Hearing officer responds, 'If I had the power... I would put him in contempt'
By Jon Lender
President/CEO Gregory Smith of the Connecticut Lottery Corp. (CLC) repeatedly refused last week to say why he placed CLC Vice President Chelsea Turner on paid administrative leave July 15 from her $190,000-a-year job under a state personnel regulation that provides for "investigation of alleged serious misconduct which could constitute just cause for dismissal."
"What was the reason that she was placed on administrative leave?" Smith was asked by Eric Brown, the lawyer representing ex-CLC security director Alfred DuPuis, during the latest continuation of a hearing that began in April on DuPuis' complaint that he was retaliated against for being a whistleblower about irregularities and improprieties.
The lottery's lawyer, Jim Shea, immediately objected. "I'm going to instruct the witness not to answer that question," said Shea, of the firm Jackson Lewis, which has been hired by the CLC to fight DuPuis' complaint.
"That calls for information related to a current, ongoing, private personnel matter. For the witness to disclose that information potentially places both the [lottery] corporation and Mr. Smith in legal jeopardy," Shea said. "It would prejudice the ongoing processes regarding that employee. And it would be prejudicial to both the employee and to the corporation."
Shea and Brown wrangled for much of Wednesday morning, amid tension and occasional verbal fireworks, but, in the end, Smith never answered that question.
Smith had ordered the involuntary leave only days after Turner gave explosive sworn testimony at a DuPuis complaint hearing on July 9 that around 2014, she contacted a friend in the FBI about what she saw as suspicious actions by Frank Farricker, then the CLC's governing board chairman. The FBI soon had then-lottery president/CEO Anne Noble secretly record at least one conversation with Farricker, using an electronic device hidden in an eyeglass case.
Nothing came of the FBI's criminal investigation five years ago. But last month's disclosure of it by Turner brought renewed scrutiny by legislators and the governor of the quasi-public lottery — which has been accused in recent years of abusing the special autonomy it enjoys in comparison to regular executive branch departments.
One criticism lodged against the revenue-raising agency has been a lack of public transparency — and Wednesday's repeated refusal to answer Brown's question may not help on that score.
After Smith first refused to answer the question, Brown said that Turner's credibility, as the CLC's chief witness against DuPuis' claims of retaliation, could be affected by whatever reason she's been placed on leave. She's been barred from lottery headquarters in Rocky Hill unless she gets specific permission.
About an hour's worth of head-butting ensued between Brown and Shea.
Frustrations kept rising until the hearing's presiding officer — Michele Mount, the state chief human rights referee for the Commission on Human Rights and Opportunities — said of Smith: "If I had the power of contempt, I would put him in contempt. I just don't think there's a legal basis for him not to answer the question."
Brown kept asking the reason for Turner's leave. Shea eventually allowed Smith to answer "no" to certain specific questions, such as whether Turner was placed on leave because she had lied (which would affect her credibility) or because she had acted as a whistleblower by going to the FBI (which Brown said would indicate a culture of retaliation).
But Brown wasn't satisfied with responses about what the reason wasn't. He pressed for what the reason was, and he started questioning whether Smith's answers were truthful. Brown said he didn't buy Smith's statement that Turner's leave was unrelated to her July 9 testimony about going to the FBI five years ago.
He asked Smith: "Is it still your testimony that even though she was placed on administrative leave shortly after she testified [on July 9] at this hearing, her placement on administrative leave had nothing to do with what's occurred at this hearing?"
"Yes," Smith said.
"So it was just a just a coincidence that she was placed on administrative leave?" Brown said.
"Again, your honor, I'm going to object to this," Shea said. "This just goes on and on and on."
"He answered the question," Mount said.
"But I don't think he's being truthful," Brown said. "He's subject to perjury if he continues to say 'no' and [if] that's a false answer."
Things got so complicated that Mount, at one point, tried to sum up what Smith had testified to. "Let me recap," she said. "[Turner's administrative leave] wasn't for whistleblowing reasons. [It had] nothing to do with this hearing. You didn't tell her why she was being placed on administrative leave, and it was [for a] reason [that] was never written down or communicated. So, for reasons known only to you at this point, she was put on administrative leave? Or did you tell the board why she was on administrative leave?"
It was "for reasons known to me," Smith said, adding: "I did not tell the board."
"Okay," Mount said. "I don't think we're going to get much more from this witness."
'Do you refuse to answer?'
