Bill Sorrell's Response to Little Investigation

7/25/2019 Bill Sorrell's Response to Little Investigation

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Response to the Toensing Complaint

Introduction

This response will follow the lay-out of the Superseding Complaint

(Complaint) filed by Brady Toensing1and will restate the essential allegations of

the six claims set forth in the Complaint. In addition, attached please find the

Declaration of Attorney General William H. Sorrell (Declaration), setting forth

specific facts addressing the allegations, and the Declarations of Richard Cassidy,

Esq. and Graydon Wilson. The facts set forth therein are to the best of General

Sorrells recollection and reflect only his position and that of his campaign

committees. They are not attributable to any other individual or entity.

Information from other individuals or organizations may be appropriate for

clarification and full explanation of the issues.

As a preliminary matter, Gen. Sorrell denies all wrongdoing alleged in the

Complaint. As he points out, his personal integrity, the integrity of the Office

(he holds) and zealous adherence to my oath of office have been and remain of the

utmost priority for me. (Declaration at 1) General Sorrell has not violated the

law in the performance of his duties nor has he besmirched the ethical obligations

attendant with being the States chief law enforcement officer.

1 While Mr. Toensing filed the complaint in his individual capacity, we note that he is thecurrent Vice-Chair of the Republican Party in Vermont.


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The Complaint is a pastiche of opinion2, misinformation, false allegations

dressed up as facts3, and spin.4 When one steps back from the Complaint, it is

apparent that the claims are presented not because they contain merit but simply to

make the allegations and drag the Attorney General through the mud. The

Complaint appears to be nothing more than a political document designed to

politically injure the Attorney General. While we will answer the charges

factually, we believe the reader of the Complaint should not mistake its true

purpose.

2 A perfect example of opinion presented as fact is Toensings statement in the first paragraphof the Complaint that the Attorney Generals 2012 victory is directly traceable to the record-setting expenditures made on his behalf by the Committee for Justice and FairnessSuperPAC(CJF). It is simply Toensings opinion that these ads made the difference. We would disagree,attributing the Attorney Generals win to his reputation among Vermonters, and his amazingrecord of accomplishments over the last 18 years.3 Toensing states as fact throughout Count One that former Governor Howard Dean was anagent for the Sorrell campaign. There is no proof of this. Indeed, the claim is patently false.Surprisingly, Toensing, in stating this as fact, fails to mention the only fact-finding on thisissuethe finding by Judge Robert Mello that there was no proof that Dean was an agent of theSorrell campaign. SeeDiscussion of the Mello decision, infra.4 See, Discussion of the allegations and insinuations in Count Five.


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Response To Count One: The Allegation That The Attorney General

Coordinated His Campaign With That Of The Committee For Justice And

Fairness PAC (CJF), And Thus, Should Have Reported The Expenditures Of

The CJF As If They Were Expenditures Of His Campaign.

This claim has been reviewed twice before and found wanting, first by Judge

Robert Mello in an action brought by Jack McMullen, an individual who sought to

unseat the Attorney General, and second by the Addison County States Attorneys

Office. As Vice Chair of the Republican Party in Vermont, Mr. Toensing is no

doubt aware of these outcomes, yet he is again attempting to raise the issue. We

expect this forum will resolve this matter consistent with the prior decisions. There

is no basis in fact to support this allegation. Under Vermont law, campaign

expenditures made on behalf of a candidate must be reported as contributions to

the candidate if they were facilitated by, solicited by or approved bythe candidate

or the candidates political committee. 17 V.S.A. 2809. However, no one

connected to the Sorrell campaign facilitated, solicited or approved the CJF media

activities.

In essence, the allegation relies on Mr. Toensings supposition that Howard

Dean was an agent of the Sorrell campaign and coordinated the CJF


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advertisements. This simply is not true.5 Governor Dean was never an agent of

the Sorrell campaign, and the CJF advertisements were not coordinated.

Governor Dean was, however, a strong supporter of the Sorrell candidacy in

2012. He publically endorsed General Sorrells candidacy at a press event,

attended and made remarks at two or three fundraisers and joined General Sorrell

on one occasion for the recording of one or more radio spots. As General Sorrell

notes, he recalls receiving campaign strategy advice from Governor Dean

comprised of about one sentence, and one sentence only, which he followed.

