Above the Law

Despite its acclaim among the climate community, the recent Virginia decision (linked from article here) that public agencies are not subject to the Virginia Fraud Against Taxpayers Act (FATA) is hardly one that resolves any real issue. The decision was not based on a rational consideration of whether Cuccinnelli had sufficient grounds to investigate Mann under FATA (a point on which I had spoken out in Mann’s favor), but on the totally bizarre grounds that the Attorney General is only entitled to investigate individuals and private corporations under FATA and that state agencies (in which category the decision places the University of Virginia) are not subject to FATA. This is a technical and counter-intuitive decision that surely invites either amendment to the legislation or further direct action by Cuccinnelli. I don’t see how anyone can view this as a satisfactory resolution to an unseemly affair.

I say this as someone who spoke out at the time against Cuccinnelli’s original CID to the University of Virginia as an abuse of administrative law. I re-iterated this criticism in my comments to the Heartland conference in May 2010 and was accused of being “naive” by many. Actually, I have a long-standing though passing interest in the topic of abuse of administrative law. My grandfather McRuer was a prominent judge in Canada and led a major Royal Commission that pointed to accretion of administrative authority without avenues for citizens to appeal. His commission led to measures in Ontario against abuse of administrative authority. My objection to Cuccinnelli’s CID was as an apparent abuse of administrative authority. I did not doubt his jurisdiction over the University of Virginia and other public agencies and, if Mann’s name had popped up on a short list using financial criteria under the Act, I would not opposed his CID. I thought that there were (and are) valid reasons why the University of Virginia should have carried out a misconduct investigation; indeed, Ross and I filed a formal complaint with the University of Virginia in 2005 which they refused to investigate. I spoke out against Cuccinnelli’s CID because he had provided inadequate evidence of an offence under FATA to justify the demand.

However, the Virginia decision was decided on the surprising grounds that the Virginia Fraud Against Taxpayers Act does not authorize the Virginia Attorney General to issue CIDs to public agencies, only to individuals and private corporations.

There is a long-standing legal doctrine of “crown immunity” and this doctrine was applied by the Virginia court. The Court quoted the following two 19th century Virginia decisions (which in turn draw from English common law):

It is old and familiar law . . . that where a statute is general, and any . . . interest is diverted or taken from the king, . . . the king shall not be bound unless the statute is made by express words or necessary implication to extend to him.”); Whiteacre v. Rector, 70 Va. (29 Gratt.) 714, 716 (1878)

(“[L]egislative acts are intended to regulate the acts and rights of citizens; and it is a rule of construction not to embrace the government or effect its rights by the general rules of a statute, unless it be expressly and in terms included or by necessary and unavoidable implication.” Levasser v. Washburn, 52 Va. (11 Gratt.) 572, 577 (1854)

The provision (8.01-216.10) authorizing the Virginia Attorney General to issue CIDs is as follows:

A. Whenever the Attorney General or his designee has reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation, the Attorney General or his designee may, before commencing a civil proceeding or making an election under this article, issue in writing and cause to be served upon such person, a civil investigative demand requiring such person (i) to produce such documentary material for inspection and copying, (ii) to answer in writing written interrogatories with respect to such documentary material or information, (iii) to give oral testimony concerning such documentary material or information, or (iv) to furnish any combination of such material, answers, or testimony.

The decision stated that “person” is defined as follows:

For purposes of FATA, a “person” is defined as “any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.” Code § 8.01-216.2.

Here the decision somewhat paraphrases the language of the Act which states that the following:

“Person” includes any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.

Although the University of Virginia is described as a “corporation” in many documents, the Court determined that it was not a “corporation” under FATA:

Nor do we find the term “corporation” to be sufficient to expressly include corporate agencies of the Commonwealth such as public universities.

The Union of Concerned Scientists praised the decision as a “victory for science”. But a decision that public agencies are immune from having to provide documents in response to investigative demands from the Attorney General for fraud against taxpayers is hardly one that meets any sense of justice or fairness.

In addition, people sometimes have to be careful what they wish for.

The University of Virginia “won” this case by arguing that they were a state agency and therefore not subject to Cuccinnelli’s CID. However, the decision will undoubtedly limit their ability to argue that they are not a state agency for the purposes of FOIA.

The idea that a state Attorney-General be unable to examine records of state agencies for evidence of fraud also seems very counter-intuitive to me. Does an Attorney-General even require a court order to examine records of a state agency? Why would he have to do anything complicated to look at records of the Motor Vehicle Licencing Bureau (or whatever the Virginia name is)? Can’t he just send auditors in without a court order? If the University of Virginia has convinced a court that it’s a state agency under FATA, why wouldn’t they be subject to the same fate?

83 Comments

  1. Posted Mar 5, 2012 at 9:08 AM | Permalink | Reply

    There is a long-standing legal doctrine of “crown immunity” and this doctrine was applied by the Virginia court.

    A right royal surprise for those who consider the USA a republic?

    Steve: “Crown immunity” refers to sovereign immunity in capacity of government, not as a royal family, and is long-standing in US law.

    • E. Z. Duzzit
      Posted Mar 5, 2012 at 3:40 PM | Permalink | Reply

      Well, there are questions of science, and then there are questions of law. I tend to agree with Steve on the first issue of whether or not any state should be empowered to “go looking” for violations of law with only a very slight claim to probable cause. That generates authority that can really come back and bite hard. On the other hand this court ruling leaves one wondering just what rights taxpayers have re checking out how their fundings are being used. Seems mighty odd that the Virginia Supreme Court (an agency of the state) has ruled that the state attorney general (an agency of the state) cannot investigate the University of Virginia (an agency of the state). Why don’t they just rule “The state shall never be called into question by the state?” Reminds me of Catch-22 when someone wanted to see the major: “you cannot see him now, because he is busy in his office; come back tomorrow when he won’t be here, then we will advise him you called.”

