Tomasso Brothers, Inc. v. Blumenthal, No. CV 03-0829632 (Conn. Super. 3/5/2004)
| Decision Date | 05 March 2004 |
| Docket Number | No. CV 03-0829632,CV 03-0829632 |
| Court | Connecticut Superior Court |
| Parties | Tomasso Brothers, Inc. v. Richard A. Blumenthal, as Attorney General of the State of Connecticut. |
The court must decide whether the Attorney General exceeded his investigative authority under General Statutes §4-61dd, the "Whistleblower Statute," by serving subpoenas duces tecum on the petitioners for the production of various documents, and if so, whether the petitioners' motion to quash the subpoena duces tecum and for a protective order should be granted.
The court finds that the Attorney General did not have investigative authority to issue subpoenas to the petitioners under §4-61dd, because the requests for information fall squarely within the "construction, alteration or repair" exception to the "large state contract" provision of the statute. Furthermore, even if the construction exception did not apply, the Attorney General exceeded the scope of his investigative authority under the statute insofar as he requested documents outside the subject matter of the actual whistleblower complaint. Accordingly, the petitioners' motion to quash subpoenas duces tecum and for a protective order is granted.
The questions in this case present issues of first impression under Connecticut law, and it is therefore helpful to briefly recount the proceedings leading up to the matter now pending before the court. On October 9, 2003, the Attorney General issued identical subpoenas duces tecum to seven separate entities with ties to the Tomasso family ("petitioners").1 Claiming authority under General Statutes §4-61dd(a), the Attorney General requested that the petitioners produce documents pertaining to fourteen categories of information that related to several large state construction contracts between numerous state agencies and the petitioners. On November 17, 2003, the petitioners filed a substitute motion to quash subpoenas duces tecum and for a protective order.2 The primary basis for the motion was the petitioners' allegation that the Attorney General did not have statutory authority to issue the investigative subpoenas under the whistleblower statute in the absence of at least one relevant complaint filed by a whistleblower. The petitioners disputed the existence of such a complaint in alleging that their research revealed "no whistleblowers who have complained to the Auditors of Public Accounts in connection with any of the 14 (now 13) categories of information sought in the attached subpoenas." (Petitioners' Substitute Motion to Quash Subpoenas Duces Tecum, p. 7.) The court held a preliminary hearing on the morning of December 8, 2003, where it set a schedule to take evidence and to hear oral argument on the merits of the petitioners' claims. Later that afternoon, the Attorney General served the petitioners with seven new subpoenas which superseded the original set of requests. The new subpoenas were allegedly based on a whistleblower complaint received by the auditors of public accounts on November 28, 2003, which specifically mentioned the petitioners' involvement in certain state contracts.3
Thereafter, the petitioners filed a revised motion to quash subpoenas duces tecum and for a protective order on January 7, 2004. The current motion to quash is based on the petitioners' continued allegation that the Attorney General lacks authority to issue the subpoenas for five reasons: "(1) [the Attorney General] still has not complied with the clear statutory prerequisites to his power to investigate; (2) [the Attorney General] otherwise has no broad-ranging right under the whistleblower statute to investigate as he sees fit . . . ; (3) the whistleblower statute expressly exempts large state construction contracts, such as the projects listed in the 'new' subpoenas, from its scope; (4) the new `complaint' was self-generated by the Attorney General's improperly commenced initial investigation, and therefore cannot provide the jurisdictional basis for this investigation; and (5) even if [the Attorney General's] investigation were otherwise proper, he may not use the investigative provisions of the whistleblower statute to commence or conduct civil litigation." (Petitioners' Revised Motion to Quash Subpoenas Duces Tecum, p. 4-5.)
The Attorney General filed an objection to the petitioners' motion to quash subpoenas duces tecum and for a protective order on January 21, 2004. In the Attorney General's opposing memorandum, he counters that: (1) the Attorney General's current subpoenas were issued in full compliance with the requirements under §4-61dd; (2) the Attorney General and the auditors have a broad statutory duty to investigate allegations of corruption in state government contracting, which cannot be limited by those who may be the subject of an investigation or have information relating to the conduct of state officials; (3) the Attorney General and the auditors have a duty to investigate all whistleblower complaints, irrespective of the manner of their transmission and irrespective of the precise wording or phrasing, as the Attorney General and auditors "deem proper"; (4) the construction exemption to the "large state contract" provision does not bar the Attorney General from issuing subpoenas to state contractors for information relevant to an investigation of misconduct by state officials; and (5) it is irrelevant to the authority of the Attorney General and auditors to conduct a §4-61dd investigation whether civil litigation may follow at the conclusion of a whistleblower report. (See Respondent's Objection to Petitioners' Motion to Quash Subpoenas Duces Tecum, p. 4, 13.) On January 28, 2004, the petitioners filed a reply brief in support of their revised motion to quash subpoenas duces tecum and for a protective order. In their brief, the petitioners claimed legal deficiencies in the Attorney General's arguments, and reemphasized the allegations outlined in their revised motion to quash. The court heard oral argument on February 2, 2004, at which time each party had an opportunity to argue its position.
The legal issues presented in this case focus primarily on General Statutes §4-61dd, commonly referred to as the "Whistleblower Statute," and specifically, to the scope of the Attorney General's investigative jurisdiction under the statute's provisions. General Statutes §4-61dd(a) provides in relevant part that:
Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency or any quasi-public agency, as defined in section 1-120, or any person having knowledge of any matter involving corruption, violation of state or federal laws or regulations, gross waste of funds, abuse of authority or danger to the public safety occurring in any large state contract, may transmit all facts and information in his possession concerning such matter to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report their findings and any recommendations to the Attorney General. Upon receiving such a report, the Attorney General shall make such investigation as he deems proper.
A determinative issue in this case surrounds the scope of authority that this language extends to the Attorney General to issue investigative subpoenas based on information found in a whistleblower complaint. Although the court will address this question in its opinion, the court ultimately finds that the outcome of the case must be decided on a separate ground which is raised in the petitioners' argument.
Specifically, the petitioners allege that the Attorney General lacks jurisdiction to issue them investigative subpoenas, because his requests for information fall squarely within the construction exemption to the "large state contract" section of the whistleblower statute. Section 4-61dd(g)(1) exempts from the statutory definition of a "large state contract," "a contract for the construction, alteration or repair of any public building or public work."4 The petitioners contend that the projects listed in the Attorney General's subpoenas fall clearly within this exception, and that the Attorney General is thus precluded from using his power under the statute to seek such information from the petitioners.
The Attorney General does not dispute that the contracts he seeks are excepted from the definition of a "large state contract," but instead alleges that the exception does not bar him from issuing subpoenas to state contractors for information relevant to an investigation of misconduct by state officials. Specifically, the Attorney General argues that the language in §4-61dd(a) provides for two categories of whistleblower complainants, only one of which is subject to the construction exception. The Attorney General contends that:
The first category is extremely broad, and includes "[a]ny person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency or any quasi-public agency."
(Respondent's Objection to Petitioners' Revised Motion to Quash Subpoenas Duces Tecum, p. 13.) The second category of complainants is more limited and includes:
[A]ny person having knowledge of any matter involving corruption, violation of state or federal laws or regulations, gross waste of funds, abuse of authority or danger to the public safety occurring in any large state contract.
(Respondent's Objection to Petitioners' Revised Motion to Quash Subpoenas Duces Tecum, p. 14.) The Attorney General alleges that because the term "large state contract," as defined and limited in §4...
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