(Declaration at 5.) General Sorrell neither requested nor received other strategic

advice from Governor Dean, who was never an agent of the campaign for any

purpose, nor was Governor Dean asked or empowered to represent the campaign in

interactions with any individual or organization, including the Democratic

Attorneys General Association (DAGA) or the CJF. (Id.)

5 If the reporting in a Seven Days newspaper article cited in Mr. Toensings Complaint isaccurate, Howard Dean was NOT an agent of the Sorrell campaign, nor did he coordinate inany way with the CJF. The article quotes Governor Dean:

Dean, in a telephone interview Wednesday, said there was no coordination. He said hehad nothing to do with the content of either the independent TV ad or the Sorrell radio ad.

Dean said the group paying for the TV ad called him and asked him to narrate the ad. Heagreed. He said he thinks he saw the script in advance but didnt ask for changes to it. Hesaid he never mentioned it to Sorrell.

Terri Hallenbeck, Vermont Attorney General Race Takes a New Twist,Burlington Free Press,August 24, 2012; available athttp://archive.burlingtonfreepress.com/article/20120824/NEWS03/308240011/Vermont-attorneygeneral-race-takes-new-twist.
http://archive.burlingtonfreepress.com/article/20120824/NEWS03/308240011/Vermont-attorneygeneral-race-takes-new-twisthttp://archive.burlingtonfreepress.com/article/20120824/NEWS03/308240011/Vermont-attorneygeneral-race-takes-new-twisthttp://archive.burlingtonfreepress.com/article/20120824/NEWS03/308240011/Vermont-attorneygeneral-race-takes-new-twisthttp://archive.burlingtonfreepress.com/article/20120824/NEWS03/308240011/Vermont-attorneygeneral-race-takes-new-twisthttp://archive.burlingtonfreepress.com/article/20120824/NEWS03/308240011/Vermont-attorneygeneral-race-takes-new-twist


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Further, the claim that a Dean radio advertisement for the Sorrell campaign

had a script nearly identical to the CJF television advertisement is false in every

respect, other than the fact that each espoused the Sorrell candidacy. The CJF

television ad in question related to the mortgage foreclosure crisis. The radio ads,

scripted by the Sorrell campaign and advisers, were about General Sorrellswork

fighting Big Tobacco and his efforts to reduce environmental pollution. See

Transcript of advertisements, attached herein as an attachment to General Sorrells

Declaration. At no time was any advice to DAGA or CJF given at the request of

General Sorrell or his campaign.

The complaint suggests that the Sorrell campaign made no contribution to

the Vermont Democratic Party and that Dean for America made the contribution at

issue instead. This claim is unfounded in its initial premise. The Sorrell campaign

contributed $13,000 to the party during that election cycle. (SeeSorrell campaign

finance disclosures dated October 15, 2012 and November 13, 2012, attached to

Sorrell Declaration.)

Finally, the Complaint suggests that the Office of the Vermont Attorney

General issued guidance to office-seekers in Vermont specifically reversing [its]

office policy to allow PACs, such as CJF, to accept contributions in excess of the

state limit of $2,000 and still make unlimited campaign expenditures in Vermont.

In making this claim, the Complaint suggests that this policy change was made


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specifically to allow the CJF advertisements supporting the Sorrell campaign.

Toensings Complaint is wrong on two counts. First, General Sorrell was not

aware of the CJF advertisements until they appeared in August of 2012, well after

the policy change. Thus, the advertisements could not have motivated the policy

change. Second, the policy change was issued because an entity known as

Priorities PAC informed theSecretary of StatesOffice that it planned to make

expenditures in excess of the PAC expenditures limits in Vermont as an

independent-expenditure-only PAC. The policy change was required to avoid

litigation about this issue and to bring the state into compliance with various

federal court decisions including the decision in Vermont Right to Life Committee

v. Sorrell, 875 F.Supp.2d 376 (2012), which made clear that such limits were

unconstitutional. The policy change was made for no other reason.

