The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

CEPI Newsletter August 2019

This monthly compendium of news reports about corruption and ethics issues is brought to you by the Center for Ethics and Public Integrity (CEPI). Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute express a view as to the accuracy of news accounts or affirm any position taken by the authors of the hyperlinked articles.

Corruption

State

Public Corruption Tough to Prove Without Smoking Gun: An article that profiles some investigations and cases brought by the Arizona Attorney General’s Office notes how difficult public corruption cases can be for prosecutors to prove. The piece also observes that failures of officials to live up to their responsibilities or to voters’ expectations are not necessarily crimes and that enforcement can be stymied if the legislature does not include penalties in statutes.

‘Drag This Out as Long as Possible’: Former Official Faces Rare Criminal Charges Under Open-Records Law: Jenna Garland, the former press secretary for former Atlanta mayor Kasim Reed, is facing criminal charges for allegedly failing to comply with Georgia’s open records laws. The Georgia Attorney General’s Office brought the case, which includes text messages from Garland to a subordinate she instructed to “drag this out as long as possible” and “provide information in the most confusing format available.” In other texts, she advised another person to be “as unhelpful as possible” in responding to requests for information. The city previously hired a law firm—one that represented the mayor personally in other matters and had also been previously retained by the city to advise it on open records issues—that delivered a presentation to the Georgia Bureau of Investigation arguing that no open records laws had been broken. That presentation, which was contained in a 24-page PowerPoint, cost the city $57,000.

‘Dream for Fans of Corruption’: Greitens Confide Ruling Vexes Transparency Advocates: A decision by a state judge in Missouri ruled that messages sent through the Confide app by former governor Eric Greitens were not subject to open records laws because they automatically self-destructed when they were sent. A special prosecutor has been appointed to investigate potential witness tampering associated with the investigation of Greitens—which resulted in charges that were later dropped—and an investigator working with a prosecutor who charged Greitens has been charged himself with perjury.

Suspended Judge Theresa Brennan Ordered to Stand Trial on 3 Felony Charges, Including Perjury: Now-former Livingston County, Michigan judge Theresa Brennan will stand trial on charges of perjury, tampering with evidence, and common law offenses. The case, which was brought by the Michigan Attorney General’s Office, includes allegations that she lied during her own divorce cases and tampered with evidence. The Michigan Supreme Court removed her from office and suspended her from the bench for six year for similar issues.

Correctional Officer Found Guilty of Smuggling Drugs, Tobacco into State Prison: The New Jersey Attorney General’s Office has convicted Stephen B. Saunders, a correctional officer, of smuggling contraband into the state prison where he worked. Prosecutors proved that, for over a year, Saunders brought tobacco, marijuana, and prescription painkillers into the prison. Two co-conspirators—including one already serving a sentence for narcotics crimes—were previously convicted. This conviction follows the June 2019 sentencing of David Cade—another correctional officer who smuggled painkillers into the prison where he worked who was also charged by the New Jersey Attorney General’s Office—to three years in prison. Cade was also required to forfeit his position with the state and is banned from public employment in New Jersey.

Mt. Vernon Has 2 Mayors, and Its Police Commissioner Was Just Arrested: Mount Vernon, New York, now has two mayors: Richard Thomas, who was recently convicted by the New York Attorney General’s Office of stealing more than $12,000 from his campaign committee, and Andre Wallace, who was appointed by the city council upon Thomas’ conviction. This two-mayor town has faced seemingly-unique challenges: A man appointed by Wallace to be police commissioner, Shawn Harris, was arrested on suspicion of trespassing by law enforcement officers acting with the approval of Thomas. The city’s corporation counsel supports Thomas—but has himself been charged with directing $365,000 from the Mount Vernon Board of Water Supply to pay Thomas’s legal bills and hire a public relations firm. The question of who is the actual mayor is being litigated in a county courtroom.

Chaos Erupts in Cincinnati Courtroom After Former Judge is Sentenced for Mishandling Document: Former Hamilton County Juvenile Court Judge Tracie Hunter, who was convicted in Ohio of mishandling a confidential document, was sentenced to six months in jail. Hunter used her position to provide confidential documents to her brother, an employee of the juvenile court. The sentencing was delayed for five years while Hunter appealed the case and sought post-conviction relief in federal court.

Federal

Former DOJ Tax Lawyer Turned Lobbyist Pleads Guilty to Leaving $2.2 Million Off Tax Returns: A former U.S. Department of Justice tax lawyer has pled guilty to lying on his own tax returns. James F. Miller, who is now a tax policy lobbyist, admitted that he left $2.2 million off his tax returns over a five year period.

Resources

Where Should U.S. State Governments Put Their Anticorruption Agencies?: At the Global Anticorruption Blog, a law student cites the 50-state survey by the Center for the Advancement of Public Integrity at Columbia Law School as concluding that state attorneys general “are best-equipped to house specialized anticorruption units” because they will be less likely to suffer from conflicts of interest, more likely to have sufficient resources, and better able to coordinate with other law enforcement agencies.

The Stream of Benefits Theory of Bribery Doesn’t Criminalize Ordinary Politics: A piece at the Global Anticorruption Blog analyzes the “stream of benefits” theory—that is, a form of “quid pro quo” where there are ongoing, sometimes unspecified quids for ongoing, sometimes unspecified, quos—and concludes that it should survive McDonnell.