      Bottom line: the law has taken science into its own hands. Not uncommon in history, especially recent history.

      Onto FOIA. Lets see what happens.

      • johanna
        Posted Mar 5, 2012 at 7:10 PM | Permalink | Reply

        The court is not an agency of the State under the doctrine of separation of powers – judicial, legislative and executive. People who understand the US system better than me can perhaps elaborate on the respective locations of the Attorney General and the University in that context. But, my guess is that the AG is part of the legislative branch, and the University is part of the executive branch.

        The Virginia legislature could change the legislation to make UVa subject to any law that is constitutionally valid. All the court has done is to clarify that the existing law does not apply in this case.

        There is nothing unusual about laws either explicitly or implicitly not applying to government agencies. Try bringing and action against your local tax agency for theft, or the defence force for assault or murder. Typically, there are some methods of seeking redress from such agencies, but statute law that applies to the community at large is usually not one of them.

        • Mark T
          Posted Mar 5, 2012 at 9:44 PM | Permalink

          Attorneys general are typically charged with enforcing the law which is, by definition, an executive branch function.

          Mark

        • johanna
          Posted Mar 5, 2012 at 11:44 PM | Permalink

          Thanks Mark.

        • E. Z. Duzzit
          Posted Mar 5, 2012 at 10:59 PM | Permalink

          Well ok I suppose. Still all these agents get paychecks drawn on state accounts which are funded by taxpayers. This ruling smacks of government of the people, by the government, and for the government. And the only elected agent is the ag whose hands have just been tied by appointed ones shielding other appointed ones. The Old Dominion does not appear to be immune to arrogance. And science is supposed to flourish under this arrangement?

        • Libertarian
          Posted Mar 8, 2012 at 10:37 PM | Permalink

          Hear hear!

  2. PhilH
    Posted Mar 5, 2012 at 9:34 AM | Permalink | Reply

    The Attorney General of North Carolina last year did an extensive investigation of the State of North Carolina crime lab, which is most certainly a state agency. This investigation was prompted by news reports that crime lab technicians had falsified evidence in numerous criminal court cases. The result was the reformation of that agency and the dismissal of certain employees of the agency.

    I agree that this is a ridiculous decision and one that will come back to bite some folks.

    • Posted Mar 5, 2012 at 9:26 PM | Permalink | Reply

      It’s a state agency, but more to the point, is an agency overseen by the A-G. UVa is not.

  3. theduke
    Posted Mar 5, 2012 at 9:37 AM | Permalink | Reply

    For those like me who are in the dark:

    CID = Civil Investigative Demand.

  4. theduke
    Posted Mar 5, 2012 at 9:41 AM | Permalink | Reply

    Crown or Sovereign Immunity in US law:

    http://legal-dictionary.thefreedictionary.com/Sovereign+Immunity

  5. Charlie H
    Posted Mar 5, 2012 at 9:47 AM | Permalink | Reply

    Crown immunity refers to sovereign immunity.

    Basically it means that laws that apply to John Q Public do not apply to the government unless the law specifically states that it does.

    This is true in all sorts of areas of public life, from accounting to health care. The Vetern Affairs (VA) hospitals can opt not to do all sorts of things that publical hospitals / clinics are maindated to do.

  6. kim
    Posted Mar 5, 2012 at 10:34 AM | Permalink | Reply

    Taxation without representation is tyranny.
    ==========================

    • Posted Mar 5, 2012 at 3:51 PM | Permalink | Reply

      Taxation with representation ain’t so great sometimes !!

  7. SUT
    Posted Mar 5, 2012 at 10:34 AM | Permalink | Reply

    Why is it that two Canadians are the only one to be pointing these things out? Where are the investigative journalists?

  8. theduke
    Posted Mar 5, 2012 at 10:38 AM | Permalink | Reply

    First link doesn’t work, Steve.

  9. Posted Mar 5, 2012 at 10:45 AM | Permalink | Reply

    “Motor Vehicle Licencing Bureau (or whatever the Virginia name is)”

    Department of Motor Vehicles. At least it was when I grew up there.

    • Brian
      Posted Mar 5, 2012 at 12:20 PM | Permalink | Reply

      It still is.

  10. Ted Swart
    Posted Mar 5, 2012 at 10:58 AM | Permalink | Reply

    Will done Steve. I am sure I am not alone in appreciating your clearly expressed skills — not just in statistics but in an in depth understanding of the law.

  11. Jim Bennett
    Posted Mar 5, 2012 at 11:01 AM | Permalink | Reply

    Yet another case of the judicial authority deciding what the outcome should be, then finding a convoluted legal argument to attempt to justify the verdict. It has been happening in the great U.S. of A. since Marbury v. Madison in 1803, and continues to this day through such morons jurists as Stephen Reinhardt and Ruth Bader Ginsburg. And, of course, the team promptly says, “We win!” Hope you like the mountain of FOIA requests you’re gonna get now…

    • Rhoda Ramirez
      Posted Mar 5, 2012 at 8:00 PM | Permalink | Reply

      Not necessarily, Jim. I’ve read other blogs where they point out that the law, as written in VA, supports this decision. On the other hand, the ruling firmly places UVA in the realm of public institutions to now the FOIA laws apply. Go for it ATI.

      • Posted Mar 5, 2012 at 9:21 PM | Permalink | Reply

        ATI has been going for it for over a year. And there has never been a dispute that FOI laws apply, only what action they require.

  12. Matt Skaggs
    Posted Mar 5, 2012 at 11:11 AM | Permalink | Reply

    After reading the opinion, I am left with only one way to make sense of it. The FATA law appears to be intended (or the court thought it was intended*)to allow some disinfecting sunshine into the behavior of private entities that use tax money, information that otherwise might be coonsidered privately held. It makes perfect sense to exclude public entities from this law because they are subject to FOIA. If this is the thinking, then logically, every entity should be immune to one and subject to the other.
    The only reason I can think of as to why the AG would not have this authority is that there may be a University committee that is officially tasked with fraud prevention. In this case the AG would be in a position to investigate the fraud committee, but not the faculty.