As General Sorrell states:

until the August, 2012 date on which the first CJF television ad involvingHoward Dean espousing my candidacy was broadcast in Vermont, I hadabsolutely no idea that DAGA or CJF had any plans or had taken any actionto support my candidacy. I had no idea Howard Dean had even talked withanyone affiliated with DAGA or a DAGA-funded PAC. The television adsand other advertising expenditures espousing my candidacy were createdand distributed without my knowledge. I first learned of the television ads

existence when I received a media call asking for my reaction to its airing. Iwas not aware of the existence of the Committee for Justice and Fairness(CJF), let alone whether it was or is an independent-expenditures-only PAC.

My Offices guidance and related press release expressing anintention not to enforce contribution limits spelled out in Vermontscampaign finance laws for independent-expenditure-only PACs were


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prompted solely by a July 18, 2012 notice to the state of the existence ofPriorities PAC, an independent-expenditures-only PAC. We changed ourguidance and decided not to enforce the contribution limits for independent-expenditures-only PACs in order to avoid potentially costly and, for theState, unsuccessful litigation, in light of various federal court decisions,including a decision by Judge William Sessions in Vermont Right to LifeCommittee v. Sorrell, 875 F.Supp.2d 376 (2012), which made clear that suchlimits were unconstitutional.

Declaration at 8 and 9.6

Finally, as noted, the claims delineated in Count One of the Complaint have

been examined by other bodies and found wanting. The hierarchy of the Vermont

Republican Party in 2012 or early 2013 asked the Addison County States

Attorney, given his legal authority to enforce Vermontscampaign finance laws, to

take legal action against the Sorrell campaign and DAGA and/or CJF for illegal

campaign coordination. The Addison County States Attorney declined to bring

any charges. Similarly, General Sorrells 2012 Republican opponent, Jack

McMullen, filed a lawsuit raising essentially these same allegations. But after

hearing no evidence to support the allegations, Judge Robert Mello dismissed the

case and ruled in favor of General Sorrell an outcome fully justified by the law

and facts. As the decision notes:

Because McMullen has failed to prove that Dean acted as an agent of theSorrell campaign, or that Sorrell or his campaign intentionally facilitated,

6 The coincidence that the building address for Media Strategies was the same as that for theDAGA appears to be just thata coincidence. We have no information that the two have anyties, and General Sorrell believes that they dont have any ties . And, indeed, now MediaStrategies has obviously moved to another address.


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solicited, or approved the CJF expenditures, this court must denyMcMullen's petition for a determination and dismiss his petition with

prejudice. In sum there is no basis in fact for the claims in Count One of thecomplaint.

McMullen v. Committee for Justice and Fairness, p. 6 (Vt. Superior Ct., Jan. 28,

2013) (decision attached).

It is important to understand the significance of this ruling. The hearing was

brought under 17 V.S.A. 2944(e), which allows a candidate to petition for a

declaration as to whether an expenditure which supported his opponent is a

related expenditure. By statute, the courts ruling at such a hearing is prima

facie evidence in any proceedings brought for violation of this chapter. 17 V.S.A.

2944(e)(3).7 Thus, Judge Mellos rulingis prima facie evidence that no violation

7 Subsection (e) reads in full:

(e)(1) A candidate may seek a determination that an expenditure is a related expendituremade on behalf of an opposing candidate by filing a petition with the Superior Court ofthe county in which either candidate resides.

(2) Within 24 hours of the filing of a petition, the Court shall schedule the petition forhearing. Except as to cases the Court considers of greater importance, proceedings beforethe Superior Court, as authorized by this section, and appeals from there take precedenceon the docket over all other cases and shall be assigned for hearing and trial or forargument at the earliest practicable date and expedited in every way.

(3) The findings and determination of the Court shall be prima facie evidence in anyproceedings brought for violation of this chapter.

17 V.S.A. 2944(e).


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of law occurred and should be treated as such.8 Here, Mr. Toensing wants a

third bite at the apple. This should be denied.

Response to Count Two: The Claim that DAGA Failed to Timely Register as a

Vermont PAC and Failed to File Campaign Finance Reports

Whether or not grounds exist to support these claims, they cannot be

answered by the Attorney General. As noted above, he can only speak for himself

and his campaign. He cannot speak for other persons or entities. Moreover, he

cannot opine concerning these claims or investigate them as they concern activities

which affected his campaign. It would be unethical for him to investigate or

comment about such claims beyond his statements concerning lack of coordination

between his campaign and the CJF/DAGA.

