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Inspector general seeks greater powers

Five months after appointment as state inspector general, Glenn A. Cunha is moving to strengthen his office’s power to compel witnesses to provide sworn testimony in investigations of waste, fraud, and abuse in state and local government agencies.

Cunha, a longtime prosecutor, last month without fanfare filed a bill with the Legislature that, if passed and signed into law, would significantly expand the powers of his office by giving it the unfettered right to question anyone under oath.

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Currently, his office must receive approval from six of eight members of an oversight panel, made up of the attorney general and others, before issuing a subpoena to anyone.

It would mark the first major change in almost 30 years in a set of laws passed as the result of a corruption scandal in the 1970s that led to the convictions of three state senators. In addition to the inspector general’s office, the Legislature at that time created the state Ethics Commission, which investigates public employees for violations of the state’s conflict of interest laws.

Cunha’s bill was discussed publicly for the first time Thursday at a meeting of an obscure panel with limited oversight authority over the inspector general’s office. Until told of the bill by the Globe on Friday, neither Governor Deval Patrick nor House Speaker Robert A. DeLeo was aware of it. Both said they planned to review the matter.

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The bill was filed for consideration in the 2013-14 legislative session, which begins in January, but Cunha’s office is holding out hope that it could be passed before then as an amendment to a supplemental budget.

State Attorney General Martha Coakley said in a statement that while her office had been briefed on the bill before Thursday’s meeting, her office had made no commitment to support it.

“The inspector general’s office is supposed to be independent of the attorney general’s office.”

Gregory W. Sullivan, Previous inspector general 
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The attorney general’s office has at times viewed the inspector general’s office as a headline-hunting rival.

Cunha said the ability to subpoena witnesses to testify under oath under the pains and penalties of perjury would allow the inspector general’s office “to go deeper” into its investigations and handle cases more efficiently.

“When someone raises their right hand and swears an oath, they are much more likely to be frank and honest,” Cunha said in an interview on Friday. “It would help us fulfill our mandate on behalf of the state.”

Cunha said he had decided to file the legislation even before Patrick tapped his office last month to conduct the investigation into the operation of the state drug lab, where former state chemist Annie Dookhan allegedly tainted evidence in thousands of cases. (The attorney general’s office is conducting the criminal investigation into Dookhan.)

Cunha cited that just-begun investigation as a good example of the immensity and urgency of the office’s work. Still, he said, he would use his authority judiciously. “Issuing subpoenas would not be a daily occurrence,” he said.

The inspector general’s office has always had subpoena power since its creation in 1980. But an amendment passed in 1984 required the inspector general to get permission for subpoenas from an eight-member oversight panel that included, among others, the state attorney general, the state auditor, the state comptroller, and the state public safety secretary.

Cunha’s proposal is to eliminate the panel’s role, giving the inspector general sole discretion over subpoenas. Anyone subpoenaed, however, could still attempt to have it quashed by going to court.

Francis X. Bellotti, who was attorney general in 1984, pushed for the limitation on the powers of the inspector general.

“I never believed in the concentration of power in one person,” said Bellotti, who served as attorney general for 12 years, beginning in 1975, and who is considered one of the architects of the state’s first-in-the-nation state inspectors general’s office. “The inspector general’s office is an important one. But it already had plenty of power to investigate.”

“Power can always be abused,” Bellotti added in an interview. “You have to be careful when issuing a subpoena. Once word of it gets out, reputations can be destroyed by that fact alone, even when there is no actual case brought against anyone.”

Bellotti said the attorney general’s office is required to go to a grand jury for a subpoena. “So why should the attorney general have a check on its power that the inspector general’s office doesn’t have on its power?” he asked.

The panel, known as the inspector general council, meets only four times a year, and because of the infrequency of its meetings, and because of the difficulty in scheduling special meetings of busy members with full-time jobs, votes on subpoenas have proved impractical to arrange. Since the 1984 amendment, subpoenas of witnesses have rarely, if ever, been sought.

Subpoenas to produce documents — which do not require the council’s approval — have been commonly used.

Gregory W. Sullivan, Cunha’s predecessor as inspector general, said attorneys general during his 10-year tenure were never keen on an inspector general obtaining sworn testimony in an investigation that could become a criminal case against one or more defendants.

The inspector general’s office has no prosecutorial powers. Thus, attorneys general sometimes inherit investigations begun by the inspector general, to pursue criminally. And when that happens, the process of subpoenaing witnesses must begin again, this time before a grand jury, which alone has the power to indict on a felony charge.

Prosecutors were always wary that defense attorneys might point to even minor discrepancies in what witnesses testified to before the inspector general’s office and what they testified to before the grand jury to question the truthfulness and accuracy of witnesses against their clients at trial, Sullivan said. “Attorneys general always said, ‘If it possibly involves criminal conduct, we’ll take it from the beginning,’ ” Sullivan said.

Sullivan said instead of subpoenaing witnesses his office worked closely with the attorney general’s office in cases when sworn testimony was deemed advisable. Nevertheless, Sullivan said he strongly favors Cunha’s proposal.

“The inspector general’s office is supposed to be independent of the attorney general’s office,” he said. “It should have real teeth and real power.”

The inspector general is an appointee of the governor, state attorney general, and state auditor. Cunha has the support of Auditor Suzanne Bump, whose office also has historically sometimes viewed the inspector general’s office as a rival, at least for publicity.

“The current law imposes an unnecessary burden on the inspector general’s office,” Bump said in a statement released Friday in response to questions from the Globe. Bump said in the statement that involving the inspector general council in the issuance of subpoenas risked the names of targets and other details of an investigation being leaked to the news media.

“Sharing the names of potential witnesses and information about the scope and status of an investigation with IG Council members, who are not otherwise involved in it, could compromise the confidentiality of the inquiries,” the statement said.

Sean P. Murphy can be reached at smurphy@globe.com. Follow him on Twitter @spmurphy-
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