    *I’m addicted to Gleickian parentheticals, but I did not write the memo!

  13. Wayne Delbeke
    Posted Mar 5, 2012 at 11:43 AM | Permalink | Reply

    Just wanted to pass this along for analysis:

    I posted the following at WUWT. Thought you might be interested in it.

    Wayne Delbeke, P.Eng.
    +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

    Dr Brown: I have enjoyed your posts as you clearly have an open and enquiring mind.

    I just listened to one of your Canadian Colleaques, Dr. W. R. Peltier of the University of Toronto berate the scientists who wrote an “opposing” article to the WSJ. He repeatedly and with considerable vehemence called them deniers on our public radio system on a program called Quirks and Quarks – with a very warmist host, Bob MacDonald. http://www.cbc.ca/quirks/

    Interesting on this page was notification of the shutting down of the Canadian weather station at Eureka, Nunavit, Canada – which is a bit sad given it is a good arctic weather station. There were excellent discussions with this person on WUWT about their efforts to acquire good data and how wind direction affected their temperature readings. A very rational and good discussion as compared to Dr. Peltier’s repeated use of the word “denier” as an epithet in his interview when discussion his fellow scientists who wrote the WSJ article.

    Very unprofessional considering he was belittling him on National Radio that is heard not only in Canada but a good part of the USA. I was embarrassed for him and his fellow warming scientists but I suppose when facts fail you, throwing epithets is the only option left to the uneducated.

    Sadly, this was related to his winning an award with a 1 million dollar prize associated with it:
    “Dr. Richard Peltier, University Professor of Physics at the University of Toronto and founding director of U of T’s Centre for Global Change Science, is this year’s winner of Canada’s highest prize for science, the Gerhard Herzberg Canada Gold Medal for Science and Engineering.”

    What bothers me even more – I am an Engineer, and in our Association of Professional Engineers Geologists and Geophysicist Association, there has been considerable rational debate on the issue of global warming without this type of nasty attribution in our letters to the editor and other articles (at least in the ones I have read).

    I embarrassed to see the word “Engineering” in the name of the award that he received as given the way he used the words “deniers” in his he used in his interview, a Professional Engineer might be subject to disciplinary action for making this kind of accusation against his peers.

    I am in total shock that such a person would make such a diatribe.
    Listen here: http://www.cbc.ca/quirks/media/2011-2012/qq-2012-03-03_05.mp3

    Sadly, he will use his 1 million dollar award to hire graduate students and post doctorate fellows to prove out his holistic earth “MODEL” to “Make Projections”. In other words, it appears he want them go look for data that will support his conclusions and “TUNE” his models to match reality as opposed to the real science of analyzing data and developing a conclusion.

    As far as Dr. Peltier is concerned, it seems, he considers the science is settled. He is a modeler. And we all know about GIGO. So he is really a garbage collector. He needs to take the garbage out …. so we can get back to science.

    He wants to develop models to project/predict client 100 years out.

    The interview sounds fairly reasonable until he gets to the denier comments except where he claims the “ensemble of independent models” is very accurate. Another theory of averages – average the models and get an accurate result. Amazing. You can make bad data good simply by averaging.

    He really goes on about forcings versus feedbacks.

    But perhaps I am overreacting.

    It would be nice to have some third party comments on his interview.

    • Posted Mar 5, 2012 at 2:01 PM | Permalink | Reply

      What is your WUWT reference Wayne? Cannot find it. Even if Steve snips your comment as off-topic, it would be good to see this newsworthy item mentioned at WUWT.

    • David L. Hagen
      Posted Mar 6, 2012 at 5:08 PM | Permalink | Reply

      Wayne Delbeke
      I second your observation. cf

      Code of Ethics

      (Established pursuant to Section 18(1)(h) of the Engineering, Geological and Geophysical Professions Act)
      Rules of Conduct

      Rule 1
      Professional engineers, geologists and geophysicists shall have proper regard in all their work for the safety and welfare of all persons and for the physical environment affected by their work.
      Professional engineers, geologists and geophysicists shall represent their qualifications and competence, or advertise professional services offered, only through factual representation without exaggeration.. . .

      Rule 10
      Professional engineers, geologists and geophysicists shall conduct themselves toward other professional engineers, geologists and geophysicists, and toward employees and others with fairness and good faith.

      Rule 11
      Professional engineers, geologists and geophysicists shall advise the Registrar of any practice by a member of the Association that they believe to be contrary to this Code of Ethics.

      Under section 43 of the Act, a contravention of this Code of Ethics may constitute unprofessional conduct or unskilled practice which is subject to disciplinary action.

      I encourage you to report this breach of engineering ethics by W. R. Peltier.

  14. Snotrocket
    Posted Mar 5, 2012 at 1:43 PM | Permalink | Reply

    In your commentary, Steve, you say:

    “The Union of Concerned Scientists praised the decision as a “victory for science”. But a decision that public agencies are immune from having to provide documents in response to investigative demands from the Attorney General for fraud against taxpayers is hardly one that meets any sense of justice or fairness.

    In addition, people sometimes have to be careful what they wish for.”

    That brought to mind the memorable dialogue between Thomas More (Schofield) and Roper (Hurt) in ‘A Man For All Seasons’:

    “William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I’d cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! “

    • coniston
      Posted Mar 6, 2012 at 7:52 AM | Permalink | Reply

      My favourite quote about the law in all of literature…small nit pick: it’s Paul Scofield. RIP

    • Lee Moore
      Posted Mar 9, 2012 at 9:17 AM | Permalink | Reply

      Second nitpick. John Hurt played Richard Rich. Roper was played by Corin Redgrave.

      Redgrave, like his sister Vanessa, is a committed Trotskyist revolutionary so it is an additional pleasure that he is on the receiving end of such a good lecture on the rule of law.

