Tax agency legal director firing justified or payback?

A $112,600-a-year state tax lawyer, Marilee Clark, is being fired from the Department of Revenue Services (DRS) for allegedly drafting proposed legislation in a way that would have worked against the department’s interests and affected the job status of a supervisor she’d clashed with in the past.

“[I]t is the department’s determination that you engaged in willful and egregious conduct that violates [the] DRS Code of Ethics” as well as other state regulations, Acting DRS Commissioner John Biello wrote to Clark Tuesday. “As a result of these violations caused by your egregious conduct, the department finds that dismissal is warranted” effective Oct. 13. “You will remain on Administrative Leave through the date of your dismissal,” he wrote.

Clark’s attorney, Emily Gianquinto, said she will pursue an appeal with the state’s Office of Labor Relations, and, if that fails, will take the matter to the state Employees’ Review Board, which can hold hearings and reverse or modify disciplinary actions for state workers not represented by a union.

“This entire matter appears to have arisen out of a miscommunication between a new acting commissioner and his new direct report and reflects fundamental misunderstandings about both the legislative process and Ms. Clark’s job duties,” Gianquinto said in a 15-page written defense submitted at a Sept. 22 disciplinary hearing.

She added: “The dramatic and unprecedented nature of DRS’s actions in light of the facts and the nature of the alleged misconduct also indicates that DRS is taking such actions in retaliation for Ms. Clark’s previous complaints against the agency.”

Clark, the DRS’ tax legal director, denies she did anything wrong or intended that the proposed legislative language would adversely affect her former boss in the department, First Assistant Commissioner Louis Bucari, with whom she had differences.

The new language would have changed Bucari’s $167,000-a-year DRS post into an attorney general’s appointee and removed it from the “classified” civil service and the job protections that come with it.

Bucari was Clark’s supervisor in 2017 when she accused him of mistreating her while favoring a another female staff lawyer in whom he had expressed a romantic interest. She filed a harassment lawsuit over the issue in 2018 and got a $39,900 settlement.

Clark and Gianquinto say that the new language — which she drafted for inclusion in an “external” bill that the Connecticut Bar Association (CBA) was shepherding toward enactment by the General Assembly — was based on a proposal supported by DRS a year earlier, before Biello was in charge of the department. The bill would have clarified statutory provisions relating to the release of estate and probate fee liens, and repealed provisions relating to a long-defunct inheritance tax that once fell under the authority of the first assistant commissioner’s post.

Clark said she had to submit the legal wording to the CBA before she had a chance to consult the newly appointed acting commissioner, so she used “language that I thought was good from last year” subject to any changes Biello might have wanted later. She said this was a common practice early in legislative sessions, when plenty of time remained for revisions.

Clark said she planned to talk it over with Biello and would have amended it any way he wanted — if the situation hadn’t exploded first.

She and Biello never had that conversation before the CBA’s bill was sent to the legislature’s judiciary committee to be scheduled for a public hearing in February.

Biello was surprised and displeased when he saw that the legislative proposal would have deleted existing statutory language that “establishes the right of the DRS Commissioner to appoint the position of First Assistant Commissioner, as well as for DRS to litigate its own tax cases in Superior Court,” he said in Tuesday’s dismissal letter to Clark.

Unusual testimony

Biello took the unusual step of disavowing his own agency’s legislative proposal in public hearing testimony to the judiciary committee.

“The proposed legislation [did] not represent DRS’s official position or its best interests,” Biello wrote in Tuesday’s dismissal letter, adding that he “had no knowledge of the proposed language or that the bill was being referred to the Joint

Committee on Judiciary.”

The incident culminated in Clark being walked out of the state office building on Columbus Boulevard in Hartford and placed on an administrative leave. Another six-figure-salaried DRS manager, Susan Sherman, who acts as a liaison with the legislature, was also placed on leave at the time. Sherman has returned to work (although the DRS is declining comment on any potential discipline) but Clark never has.

Clark said Friday: “Dismissal is a hugely excessive response to my work on legislation that was already raised and supported last session [in 2019], especially when nothing I drafted was final” — and one conversation between her and Biello could have resolved the issue concerning the legislative language.

“DRS has truly made a mountain out of a molehill here,” Gianquinto said Friday. “Acting Commissioner Biello decided to walk my client out of the building rather than have a conversation with her, and now has doubled down on that mistake by terminating her. Our appeal will be swift.”

She said in her 15-page defense on Sept. 22 that the excessive nature of Clark’s punishment becomes “most tellingly” evident in contrast with Bucari’s discipline after he was found to have expressed an interest in having a romantic relationship with a female subordinate five years ago. He got only a written reprimand, with no administrative leave, after an internal personnel investigation, Gianquinto said.

That 2015 inquiry found: “Mr. Bucari exercised poor judgment in asking a subordinate her interest in establishing a personal relationship and subsequently not maintaining clear boundaries so as to avoid so much as the perception of impropriety or special treatment.”

Biello said in an email to The Courant Friday that attacks by Gianquinto and her client on the DRS investigation’s findings are “unsubstantiated and contradicted by fact.”

Responding to Government Watch’s request for records of the DRS’s investigation, Biello wrote that “we are obligated by statute to notify the parties that a request has been made for documents that may be considered personnel files, the disclosure of which would constitute an invasion of privacy. Please be advised that as of this afternoon Ms. Clark has not waived her privacy rights.”

“With that said, the Department of Revenue Services takes all personnel matters very seriously,” he said. “Recognizing the significance of the allegations, the department engaged independent counsel who conducted a thorough and complete investigation. The department took appropriate actions that are consistent with the findings of the investigation.”

He said that despite the suggestion from Gianquinto and Clark that he was too new as acting commissioner to understand procedures for proposing legislation, he has “a complete understanding of the legislative process, has many years of experience and has been involved in numerous legislative Initiatives both internal and external.”

“Whether or not bills can be changed is irrelevant,” Biello said. “The fact of the matter is that Ms. Clark used her position to willfully submit legislation that was detrimental to the agency, the state of Connecticut and taxpayers. ... The findings [of the recent investigation] establish that the language submitted by Ms. Clark in 2020 are substantially different than proposals raised in earlier years.”

The job of first assistant commissioner, now held by Bucari, was established originally to deal with litigation involving the inheritance tax that’s no longer in effect, but it has been expanded over the years and now amounts to the de facto legal director and chief litigator for the agency. Clark said she would have recommended changes to that position no matter who was in it, adding that she’d proposed the same thing in a bill last year that didn’t win legislative approval. Likewise, this year’s proposal went nowhere after the Feb. 21 judiciary committee hearing. Jon Lender is a reporter on The Courant’s investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.