We do note, however, that these claims have been presented to a

prosecutorial authority having jurisdiction to investigate themthe Addison

County States Attorneys Officeand that authority declined to prosecute.

Response to Count Three: The Claim that General Sorrell and His Campaign

Failed to Properly Itemize Expenditures as Assertedly Required by Vermont

Campaign Finance Law

8 Mr. Toensing has numerous complaints about the hearing conducted inMcMullen, see fn 38of the Complaint. Whatever the merit of Toensings complaints, they do not undermine thesignificance of the ruling. It was not the Attorney Generalshearing; it was McMullens. If theissues were not litigated well by McMullenif, for instance, McMullen failed to request anydiscoverythat does not take away the statutory force and effect of the decision.


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The Complaint claims that the Attorney General and his campaign failed to

sufficiently itemize expenditures, especially when General Sorrell was being

reimbursed for expenses. The law requires that the campaign list each

expenditure . . . by amount, date, to whom paid, and for what purpose . 17 VSA

2803(a)(3). General Sorrell did this. He described the purpose of reimbursement

payments to himself as exactly such.9

Toensing, however, claims that more of a description is required. While he

argues in the Complaint that moreshouldbe required, he provides no authority that

Vermonts campaign finance law does require a description other than

reimbursement. Under the law, General Sorrell and his campaigns provided

exactly the information that the law required in his filings.10

In making its arguments, the Complaint overlooks two crucial facts. First, as

evidenced by the filings of numerous Vermont candidates, it is the custom and

practice in Vermont to describe in general terms the purpose of each expenditure,

9 The Secretary of States Office seems to contemplate block payments to reimburse candidatesfor moneys which they expended during the campaign. In the Guide to VermontsCampaignFinance Law published by that office, the Office provides this advice with regard to surplusfunds at the conclusion of a campaign:

Members of a PAC that has surplus campaign funds after all campaign debts have beenpaid may not convert the surplus to personal use. Similarly, a candidate may not convertsurplus funds to personal use, except to reduce personal debts incurred during thecampaign.

Emphasis added.


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especially in regard to reimbursements to candidates and others.11

Second, in the

face of this widespread practice, the Secretary of States Office has not issued any

advice or regulation modifying or curtailing the custom and practice, thus, tacitly

approving it.12

The practice of describing expenses in general terms crosses party lines and

appears in filings of candidates for numerous offices. Just in filings from 2010 to

the present by candidates for state-wide office, general descriptions similar to those

used in General Sorrells filings have been used 117 times to report an aggregate of

over $50,000 in expenditures. (See Affirmation of Graydon Wilson, 1-8

(attached) for details of this review.) The following are just some examples

present in the filings over the last few years. See, Wilson Affirmation 8-18.

Then-Governor Jim Douglas, in filings of July 15, 2009 and July 15, 2010,

reported nearly $5000 in reimbursed expenses to Denise Casey in three

payments and a $600 payment to Kathleen Bergeron for miscellaneous. In an

October 15, 2012 filing, the Douglas campaign reported a $523 payment to an

insurance company as a reimbursed expense.Id.

11 Note that the Secretary of States forms for filing such reports do not contemplate long anddiscursive answers. The blocks for expense type provide room for only very brief descriptionsof the purpose of the expenditure.12 As further support for acceptance of this practice by the Secretary of States Office, we note

that Deb Markowitz, while Secretary of State, followed the practice herself on at least oneoccasion. SeeWilson Affirmation at 13.


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If travel as a stated purpose for a reimbursement is inadequate, consider

three payments to Governor Douglas totaling over $1350 in the July, 2010 filing in

which travel is the lone descriptor.Id.

Similarly, in a July 15, 2009 filing, then-Lt. Governor Brian Dubie reported

a reimbursement to himself in the amount of $1753.29 as reimbursed expenses.