      (Vanessa also appears in a Man for All Seasons, as Ann Boleyn. Corin is much the better actor.)

  15. AnonyMoose
    Posted Mar 5, 2012 at 1:57 PM | Permalink | Reply

    From the Virginia Attorney General’s FAQ: “Provide legal advice and representation to the Governor and executive agencies, state boards and commissions, and institutions of higher education.” http://www.oag.state.va.us/About%20the%20Office/Respnsibilities.html

    Isn’t it a conflict of interest to investigate a client?

  16. John Whitman
    Posted Mar 5, 2012 at 2:00 PM | Permalink | Reply

    “In sum, neither by express language nor by necessary implication does FATA provide the Attorney General with authority to issue CIDs to commonwealth agencies,” Justice Leroy F. Millette Jr. [of the Va Supreme Court] wrote.

    That is a narrow legal technical statement by the Virginia Supreme Court, but Cuccinelli puts forth a wider context about the denial of the right of the state to audit the UVa.

    “ [ . . . ] Today, the court effectively held that state agencies do not have to provide state-owned property to state investigators looking into potential fraud involving government funds,” Cuccinelli said in a statement.

    Cuccinelli asks us to consider the wisdom of a prohibition of performing state audits of the UVa in the Mann matter at hand. It appears that the CID legal avenue is closed to the AG; at least under existing legislation. Putting private citizen initiated FOIA actions aside, it surely cannot be the case that the UVa cannot be totally immune to any public audit from any part of the government of the State of Virginia. That would be quite surprising to me as a US citizen to not have any state sponsored vehicle to provide access to public info in a public institution.

    As a starting alternate approach to the investigation of Mann @ UVa by a part of the state of Va, how about just a routine general financial audit of UVa by the state comptroller with some specific attention to the area of US and state government funded research projects.

    John

    • John Whitman
      Posted Mar 5, 2012 at 2:08 PM | Permalink | Reply

      Oops.

      That is one too many ‘cannot’ in the second to the last paragraph of my above comment. : ) Just replace the second ‘cannot’ with a ‘can’.

      John

  17. Hoi Polloi
    Posted Mar 5, 2012 at 2:14 PM | Permalink | Reply

    “YOU GUYS THINK YOU’RE ABOVE THE LAW? WELL, YOU AIN’T ABOVE MINE.” ~ Steven Seagal.

  18. Don Keiller
    Posted Mar 5, 2012 at 2:28 PM | Permalink | Reply

    As a UK citizen, can I make a legitimate FOIA to an American Institution?

    • Rhoda Ramirez
      Posted Mar 5, 2012 at 8:05 PM | Permalink | Reply

      You’d have to research the Va FOIA law. Each state is different and is different from the Federal FOIA. Burdensum, I know, but one of the fallouts from our Constitution.

  19. Snotrocket
    Posted Mar 5, 2012 at 3:19 PM | Permalink | Reply

    Hi Mods. Is there any reason why my comment at 1:43 is still in moderation – other than the italics seem to be screwed up? Cheers.

    Steve: it is the week of the annual mineral exploration convention in Toronto and I’m otherwise occupied most of the week.

  20. geo
    Posted Mar 5, 2012 at 4:34 PM | Permalink | Reply

    We’re very serious about our “separation of powers” issues in the US, and I think this decision displays that history.

  21. John Vetterling
    Posted Mar 5, 2012 at 5:36 PM | Permalink | Reply

    The irony is that, while the AG may not be able to issue a CID against the U, I believe the state auditor has similar authority.
    http://www.doa.virginia.gov/DSIA/DSIA_Main.cfm

  22. Posted Mar 5, 2012 at 6:16 PM | Permalink | Reply

    whoever made the old quote ” The Law is an ass” was correct.

    • E. Z. Duzzit
      Posted Mar 6, 2012 at 9:18 AM | Permalink | Reply

      Its from Dickens – Oliver Twist to be exact.

      When Mr. Bumble is informed that “the law supposes that your wife acts under your direction”. Mr. Bumble replies “If the law supposes that … the law is a
      ass — a idiot.”

      Mr. Bumble’s grammar is a bit off, but his insight is not. On the other hand I readily concur that the law is essential to civil society, notable exceptions notwithstanding.

  23. Posted Mar 5, 2012 at 9:07 PM | Permalink | Reply

    ” but on the totally bizarre grounds that the Attorney General is only entitled to investigate individuals and private corporations under FATA and that state agencies (in which category the decision places the University of Virginia) are not subject to FATA. This is a technical and counter-intuitive decision that surely invites either amendment to the legislation or further direct action by Cuccinnelli. “

    They didn’t decide that he’s only entitled to investigate under FATA. He was investigating under FATA and they found that he could not require UVa to respond to a CID. What other decision could they have made?

    “I don’t see how anyone can view this as a satisfactory resolution to an unseemly affair.”
    The affair was resolved by the lower court, whose decision stands. Cucci’s appeal was unsuccessful. The SC declined to set aside the decision. With prejudice.

    “However, the decision will undoubtedly limit their ability to argue that they are not a state agency for the purposes of FOIA.”
    They have not sought to argue that. There is a case presently before the court (ATI). UVa oppose complete release of Mann’s emails on various grounds, but they have not disputed they they are subject to Va FOI.

    “Can’t he just send auditors in without a court order?”
    There is a regular audit procedure for UVa. But it is not within Cucci’s personal power. That’s his issue. I have seen no reference to audit irregularities.

    • Steve McIntyre
      Posted Mar 5, 2012 at 11:17 PM | Permalink | Reply

      They didn’t decide that he’s only entitled to investigate under FATA.

      Not what I said. I said that they decideded that he could only investigate individuals and private corporations under FATA.

      I presume that as Attorney General, i.e. the general counsel for the Commonwealth of Virginia, he could review all the documents of the Motor Vehicles Bureau without any sort of court order simply by sending his people in and copying the documents. Just as the general counsel of a corporation (Microsoft) could take possession of any documents within the possession of any department or subsidiary of Microsoft.

