Prosecuting for Criminal Intent for Certification and Training Programs

1. Prosecuting for Criminal Intent for Certification and Training Programs Dale Burnett Executive Director Texas Structural Pest Control Board Frank Crull General Counsel Texas Structural Pest Control Board &

2. Goals of Enforcement • Compliance • How serious are the violations? • How long will it take to fix them? • Expectation of cooperative and timely return to compliance?

3. Prevention • Level Playing Field • Punishment • Administrative and civil penalties designed to provide deterrence. • Criminal penalties are designed for punishment. • Can lead to imprisonment and/or large monetary penalties, therefore screen.

4. The Why & How to Catch Them • Speed • Is it cheaper to pace someone or use a radar gun? • Conversely, is it cheaper to use a radar jammer or obey the speed limit?

5. Why do criminal enforcement for a C&T Program? • Career criminals pass through e.g., steal oil field equipment steal art steal cars Why not steal in the “green” business? e.g., Banks in the 70’s & 80’s Computers in the 90’s Environmental in the 90’s Accounting/Stock Market in the 00’s

6. Elements of Environmental Crimes • Environmental crimes have economic elements. • Unfair competition • Impact on property belonging to others. • Consumer fraud

7. The Violation • You have an Enforcement program to backup your licensing program. • Your agency and/or EPA takes action against someone for doing something wrong. This is driven by statute. • Some people obey because there is a law, some people obey because of enforcement efforts, and some people don’t obey at all.

8. Enforcement Process • An agency’s initial action is geared to severity of the initial violations. • Enforcement should escalate for continued or repeated noncompliance by the violator. • Selection of civil or criminal process depends on the case and your resources.

9. The Typical C&T Violations • Person goes from being found to be unlicensed, gets licensed and then gets unlicensed because licensing is too much of a hassle. • Person get licensed, but continues to operate outside of approved categories.

10. WHO?Resources • Personnel – different disciplines - Task Force agencies • Document review • Search warrant assistance • Surveillance assistance • Equipment • Contractors • Laboratories • Criminal history access • Case referrals • Communication • Training • Umbrella

11. Who’s Been Caught in Texas? • David Grand – former licensee, sold services without providing a result or product. • Asa Everitt – probation revoked on related criminal offenses. Former licensee who kept trying to renew license with false information.

12. Criminal Forum Consequences • Usually “owner or operator.” • Owners can be corporations. • Operators are officers or staff.

13. No Corporate Shield • Most officers are used to immunity. • Operators are strictly liable. • Who is an operator? • Regulatory definitions • Caselaw

14. Elements of a Crime • The Actus Reus: What did the violator do? • Acts that the violator did. • Acts that the violator failed to do.

15. The Mens Rea: What was the violator thinking? • Unintentional or accidental: not a crime • Negligent: may be a crime, look to statute. • Willful • Intentional

16. Preponderance of Evidence More likely than not Beyond a reasonable doubt (not beyond all doubt) 51/49 in theory 80-90% in reality 99% ? 99.9%? 100%? Knowledge, intent, willfullness Not a legal necessity Knowledge, intent, willfullness can be/are key $ & Freedoms & debarment $ & Licenses and injunctive relief • Entry: • Investigations: • Outside of “target sites” • Permission • Search warrants with judged approved • scope • Entry: • Inspections: • Within regulatory bounds • - Permission Civil Criminal

17. Parallel Proceedings • Combination of civil/administrative and criminal actions. • Objectives that require injunctive relief as well as punishment. • May have injunctive relief against corporation and incarceration for individuals. • Corporation may lose government contracts for a criminal conviction. • Arthur Anderson/Enron • Bethlehem Steel

18. Rules for Parallel Proceedings • Do what you would normally do for the civil case. • Do not let the civil case be directed by criminal investigators or prosecutors. • “Do your normal job.” • Information can be shared between criminal investigators and inspectors. • Recordsfor the civil and criminal cases should be kept separately.

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20. Southern Environmental Enforcement Network504 Brookwood Boulevard, Suite 130Birmingham, AL 35209Phone: 205-414-9970 Fax: 205-414-9973 • http://www.regionalassociations.org • Executive Director:Geary Allengallen/SEEN@clainc.net • Information Management Specialist:Karen Gourleykgourley/SEEN@clainc.net