Likewise, in a July 15, 2010 filing, Dubie reported two payments to Susan Hudson

totaling $1096.47 as reimbursement. And filing as a candidate for governor on

the same date, Brian Dubie reported at least thirteenreimbursement payments

to different individuals totaling approximately $9308.45. Additional payments

described as reimbursement appear on Dubie campaign filings of September,

October, and November 15, 2010 and October 15, 2011 bringing the total of such

payments reported from 2009 through 2011 to approximately $14,914.93. Id.

Matt Dunne, Democratic candidate for governor in 2010, in filings of July,

August, September and October reported approximately forty reimbursement

payments totaling approximately $15,035.36. He also reported a $600 repayment

of loan to himself.Id.

Other candidates for governor in 2010 did the same. Susan Bartlett in

August 16 and September 15, 2010 filings reported four Expense

Reimbursement payments to herself and others totaling approximately $915.66.

Doug Racine in an August 17, 2010 filing reported a Reimbursement of $1053.


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And candidate for governor and incumbent Secretary of State Deb Markowitz filed

with her own office a report on September 15, 2010 detailing expenditures for

reimbursement totaling approximately $322.30.Id.

In the 2012 cycle, Governor Peter Shumlin, in three of his reports of October

15, November 15 and December 17, 2012 (the last two amended in filings of

February 4, 2013), reported approximately eight Reimbursement expenditures

totaling approximately $2166.90. Id.

Similar reported reimbursement expenditures have been filed by other

statewide campaigns during the 2010, 2012 and 2014 cycles. They include: Scot

Milne, candidate for governor, with a $570.50 Expense Reimbursement in a

September 2, 2014 filing; Beth Pearce, State Treasurer, with a $150.00 Expense

Reimbursement in a December 17, 2012 filing; Jason Gibbs, candidate for

secretary of state, with a $543.28 Reimbursement to himself in a December 15,

2010 filing, as well as approximately $759.49 in two payments to himself as

Reimbursement for travel, food & events in an August 15, 2010 fi ling; Steve

Howard, candidate for lieutenant governor, with a Reimbursement and three

Operations Expense Reimbursement payments totaling approximately $402.54

in a July 15, 2010 filing; Cassandra Gekas, candidate for lieutenant governor,

reporting three reimbursement payments to herself totaling approximately

$726.61 in a November 15, 2010 filing; Charlotte Dennett, candidate for attorney


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general, with a $100.00 Reimbursement to herself, a $52.50 (no stated purpose)

payment and a $2,620.00 travelLoan Repayment to an individual in a November

15, 2010 filing and a $25.00 Reimbursement to herself and a $36.04 payment for

Campaign wrap up in a December 31, 2010 filing.Id.

Finally, if general descriptors violate the laws requirements, at least two

other individuals fell short: Lieutenant Governor Phil Scott in a November 8, 2014

filing reported a $693.80 expenditure for Travel, Food Expenses and Thomas J.

Donovan, candidate for attorney general, in a September 14, 2012 filing, reported a

$1,131.84 Reimbursement for election night expenses payment , as well as a

$286.15 Reimbursement for travel expenses payment to himself and a separate

$389.36 mileage expense payment to a staffer. Not all examples are listed

herein.13

Clearly, General Sorrell and his campaigns complied with the law in this

regard. If the Legislature or the Secretary of States Office wants to change this

commonly-followed practice, legislation or regulations should be issued

delineating exactly what more is required as a description of a campaign expense.

13 Legislative race filings were generally not reviewed, but we are confident that the custom andpractice is followed in local races as well. For instance, Senator John Campbell reported a$100.00 reimbursement to himself in a July 16, 2012 filing.Id.


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Response to Count Four: The Claim that General Sorrell Used State

Resources and Failed To Report In-Kind Contributions Concerning an Event

Attended with Dean Corren Addressing Citizen Concerns Regarding

Gasoline Prices

The simple answer to this charge is that the event in question was not a

campaign event. Attorney General Sorrell never considered it as a campaign

event, nor did he treat it as one. Rather, this was an event he attended to support an

issue he and his Office had proper and well-founded concerns about: fair treatment

in gasoline pricing for all Vermonters. While Dean Corren may have treated it as a

campaign event, attendance was simply part of General Sorrells job promoting

public awareness of an issue and legislation addressed to that issue.