Advisory on the Financial Action Task Force-Identified Jurisdictions with Anti-Money Laundering and Combating the Financing of Terrorism Deficiencies and Relevant Actions by the United States Government: The Financial Action Task Force has issued an advisory to inform financial institutions about updates to its list of jurisdictions with strategic anti-money laundering/combatting the financing of terrorism (AML/CFT) deficiencies, including North Korea and Iran. Other countries that are in the process of improving their AML/CFT compliance include The Bahamas, Botswana, Cambodia, Ethiopia, Ghana, Pakistan, Panama, Sri Lanka, Syria, Trinidad and Tobago, Tunisia, and Yemen.

Ethics

Lobbying on Beneficial Ownership Soars as Banks Step Up in Force: Companies and advocacy groups in the banking industry are increasing efforts to lobby about beneficial ownership reporting.

Do Modern Codes of Conduct Help Cause and Conceal Unethical Behavior?: The Foreign Corrupt Practices Act Blog summarizes the result of a survey of codes of conduct in Fortune 1000 companies.

Sheriff's Chief Says She Quit Over 'Highly Unethical' Demand to Rehire Deputy Fired for Abuse: A former Los Angeles County Sheriff’s Department official quit rather than carry out what she characterized as a “highly unethical" and "unheard of" directive from the sheriff to reinstate a fired deputy and alter his disciplinary record. The fired deputy had been removed in 2016 for engaging in domestic violence and for lying about it.

“Lawful Investigative Activities” and Rule 8.4(c): Colorado Assistant Attorney General Joseph Michaels explains the new Colorado Rule of Professional Conduct 8.4(c), summarizing it as conveying “that a lawyer acts ethically by advising, directing, or supervising— but not personally participating in—otherwise authorized lawful investigations.” The amendments to the Rule came in the aftermath of a complaint covered in the NAGTRI Journal in September 2017.

Federal Prosecutor in D.C. Made ‘Misrepresentations’ to Judge, is Referred for Internal Investigation, Court Records Say: An assistant U.S. attorney in DC apparently falsely blamed a nonexistent backlog at the local crime laboratory for delays that led to the dismissal of charges in a narcotics and gun case. As the U.S. Attorney notified the court, the assistant U.S. attorney has been referred to the Office of Professional Responsibility. The crime lab director stated that the lab will no longer work with that prosecutor.

The Ailing NFL Players and the Lawyer They Say Swindled Them: Several former NFL players have alleged that a law firm in Florida took advantage of them by providing them with fraudulent loans from a hedge fund the firm controlled while promising them they would receive large settlements from the NFL for football-related brain injuries.

Iowa 1 of 3 States Praised for Strict 'Revolving-Door' Laws Prohibiting Lawmakers from Lobbying: Iowa, North Dakota, and Maryland have been praised by Public Citizen as having policies that make it more difficult for public officials to quickly become lobbyists after they leave the government. Iowa’s rules were passed in response to an investment scheme scandal in the 1990s.

Memphis Attorney Censured for Not Turning in Teen Son Indicted for Murder: A Memphis attorney was censured by the Tennessee Board of Professional Responsibility for not contacting law enforcement when her son—who was wanted for first-degree murder—was at her home. She previously pled guilty to a misdemeanor charge of criminal attempt for refusing to give information to police.

Daily Dicta: ‘Flippant, Evasive, Ridiculous’: Court Blasts Sullivan & Cromwell and Its Client for Deposition Conduct: The Delaware Supreme Court harshly criticized a New York law firm partner for his client’s “flippant, evasive, and ridiculous” conduct during a deposition, concluding that the partner “made no apparent effort to curb” his client’s misconduct. The decision contains sections of direct quotes from the deposition transcript, which are worth reading. The decision also includes a suggestion that it be used to train new lawyers on deposition skills, and a reminder that “[l]awyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client persists in such conduct.”

Chipotle Worker Who Sued Under Dead DOL Rule Won’t Face Contempt: In a case that touches on the limits of “nationwide” injunctions, the Fifth Circuit has reversed a Texas district court’s contempt finding. In November 2016, the district court enjoined a Department of Labor (“DOL”)-proposed Fair Labor Standards Act Overtime Rule, and enjoined the DOL from implementing and enforcing that rule. Seven months later, a restaurant worker in New Jersey sued her former employer, Chipotle, in the District of New Jersey, arguing she was entitled to overtime pay under the Overtime Rule the Texas judge had enjoined. After filing its answer in New Jersey, Chipotle asked the Texas district judge to hold the former employee and her attorneys—who had absolutely nothing to do with the Texas action—in contempt. The court did as Chipotle asked, and also assessed attorneys’ fees in favor of Chipotle. In reversing the contempt order and the attorneys’ fees award, the court of appeals concluded that the restaurant worker and her attorneys were not in privity with the DOL.

International

Practice Alert: Mexico Expands Asset Forfeiture to Anticorruption Enforcement: Mexico is in the process of enacting statutes that will allow prosecutors to forfeit illegally acquired assets, particularly from corrupt activities. (In the U.S., however, several states have recently abolished or made it more difficult for prosecutors to use civil asset forfeiture.)


Amie Ely is the Director of the Center for Ethics & Public Integrity and the Editor of the CEPI Newsletter and may be reached at 202-326-6041. The CEPI Newsletter is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail aely@naag.org.

Faculty Spotlight

NAGTRI's faculty are top-rated experts in their field. Read about them.

Course Schedule

NAGTRI offers high-quality, responsive and innovative trainings.

Research & Newsletters

NAGTRI produces comprehensive research and newsletters on topical legal issues.