      As I read the present decision, there is nothing stopping Cuccinnelli from doing something similar at UVA as the “general counsel” of the Commonwealth, since UVA has obtained a decision that, legally, it is merely a state agency.

      • Posted Mar 5, 2012 at 11:38 PM | Permalink | Reply

        “Not what I said. I said that they decided that he could only investigate individuals and private corporations under FATA.”
        Yes, I see now. But they didn’t say that either. They said that he could not require UVa to respond to a CID.

        “As I read the present decision, there is nothing stopping Cuccinnelli from doing something similar at UVA as the “general counsel” of the Commonwealth, since UVA has obtained a decision that, legally, it is merely a state agency.”
        Its status as a state agency was not in doubt. Indeed, its counsel was the AG. They had to get another one to initiate the suit.

        ” simply by sending his people in and copying the documents”

        I don’t know how Va gov’t compares with Australia in this respect, but we did once have an AG do as you suggest. It did not work out well.

        • Tom Gray
          Posted Mar 6, 2012 at 7:21 AM | Permalink

          There is an institution in the Canadian government called the Auditor General. It is independent of eh government of eh day. That is it does not report to the Prime Minister or cabinet. it reports only to Parliament. Its job is to audit federal institutions and ensure that they are providing “value for money” It has eh right to see and audit anything within these departments. It finds pork and waste but goes beyond that. It discovered the Sponsorgate scandal in which the ruling Liberal Party had stolen 100 million dollars from the government by use of a scam involved sponsorship of events. This ended the career of the long serving Liberal Prime Minister and effectively destroyed eh federal Liberal Party s a political force. The AG in Canada is seen as a vital and important institution.

          The AG is not seeking then power to audit crown corporations to perform the same value for money audits here. Naturally the political establishment is resisting this

          The office that Steve McIntyre is suggesting appears to be very similar to the office of eh Auditor Genral in Canada. It is a vry good idea

        • johanna
          Posted Mar 6, 2012 at 8:28 AM | Permalink

          Tom, we have State and Federal Auditors-General with similar powers in Australia. A good thing, too – it certainly keeps people on their toes.

          But surely US States have some sort of statutory auditors as well? Or alternatively, at least an elected official with overarching responsibility for ensuring that State finances are managed in accordance with the law?

        • Tom Gray
          Posted Mar 6, 2012 at 9:49 AM | Permalink

          The Auditor General concept doe show that to audit is not a condemnation of an institution. it is a natural and required function of any institution to ensure that it is meeting its responsibilities. Eh AG in Canada did find Sposorgate, HRDC and similar instances of corruption but its reports primarily assess programs and candidly assess their effectiveness in meeting the needs for which Parliament set them up. It is a necessary part of a large organization. ts existence does not imply that the participants in any organization are acting in bad faith.

        • Steve McIntyre
          Posted Mar 6, 2012 at 11:24 AM | Permalink

          there’s a difference between an audit and a forensic examination of documents ordered by a company’s general counsel. It’s the latter that I have in mind, though my first comment was not very clear on this.

        • Tom Gray
          Posted Mar 6, 2012 at 11:32 AM | Permalink

          But wouldn’t a value fro money audit be more suitable than a forensic audit. It is not criminal wrongdoing that is the issue but failure to meet objectives and guidelines. The AG can comment on policies that may be ill advised but not criminal The Canadian AG has the right to subpoena documents and so has access to everything including emails.

        • Steve McIntyre
          Posted Mar 6, 2012 at 11:45 AM | Permalink

          Depends what one’s purpose is. Cuccinnelli’s allegation is that there was an offence under FATA i.e. criminal, not simply value for money. Proof of an offence would require forensic audit. As I’ve said on numerous occasions, I’ve criticized Cuccinnelli’s investigation of Mann as abuse of administrative law, but the idea that Cuccinnelli should be totally unable to investigate alleged corruption at state agencies (now including UVA) is nonsensical.

        • johanna
          Posted Mar 6, 2012 at 10:28 PM | Permalink

          Steve, I think that we are at cross purposes here. As Tom and I have mentioned, Auditors-General focus on value for money and adherence to legal requirements in their audits – in the course of which they sometimes uncover improper or corrupt actions.

          Investigating corruption as a primary focus is typically assigned to dedicated bodies which are (theoretically) insulated from pressure by elected and appointed officials, who often have a lot to lose in these investigations. Their remit might be either the public or private sectors – examples of the latter are corporate regulators.

          A third (triangulation is good!) way is for legislative bodies to investigate directly, usually be establishing parliamentary committees or one-off bodies like Royal Commissions with sweeping powers to obtain evidence and compel testimony.

          A jurisdiction that uses all three of these methods has all the tools required to investigate public and private corruption. But, vesting the Attorney-General with this role is a far from optimal solution for obvious reasons. The A-G would usually have the power to refer matters for consideration, and no more. A-Gs also often have skin in the game.

        • Posted Mar 7, 2012 at 3:53 AM | Permalink

          Steve,
          I think you’re misrepresenting the decision. Cuccinelli issued a CID to UVa. UVa objected to the terms of the CID, and took it to court. The lower court upheld that, and set aside the CID. That court decision did not involve UVa’s status as a state agency.

          Cucci appealed. The SC decided that the law was that Cucci could not issue a CID to a state agency. That being so, they had to reject the appeal. It does not mean that the AG can’t investigate UVa. It just means that he can’t use that mechanism. Meanwhile the lower court decision stands. He had not made a case for requiring Mann’s emails, regardless of the state agency restriction.

          Remember, FATA is recent and unusual legislation, in conferring the CID power on a politician. Other states manage without it. I have the feeling that Cucci’s defenders would be most indignant in such a power were used by a Democratic AG.