"Well, I think I can try," Brown said, and he resumed, drawing responses of "no" from Smith to questions including: "Was she on administrative leave because of any of the news articles ... in the Hartford Courant reporting on the culture of the Connecticut Lottery Corp.? ... Because she is a woman? ... For engaging in some kind of misconduct? ... Because she is ill?"
And then he came back to his original question: "Why was she placed on administrative leave?"
Shea objected again, for his previously stated reasons, adding: "The witness has been instructed not to answer, and he refuses to answer."
Brown insisted on hearing that from Smith: "Do you refuse to answer, Mr. Smith? Do you refuse to answer?" Smith was silent. Brown went on: "You're the president of the Connecticut Lottery Corp. You've been president ... for a little over a year. You were brought into this position after much upheaval within the ... corporation. A great deal of public trust has has been placed in you as the president of the Connecticut Lottery Corp. Do you refuse to answer the question as to why Ms. Turner was placed on administrative leave?"
"I'm instructing the witness not to answer," Shea said.
"And do you refuse to answer it, Mr. Smith?" Brown said.
Shea: "I've instructed the witness not to answer the question."
"But you're not on the stand — he is," Mount said. "He can say he refuses to answer."
"Under instructions of my legal counsel, I will not be answering that question," Smith said.
There was a pause, and Brown launched into a similar speech ending in the same question: "Mr. Smith, you are the president of the Connecticut Lottery Corp. [which] is under great scrutiny from both the General Assembly and the governor's office because of the way it's conducted its business over the last several years. You've been entrusted with the power to monitor that organization in the public's interest. You have placed Chelsea Turner on administrative leave. Do you refuse to answer why Ms. Turner was placed on administrative leave by you, shortly after she testified at the last hearing before this office that she had contacted the FBI?"
"Your honor, I just instructed the witness not to answer," Shea said. "And the theatrics are really a little over the top."
Brown persisted: "Mr. Smith, do you still refuse to answer?"
"I am instructing the witness again not to answer," Shea said.
"Let him put that on the record, please," Mount said, exhaling audibly.
"Under advisement of my legal counsel, I will not be answering that question," Smith said.
"Your honor, I ask that you take a negative inference based on the witness's refusal to answer," Brown said.
"I will take that under advisement," Mount said.
Earlier in the hearing, Shea had argued against Mount's suggestion that she might draw a negative inference from Smith's refusal to answer the question. Shea called it "patently unfair" because it "places us in the position of either taking an adverse inference or opening ourselves up to liability."
The hearing was adjourned and will continue Nov. 5, unless another date opens before then. Wednesday's resumed hearing came after another one on Tuesday. Witnesses included State Auditor John Geragosian, who reiterated his office's written findings from late 2018 that Turner's charge of "gross neglect" against DuPuis, in connection with a Jan. 1, 2018 drawing that was botched by his subordinates, could have been retaliatory.
Shea and his fellow attorney from Jackson Lewis, Carolyn Trotta, asked questions to elicit answers from witnesses that minimized both how much whistleblowing DuPuis had done and what he'd uncovered about fraud by lottery retailers that caused shutdown of the 5 Card Cash game in 2015. DuPuis retired in late 2018 rather than return to work and face the potential disciplinary action he called excessive and retaliatory.
The lottery's current troubles were part of what led Gov. Ned Lamont to recently order his chief of staff, Ryan Drajewicz, and his chief operating officer, Paul Mounds, Jr., to examine the management and operations both the lottery and the scandal-plagued Connecticut Port Authority.
Senate Republican Leader Len Fasano and Rep. Joe Verrengia, D-West Hartford, co-chairman of the legislative committee that has conducted investigative hearings into the lottery's problems in recent years, have been seeking answers from lottery officials about Turner's contacting the FBI. They've also talked of possibly curbing the autonomy of the lottery and perhaps other quasi-public agencies.
The Department of Consumer Protection, which regulates the CLC, also says it's opening a probe into Turner's and Noble's contacts with the FBI.
In the days after being placed on administrative leave, in mid-July, Turner asked to be placed on sick leave and took a leave under the Federal Family Medical Leave Act (FMLA). Smith has told Fasano and Verrengia that Turner will be absent about 12 weeks. Lottery officials say in the meantime, any potential disciplinary process has been stalled.
Meanwhile, the CLC's governing board of directors Thursday voted to assemble a task force of three of its most recent members to work with Smith on recommending an outside law firm to investigate "events occurring three to five years ago, some of which surfaced during [the July 9] hearing."
Thanks to William H. for the tip.