§ 5602. Investigations and subpoenas

(a) The Commissioner may:

(1) conduct public or private investigations within or outside this State that the Commissioner considers necessary or appropriate to determine whether a person has violated, is violating, or is about to violate this chapter or a rule adopted or an order issued under this chapter, or to aid in the enforcement of this chapter or in the adoption of rules and forms under this chapter;

(2) require or permit a person to testify, file a statement, or produce a record, under oath or otherwise as the Commissioner determines, as to all the facts and circumstances concerning a matter to be investigated or about which an action or proceeding is to be instituted; and

(3) publish a record concerning an action, a proceeding, or an investigation under, or a violation of, this chapter or a rule adopted or an order issued under this chapter if the Commissioner determines it is necessary or appropriate in the public interest and for the protection of investors.

(b) For the purpose of an investigation under this chapter, the Commissioner or his or her designated officer may administer oaths and affirmations, subpoena witnesses, seek compulsion of attendance, take evidence, require the filing of statements, and require the production of any records that the Commissioner considers relevant or material to the investigation. Each witness who appears before the Commissioner under subpoena shall receive a fee and mileage as provided for witnesses in civil cases in Superior Courts; provided, however, any person subject to regulation under this title shall not be eligible to receive fees or mileage under this section.

(c) If a person does not appear or refuses to testify, file a statement, produce records, or otherwise does not obey a subpoena as required by the Commissioner under this chapter, the Commissioner may, at the Commissioner’s discretion, assess a penalty pursuant to the provisions of 8 V.S.A. § 13(b), or may apply to the Superior Court of Washington County or a court of another state to enforce compliance. The court may:

(1) hold the person in contempt;

(2) order the person to appear before the Commissioner;

(3) order the person to testify about the matter under investigation or in question;

(4) order the production of records;

(5) grant injunctive relief, including restricting or prohibiting the offer or sale of securities or the providing of investment advice;

(6) impose a civil penalty of not less than $5,000.00 and not greater than $25,000.00 for each violation; and

(7) grant any other necessary or appropriate relief.

(d) This section does not preclude a person from applying to the Superior Court of Washington County or a court of another state for relief from a request to appear, testify, file a statement, produce records, or obey a subpoena.

(e) An individual is not excused from attending, testifying, filing a statement, producing a record or other evidence, or obeying a subpoena of the Commissioner under this chapter or in an action or proceeding instituted by the Commissioner under this chapter on the ground that the required testimony, statement, record, or other evidence, directly or indirectly, may tend to incriminate the individual or subject the individual to a criminal fine, penalty, or forfeiture. If the individual refuses to testify, file a statement, or produce a record or other evidence on the basis of the individual’s privilege against self-incrimination, the Commissioner, subject to subsection (f) of this section, may apply to the Washington County Superior Court to compel the testimony, the filing of the statement, the production of the record, or the giving of other evidence. The testimony, record, or other evidence compelled under such an order may not be used, directly or indirectly, against the individual in a criminal case, except in a prosecution for perjury or contempt or otherwise failing to comply with the order.

(f) Unless presented by an emergency or exigent circumstances, the Commissioner shall give notice to the Attorney General and U.S. Attorney not less than five business days before applying to the Washington County Superior Court to compel the testimony, the filing of the statement, the production of the record, or the giving of other evidence under subsection (e) of this section. In the case of an emergency or exigent circumstances, the Commissioner shall notify the Attorney General and U.S. Attorney as soon as possible before applying to the Washington County Superior Court.

(g) At the request of the securities regulator of another state or a foreign jurisdiction, the Commissioner may provide assistance if the requesting regulator states that it is conducting an investigation to determine whether a person has violated, is violating, or is about to violate a law or rule of the other state or foreign jurisdiction relating to securities matters that the requesting regulator administers or enforces. The Commissioner may provide the assistance by using the authority to investigate and the powers conferred by this section as the Commissioner determines is necessary or appropriate. The assistance may be provided without regard to whether the conduct described in the request would also constitute a violation of this chapter or other law of this State if occurring in this State. In deciding whether to provide the assistance, the Commissioner may consider whether the requesting regulator is permitted and has agreed to provide assistance reciprocally within its state or foreign jurisdiction to the Commissioner when requested, whether compliance with the request would violate or prejudice the public policy of this State, and the availability of resources and employees of the Commissioner to carry out the request for assistance. (Added 2005, No. 11, § 1, eff. July 1, 2006; amended 2013, No. 29, § 20, eff. May 13, 2013; 2017, No. 11, § 11.)