractor who used sub-standard materials to save money.

    To the extent this suit is novel, it’s only because, until now, no one has had cause–or opportunity–to second guess the quality of work of a research scientist. I can understand how uncomfortable that will make a lot members of the scientific community. The same thing happened among doctors, back when medical malpractice cases first became feasible. But I see no reason why scientists ought to be, a priori, immune from responsibility for sub-standard work.

  21. pasteur01
    Posted May 3, 2010 at 2:20 PM | Permalink

    1. The justness of this investigation is a moot point. The papers are now served and the AG holds most of the cards.

    2. The 10 year provision of the statute covers most of Mann’s career in VA. (1999-2005) And I guess one could argue that the 3 year clock started in 11/09 with Climategate. The AG might be off course, but we should hope that he or someone on his staff understands the limitations.

    3. The $ value of each of the grants Cuccinelli is investigating is listed in the complaint. I didn’t go back to figure out which ones are inside 10 year limit but the grand total is almost $485K.

  22. Posted May 3, 2010 at 2:32 PM | Permalink

    “If I were Mann, I would privately be thanking my lucky stars that Cuccinelli had come along.”

    True. It presents an opportunity to paint all legitimate enquiry into the Cuccinelli corner. And an opportunity to hockey martyrdom.

  23. yguy
    Posted May 3, 2010 at 2:32 PM | Permalink

    “Cuccinelli hasn’t singled Mann out for special attention because he’s got reasonable grounds to suspect the financial probity of the invoices.”

    How about singling him out because he has reasonable grounds to suspect Mann took money from the state of VA, based on information he knew to be false, to disseminate self-serving propaganda? Is that a problem?

    “Cuccinelli’s enterprise is singularly stupid because, aside from anything else, he’s investigating an offence that is not clearly related to verification r2 or that sort of stuff. ”

    Of course it isn’t clear at this point, because that’s what he’s investigating. You can call that a fishing expedition, but seeing he isn’t demanding any of Mann’s *personal* papers or effects I don’t see any abuse of power.

  24. Steve McIntyre
    Posted May 3, 2010 at 3:09 PM | Permalink

    Lucia’s view:

    The fishing expedition is simultaneously unfair to Mann (and UVA staff), pointless and futile.

    This expresses neatly my response to the reader above, who thought that there was “cognitive dissonance” in my posts.

    I’ve cut off these threads.

2 Trackbacks

  1. [...] Steve McIntrye, a polite, meticulous Canadian who has done far more to combat global warming extremism than has Milloy, also thinks Cuccinelli’s investigation of Michael Mann is wrong. [...]

  2. [...] MacIntyre, by contrast, doesn’t let in even a bit of  ”Mann got what he deserved.”  He appears to be following a principle–a principle that stands athwart politics-as-usual and leads him to a temporary alliance with a man he otherwise batters vigorously.  He has even surprised some among his blog’s community, who complained about being “confused” by the “cognitive dissonance” he was showing in his defense of Mann. Several even make a sort of inverse Golden Rule argument: I’m sure that if the situation was reversed, and you were under investigation for the actions you took in order to expose the fraud of Mann et al, Michael Mann would encourage such an investigation and complain that it is not harsh enough. So let’s all wait and see what comes out of this and then comment based on facts not speculation (“Gad Levin“) [...]

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