Lawmakers target Cuccinelli's investigative powers

RICHMOND

Attorney General Ken Cuccinelli got plenty of attention last year when he demanded records from the University of Virginia linked to the grant-funded climate change research of a former faculty member as part of an investigation into possible fraud.

Among those watching were three state lawmakers who this session are backing legislation to limit the attorney general's authority to issue a subpoena-like paper known as a civil investigative demand.

Leading the charge is state Sen. Donald McEachin.

The Henrico County Democrat has filed SB1314, which would strip the authority of the attorney general to issue civil investigative demands under the state Fraud Against Taxpayers Act, the law that Cuccinelli invoked in his pursuit of U.Va. records.

McEachin believes the attorney general should proceed like other lawyers in civil cases: file a lawsuit if he thinks a wrong has occurred and obtain documents as it proceeds, not the other way around.

"No civil lawyers have the ability to issue a subpoena without articulating a cause of action," he said.

The bill's co-sponsor, Charlottesville Democratic Del. David Toscano, said U.Va. founder Thomas Jefferson "would be turning in his grave" over Cuccinelli's actions, which he termed a "fishing expedition" to advance global warming doubts.

Brian Gottstein, the attorney general's director of communication, said the current practice is based on federal law dating to 1986. He said the proposed change "would likely jeopardize Virginia's compliance with the Deficit Reduction Act of 2005," which could cost the state money by reducing the share it recovers in fraud cases.

In April, Cuccinelli issued a demand to U.Va. seeking documents and other materials related to five taxpayer-funded research grants involving professor Michael Mann.

Mann is one of the scientists who produced a chart that uses proxy and actual data to demonstrate a spike in temperatures in the last half of the 20th century. That so-called hockey stick graph has been cited alternately as proof of man-made causes of climate change and, by global warming skeptics, as an example of shoddy scientific work.

The skeptics gained some ammunition when Mann was embroiled in the Climate-gate controversy in 2009 that involved leaked e-mails from global warming researchers. Critics said those documents showed evidence of data manipulation.

Mann is now on the Pennsylvania State University faculty; he was a member of the U.Va. staff from 1999 to 2005. Academic reviews of his work have cleared him of misconduct.

An Albemarle County judge in August excused the university from responding to Cuccinelli, reasoning the attorney general failed to show why he has "reason to believe" fraud occurred, but found that the school is a proper subject for a civil investigative demand. Cuccinelli has appealed to the state Supreme Court and submitted a revised demand to U.Va.

A separate bill, SB831, from Sen. J. Chapman "Chap" Petersen, D-Fairfax, would protect state colleges and universities by creating an exemption for demands targeting academic research.

"Frankly, I may not agree with everything I learned in school. In fact, I know that I don't," Petersen said. "But to me, professors have to have the freedom to pursue subjects, to pursue viewpoints. And as students, and as political leaders, we'll make up our own minds."

Separately, Sen. Jill Holtzman Vogel, R-Fauquier, has submitted legislation to amend the fraud law to specify the types of conduct for which a person could be liable.

Julian Walker, (804) 697-1564, julian.walker@pilotonline.com