This post has been updated.
A leading House Democrat has asked the State Bureau of Investigation to look into the actions of Pat McCrory, and may pursue other legal avenues to learn what the governor knew about drinking water advisories and coal ash.
At a news conference Monday, House Democratic leader Larry Hall of Durham called for the SBI to investigate McCrory’s potential involvement in changing language on health advisories sent to well owners whose water was contaminated by the chemicals Chromium 6 and vanadium, both byproducts of coal ash.
Last week, McCrory alleged through his chief of staff that state toxicologist Ken Rudo lied under oath when he said the governor was on a phone call when that issue was discussed.
“If McCrory thinks that Rudo is not telling the truth, then let him [McCrory] put someone under oath,” Hall told NCPW Tuesday.
“They attack the integrity of this 30-year state employee who testified under oath and under potential penalty of perjury from the court,” Hall said at the news conference. “People continue to attack him without stepping up to the plate and putting their integrity and their reputation on the line.”
In that statement, given to the Southern Environmental Law Center earlier this year, Rudo testified that McCrory had been on a 2015 phone call about health advisories about contamination in private drinking water wells. Rudo and Josh Ellis, McCrory’s communications director, were also on the call, Rudo said.
In making his allegations, McCrory accused Rudo of committing perjury, which is a Class F felony. Other crimes in that class include possession of a weapon of mass destruction and involuntary manslaughter; they carry a sentence of 13 to 33 months in prison.
Despite McCrory’s public indictment by proxy of Rudo, no charges have been filed against the toxicologist.
The chief of staff, Thomas Stith, who delivered the governor’s message, “has no authority,” Hall said. “He’s not under any oath. He’s just a place on the flowchart.”
However, investigating McCrory is not that simple. The SBI can’t embark on a public corruption case independently, said Shannon O’Toole, public information officer for the agency. “You need a prosecutor to say there’s something here.”
The state attorney general, a district attorney or the U.S. Attorney would have to give a directive to the SBI. “If Larry Hall talks to someone prosecutorial, then we’re off and running,” O’Toole said.
In 2014, the SBI was removed from reporting to the attorney general’s office and placed under the aegis of the governor.
Hall told NCPW that he hasn’t ruled out approaching a member of the judiciary to start an investigation about what McCrory knew about the drinking water advisories. Hall added that he may also work with families whose wells were contaminated in pursuing further information about the governor’s knowledge.
The state attorney general’s office could not be reached Tuesday morning. Update: Noelle Talley, a spokesperson for the attorney general’s office, said in an email that under state law criminal prosecutorial authority rests with local district attorneys.
The attorney general’s office can serve as a special prosecutor only at the request of a DA.
An investigative grand jury could subpoena evidence and compel sworn testimony, but the state senate stripped a provision establishing the
In the Duke Energy coal ash case, the SBI did pursue a criminal case against the utility with the Environmental Protection Agency. Then-U.S. Attorney General Eric Holder had requested the investigation; the SBI was involved because public safety was at risk, O’Toole said.
As a result, the federal government fined Duke Energy $102 million for violating the Clean Water Act in the 2014 Dan River spill.
It’s common for state officials to invoke the SBI’s name when asking for corruption investigations, O’Toole said. But if the agency pursued every he-said/she-said allegation, O’Toole explained, “We would need 7,000 agents. It’s not the best use of taxpayer money.”