          The talk of value for money audits etc misses the point. There is no way a state auditor would in those circumstances demand all of Mann’s six plus year old emails. Cucci wanted those for his own political reasons. There was only one state grant involved, and Mann was not the principal investigator, and almost certainly did not disburse any funds directly. A genuine audit, in the unlikely event that it extended that far, would start with the PI, who did make decisions about the finances (though UVa admin handled and disbursed the funds).

          Steve: Nick, I’m at a loss to understand what you are disagreeing with. I observed that it appeared that the state could directly investigate state agencies without the need to issue a CID to itself. You seem to agree with this. I had long ago criticized Cuccinnelli’s specific focus on Mann as an abuse of administrative process. Nowhere have you acknowledged this. Instead you present similar points implying that they are a criticism of my position.

        • Tom Gray
          Posted Mar 7, 2012 at 10:56 AM | Permalink

          Nick Stokes writes:
          ============
          “The talk of value for money audits etc misses the point. There is no way a state auditor would in those circumstances demand all of Mann’s six plus year old emails”
          ==========

          You should examine how value fro money audits work. I have no opinion on Mann and Virginia but the Auditor General in Canada does look at Emails and any other documenst that it wants to. If an agency is performing activities for which it has no authorization then the AG is very interested and it is reported in a public report to Parliament. That is what “value for money” is all about. it is not just an audit that counts beans.

        • theduke
          Posted Mar 7, 2012 at 12:24 PM | Permalink

          Nick Stokes wrote: “I have the feeling that Cucci’s defenders would be most indignant in such a power were used by a Democratic AG.”

          Do you have a similar feeling that Mann’s defenders would be most ecstatic if such a power were used against Steve McIntyre?

          Steve wrote: Steve: “Nick, I’m at a loss to understand what you are disagreeing with.” My initial reaction exactly.

        • Posted Mar 7, 2012 at 3:20 PM | Permalink

          Steve,
          Yes, I do acknowledge that you opposed the original Cucci exercise in a principled way, at some cost.

          What I’m disagreeing with, and where I think you misrepresent the decision, is where you imply that it says “that Cuccinnelli should be totally unable to investigate alleged corruption at state agencies (now including UVA)”.

        • Bob Koss
          Posted Mar 7, 2012 at 4:38 PM | Permalink

          Nick Stokes Mar 7, 3:20 PM,

          Why did you misrepresent what Steve wrote by deleting “is nonsensical” at the end of what Steve wrote?

        • Posted Mar 7, 2012 at 7:15 PM | Permalink

          Bob Koss,
          I included the words that Steve used to characterise the decision. He then went on to say that is nonsensical. I don’t disagree that such a decision would be nonsensical. I’m just saying that it wasn’t the decision they made.

        • Posted Mar 7, 2012 at 11:58 PM | Permalink

          Nick

          “but the idea that Cuccinnelli ”

          does not categorically imply that this is Steve’s opinion or reading. What he is saying is that reading would be nonsensical.

        • Posted Mar 8, 2012 at 1:52 AM | Permalink

          Steven,
          OK, but then whose idea is it?

          My contention is that the SC decision is not “bizarre” and is much more limited than portrayed. Cucci issued a CJD; asked it it was OK, SC found that in law, you can’t do that. End of story. They couldn’t have done anything else.

          It doesn’t leave him powerless. AG’s in other states manage without FATA and CIDs.

        • theduke
          Posted Mar 8, 2012 at 10:05 AM | Permalink

          Nick: your contention flies in the face of an opposing opinion expressed by one of the (parially) dissenting judges. See my March 6th, 9:02 pm response to Steve Mc below.

        • theduke
          Posted Mar 8, 2012 at 10:07 AM | Permalink

          that should read, “. . . (partially) dissenting judges.”

        • Tom Gray
          Posted Mar 8, 2012 at 10:11 AM | Permalink

          In the article Steve McIntyre writes in conclusion

          ==========
          The idea that a state Attorney-General be unable to examine records of state agencies for evidence of fraud also seems very counter-intuitive to me. Does an Attorney-General even require a court order to examine records of a state agency? Why would he have to do anything complicated to look at records of the Motor Vehicle Licencing Bureau (or whatever the Virginia name is)? Can’t he just send auditors in without a court order? If the University of Virginia has convinced a court that it’s a state agency under FATA, why wouldn’t they be subject to the same fate?
          ===========

          So Steve McIntyre asserted that the idea that an Attorney General could not, in any circumstance, get documents from a state agency is counter-intuitive. If the university is not subject to FATA then the AG must be able to get documents in some other way or the decision makes no sense. That is what he wrote

          Nick Stokes repeatedly asserts the same thing and claims that Steve McIntyre is incorrect because he said something else. Even if Steve McIntyre agrees with Nick Stokes, Steve McIntyre must be wrong and Nick Stokes right.

        • steven mosher
          Posted Mar 8, 2012 at 2:04 PM | Permalink

          Nick, you will have to parse the tree. You are the one claiming it is steve’s position. You can simply ask him if that is his position and clarify the matter. It’s not like he won’t answer.

        • Posted Mar 8, 2012 at 9:42 PM | Permalink

          Tom,
          The post is headed “Above the Law”. The first sentence asserts ” the recent Virginia decision (linked from article here) that public agencies are not subject to the Virginia Fraud Against Taxpayers Act (FATA) is hardly one that resolves any real issue.”. It says that the decision was based on “totally bizarre grounds that the Attorney General is only entitled to investigate individuals and private corporations under FATA and that state agencies (in which category the decision places the University of Virginia) are not subject to FATA.”

          I think those characterisations of the decision are wrong. I don’t think that’s a big deal. But they didn’t decide that UVa was “above the law” or even immune to FATA. They just found that the law did not allow the AG to send a CID to UVa. That’s not a bizarre ground for rejecting the appeal; it’s unavoidable.

          Steve: Do you seriously think that the UVA would have turned the emails over if Cuccinnelli had just sent agents over to the university as though it were the Motor Vehicles Branch. In my opinion, UVA would fight this tooth-and-nail on some other grounds.

