A former Tax Legal Director for Connecticut’s Department of Revenue Services (DRS) has filed an appeal in State Superior Court to reverse her termination by acting DRS Commissioner John Biello after she was abruptly walked out of the office shortly before the pandemic in February of 2020 and then officially dismissed in September of that same year.
Marliee Corr Clark had never received a negative performance review nor any disciplinary actions against her before her abrupt placement on administrative leave and subsequent dismissal. Despite it being exceedingly difficult to terminate Connecticut state employees, the Connecticut Employee Review Board (ERB) upheld the termination, which she is now appealing.
According to court documents, the state alleges that Clark, who oversaw tax policy proposals and legislation for DRS, altered bill language without Biello’s approval and against DRS’s interests. Namely, the department sought to maintain DRS’s ability to litigate complicated tax cases, according to a summary of ERB’s memorandum of decision.
Part of the disputed changes to draft legislation in 2020 was moving the position of First Assistant Commissioner (FAC) in DRS from a protected classified position to an unclassified position under the purview of the Office of the Attorney General. The First Assistant Commissioner is a unique position in DRS originally meant to oversee the state’s long-defunct succession tax but now acts as General Counsel and oversees the department’s Legal Services Bureau.
Legislation in both 2019 and 2020 sought to repeal the succession tax, neither of which passed, and could have complicated the position of FAC.
The position of FAC is occupied by Louis Bucari, against whom Clark had filed complaints with the Commission on Human Rights and Opportunities (CHRO), alleging she was being treated unfairly by Bucari in favor of a female subordinate Bucari had romantically propositioned creating a hostile work environment.
Bucari was investigated by DRS which found he had exercised poor judgement and was ordered to attend leadership skill building training, conflict resolution training and mediation between he and Clark, which apparently didn’t take – Clark maintained an email folder called “Lucifer” that housed Bucari’s emails and told Biello that she couldn’t work with Bucari. Clark eventually received a nearly $40,000 settlement when her claims went to litigation.
Further court documents indicate that DRS believed Clark’s changes to draft legislation were intentional, meant to potentially bounce Bucari from his job and take the position for herself in the AG’s office. Clark had applied for a position in the AG’s office working in the finance group, which represents the DRS in tax matters, according to the ERB’s memorandum of decision.
Biello didn’t find out the bill — HB 5050 — was submitted to the Judiciary Committee until he was asked about it by the Connecticut Bar Association and was subsequently forced to testify against a bill proposed by his own Department.
“Given that House Bill No. 5050 moves the First Assistant Commissioner’s position to the Office of the Attorney General and potentially undercuts the Department’s authority to litigate tax appeals, which it has done so successfully over the past seventeen years, the Department cannot and does not support House Bill No. 5050,” Biello wrote in testimony.
Adding fuel to the fire, Clark’s husband testified in support of the bill following Clark’s suspension, referencing Bucari and the CHRO complaints against him directly. The bill ended up going nowhere.
The ERB upheld Clark’s firing based on her conflicting testimony and that Biello had given instructions that all proposed legislative changes were to be approved by him.
“In this case the Panel finds two levels of serious misconduct: First, Clark’s continuing failure to comply with the clearn instructions of Acting Commissioner Biello and second her personal motives in drafting proposed legislation,” the ERB wrote. “She used her official status as a high end employee to engage in the misconduct as well as State time and equipment.”
Clark, however, contends that the draft language of the legislation was merely a revised version of the same bill that had passed out of the Judiciary Committee the year prior but had not passed in the legislature. Only two changes made – namely changing the word “attorney” to “First Assistant Commissioner,” and adding “a sentence about unclassified service,” according to the court documents, and began working with the legislative clerks office (LCO) to further revise the draft.
Unbeknownst to Clark at the time, and only discovered through a Freedom of Information request as part of the ERB hearing, former Commissioner Jackson — who wrote a letter of recommendation for Clark in 2019 — had reached out to Judiciary co-chair Sen. Gary Winfield, D-New Haven, also pulling his support for the 2019 bill because it “may have the unexpected effect of causing confusion around DRS’s First Assistant Commissioner.”
“There is no evidence that Clark deliberately violated any agency or state rule in submitting the First Draft, or acted contrary to the best interests of DRS or the State,” wrote attorney Emily Gianquinto, who represented Clark before the ERB.
“All of the drafts Clark saw over those two days, and her written comments to LCO, demonstrate Clark was working preserve what she believed were DRS’s two priorities concerning the statutory language – to maintain DRS’s ability to litigate certain tax cases, and to maintain the position of First Assistant Commissioner,” Gianquinto wrote. “Moreover, her draft language had no impact at all on the agency or the State, and could not have had any impact on the agency or the State as there were months left in the legislative process during which all bills affecting the agency are circulated and vetted throughout the agency.”
Clark disputes that she was trying to essentially take Bucari’s position under the purview of the AG’s office and called the allegation lodged by Biello, “wholly unsupported,” because there was no knowing whether the draft language would ultimately be passed and there was no evidence Attorney General Tong would have hired her for such a high-level job.
“It strains credulity to think that Clark would risk her position and tenure in State service on a scheme destined to fail at so many turns,” Gianquinto wrote. “Biello – who made the decision to dismiss Clark – admitted that this motive theory was his own personal belief, not included in the investigator’s report.”
Furthermore, Gianquinto argued Clark’s termination after an otherwise stellar overall career was not warranted and not the appropriate level of discipline. DRS had meted out much less severe punishment for other offenses, including an employee who threatened to get a gun and kill someone who was given a written reprimand, and an employee who assaulted a subordinate’s ex-wife and was permitted to voluntarily resign despite it being his third disciplinary offense that year.
Similarly, Gianquinto contended Clark was never warned that failure to bring the changes to Biello would result in termination. Clark said she had not previously been required to review legislative changes with former commissioner Jackson.
“It is clear that Clark did not receive equal treatment from DRS,” Gianquinto wrote. “Clark received discipline that was considerably stronger than other employees, other managers, and indeed other managers and employees involved in the situation that was the stated cause for Clark’s termination. There is no distinction that justifies such disparate treatment. Dismissals are simply not common at DRS.”
ERB concluded that the “misconduct in this case was egregious” and “Therefore, progressive discipline is not a factor.”
Courts have overturned terminations of state employees in the past, although often it involves union members protected by labor contracts and arbitration agreements. In a highly publicized case, a UConn Health employee fired for smoking marijuana on the job in 2012 was reappointed to his job following a State Supreme Court decision. More recently, a Connecticut court reinstated an assistant UConn professor who said he was terminated as retaliation for raising funding concerns. Luke Weinstein, who was fired in 2011, was awarded nearly $1 million.
Clark, who attained “permanent” status as an employee, is not part of a collective bargaining group. She is representing herself in the case and alleging the ERB ignored numerous factors when finding “just cause” for her dismissal, including fair notice, prior enforcement, due process, equal treatment and substantial evidence.
Biello is now deputy commissioner of the DRS following Lamont’s appointment of Mark Boughton to the commissioner’s position.
