Response to the Toensing Complaint

Introduction
This response will follow the lay-out of the

Superseding Complaint

(Complaint) filed by Brady Toensing1 and 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.

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

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.

A perfect example of opinion presented as fact is Toensings statement in the first paragraph
of the Complaint that the Attorney Generals 2012 victory is directly traceable to the recordsetting expenditures made on his behalf by the Committee for Justice and Fairness SuperPAC
(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 amazing
record of accomplishments over the last 18 years.
3
Toensing states as fact throughout Count One that former Governor Howard Dean was an
agent 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 this
issuethe finding by Judge Robert Mello that there was no proof that Dean was an agent of the
Sorrell campaign. See Discussion of the Mello decision, infra.
4
See, Discussion of the allegations and insinuations in Count Five.
2

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 by the 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

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.)

If the reporting in a Seven Days newspaper article cited in Mr. Toensings Complaint is
accurate, Howard Dean was NOT an agent of the Sorrell campaign, nor did he coordinate in
any way with the CJF. The article quotes Governor Dean:
Dean, in a telephone interview Wednesday, said there was no coordination. He said he
had 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. He
agreed. He said he thinks he saw the script in advance but didnt ask for changes to it. He
said he never mentioned it to Sorrell.
Terri Hallenbeck, Vermont Attorney General Race Takes a New Twist, Burlington Free Press,
August 24, 2012; available at
http://archive.burlingtonfreepress.com/article/20120824/NEWS03/308240011/Vermontattorneygeneral-race-takes-new-twist.
4

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 Sorrells work
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. (See Sorrell 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
5

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 the Secretary of States Office 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 involving
Howard Dean espousing my candidacy was broadcast in Vermont, I had
absolutely no idea that DAGA or CJF had any plans or had taken any action
to support my candidacy. I had no idea Howard Dean had even talked with
anyone affiliated with DAGA or a DAGA-funded PAC. The television ads
and other advertising expenditures espousing my candidacy were created
and 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. I
was 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 an
intention not to enforce contribution limits spelled out in Vermonts
campaign finance laws for independent-expenditure-only PACs were
6

prompted solely by a July 18, 2012 notice to the state of the existence of
Priorities PAC, an independent-expenditures-only PAC. We changed our
guidance and decided not to enforce the contribution limits for independentexpenditures-only PACs in order to avoid potentially costly and, for the
State, unsuccessful litigation, in light of various federal court decisions,
including a decision by Judge William Sessions in Vermont Right to Life
Committee v. Sorrell, 875 F.Supp.2d 376 (2012), which made clear that such
limits 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 Vermonts campaign 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 the
Sorrell 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 the
DAGA appears to be just thata coincidence. We have no information that the two have any
ties, and General Sorrell believes that they dont have any ties. And, indeed, now Media
Strategies has obviously moved to another address.
7

solicited, or approved the CJF expenditures, this court must deny

McMullen'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 the
complaint.
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 ruling is prima facie evidence that no violation

Subsection (e) reads in full:

(e)(1) A candidate may seek a determination that an expenditure is a related expenditure
made on behalf of an opposing candidate by filing a petition with the Superior Court of
the county in which either candidate resides.
(2) Within 24 hours of the filing of a petition, the Court shall schedule the petition for
hearing. Except as to cases the Court considers of greater importance, proceedings before
the Superior Court, as authorized by this section, and appeals from there take precedence
on the docket over all other cases and shall be assigned for hearing and trial or for
argument at the earliest practicable date and expedited in every way.
(3) The findings and determination of the Court shall be prima facie evidence in any
proceedings brought for violation of this chapter.

17 V.S.A. 2944(e).
8

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

Mr. Toensing has numerous complaints about the hearing conducted in McMullen, see fn 38
of the Complaint. Whatever the merit of Toensings complaints, they do not undermine the
significance of the ruling. It was not the Attorney Generals hearing; it was McMullens. If the
issues were not litigated well by McMullenif, for instance, McMullen failed to request any
discoverythat does not take away the statutory force and effect of the decision.
9

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 more should be 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,

The Secretary of States Office seems to contemplate block payments to reimburse candidates
for moneys which they expended during the campaign. In the Guide to Vermonts Campaign
Finance Law published by that office, the Office provides this advice with regard to surplus
funds at the conclusion of a campaign:
Members of a PAC that has surplus campaign funds after all campaign debts have been
paid may not convert the surplus to personal use. Similarly, a candidate may not convert
surplus funds to personal use, except to reduce personal debts incurred during the
campaign.
Emphasis added.
10

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 and
discursive answers. The blocks for expense type provide room for only very brief descriptions
of 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 one
occasion. See Wilson Affirmation at 13.
11

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 thirteen reimbursement 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.
12

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 filing; 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
13

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

payment and a $2,620.00 travel Loan 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 and
practice 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.
14

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 Generals Office, 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
15

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.

16

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.

17

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 of
Attorneys General at a Washington, DC NAAG meeting in late February or
early March of 2014. Facebook indicated a willingness to come to
individual states and make a presentation on online safety for youth,
particularly relating to social media. One of the AGs present spoke
favorably about a Facebook presentation in his state. After my return to
Vermont, I spoke to my consumer protection staff about their interest in a
Facebook presentation in Vermont. They felt it a good idea. We reached
out to Facebook and approximately two months later we sponsored a wellattended evening presentation at Essex High School for students, parents,
teachers and administrators. The presentation was filmed by local access
TV 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
18

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 was
concerned about cramming, the practice of unknown and unwanted
charges on customers monthly cell phone bills for services supposedly
provided by third parties. I had been crammed on my state cell phone
account and my Office had conducted surveys indicating that cramming was
a widespread practice in Vermont and was costing Vermonters many, many
thousands of dollars. I received unsatisfactory responses to my questions
from 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 all
engaged on the issue. During this past ten months, I have twice journeyed to
Washington, DC to announce major state and federal settlements with the
carriers, including AT&T, resulting in approximately $400M in restitution
amounts for consumers and approximately $100M in payments primarily to
the 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.

19

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 a
consumer-protection lawsuit against Five Hour Energy. Some other states
have 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 of
a contemplated merger with Time Warner. Vermont was among the states
concerned about a reduction in competition if the merger went forward. We
engaged with the Department of Justice on the issue and ultimately Comcast
scrapped 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 seeking
redress from the Office of the Attorney General or pressing their own issues before it and finding
the resulting decision or opinion of the Attorney General adverse to the donors interest or
argument. The result in Five Hour Energy is but one example.
20

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 in the 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 investigation
were instituted because of complaints from businesses represented by a law firm which
contributed to the Attorney Generals campaign, are these businesses not entitled to protection of
the laws because their law firm contributed to a campaign?
21

than for certain NAAG functions or Congressional testimony, I typically

only agree to do so if Vermont taxpayers will not need to pay my travel
expenses. Consequently, in the past year, I have had travel expenses
covered by the likes of Yale Law School, the American Conference Institute
and 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.

16

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