          Reflecting some more, I think that the decision may well be as bizarre as it seems. In his decision turning down the CID, the judge could have ruled that UVA was required to turn the emails over on the alternate grounds that they were a state agency and obligated to turn documents over to the Attorney General at his request.

          I’m not familiar with Virginia procedure, but in Canada, my guess is that, if a judge thought the Attorney General was entitled to the documents from a state agency without a CID, he would say so and give the order, observing that the CID itself was moot. Rather than playing silly bugger and forcing the parties to repeat the dance with the A-G sending representatives over to the university, the university saying no again and the whole affair repeated from scratch.

          On further reflection, my initial observation that the ruling was “bizarre” stands and the caption Above the Law remains reasonable, though on a slightly modified interpretation, as matters have been clarified.

  24. Elliott Althouse
    Posted Mar 5, 2012 at 9:46 PM | Permalink | Reply

    The most important fact in this case is that despite their denials as to their possession of the e-mails in question, they could only mount their legal defense as owners of the emails. This makes all the difference in the FOI claim. Additionally, Cuccinelli specifically filed as a civil case, not a criminal case. Once the e-mails are released under FOI, he can then have the opportunity to conduct a criminal investigation, which this was not. Unless, of course, Mann has acted in a mature and professional manner in those e-mails. As a citizen of Virginia (with a wife holding a graduate degree from UVA),I am concerned that Mann did use misinformation to get his hands on my tax dollars. I’d like to know for sure.

  25. Posted Mar 5, 2012 at 10:41 PM | Permalink | Reply

    I’m glad Steve defended Mann against being prosecuted. Too many climate sceptics south of the border gloat about the idea of their opponents ending up in jail. Some of the sceptics make the same mistake as the warm-mongers, thinking they can read the motives of those they disagree with. Scientists, even fake ones, being prosecuted for misusing taxpayers’ money, would have a chilling effect on real scientific research.

    • kim
      Posted Mar 6, 2012 at 1:29 AM | Permalink | Reply

      Letting them off would have a chilling effect on the rule of law.
      ======================

    • P. Solar
      Posted Mar 7, 2012 at 1:41 AM | Permalink | Reply

      “misusing taxpayers’ money”

      Ah, the subtle art of euphemism.

      I think he was being accused of fraud rather than misuse. This comes out of the same box as describing Gleick’s (alleged) wire fraud as “duping” Heartland or using “a false name” rather than fraudulently using a real person’s name.

      Once you realise the millions (literally) he has be getting for doing piss-pot science and falsifying graphs, the idea of fraud starts to become more credible.

      The remuneration he has been receiving seems way in excess of what would be normal for scientific research. It’s payola.

      When I saw the amounts of money Gleick had been getting I was astounded. Like every other sucker, I just assumed they were poor little guys with a secure but moderately well paid position.

      Once you see the money involved you can see why they’re ready to go to such lengths.

    • Rhoda Ramirez
      Posted Mar 7, 2012 at 4:28 AM | Permalink | Reply

      I have to disagree Rod, letting them off would encourage bad science. As does ignoring pal reviewed articles, professional intimidation, etc. that we’ve seen in the CG1&2 e-mails, not to mention fake-gate. Bad behavior that is not discourage is repeated because it’s easier than good behavior.

      • dougieh
        Posted Mar 7, 2012 at 8:08 PM | Permalink | Reply

        Rhonda

        agree

        kinda reminds of this (change words to suit)

        word for me is ‘music’ for ‘some climate science’

    • KuhnKat
      Posted Mar 7, 2012 at 8:12 PM | Permalink | Reply

      Rod McLaughin,

      The idea of prosecuting wrong doers IS to chill their activity. If it also chills the activiy of those not acting criminally that is something we will just have to live with!!!

      If a prosecutor is acting unethically there are also methods to deal with him.

      NOT prosecuting criminals because it would make honest scientists reconsider their work is ludicrous.

  26. Geoff Sherrington
    Posted Mar 6, 2012 at 1:27 AM | Permalink | Reply

    In the mid 1980s, my employers gave me wide licence to go to Court to examine relations between the Executive and the Judiciary. Although this was done in Australia, precedents from several countries were used in the 92 references of the first URL below. I mention this because it shows the complexity of one portion of a government examining another, separation of powers and similar. It has become a widely-quoted case in administrative law.

    The descriptive material had been summarised at several places, one being http://www.austlii.edu.au/au/journals/FedLRev/2002/9.html
    The most complete description comes from the Federal Court at Peko-Wallsend (1987) 75 ALR 218, 255
    Although the matter reached the Full Bench of the High Court, an amendment to another Act effectively ended our winning streak and weakened the need of the High Court to decide, for example, if Cabinet Decisions were justiciable. (Strange word, that).

    Steve has noted the complexity of related matters in the present judgement – “totally bizarre grounds”. If you wish to self-flagellate on this aspect of law, you are invited to read the 2 references above. I’m not venturing any personal opinions on good or bad outcomes because it took highly trained lawyers many, many hours to arrive at conclusions on point after point in preparing this case and I surmise that similar complexity applies to the Virginia decision and I was but a simple earth scientist.

  27. Solomon Green
    Posted Mar 6, 2012 at 7:26 AM | Permalink | Reply

    Nick Stokes says
    ‘” simply by sending his people in and copying the documents”

    a I don’t know how Va gov’t compares with Australia in this respect, but we did once have an AG do as you suggest. It did not work out well.’

    But reading his link it appears that the Commonwealth Police had been sent in to raid the offices of ASIO (the Australian intelligence service). There would be a difference between Cucinnelli sending team into examine documents at UVA or trying to send them in to examine documents held at, say, the CIA offices at Langley.

    • johanna
      Posted Mar 6, 2012 at 8:23 AM | Permalink | Reply

      Solomon, it was the Federal A-G dealing with a Federal agency for which he had direct responsibility, so it is not really comparable. From what I understand, the Virginia A-G does not have line responsibility for State universities.