General Sorrell has long been concerned about the disparity between

gasoline prices charged in northwestern Vermont and those charged in the rest of

the State. During the 2013-2014 legislative session, he strongly and publically

supported a House bill, sponsored by Rep. Pearson, that would have required the

provision of more information on pricing issues by gasoline distributors to the

Attorney GeneralsOffice, and would have required advance notice to that Office

of the planned sale of a gasoline wholesaler or retailer to a competitor. He testified

in front of the House Transportation Committee in support of the bill.

In early September, 2014, Rep. Pearson asked General Sorrell if gasoline

price disparities were still of importance to him. The General indicated that they

were. Rep. Pearson said he was working on the Corren campaign and stated Dean


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Corren was looking to address the pricing issue at a press event, indicating his

support for the proposed legislation. Rep. Pearson inquired whether General

Sorrell might be willing to appear at the press event and state his supportnot for

Dean Corren, but for the proposed bill. General Sorrell indicated that he might be

willing to do so.

Through further communications (including the appropriate use of state

email), the event was arranged. For the Attorney General, the event was never a

campaign event. It was an event directed to an important issue, one that he had

been addressing for some time as Attorney General. A crucial part of his job is to

promote public awareness of issues of concern for Vermonters and legislation to

address those issues. This was exactly what he was doing.

If this event is viewed in hindsight as a campaign appearance, then any

public appearance of an official who will be running for office in the next election

cycle would have to be viewed as such. Nothing made this a campaign appearance

for General Sorrell. This was an issue-oriented event about an issue that the

General had been focused on in his role as Attorney General. No campaign

literature or signs were present. No Sorrell campaign staff were involved. No

supporters were passing out literature. No campaign contributions were sought. It

was purely an informational event.


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Response to Count Five: The Claim that General Sorrell Solicited and

Received Donations in Return for Official Action.

Using a scatter-gun approach and basing his claims on newspaper reports,

Mr. Toensing essentially suggests that Attorney General Sorrell has sold his Office

for campaign contributions. Nothing could be further from the truth, and this

outrageous claim should be summarily dismissed.

Attorney General Sorrell has an open-door policy. He and/or his staff will

meet with anyone who presents a reasonable request for such. Obviously, there are

appropriate limits to such a policy, but generally his Offices door is open to

people who want to meet about issues of relevance to the Office and the State and

to the people of Vermont, and few who request such meetings are turned away.

Numerous of the meetings about which Toensing complains were conducted

consonant with that policy. Toensing mistakes taking a meeting, which is

appropriate, indeed, essential for someone in the Office of the Attorney General,

with selling out Vermont. We will discuss each meeting in turn.

The Facebook Event. Toensing claims that the Attorney General

participated in a publicity event with Facebook camouflaged as official business

and claims that this was misconduct. In spite of the inflammatory language

used, when the facts are known, the claim is ridiculous. But the claim does

demonstrate the paucity of merit of Toensings Complaint.


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Public safety is one of the cornerstones of the Attorney Generals duties.

And the safety of youth is certainly key in this regard. As the Attorney General

describes in his Declaration, the Facebook event was directed at youth safety while

on-line:

This event resulted from a Facebook presentation to a bipartisan group ofAttorneys General at a Washington, DC NAAG meeting in late February orearly March of 2014. Facebook indicated a willingness to come toindividual states and make a presentation on online safety for youth,

particularly relating to social media. One of the AGs present spokefavorably about a Facebook presentation in his state. After my return to

Vermont, I spoke to my consumer protection staff about their interest in aFacebook presentation in Vermont. They felt it a good idea. We reachedout to Facebook and approximately two months later we sponsored a well-attended evening presentation at Essex High School for students, parents,teachers and administrators. The presentation was filmed by local accessTV for broadcasting around the state and is available on our office website.

Declaration at 32. This is exactly what we want our Attorney General to do

look after the safety of youth. Toensings suggestion that this was misconduct

brings into question the soundness of his judgment and shows this Complaint to be

what we argue it truly is, a partisan effort to sully Attorney General Sorrells

reputation.

