UPDATE 10/04/10 @ 6:20 p.m.
CHARLESTON, W.Va. (WSAZ) -- A WSAZ investigation has revealed two more targets of federal subpoenas issued to the state of West Virginia. The feds are targeting the Fairmont Gateway project along Interstate 79 as reported here last month, but WSAZ has learned the subpoenas go far beyond that project.
Federal investigators are targeting contracts awarded to a company owned by Governor Joe Manchin's former Chief of Staff and also improvements made to the governor's office -- work that already has one business owner in legal trouble.
A source within the Division of Highways says the subpoenas are broad. But through several Freedom of Information Act (FOIA) requests, WSAZ has learned investigators have an interest in work done by and awarded to Larry Puccio's real estate and appraisal company, Puccio & York. Puccio is chair of the Democratic party, as well as Manchin's former chief of staff.
Of interest to us was how those contracts are awarded. Under the Manchin administration, appraisal work within the DOH was changed to a competitive bidding process. Sources believe Puccio & York may have gotten a bigger piece of the pie after the change.
WSAZ filed a FOIA request asking for all records, contract and award for work pertaining to Puccio & York from 2002 to present and, additionally, Linda York.
Special Assistant Attorney General Dwane Tinsley assigned to this case rejected the release of those documents stating that:
"We believe that the category of records you requested may be similar in nature and may be sufficient to bring them within the scope of records requested by the grand jury subpoenas."
Tinsley is withholding those documents claiming government attorneys are exempt from disclosing matters that are occurring before a grand jury, but as reported here earlier, media law experts say the exemption for "government attorneys" applies only to U.S. Attorneys not defense attorneys.
Tinsley used the same defense when it comes to improvements made to the governor's reception room, his office and those of his staff.
The man who did the work, Clark Diehl of Wallpapers in Stock, has pleaded guilty to bypassing the bidding process. As part of his plea he is working with the government.
WSAZ requested records and bids pertaining to those projects. Again, Tinsley said WSAZ is requesting the same information found in the federal subpoenas.
Tinsley issued a news release on Sunday saying, "In order to protect the investigation, it has been requested that we not discuss any details publicly ..."
Calls made to Tinsley and Attorney General Darrell McGraw on Monday went unreturned. We wanted to find out who has "requested" Tinsley to stay silent on the issue.
U.S. Attorney Booth Goodwin says he has no comment on the issue.
Tinsley is a former Assistant U.S. Attorney who has been hired by the state specifically for this case. We tried to find out at what cost, but so far no one has been billed.
Investigators have not implicated Manchin, Puccio or anyone else in this investigation. So far, to our knowledge, they have only issued subpoenas to find out if there are any wrong doings.
Calls to Puccio also went unreturned.
WSAZ submitted a FOIA to the Division of Highways on Sept. 15, requesting records pertaining to contracts and work done on the Fairmont Gateway along Interstate 79.
Special Assistant Attorney General Dwane Tinsley is withholding the documents because he says they are part of the federal investigation into the DOH.
"We believe that the records you requested are similar to those requested by the grand jury subpoena," Tinsley wrote in his response.
Tinsley again cites the Federal Rule of Criminal Procedure 6(e) as the reason for exemption. Saying the rule, "prohibits government attorneys and others from 'disclos[ing] a matter occurring before the grand jury.'"
Media Law experts say the documents are being improperly withheld. Attorney David Barnette says that exemption is for U.S. Attorneys conducting the investigation, not defense attorneys.
Subpoenas have been issued to the Department of Highways and the Office of Administration, but those subpoenas have been off limits. The Attorney General's office is refusing to release any information about the investigation, despite media law experts who say the Freedom of Information Act (FOIA) requires the Attorney General to release the information.
But WSAZ.com has learned more about the investigation. A source within the DOH says the subpoenas are broad, but the Fairmont Gateway in Marion County is one of the targets.
The $150 million road has been under construction for several years and connects I-79 to Fairmont, which is Manchin's hometown.
Larry Puccio, Manchin's former chief of staff and current chair of the Democratic Party in West Virginia, also runs a real estate business in Fairmont. Sources believe Puccio could be part of the probe.
The governor says he cannot comment on the investigation and says he doesn't know if Puccio is a target.
"It's a process," Manchin says, referring to the investigation. "That's all I can tell you; it's a process."
And mum is the word when it comes to this federal probe. Numerous FOIA requests filed by WSAZ all get the same response.
Dwane Tinsley a special assistant attorney general assigned to the investigation cites this exemption:
"The statute which specifically exempts disclosure in this instance is Federal Rule of Criminal Procedure 6(e), which prohibits government attorneys and others from '(disclosing) a matter occurring before the grand jury.' "
But media law expert Dave Barnette says the exemption for "government attorneys" is for U.S. Attorneys who are part of the investigation not defense attorneys.
Barnette says the attorney general's office is stonewalling the media and the public's right to know.
"There is nothing contained in Rule 6 which prevents a defendant's attorney from releasing a subpoena," Barnette says. "And in this case because the defendant's attorney is the Assistant Attorney General, it is clearly improper for them to withhold this information under the West Virginia Freedom of Information Act."
Barnette says in Illinois, Gov. Rod Blagojevich tried to use the same argument, Rule 6 exempting government attorneys, to keep federal subpoenas issued out of the public's hands. The courts there ruled that was not allowed, and the subpoenas were released.
"The real question is why are they not releasing these subpoenas?" Barnette says. "If there is legitimate concern being raised by the federal government concerning activities being done in our Department of Highways and our Department of Administration, those are issues that our public ought to have a right to know."
WSAZ filed a FOIA request with the head of the two departments in question and with Missy Phalen, the assistant to First Lady Gayle Manchin. We wanted any documents sought by the subpoena. In each case including Phalen, Tinsley pointed to the Federal Rule of Criminal Procedure.
The next step is to take the issue to court. Manchin said Monday that is what we should do.
The state would likely appeal and it would be several months before we found out anything, many speculate that the state would drag out the issue until after the November election.
WSAZ is looking into its legal options.
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