      Steve: UVA surprisingly took the position that they were a “state agency”, a position which the court accepted.

  28. theduke
    Posted Mar 6, 2012 at 10:12 AM | Permalink | Reply

    Just a guess:

    I haven’t read the case or the FATA law, (don’t have the time) but my first impression of this was that the court was trying to carve out an exemption for universities in the FATA law, and probably for good reason. (It’s clear that universities can be victimized by political witch hunts conducted by government officials and, as founts of learning and free debate, they need some level of protection from this.) Why they did it in such a clumsy, obtuse manner may have to do with the indigenous politics in Virginia. They are engaging in judicial activism, but they don’t want to appear as if they are engaging in judicial activism.

    • Steve McIntyre
      Posted Mar 6, 2012 at 11:36 AM | Permalink | Reply

      It may not be judicial activism. The idea of sovereign immuunity has a purpose in legal theory.

      The Motor Vehicles Branch is a state agency. Under the theory of the decision though, he couldn’t issue a CID under FATA to the Motor Vehicles Branch. That doesn’t mean that Cuccinnelli was unable to investigate alleged corruption at the Motor Vehicles Branch. Since it’s a state agency, he would presumably be able to do it under his “ordinary” authority. It’s EASIER for him to investigate a state agency under his ordinary authority than a third party under FATA.

      The argument from UVA seems very shortsighted in this respect. Since they’ve argued (successfully, it seems) that they are a state agency, I see no reason why Cuccinnelli couldn’t proceed in the same way as he would with alleged corruption at the Motor Vehicles Branch.

      • theduke
        Posted Mar 6, 2012 at 9:02 PM | Permalink | Reply

        Steve: Your analysis seems to agree with Cuccinelli’s. Here’s his response along with the response of a dissenting judge:

        The Court said it remains “unconvinced” that this statute of general applicability was intended to apply to corporate bodies that are arms of the Commonwealth.

        Justice Elizabeth A. McClanahan, who concurred in part and dissented in part, disagreed with the majority’s threshold determination that UVA, as an agency of the Commonwealth, is exempt from the FATA.

        “Concluding that UVA is subject to the Attorney General’s investigative authority under FATA, I would affirm the circuit court on its finding that the CIDs were facially deficient, but only on the ground that they were deficient in ‘stat(ing) the nature of the conduct constituting the alleged violation’ of FATA that was under investigation, as expressly required by Code § 8.01-216.11,” she wrote.

        “I would reject the circuit court’s holding that the CIDs were also required to contain the Attorney General’s ‘reason to believe’ that UVA was in possession of material or information relevant to that investigation under the terms of Code § 8.01-216.10(A), as I read no such requirement in the statute.”

        McClanahan said her reading of the code is dictated by its “common sense application.”

        “If the legislature intended to allow the Attorney General to bring a FATA action against an agency of the Commonwealth, the legislature undoubtedly intended to grant the Attorney General the authority to obtain relevant investigative information from an agency of the Commonwealth through the issuance of a CID to the agency, whether the object of the investigation was the agency or some third party,” she wrote.

        Cuccinelli said Friday the Court’s ruling means that the university and all other state agencies cannot be served with CIDs.

        “From the beginning, we have said that we were simply trying to review documents that are unquestionably state property to determine whether or not fraud had been committed.

        “Today, the court effectively held that state agencies do not have to provide state-owned property to state investigators looking into potential fraud involving government funds,” the attorney general said in a statement.

        http://www.legalnewsline.com/news/235380-va.-sc-rules-in-favor-of-university-in-case-over-climate-professor

  29. Henry
    Posted Mar 6, 2012 at 2:16 PM | Permalink | Reply

    Actually Steve’s position was to have only the academics and academic institutions to police the behavior of climate scientist and on that basis climate scientist are batting a 1,000% having sailed thru every single academic led investigation smelling like a rose.

    And in fact climate scientist point to these very investigations to crow that they have been vindicated.

    Henry

    http://www.youtube.com/watch?v=_RsvckYzms8&feature=related

  30. woodNfish
    Posted Mar 6, 2012 at 2:44 PM | Permalink | Reply

    Steve, The Union of Concerned Scientists is nothing more than a left-wing political organization. They have nothing to do with science other than their name.

  31. Steve McIntyre
    Posted Mar 6, 2012 at 11:16 PM | Permalink | Reply

    Virginia has an Inspector General whose duties appear to include investigation of fraud within state agencies and institutions of higher learning: see http://www.doa.virginia.gov/DSIA/Fraud_and_Abuse_Hotline.cfm

    This appears to set out a process for investigating fraud allegations as part of the Inspector General’s duties. The Attorney General (as I read the powers) is more of a government lawyer. CUccinnelli might well have been usurping investigations more properly done by the I-G’s office. (I don’t plan to parse the respective duties; I merely note that there are issues in this area.)

  32. theduke
    Posted Mar 7, 2012 at 12:11 AM | Permalink | Reply

    From Rosenberger v. University of Virginia, Justice Kennedy’s opinion of the SCOTUS:

    The public corporation we refer to as the “University” is denominated by state law as “the Rector and Visitors of the University of Virginia,” Va. Code Ann. 23-69 (1993), .. . .

    From the Virginia Fraud Against Taxpayers Act:

    “Person” includes any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust. [My emphasis]

  33. Vargs
    Posted Mar 8, 2012 at 3:33 AM | Permalink | Reply

    Ironically, in the UK — from whence this ancient law emanates — Crown Immunity was removed from most agencies in the 1980s by statute. This corrected issues like making NHS hospital kitchens subject to environmental health inspections where previously they’d been exempt.

  34. Posted Mar 11, 2012 at 10:27 PM | Permalink | Reply

    The Washington Post has some forceful remarks on Cuccinelli’s “witch hunt”.

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