The AT&T Event. The AT&T event followed similar lines. The Attorney

General participated in a well-received AT&T sponsored presentation at a Windsor

County high school on the dangers of texting while driving. Again, this is exactly

what the Attorney General should be doingparticipating in events dedicated to

enhancing public safety. To call this misconduct is absurd. There is little doubt


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that a complaint would be lodged against the Attorney General if he failed to

attend such events and support important issues, simply because they were

sponsored by a business.

The AT&T High-Level Contact. The Attorney General had appropriate

high-level contact with officials from AT&T in Washington. But contrary to

Toensings suppositions, it was not to gain favor from AT&T, but to try to correct

a fundamental cell-phone billing problem for Vermonters:

I met with high level officials of AT&T in Washington, DC. I wasconcerned about cramming, the practice of unknown and unwantedcharges on customers monthly cell phone bills for services supposedly

provided by third parties. I had been crammed on my state cell phoneaccount and my Office had conducted surveys indicating that cramming wasa widespread practice in Vermont and was costing Vermonters many, manythousands of dollars. I received unsatisfactory responses to my questionsfrom AT&T.

Declaration at 34. On behalf of the citizens of Vermont, the Attorney General

took the lead in a 50-State effort to address the problem:

I reached out to federal regulators. Ultimately, the FTC, FCC and CFPB allengaged on the issue. During this past ten months, I have twice journeyed toWashington, DC to announce major state and federal settlements with thecarriers, including AT&T, resulting in approximately $400M in restitutionamounts for consumers and approximately $100M in payments primarily tothe states with approximately $20M going to the federal treasury.

Declaration at 35. Far from this being inappropriate conduct, this is again

exactly the kind of effort Vermonters expect from their Attorney General.


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The Five Hour Energy Allegation. Toensing suggests that the Attorney

General had inappropriate contact with attorneys for Five Hour Energy Drink,

members of a law firm which had contributed to the Attorney Generals

campaigns. Contrary to Toensings insinuations, this claim proves that the

Attorney General does not favor firms who contribute to his campaigns.

Within a few months of the meeting, Vermont, with two other states, filed aconsumer-protection lawsuit against Five Hour Energy. Some other stateshave subsequently filed similar litigation. The cases are pending.

Declaration at 36.14

The Comcast Allegation. This claim of misconduct similarly proves the

opposite of what Toensing sets out to show. Rather than show misconduct, a

review of the actual facts supports a finding that the Attorney General does what is

right for Vermonters, not what big law firms or contributors want:

Comcast gave a presentation at a DAGA meeting, touting the advantages ofa contemplated merger with Time Warner. Vermont was among the statesconcerned about a reduction in competition if the merger went forward. Weengaged with the Department of Justice on the issue and ultimately Comcastscrapped its plans for the merger.

Declaration at 38.

The Patent Troll Suits. It is puzzling to know what was wrong with the

Attorney Generals conduct in this instance. Toensing incorrectly suggests that the

14 If requested, we can provide numerous examples of individual or group donors later seekingredress from the Office of the Attorney General or pressing their own issues before it and findingthe resulting decision or opinion of the Attorney General adverse to the donors interest orargument. The result in Five Hour Energy is but one example.


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suit was brought because of a push from the Dickstein, Shapiro law firm to help

their large corporate clients. The Attorney General, however, makes clear that his

Offices interest inthe suit came from his meetings with representatives of several

well-known Vermont companies, including My Web Grocer. They talked about

their victimization by patent trolls and asked me and the Secretary of Commerce to

try to help address the issue. Declaration at 39. The suit was directed at the

victimization caused to Vermont non-profits and small companies, not Dickstein,

Shapiros clients.15

Apparently, because some national companies, represented

by a law firm which contributed to the AGs campaign, appreciated the efforts of

the Attorney General both in the suit and in legislation created to deal with patent

trolls, the Attorney General has committed misconduct. Such a claim is

ridiculous.

The Attorney Generals Travel. Because General Sorrell and his Office

are often on the forefront of pressing issues, he is asked to speak at many events

and travel often. As a responsible official, however, he does his best to ensure that

Vermont citizens do not pay for his travel:

I am frequently asked to speak in different locations in Vermont and around

the country on GMO labeling, patent trolls, campaign finance reform,consumer privacy and other issues. When asked to travel out of state, other

15 While this information completely defeats Toensings insinuation, even if the investigationwere instituted because of complaints from businesses represented by a law firm whichcontributed to the Attorney Generals campaign, are these businesses not enti tled to protection ofthe laws because their law firm contributed to a campaign?


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than for certain NAAG functions or Congressional testimony, I typicallyonly agree to do so if Vermont taxpayers will not need to pay my travelexpenses. Consequently, in the past year, I have had travel expensescovered by the likes of Yale Law School, the American Conference Instituteand the National Attorneys General Training & Research Institute(NAGTRI).

Declaration at 41.

The MTBE Litigation. The Attorney General instituted the MTBE

litigation because it was the right thing to do for Vermont and because the present

Agency of Natural Resources (ANR) supported filing the suit. Attorney General

Sorrell had contemplated filing the suit earlier, but the then-ANR (under the

Douglas Administration) did not support it. Without ANRs support, the suit

would not have been manageable. None of the facts, however, support any of

Toensings charges.

While it is clear that General Sorrell received campaign contributions from

members of a law firm that was ultimately one of the firms hired to prosecute the

MTBE suit, the contributions do not equate to a quid pro quo arrangement. If

giving a campaign contribution precludes the donor from any later business with

the State, no business would ever contribute to any campaign. Perhaps in an ideal

world, that should be the practice. But in our world it is not. Contributors often do

business with the State quite properly and without expecting special treatment.

As General Sorrell lays out in his Declaration, he followed careful and

proper procedures in determining whether to file suit and in selecting outside


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counsel. He enlisted the complete support of ANR/DEC before deciding to file

suit; he had his staff interview various law firms; and he followed the

recommendation of his staff and ANR/DEC as to which law firms to hire. His

Office then negotiated significantly favorable terms concerning the contingency

fee with the law firms. He never informed his staff or others who or what firms

had contributed to his campaign.

The decision to file suit was made appropriately. The choice of law firms to

represent the State (some who had contributed to the Attorney Generals campaign

and some who had not) was also appropriate and clearly not guided by whether

those firms had contributed to any campaign. Nothing in these facts shows that

there was a quid pro quo in appointing Mike Messina or the Barron & Budd firm to

represent the State. In all, the claims made in Count Five of the Complaint are

clearly meritless and most, as we have pointed out, are ridiculous.

Response to Count Six: The Claim that General Sorrell Had a Conflict of

Interest in Using Richard Cassidy as his Attorney.

The simple answer to this claim is that Vermont is a small state, Attorney

General Sorrell is a personal friend of Richard Cassidys and, thus, utilized him as

an attorney and that General Sorrell had no idea that Mr. Cassidy had any cases

pending before the Office of the Attorney General. Attorney General Sorrell was


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unaware of the matters noted by Mr. Toensing, and no discussion of them occurred

between him and Mr. Cassidy.16

As noted, General Sorrell has a large staff of approximately 80 Assistant

Attorneys General who handle the bulk of the day-to-day matters addressed by the

Office. At no time did Mr. Cassidy seek to use his friendship with General Sorrell

to advance his cases nor did he even inform General Sorrell of their pendency.

If Mr. Cassidy should have recused himself, from representing General

Sorrell at the hearing regarding the CJF expenditures, that fact was unknown to

General Sorrell. This allegation may be another instance of a sour grapes

complaint as Mr. Toensing notes in fn 38 his great displeasure with both 17 V.S.A.

2944 and how Mr. McMullen conducted the hearing.

16Whether or not Attorney General Sorrell paid his attorney is irrelevant. That said, Mr. Cassidywas not paid as the matter was minimal. As he notes in his Declaration, compensation wouldhave been discussed had the matter been more complex. SeeDeclaration of Richard Cassidy.Mr. Toensing is well aware that attorneys fees paid by the candidate are not subject to thestrictures of Vermont campaign finance law in defending matters like this, as he was so advisedby the Office of the Attorney General when he represented Brian Dubie, an unsuccessfulgubernatorial candidate who retained counsel to address complaints brought against him by theAttorney General.


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Bill Sorrell's Response to Little Investigation

Documents

Transcript of Bill Sorrell's Response to Little Investigation